Get Out of Evolution Free?

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The current issue of Nexus: A Journal of Opinion* features a deeply flawed student article by Crystal V. Hodgson, Coercion in The Classroom: The Inherent Tension between The Free Exercise and Establishment Clauses in The Context of Evolution. Hodgson's analysis is more honest than that of most proponents of creationism; nevertheless, her understanding of the First Amendment partakes of the confusion so common among them.

The most common such confusion is to conflate the analysis of the Free Exercise and Establishment Clauses, and it appears that Hodgson commits this error. But in any case, the result of her flawed understanding is a misleading analysis and incorrect conclusions.

There are numerous minor mistakes throughout the piece. For example, Hodgson claims that America "was founded by deeply religious persons of the Christian faith," a claim which is at least not uncontroversial, and certainly does not apply to people like Thomas Jefferson, James Madison, Benjamin Franklin, Thomas Paine, and other important founders. She refers to Lemon v. Kurtzman, 403 U.S. 602 (1971), as a "recent" case, when it's almost thirty-five years old. She says the Supreme Court has "forbidden the display of religious holiday decorations in public buildings," which is inaccurate: the Court has forbidden displays which send a message of endorsement, but has allowed religious displays which do not send such a message. See Allegheny v. ACLU, 492 U.S. 573, 613-15 (1989). She says that "[b]y removing evolution from public school science agendas, a clear Establishment Clause violation occurs," which is not true--government school officials could, if they wanted, eliminate their entire biology curriculum and not violate either the Establishment or Free Exercise Clauses. Cf. Palmer v. Thompson, 403 U.S. 217 (1971); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973)). What violates the Establishment Clause is altering the biology curriculum, or doing anything else with the purpose of teaching religion to students in government classrooms.

But these and other flaws aside, Hodgson makes two main arguments: first, that the Court should adopt an "accomodationist" view of the First Amendment, and second, that under such a view, the Free Exercise Clause is violated when a government school teaches evolution as the only scientifically valid explanation of the origins of man.

Now, we've already heard the argument that teaching evolution as the only scientifically valid explanation of man's origins violates the Establishment Clause. I've explained the problems with that theory in an earlier post. But that argument has even more plausibility than Hodgson's, since the Establishment Clause is clearly violated by government establishing a religious orthodoxy. If it could be shown that evolution was a religious orthodoxy--which, of course, it cannot, see McLean v. Arkansas Bd. of Ed., 529 F.Supp. 1255, 1274 (D.C.Ark.1982); Pezola v. Capistrano Unified School District, 782 F. Supp. 1412, 1418 (C.D. Ca. 1992)--then there would be a serious argument that evolution education violates the Establishment Clause. But the Free Exercise Clause is different. It is violated when "individuals [are] coerced by the Government's action into violating their religious beliefs," or where "governmental action penalize[s] religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens...."

It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment..... [But t]his does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional text is "prohibit": "For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government."

Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 449-451 (1988) (quoting Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring)). (That Hodgson is confusing the Free Exercise and Establishment Clauses is revealed also by her discussion of the Lemon test, which is applicable only in Establishment cases, and not in Free Exercise cases.)

But let us consider Hodgson's innovative argument that evolution education in government schools violates the Free Exercise Clause. She begins with an argument that the Court ought to embrace the "accomodationist" view of that Clause.

The accomodationist view is the notion that when a generally applicable law, which is unrelated to religious suppression, incidentally burdens a person's religious exercise, the Court ought to require such a law to satisfy "strict scrutiny." To simplify, suppose the government passes a law which has nothing to do with religion--such as a law that says you can't get unemployment compensation if you refuse to take jobs that are offered you. Then along comes a person who refuses to work on Saturday, for religious reasons, and therefore refused to take a good job that requires Saturday work. Is the Free Exercise Clause violated when that person is denied unemployment benefits? The Supreme Court said yes in a case called Sherbert v. Verner, 374 U.S. 398 (1963).

Consider the results of such a premise, though. The government passes a generally applicable law, having nothing to do with religion, and then a person pops up and claims that his religious views require him to violate that law; does the Free Exercise Clause act as a get-out-of-jail-free card? In Employment Div. v. Smith, 494 U.S. 872 (1990), Oregon denied some folks unemployment compensation because they were fired for using illegal drugs. They claimed that they belonged to a Native American religion which required them to ingest the drugs, and therefore that the denial of unemployment compensation violated their Free Exercise rights. The Supreme Court held against them. "[T]he right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263, n. 3 (1982) (Stevens, J., concurring in judgment)).

