Notes on Policy and Legal Issues Concerning “Intelligent Design Theory”
by Doug Linder (2001)

Assume for a moment that you are a member of a local school board.   At a board meeting one night, a parent stands and identifies himself as a spokesperson for a group of upset parents.  They understand from their children that geography teachers in the district are teaching students that the earth is spherical—and are not giving the students any evidence at all for the contradictory theory that the earth is flat.  The parents demand to know what you and other school board members are going to do about this dogmatic approach that is being taken to the question of the earth’s shape.

What should be the board’s response?  Insist upon equal time for the flat earth theory?  Drop the controversial subject of the earth’s shape from the geography curriculum?  Or option C: Should the board tell the parents, “While you have every right to believe the Earth is flat and even tell your children that the earth is a big blue and green pancake, we have a job to do—and that is provide children with a view of reality that comports with our best scientific understanding”?  I think—in this example, at least—we all know the right answer.

In this wonderfully diverse country of ours, it comes as no surprise that there is an outfit called the Flat Earth Society dedicated to making, in the words of its president, the United States “a flat earth nation.”  (The president of the Flat Earth Society, until his death two months ago, was--some of you might find some irony in this—a man named Johnson from California.  In this case the Johnson is Charles Johnson, not the Prof Phillip Johnson of Berkeley who has made Intelligent Design his crusade.)  Charles Johnson was interviewed in Science Magazine in the 1980s—at a time when the Space Shuttle was making headlines.  You might have thought that the space program would have created self-doubt among the flat-earthers, but no: Johnson was quoted as saying, “You can’t orbit the earth.  The Space Shuttle is a joke—a very ludicrous joke.”  As for the moonlanding, Johnson said he had information that the whole thing was scripted by Arthur C. Clarke and filmed in Hollywood.  Flat earthers point to the Bible for their faith in the world’s flatness.  Johnson noted in his Science Magazine interview that the New Testament says Jesus ascended up into heaven—not out into heaven.  The Bible also refers to “the four corners of the earth” and tells of Jesus being taken to a mountain where he could see all the kingdoms of the earth—something clearly not possible on a spherical earth.  Johnson says, “Wherever you find people with a reservoir of common sense, they don’t believe such idiotic things as the earth spinning around the sun.  Reasonable, intelligent people have always recognized that the earth is flat.”  The Society, in case you weren’t told about this in your school, also has scientific evidence to support their flat earth theory.  They have checked water surfaces on Lake Tahoe and the Salton Sea without detecting any of the curvature you’d expect if the earth were really spherical.

Let’s return to our school board hypothetical.  Would your view of what to do be any different if the parents’ complaints concerned teaching that the earth revolved around the sun, rather than what was to their way of thinking the correct view, that the sun revolves around the earth?  After all, the parents point our, the Bible clearly suggests an earth-centered system: Joshua 10 tells of the sun standing still in the midst of the sky.  In 2 Kings, God brings the sun ten degrees backward in the sky.  And Ecclesiates tells of the sun going down and hastening to the place where it arises.

This, of course, was once a big-time controversy.  Friar Giordano Bruno was burned at the stake in 1600 for suggesting that the earth traveled around the sun, rather than the other way around.  The same belief, published by Galileo, led to his conviction and arrest in 1631.   Not until the time of Pope Leo XIII in the late 1800s did the Catholic Church back off its earth-centered view.

What should the school board do here?  Same answer, right?—tell the parents that they have a constitutional right to believe whatever they want about the configuration of the solar system, but the board has a duty to recognize the scientific consensus in favor of the Copernicun system.

Next example: Creationism.  Parents show up and demand that biology teachers present evidence that supports their view that Genesis, not Darwin, got it right when it comes to explaining the variety of life on earth.  It all happened in six days about 6,000 or so years ago.  The earth was created first, then a few days later, God got around to installing the sun and a few thousand stars. Anything that suggests a contrary view—like radiometric dating or radio telescopes--is a hoax or somehow flawed.