The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs. . .--permitting him, by virtue of his beliefs, to become a law unto himself,--contradicts both constitutional tradition and common sense.

Id. at 885 (quotation marks and citations omitted). Thus the Smith Court abandoned the accomodationist view (although as if reveling in confusion, the Smith Court explicitly refused to overrule the Sherbert case, see, e.g., id. at 884-885, or other cases, like Wisconsin v. Yoder, 406 U.S. 205 (1972), which were based on the accomodationist view.)

Although some thoughtful conservatives (such as Thomas West) have defended Smith, there are many who believe that the Constitution ought to allow those with religious scruples to escape the requirements of generally applicable laws. Hodgson is among them. She argues that under the accomodationist view, the teaching of evolution in government school classrooms violates the Free Exercise Clause, because students are "taught only one explanation by the scientific ‘experts' (a.k.a. their science teachers) at a time when...they are most susceptible to...undue influence from authority figures." Even under the accomodationist view, though, the Court never held that merely being taught something violates the Free Exercise Clause. That interpretation holds that the Constitution is violated by laws which compel you to do something which your religious views forbid. Hodgson can show no example of a case which held otherwise; the closest she finds is the delightfully named Brown v. Hot, Sexy, and Safer Products, Inc., 68 F.3d 525 (1st Cir. 1995). There, the court held, in a passage Hodgson quotes, that while the Constitution does protect a parent's right to "choos[e] a specific educational program--whether it be religious instruction at a private school or instruction in a foreign language...[w]e do not think...that this freedom encompasses a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children." Id. at 533. I've added that emphasis because Hodgson overlooks it. The point the Court makes here is that while parents may choose to teach their children what they believe is best (within limits), this does not give them a heckler's veto over the content of education at a government school, when the parents exercise their choice by choosing to send a child to a government school. If the parents choose to home school their children, that's a different question.

This is the conclusion a court would reach under an accomodationist interpretation. A student who is taught the fact that evolution is the only legitimate theory of the origin of species is simply not being coerced, as Hodgson herself admits: "public school students are not made to stand and assert belief in the theory of evolution, despite their literal interpretation of Genesis, the Koran, etc. Nor are they forced to live a lifestyle that is wholly contradictory to their religious mandates." Acknowledging that this admission completely undoes her claim of coercion, she reverts to the peer-pressure argument: that students are "taught only one explanation by the scientific ‘experts' (a.k.a. their science teachers) at a time when...they are most susceptible to...undue influence from authority figures." But the peer-pressure argument (also called the "psychological coercion" argument) appertains only to Establishment Clause cases, where the relevant consideration is the message being sent by the government, as opposed to the coercion being effected by the government. The latter consideration is at the heart of Free Exercise cases, so that the question of pressure or influence is far less relevant. See, e.g., Locke v. Davey, 124 S.Ct. 1307, 1311 (2004). Thus, even under an accomodationist view, the Free Exercise Clause is simply not violated by exposing students to evolution education in government schools, because there is no relevant coercion involved.

The answer to Hodgson's question, "does the Constitution not also prohibit anti-religious instruction on the origins of life?" is, no it does not. Nothing in the Constitution--and certainly not the Free Exercise Clause, even under an accomodationist view--prohibits the state from propagating scientific explanations of the origins of life, even when students find such views difficult to square with their religious upbringing.

Now, the Court abandoned the accomodationist view in Smith, partly because the law simply cannot be made to depend on the religious proclivities of a very pluralistic society like our own--the accomodationist view would make the First Amendment into "a private right to ignore generally applicable laws." 494 U.S. at 886. Hodgson doesn't explain how embracing her accomodationist view in the educational context would avoid this problem. She thinks a student's Free Exercise rights prohibit the state from exposing him to facts that are irreconcilable with the religious views of that student and/or his parents. But not even Yoder, a case which Hodgson praises, agreed with that. There, the Court held that "[t]here is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education." 406 U.S. at 213. If a student comes into the classroom with religious reasons for his ignorance or bigotry, he cannot claim his free exercise rights are violated when the teacher exposes him to contrary facts--or even contrary theories or speculations. If a student believes that God made black men intellectually inferior to white men, the state would not violate his First Amendment rights by exposing him to the speeches of Martin Luther King. And if a student believes that God made white and black equal, the state would not violate his First Amendment rights by exposing him to the speeches of Stephen Douglas.

Once one concedes that the state may establish and run a school system, one must also concede that the state does have the Constitutional authority to teach students things that conflict with their religious beliefs. It has the authority to teach them pleasant things and unpleasant things, theories and speculations, poetry and bad economics, the great masterpieces of art and the dumbest educational fads that cross their desks. It even has the authority to teach them some untrue things. The only thing they may not do is establish religion or forbid a student from exercising his religion. Teaching a student scientific facts does none of these things. He may find the facts discomforting, but so long as his parents choose to send him to a government school, he may not claim an exemption from such discomfort.

If I may continue this digression, I believe education ought to cause discomfort. If it doesn't, the teacher is probably doing a bad job. Education accomplishes nothing if it simply reiterates and comforts. The point of education is to confront students' comfortable presuppositions, to teach them how to think for themselves; to teach them the skepticism and the habit of demanding evidence, without which a free society cannot long exist. Jacob Bronowski once said

I once addressed, on a Christmas day many years ago, on behalf of the United Nations, an audience of about two thousand school children in London.... [I]n a moment of abandon I said to them: "This is how the world goes, you are going to have to make it different, you are going to have to stop listening to your parents. If you go on obeying your parents, the world will never be a better place." And at that moment twenty newspaper men representing the European press got up from the front row and rushed for the telephone boxes. And by the time I got home one of the more adventurous correspondents from Geneva had actually phoned my daughter, then aged seven, at school in order to ask whether she was encouraged to disobey her parents at home. But that is what we mean. And indeed, if I may lapse for a moment into my views on sociology, one of the reasons why, on the whole, women have had difficulty so far in making very good scientists is that they are not contrary enough. Happily time will cure all that. Time will produce belligerent, contrary, questioning women as it has produced belligerent, contrary, questioning men.... [I]t is very important to recognize this kind of personality because, of course, it makes the changes in society..... [I]t is people like that who are the catalysts, the stimulators, the creators of change.

Jacob Bronowski, The Origins of Knowledge And Imagination 119-20 (1978). That Bronowski's daughter, Lisa Jardine, has gone on to become a justly famous historian of art and science, and the first female Don at Oxford, serves only to prove him right.

Like Bronowski, the Courts have repeatedly held that the purpose of government education is what Hodgson dismissively refers to as "persuading school age children to...pursu[e] ‘intellectualism' and logical thought," and that this is a legitimate purpose. True, in some cases, students might be "persuad[ed]...to renounce their religion [sic]." But that is not the state's concern one way or the other; if the student believes that his religion is compatible with intellectualism and logical thought, that is just fine; if the student decides it is not, and therefore renounces his religion, that is just fine also; and if the student renounces intellectualism and logical thought, that is fine, also. Government education, however, is based on the premise that the state has the right to require that students be exposed to intellectualism and logical thought. And exposing them to intellectualism and logical thought certainly does serve to inculcate the values that make them good citizens. Hodgson argues that students' free exercise rights are violated by the teaching of evolution because

[p]ublic school children are presently [sic] left with an origins of life instruction comprised solely of the theory of evolution. Many children are from families with religious beliefs that are contrary to the premises of Darwin's theory. Namely, these students believe that a Supreme Being created man and all living creators in a six day period. This belief is obviously irreconcilable to Darwin's theory of macro-evolution in which human's [sic] evolved over thousands [sic] of years.

But the government may legitimately teach that the world is round and orbits the sun, or that blacks and whites are equal, or any number of other facts that might conflict with some student's religious beliefs. Hodgson cannot show that a student's Free Exercise rights are violated by being exposed in the classroom to the facts of life, because a student is simply not being coerced by the law, or forced to forego a constitutional or statutory or natural right by being exposed to such ideas. To once again quote Lyng, "The crucial word in the constitutional text is ‘prohibit': ‘For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.'" 485 U.S. at 449-451.

It might be argued, and with some justice, that there is coercion if students are not free to refuse to attend school. But (to some degree, at least) they are, and this, too, cuts off the coercion that Hodgson needs to make her case. This is why the Brown court's reference to "the public school to which [parents] have chosen to send their children," 68 F.3d at 533, is so important. If parents wish to send their children to a private school, or teach their children at home, they are free to do so. But as the Brown Court put it, once a parent decides to send a student to a government school, the parent has no right "to say to the state, ‘You can't teach my child subjects that are morally offensive to me.'" Id. at 534.

Just as the Court in Smith held that religion cannot create a private right to be exempt from the laws, so, too, a student's religion cannot create a private right to "see no evil, hear no evil" in the government classroom to which his parents have chosen to send him. The Free Exercise Cause is not a get-out-of-jail-free card; neither is it a carte blanche for ignorance.