Should the Board respond any differently?  Is there significant support for a young-earth view among scientists?  The only thing that makes this situation different from our flat earth and earth-centered solar system examples is that there really are (difficult though it may be to understand) substantial numbers of Americans who cling to this young-earth, Creationist view.  To tell our students that there is serious scientific doubt about the age of the earth is to mislead them.  There isn’t.  And to spend class time discussing a young-earth view would be fully as preposterous as would wasting time presenting evidence that Neil Armstrong took his “giant leap for mankind” in a movie studio in southern California.

As a school board member, you’d have another reason not to accede to the parents demand that Creationism be given equal time with Evolution in the school’s curriculum: The United States Supreme Court has ruled, in a 1987 case called Edwards v Aguillard, that such so-called “Balanced Treatment” laws constitute an unconstitutional establishment of religion.  The Court found that the only justification for requiring discussion of Creationism whenever evolution is discussed is a religious one—not an academic one.  Creationism, the Court concluded, was a religious theory, not a scientific one.

Which brings us to the theory that has brought us here today.  Once again you are working your way through a school board agenda when a group of parents rise to complain about the way biology classes are being taught in the district.  They’ve learned in their churches, read books, visited websites, and seen videos that suggest biology teachers aren’t telling it like it is—they’re covering up evidence that suggests species don’t evolve into other species.  They’ve learned, on the other hand, that scientific evidence shows that species do not evolve into other species: that species are separate and distinct and have all been put here as part of an intelligent design.  They demand that you do something to insure this cover-up comes to an end.  They want the school board to compel teachers to present scientific evidence that undermines Darwin’s theory of evolution.  They want teachers, for example, to present evidence that some biological features are too complex to have evolved, and that the fossil record has failed to produce enough “missing links” to make the case for macro-evolution.

What do you do?  Is this the Creationism controversy all over again?  Is Intelligent Design (to use a KU biology professor’s description) just “Creationism in a cheap tuxedo,” or is it something genuinely different?

This is where it gets hard.  And I want to be as fair as I can to those who believe in intelligent design.  I have friends who believe in intelligent design.  Our next-door neighbors—very nice people—believe in intelligent design.  If by “intelligent design,” its proponents only meant that some intelligent designer (whether it be God, space aliens, or a giant slug) is using evolution to accomplish some intelligent purpose (one in which we humans might be major players), we wouldn’t be here.  This evolution-is-part-of-God’s-plan view is, essentially, the view of the Catholic Church, most Jews, and most mainline Protestant denominations.  There is no necessary conflict between a belief in evolution and a belief that God is real and working in the world.  The theory of evolution says nothing at all about the existence or non-existence of a benevolent, intelligent designer. Evolution doesn’t require an intelligent creator, but it doesn’t exclude the possibility either.  The theory of evolution simply provides a powerful scientific explanation for the variety of life on earth.  It is the core concept of biology.  It is not a disproof of religion.

Moreover, let me say this:  If a school board were to compel its teachers to tell students that “evolution proves that there is no God; that everything is explained solely in terms of chemicals and natural processes,” that school board would be violating the First Amendment.  To dogmatically teach Atheism in the public schools would be just as unconstitutional as teaching Fundamentalism.  Science teachers should teach science.

The problem today arises because the proponents of Intelligent Design are not content with the weak view that accepts evolution.  Instead, they argue that the evidence suggests individual species were individually and intelligently designed.  Humans and the great apes, for example, did not have a common ancestor some 6 million years ago.  The fact that humans and chimps share over 98% of the same genetic material proves little.  The “missing links”—the early hominids that keep inconveniently popping up in Africa—all must be new and separate species.  It’s just a coincidence that the most mammal-like of all reptile fossils appear just before the most reptile-like of all mammal fossils. The fact that no tenured biology professor (as opposed to law professors, hydrologists, or even a handful of biochemists) at any of the top-ranked universities shares their conviction in the folly of evolution shows only how widespread the Darwinian conspiracy is.

Public schools shouldn’t teach Intelligent Design for the very same reason that they shouldn’t teach flat-earth or Creationist theory.  Because it is nonsense.  We do our students a disservice by suggesting to them that there is a raging controversy among the world’s most prominent biologists about the basic explanatory force of evolution.  There isn’t any such controversy.  We know—just as surely as we know that the earth revolves around the sun—that evolution has spawned earth’s wonderful diversity.  We have an obligation to tell our students the truth, not whatever a group of well-meaning but misguided intelligent design theorists think we should tell them.