*--Disclosure: When I was in law school, I served as articles editor for Nexus, and published my own student article, focusing on the Establishment Clause issues surrounding accreditation of creationist graduate schools.

3 TrackBacks

Sandefur Does It Again from Dispatches from the Culture Wars on July 22, 2004 9:09 AM

You have to see his latest fisking, this one of Thomas Krannawitter. Krannawitter takes the social conservative position, that morality trumps liberty, against the libertarian position, that liberty is paramount unless one can show a compelling reason ... Read More

On a related note... from inappropriate response on July 23, 2004 8:13 AM

Apropos of issues discussed in the previous two posts: Timothy Sandefur, who has contributed amicus briefs for the scientists in... Read More

On a related note... from inappropriate response on October 19, 2004 9:15 AM

Apropos of issues discussed in the previous two posts: Timothy Sandefur, who has contributed amicus briefs for the scientists in... Read More

35 Comments

”… Hodgson claims that America “was founded by deeply religious persons of the Christian faith,” a claim which is at least not uncontroversial, and certainly does not apply to people like Thomas Jefferson…”

It’s certainly true that few of the Founding Fathers were bible-thumping fundamentalists, but I think it could be argued that they were all - with few exceptions - religious to some degree. Jefferson had his own version of the bible (noted in the link), and Franklin had his epitaph.

I’m not trying to argue that the Founders were all Southern Baptists. They were careful to separate the spheres of religion and of politics. And they were careful not to relegate religion to the outer darkness (“… or prohibiting the free exercize thereof …”).

One thing is certain, though. None of them were Buddhists, none were Hindu, and none were Muslim.

I’ve looked at the inaugural addresses of all the Presidents to through about Teddy Roosevelt, and again, almost without exception, they all mentioned God, either with thanks for the past, or with hope for the future.

All of which is not to say that we should turn into a religious society (though England, which has a official state religion (and no written Constitution), seems to be holding up pretty well).

Religion and science should go their separate ways - as Galileo quoted a friend of his, “the Bible teaches how to get to heaven, not how the heavens go”.

The Hodgson article doesn’t show up on the online Nexus (I wrote them about that). The issue appears well-balanced - something quite nice to see in an academic journal.

The choice of which evolutionary theory to teach should rest entirely on scientific grounds. Assess the available data, apply Occam and common sense, and go with Darwin and T. H. Huxley (who settled it all, as far as I’m concerned).

If you mean it is not on the Lexis/Nexis or Westlaw databases, that’s correct. In fact, the past couple issues aren’t on. I’ve pestered them about that for over a year now, but they don’t much listen.

I think whether Thomas Jefferson could be counted as a Christian depends heavily on what you believe the meaning of that term to be. He, like other American founding fathers, expressed admiration for the morals of Jesus; on the other hand, he kept a Bible with all the miracle stories cut out and the moral teachings and parables retained. When he ran for president, he was accused of being an atheist by his political enemies; people were told to hide their Bibles if he won because he would come to take them away. He certainly believed in a god - deist would probably be a good label, insofar as simple labels can sum up all the complexity of an individual’s beliefs - but I suspect his views would not be compatible with the creeds of most Christian churches in existence today, even the more liberal ones.

Excellent piece, Mr. Sandefur. Really top-notch. I was especially informed by your careful explanations of the differences and distinctions between free exercise cases and establishment clause cases.

My one quibble is on the founders you list as not Christian. I’m open to persuasion on the issue, but I think it’s probably accurate to call Madison Christian. In fact, he may have been the most devout Christian among the set of truly influential founders, which makes all the more poignant his also being the most staunch advocate of separation of church and state. It’s a topic I hope to take up with a couple of serious Madison scholars in the next few weeks.

Questions about whether the Founding Parents were Christian, what does that term really mean, how “Christian” were they, etc., always bewilder me.

I’m glad they weren’t, but if they had all been fundamentalists, that should have no bearing on what the country can or should do in the 21st century.

Before expounding the “perfection” of the founding fathers, one should remember that many were slaveowners.

Although I don’t intend to get pulled into a discussion of the religious proclivities of the founders, I will say that I disagree strongly with Mr. Darrell; I believe that Madison was actually the furthest from a Christian of any of the founders. And of course, the issue of being a slaveowner or not is irrelevant to an absurd degree.

See, this is why the federal government should get out of the education business anyway.

Although I don’t intend to get pulled into a discussion of the religious proclivities of the founders, I will say that I disagree strongly with Mr. Darrell; I believe that Madison was actually the furthest from a Christian of any of the founders. And of course, the issue of being a slaveowner or not is irrelevant to an absurd degree.

Well, she seems to rely on Yoder. You know you’re in trouble when you have to rely on that one for your argument.

With regard to Mr. Peterson’s post, Mrs. Hodgson is not discussing federal involvement with education, but state education systems, which must comply with the First Amendment because it is incorporated to states through the Fourteenth Amendment. The Fourteenth Amendment prohibits states from depriving us of liberty without due process (among other things), and the theory is that when a state deprives you of your right to free exercise, or establishes religion, that is a violation of your due process rights under the Fourteenth Amendment.

Re. Mr. McFaul’s post–well, it’s an interesting problem. I rather like Yoder, although I do see some problems with it. But I don’t understand how it could possibly stand after Smith, the Court’s protests to the contrary notwithstanding. What’s your beef with Yoder?

Mr. Peterson:

Even if the Federal Government were to get out of the education business, state and local governments would remain deeply involved. Indeed, most state constitutions require that a free public education be provided to all. So, the issue so ably discussed by Mr. Sandefur will remain current, at least until libertarian nirvana is attained, and there are no public schools.

One thing is certain, though. None of them were Buddhists, none were Hindu, and none were Muslim.

What a bizarre non-sequitur.

All that matters is that the framers did NOT write in the Constitution that the United States is a Christian nation.

The sooner we amend the Constitution to clarify that the United States is first and foremost a secular nation, the better. I long for that day. And until that day comes, I will do everything in my power to prevent federal subsidization of religions, particularly religious indoctrination and brainwashing (sometimes referred to as religious “education.”)

Perhaps I should add that I do look forward to the “libertarian nirvana” when the state is no longer in the business of operating schools. It has no legitimate role in such business, does an extremely poor–indeed, counterproductive–job of it, and causes so many inescapable First Amendment paradoxes in doing so, that I very much hope to see the day when state and education are separated in the same way and for the same reasons as the separation of church and state.

Again?

1. The federal government isn’t in the education business, in any really meaningful way, in primary and secondary education. We have a few more than 15,000 local school districts, each governed by a locally elected board (or board appointed by local electees). Each determines curriculum for itself, sometimes with state guidance. The federal government doesn’t do curricula, partly out of tradition, and partly out of the several laws that absolutely forbid it. Federal money to primary and secondary education has been steadily sinking, and with the latest Bush cuts in education, funding will probably go below 6% nationally.

2. While there are no readily identifiable Hindus among those we generally call our founders, Madison and Jefferson especially were cognizant of those faiths and specifically wrote provisions to allow the free exercise of those faiths under U.S. jurisdiction. This may be direclty demonstrated by Jefferson’s remarks explaining why a reference to Jesus was kept out of the Virginia Statute on Religious Freedom:

Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word “Jesus Christ,” so that it should read, “a departure from the plan of Jesus Christ, the holy author of our religion;” the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and the Mahometan, the Hindoo, and the Infidel of every denomination.

(See Life and Selected Writings of Thomas Jefferson, (Modern Library, p. 46))

3. Compared to Franklin, who professed never to have studied Christianity seriously, nor to have been baptized, nor to have studied scriptures, Madison was extremely devout. Ketcham’s biography says Madison was less devout than I have presented him, but still Christian in belief and “world view” (an odd, ill-defined and generally ill-used phrase). All of Madison’s tutors up to college were Christian clergy, and he attended Princeton to study under Witherspoon. Staying on after graduation to get an education for a career in clergy, Madison was persuaded by the Rev. Witherspoon instead to a career in public service. Madison conducted family devotions and used a well-worn prayer book to do so, at least up to the Revolutionary War.

Eh, no matter. Sandefur is still wonderful explaining why science stays in the classroom.

Using the terms “government schools” and “government classrooms” is a capitulation to the right-wing language-twisters who have sought to banish the words “public school”. These are the same folks who use “death tax” for “estate tax” and otherwise adopt the most loaded terminology they can get their hands on. It’s okay to refer to “public” schools since they are part of the public trust. In a representative democracy, we are the public.

Regarding Madison, I still disagree that Madison was devout. He certainly was during an early stage of his life, up to and including the Revolution, and yes, he was taught by John Witherspoon, one of the greatest of Christian libertarians. By the time of, say, his presidency, however, I think Madison had much retreated from these previous opinions. Note, for example, his famous letter regarding education, in which he urges the content of an education as including “Reading, Writing, & Arithmetic…some knowledge of Geography…a concise Geographical Grammar…A knowledge of the Globe & its various inhabitants…a general taste for History…,” and then adds as an afterthought, “Any reading not of a vicious species…” which would presumably include moral teachings. And in his memorandum on ecclesiastical establishments, one finds none of the sort of religious talk that one would expect if Madison were as devout as is said. It’s been years since I read Ketcham, but he is very reliable–I just think Madison’s religious views moderated considerably later in life.