Design theory is not science—at least not as we usually think about it.  Scientists assume that the physical world operates through unbroken natural regularity.  Every scientist who conducts an experiment assumes that neither God, nor the Devil, nor any other supernatural being will affect the results.

There is certainly nothing wrong with a teacher observing that not everything about evolution has been scientifically established, or pointing out that there are disputes between those who believe evolution has proceed gradually and those who believe it has operated more punctually, but that’s a far cry from teaching against evolution and in favor of Design Theory.

I’m a law professor.  I’m supposed to tell you about the law as it relates to this controversy.  I wish I could tell you that the Constitution is clear about this.  I’d like to be able to say, “There’s no reason for any of us to worry about the Intelligent Design threat—the Supreme Court will step in and save the day if it has to.”  I can’t tell you that.  The law is not clear.

The Constitution may prevent states and individual school boards and teachers from promoting religion in the classrooms, but it doesn’t prevent states or school boards or teachers from doing stupid things.  If an ignorant bunch of legislators became convinced the earth was flat—simply from their own observations and not because of Biblical Fundamentalism—and required flat earth theory to be taught in the schools, there’s not a lot the Constitution can do about that.  In retrospect, it was stupid for medical schools to teach the use of leeches to deal with various diseases, but that wasn’t unconstitutional either.

The key question under the First Amendment is this: Is the state (or board or teacher) acting out of religious convictions or simply out of their own misguided understanding of science?  If Intelligent Design Theory is introduced into classrooms to promote Christian Fundamentalism, that is unconstitutional.  If it is introduced because legislators, or board members, or individual teachers become convinced (or misled) into believing that there is a serious scientific controversy about evolution that students need to know about, then that is likely to be found to be constitutional.

Finally, what does all this say about the individual teacher who takes it as his or her mission to promote Intelligent Design theory in the classroom?  Does the teacher have a First Amendment right to teach Design Theory?  Is this what academic freedom is all about?  Could a board or principal step in and remove or reassign the teacher to another class?  It’s not a “slamdunk,” as the term is used, but I think the better answer is “yes, they do have the power to remove or reassign such teachers.”  They do for the same reason a geography teacher who insisted upon teaching flat earth theory could be removed: incompetence--failing to present students with the information they need to have to continue with study in the field.  Firing teachers just to suppress a disfavored viewpoint may violate the First Amendment, but states have the power and the duty to ensure competent teaching.

The temptation is for states and school boards to compromise intellectual integrity in order to silence vocal critics.  Besides, “balanced treatment” is in vogue right now.  This works in favor of the Intelligent Design proponents. Every broadcast station or newspaper feels a need to be non-judgmental; to present both sides of every issue.  A flat-earth controversy in Olathe?  Better dig up a spokesperson for the flat earth viewpoint!  Few in the media have the courage to say: “This view is right, and that view is wrong.”

My question—for which I give no answer—is this: Is it better for educators to hit the issue of Intelligent Design head on, or to ignore it and hope that it will go away.  Is it better to expose the so-called “refutations” of evolution?  Is it better to make clear to students what a tiny, tiny minority of professional scientists subscribe to Intelligent Design theory?  By saying nothing about Intelligent Design, do we harm our students who have been duped into thinking that there is a raging controversy going on among prominent biologists?  Do we just teach evolution—or do we teach against the misleading information pouring out of Intelligent Design proponents?

John Adams, our second president, is hot right now.  A biography about him by David McCullough is on top of the bestseller list.  Let me quote John Adams, who said in 1770, as an attorney in the Boston Massacre trial, “Facts are stubborn things.”  Yes, facts are stubborn. They insist on being considered.  In the end, I believe, facts will lead to the downfall of Intelligent Design theory. But that may take awhile.  Remember, it took the Catholic Church over 200 years to remove its ban on the publication of Galileo’s book, Dialogue in Two World Systems.

And when the evolution controversy dies down, the Big Bang and pre-Big Bang controversies will be here to keep us entertained.  In so many ways, it seems, science is undermining our pleasant beliefs about the specialness of our species and our place in the universe.  It takes both courage and imagination for religious people to reconcile the facts of science with a God-centered view of the world.  But it can be done.