I suspect TonyB would consider me a “right wing language twister.” Government has no legitimate place running schools. But when it chooses to do so, it ought not use such euphemisms as “public schools,” but should admit that they are what they are–government schools. As my original post makes clear, parents have very little legal control over the operations of such schools, despite fluffy rhetoric about democracy and we being the public and blah blah blah. The fact is, these schools are run by bureaucrats who respond to other bureaucrats who respond to other bureaucrats who are elected by a very tiny percentage of the voting public. It would be much fairer to characterize them as being owned by nobody, and as Aristotle explained two millennia ago, that which is owned by nobody has the least amount of care bestowed upon it. Government schools they are, and, as far as I am concerned, government schools they shall remain.

I have mixed feelings about public education and that was part of my comment on Yoder. I think the Yoder, Pierce and Meyers cases all all fascinating and not necessarily reconcilable. If I’m critical of Yoder it would be on the very general basis that education from any source, even a non public source is a good thing (Pierce), more is better, including learning foreign languages (Myers) and religious beliefs should not interfere with a basic education (contra Yoder). I believe the governement can require minimum education standards expected of all citizens. For example, if citizens are going to vote on nuclear power plants and global arming issues, they have the obligation to be minimally educated on these subjects as a form of citizenship literacy. Yoder, I think, recognizes that but also took into account the claim that education past the 8th grade could actually cause irreparable harm to the Amish/Mennonite religions, and made an exception in that case.

I’m not sure that the current public education program is the best way to achieve that citizenship literacy, and the question presented in Yoder has been resolved by establishment of widespread homeschooling which did not previously exist.

I agree with the comment that much public education funding comes from the federal government with little or no control (except Santorum Amendments), that school boards are either beholden to the teacher’s unions or are subject to attack by special interest groups (Larouchites or stealth creationists, for example) and not particulary responsive to democratic processes.

But I don’t have an answer. Widespread homeschooling doesn’t appear to be a good solution and poverty prevents access to good education for large numbers. Vouchers appear to be a “rob Peter to pay Paul” funding method. To some extent government schools will always be with us and should at least be able to provide the minimum citizenship literacy in basic sujects like English, science, mathematics and History. How to objectively assure that is done is difficult.

Timothy Sandefur Wrote:

The current issue of Nexus: A Journal of Opinion* features a deeply flawed student article by Crystal V. Hodgson, Coercion in The Classroom: The Inherent Tension between The Free Exercise and Establishment Clauses in The Context of Evolution.

I just skimmed your article, so forgive me if you made this point already. The main purpose of articles like “Coercion in the Classroom” is not to honestly address how the Constitution should be interpreted, but to deflect the discussion away from the science and how it’s misrepresented, and into religion and politics, where opponents of anti-evolution strategies are often too eager to participate. Whatever the law says that one can teach, the main point that needs to be made is that the anti-evolution strategies (they are not alternate theories, but strategies to misrepresent the one we have) have not earned a place in biology class, just as astrology has not earned a place in physics class. I think that all students should learn, all the major mutually contradictory anti-evolution positions, and the “non-position” ID strategy, and how they fail (the “equal time” that anti-evolutionists don’t want). But not in science class, and not as anti-evolutionists want it, which is tantamount to yelling “fire” in a crowded theater.

Mr. McFaul writes “If I’m critical of Yoder it would be on the very general basis that education from any source, even a non public source is a good thing (Pierce), more is better, including learning foreign languages (Myers) and religious beliefs should not interfere with a basic education (contra Yoder).” Well, Pierce doesn’t really stand for that. It says that the Constitution doesn’t allow the state to entirely deprive a parent of the right to educate a child in the way the parent thinks proper. That would necessarily include, to at least some degree, a parent’s right to not teach a child certain things–which we would probably all think is a right the parent shouldn’t exercise, but it is a right under Pierce.

Yoder says that when the Free Exercise Clause is violated by the state requiring students to attend school beyond a minimum level (8th grade, but why not 7th? The Court doesn’t say), if the parents’ religion forbids it. At the same time, Yoder recognizes a state authority to force parents to educate their children up to that minimum level. The logic here seems wanting in several ways, although I rather like the result.… And, again, I don’t understand how it can survive Smith. I know the Court explains, but I don’t buy its explanation. Well, this subject deserves a blog post in itself, and maybe someday I’ll get to it.

Oh, but Mr. McFaul writes that “Vouchers appear to be a ‘rob Peter to pay Paul’ funding method.” How does that differ from systems devoid of school choice? People are still forced to pay for the education of other people’s children with or without school choice. All public education–indeed, all government–is robbing Peter to pay Paul!

FrankJ writes “The main purpose of articles like ‘Coercion in the Classroom’ is not to honestly address how the Constitution should be interpreted, but to deflect the discussion away from the science and how it’s misrepresented, and into religion and politics, where opponents of anti-evolution strategies are often too eager to participate.” I disagree. The Constitution does not require science instruction, and Mrs. Hodgson–who, by the way, I know, and whom I know to be a good faith person who is not attempting subversion here; she just seriously misunderstands the issues–isn’t trying to discuss science at all. In fact, the question as to whether creationism is or is not a science is irrelevant to the argument she makes, I think. Now, it’s certainly true that creationism should be rejected as a scientific matter, but I’m not a scientist, and my posts are only to discuss the religion-politics-law angle of things, which I don’t think is a distraction. We certainly ought to concentrate first and foremost on the fact that creationism is bad science, but that does not settle the legal issues, which do need to be addressed. The Constitution doesn’t clearly prohibit schools from teaching bad science (although it does prohibit schools from teaching religion), and it doesn’t clearly require any thing to “earn a place” in class before it’s taught. (Much of what is taught in California’s public school classrooms has not earned its place, but it’s still taught.) That’s why I’m here.

So, yes, creationism fails as a science and that should be our primary focus. But it’s not our only focus, since it doesn’t settle the issue of whether the law prohibits it from being taught or allows it to be taught.

Also, FrankJ certainly exaggerates when he says that teaching creationism is “tantamount to yelling ‘fire’ in a crowded theater.” That term, by the way, comes from an opinion by Justice Holmes, called Schenck v. United States, 249 U.S. 47 (1919), which upheld the criminal conviction of a man who was handing out pamphlets on how to avoid being drafted:

“We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

This passage has always troubled me because passing out pamphlets is clearly not an imminent danger–there is no “proximity” or “degree”; the same is true with creationism. Creationism in government classrooms violates the Establishment Clause, but it is certainly not a “fire in a crowded theater” situation. Teaching falsehoods is a constitutional right (except, I hasten to add, when such falsehoods are religious falsehoods; both religious falsehoods and religious truths are not to be taught in government classrooms), and I think the “fire in a theater” example is a dangerous exaggeration of what is still a genuine threat.

Mr. S writes:

The Constitution doesn’t clearly prohibit schools from teaching bad science (although it does prohibit schools from teaching religion), and it doesn’t clearly require any thing to “earn a place” in class before it’s taught. (Much of what is taught in California’s public school classrooms has not earned its place, but it’s still taught.) That’s why I’m here.

Fair enough. Just out of curiosity, Mr. S., since it seems like you follow this area fairly closely, what is the most egregious example of non-creationism but nevertheless “unearned” teaching in California’s public schools which you are aware of? Feel free to limit it to “bad science” so we don’t stray off topic, but I wouldn’t mind hearing anything that might “shock my conscience.” :)

Bad science? Well, if you consider economics a science, I would say Keynesianism. As for the harder sciences, I actually lucked out pretty well, myself. I had some very lazy science teachers, who didn’t teach us much of anything at all, but I didn’t have any who taught us genuinely bad science. (I was thinking mostly of the humanities, where genuinely “unearned” doctrines are taught, and where silly educational fads are more prevalent.) I don’t follow this subject well enough to offer good examples from the sciences other than my own experience.

I had some very lazy science teachers, who didn’t teach us much of anything at all

Heh. Same here. I always felt permanently stunted by my high school physics instructor, one Mr. Shultz, who was a huge fan of substituting multi-media for lectures.

I recall watching 2001 (videotaped from a cropped TV broadcast, ugh!), several episodes of Cosmos, and I think just about every physics-related Bell Lab Instructional Film (e.g., Our Mr. Sun, The Mysterious Case of the Cosmic Rays, etc.). With respect to this latter series of films, I do feel privileged to have had the opportunity to see them in their (albeit slightly faded) original technicolor form, as they seemed to have dropped from the face of the earth for the most part. Great and weird ephemera. Thinking back, I guess I would be surprised if there wasn’t a reference to some almighty “designer” sprinkled in many of those old classroom films (e.g., “We see the sunset, painted by the master painter …”). Thank goodness I was stoned for most of them or I might been brainwashed. ;)

Actually my HS Biology teacher was perhaps the worst I ever had. Hated the school, hated us, probably hated Biology. So he dumped a stack of Scientific American reprints in the back of the room and went into the prep room for a smoke. The first one I found was by Crick on the structure of DNA. It was downhill from there.

Timothy Sandefur Wrote:

The Constitution does not require science instruction, and Mrs. Hodgson—who, by the way, I know, and whom I know to be a good faith person who is not attempting subversion here; she just seriously misunderstands the issues—isn’t trying to discuss science at all.

Sorry again for not reading and digesting the article. I trust then, that with your help, Mrs. Hodgson will understand the issues. I agree that the Constitution does not guarantee a science education, and in fact I would not even want it to. I could be wrong, but in this post- “Edwards v. Aguillard” age where the ID strategy has taken the lead from the classic creationisms, the main problem is no longer a legal one, but a moral one, that must be solved outside the courts. Of course that still doesn’t stop anti-evolutionists from trying to frame it as an issue of fairness and “Constitutionality,” especially now that they have mostly dropped explicit religious references.

My “fire” analogy may have been hyperbole, but I meant to call attention to the fact that, while students do have a right to hear anti-evolution arguments, anti-evolutionists insist on having them taught in science class along with ideas that have been thoroughly tested, and which don’t use their nonstandard and bait-and-switch terminology. And how, for all their talk of “critical analysis” anti-evolutionists have little or no interest in having students critically analyze their alternative “theories.”

The idea that the founding fathers were Christian is patently absurd! Most of them would be called ‘Deists’ – having belief in some higher power, but not in a personal God.

Madison said: “During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity; in both, superstition, bigotry and persecution.”

John Adams: “I almost shudder at the thought of alluding to the most fatal example of the abuses of grief which the history of mankind has preserved – the Cross. Consider what calamities that engine of grief has produced!”

Thomas Jefferson: “The Christian god is a three headed monster, cruel, vengeful and capricious. If one wishes to know more of this raging, three headed beast-like god, one only needs to look at the caliber of people who say they serve him. They are always of two classes: fools and hypocrites.

Thomas Paine: “All national institutions of churches, whether Jewish, Christian or Turkish, appear to me no other than human inventions, set up to terrify and enslave mankind, and monopolize power and profit.”

Jefferson: “The day will come when the mystical generation of Jesus by the Supreme Being as his father, in the womb of a virgin will be classified with the fable of the generation of Minerva in the brain of Jupiter.”

The greatest danger facing this country today is the religious fundamentalist.

Treaty of Peace and Friendship, Signed at Tripoli November 4, 1796 Ratified by the United States June 10, 1797.

http://www.yale.edu/lawweb/avalon/d[…]bar1796t.htm

ARTICLE 11.

As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

Now, that’s no more than 30 years removed from the signing of the Constitution.

It’s not even 10 years removed (the Constitution being signed in 1789).

http://www.cnn.com/2004/LAW/08/16/f[…]p/index.html

Woo-hoo!!! Florida’s constitution rocks (who knew??)!!!

TALLAHASSEE, Florida (AP) – A Florida law that allows students at failing public schools to attend private religious schools at taxpayers’ expense is unconstitutional, a state appeals court ruled Monday.

The 2-1 decision by the 1st District Court of Appeal upholds a ruling by a trial judge saying the state constitution forbids the use of tax money to send youngsters to religious schools.

“Courts do not have the authority to ignore the clear language of the Constitution, even for a popular program with a worthy purpose,” Judge William Van Nortwick wrote in the decision.

What relevance does this have?

What relevance does this have?

Isn’t this thread about the interaction between religion and government?

No, it’s about evolution. But I’ll bite, if you like. First, a question. Do you think it would be okay to pass a law prohibiting Catholics from receiving Welfare?

Do you think it would be okay to pass a law prohibiting Catholics from receiving Welfare?

It’s not okay to pass such a law if the money is handed straight to individuals who need the money to feed themselves and their children. If the individuals use the money to buy Bibles for their children instead of feeding them, then their children should be taken away and given to atheist parents who have their priorities straight.

Great White’s statement exceeds the bounds of rationality, and brings this conversation to a close.

There is nothing irrational about the belief that some religious people put more energy into ensuring that their children are indoctrinated than they do into making sure that their children are otherwise physically and mentally healthy.

About this Entry

This page contains a single entry by Timothy Sandefur published on July 21, 2004 7:14 PM.

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