Creationism’s Evolving Strategy

Five Years After A Landmark Court Ruling Against ‘Intelligent Design,’ Evolution Opponents Are Still On The Prowl

In late 2004, a case dealing with the controversial issue of creationism landed on the docket of U.S. District Judge John E. Jones III of eastern Pennsylvania.

The legal tussle, Kitzmiller v. Dover Area School District, soon attracted media attention from around the world because it was the first time a court would determine whether “intelligent design”(ID), the latest variant of creationism, could be taught in public school science classrooms.

The lawsuit pitted parents, scientists and civil liberties activists against a school board dominated by Religious Right operatives. The Dover Area Public Schools board, stacked with “young Earth” creationists, had pushed through a policy mandating that ninth-grade science teachers offer instruction in ID. Eleven parents, represented by Americans United and the American Civil Liberties Union, sued to put a stop to it.

By the time the trial was well under way in the fall of 2005, Jones began to realize the Kitzmiller case didn’t just concern the unconstitutional activities of a small Pennsylvania public school district – it was about a lot more.

“At the end of the day, my decision…in the Kitzmiller case was not a hard decision to make,” Jones said recently, explaining that it was obvious that the school board had acted unconstitutionally. “The hard part came in the writing, in deciding how expansive to make the opinion. Did I want to tackle, ‘Was intelligent design science or was it not science?’”

Nearly five years after he issued the 139-page decision in Kitzmiller, Jones reflected on that landmark ruling in an address to Americans United staff and members of the AU Board of Trustees in Washington Nov. 14.

“I handed down a ruling…that held the school board’s policy was unconstitutional,” Jones said. “And I tried to do more than that, because I thought it was appropriate, not because I was engaging in judicial activism or grandstanding, as the pundits held. But I wanted to be as comprehensive as possible and I wanted to say what I saw during this great controversy, particularly as it related to what ID is and what it isn’t.

“I had a strong sense this was going to replicate someplace else,” he continued. “I didn’t want another judge to be uninformed and unenlightened, particularly from the great testimony that I benefited from…and the good lawyering as well.”

Jones’ opinion, which was not appealed because the school board changed composition, remains the only guiding legal precedent on the teaching of ID in public schools. While the U.S. Supreme Court had already made it clear that creationism is a religious tenet and cannot be taught in public schools, Religious Right groups tried to use ID to sidestep the high court.

The concept asserts that human beings are so complex that they had to be created by a purposeful designer. Proponents of ID claim that as long as they do not identify the designer as God, the idea is acceptable for public schools.

In his opinion, Jones forcefully struck down that argument, reaffirming the separation of church and state and the need for accurate science education. Now, five years later, it’s clear the decision gave the science community new momentum to ramp up instruction on evolution.

“After the large amount of publicity from Dover,” said Eugenie Scott, executive director of the National Center for Science Education (NCSE), “the science community is much more attuned to why individual scientists as well as their representative science societies have to take an interest in these local education issues.”

According toa recent report in Education Week, “the ruling ignited an unprecedented push by scientists and education researchers to become more directly involved in integrating evolution in science classes.”

The result has been the creation of new curriculum materials, teacher training and activism on behalf of evolution instruction.

In Massachusetts, for example, a Boston College research group has created curriculum materials combining computer modeling, hands-on activities and classroom readings to give students a better grasp of natural selection.

The National Science Foundation, the National Academy of Sciences and other organizations have “increased research investment on indentifying essential concepts of teaching evolution.” The groups have also joined forces to create an Evolution Education Research Centre at Harvard, McGill and Chapman universities.

It’s also clear that scientific groups now recognize that teacher training is the key to keeping one step ahead in the battle. In 2006, after the trial, a new journal emerged called Evolution: Education and Outreach specifically aimed at K-12 teachers.

Science departments across the country have also improved their tactics for teaching evolution, said Scott, adding that if teachers and other educated people don’t understand evolution, then there is nothing to counter the efforts of anti-evolutionists.

Still, according to Michael Berkman and Eric Plutzer, authors of the new book Evolution, Creationism and the Battle to Control America’s Classrooms, despite the strong efforts made by the scientific community post-Kitzmiller, the struggle to defend public schools is a constant in America’s political landscape.

The authors speculate that because public education is decentralized, with each state and school board making decisions for themselves, it will always remain difficult to keep tabs on evolution instruction around the country.

Texas has been a prime example of this. In 2008-2009, an ultra-conservative faction of the 15-member State Board of Education sought to approve new science curriculum standards that would require that students be taught the “strengths and weaknesses” of evolution. They hoped that the phrasing would open the door to instruction that reflects fundamentalist Christian doctrine about humankind’s origins.

But with heavy lobbying from the scientific community and groups like Americans United, the creationists on the board fell short by one vote. Still, they succeeded in pushing through a potentially dangerous amendment that would allow students to discuss the “sufficiency or insufficiency” of common descent, a core concept of evolutionary biology.

Berkman and Plutzer also explain in their book that federal court decisions can only do so much. They write that when creationists lose in court, they simply reframe their policies and try again. 

That’s what has happened in Louisiana. In 2008, Gov. Bobby Jindal signed into law the “Science Education Act,” which allows teachers to introduce into the classroom “supplemental textbooks and other instructional materials” about evolution, the origins of life, global warming and human cloning.

The measure, which its backers disingenuously call an “academic freedom” law, was heavily pushed by the Discovery Institute, a Seattle-based think tank that promotes ID. The institute had pushed similar bills throughout the country that year in states including Florida, Alabama, Missouri, Michigan and South Carolina. All these measures contained creationist code language seeking to sneak ID into the public school science curriculum.

“The Kitzmiller court exposed intelligent design as what it is – dressed-up creationism – so the Discovery Institute had to go back to the drawing board,” said Richard Katskee, former AU assistant legal director who helped argue the Kitzmiller case in 2005.

Louisiana so far is the only state that has enacted an “academic freedom” bill into law. In November of this year, the Louisiana Family Forum (LFF), a Religious Right organization that promotes creationism, started to use the measure to chip away at evolution and sound science standards. The group, an affiliate of the James Dobson-founded Focus on the Family, claimed the state’s biology textbooks were giving too much credibility to Darwin’s theory, which they believed was inconsistent with the 2008 law’s mandate.

The LFF and its members filed comments with the state officials reviewing new textbooks, showing their support for teaching ID in Louisiana public schools. But in an unexpected vote Dec. 9, the Board of Elementary and Secondary Education supported biology textbooks that uphold sound science – at least for now.

Texas and Louisiana will continue to remain on the watch list for civil liberties groups and the scientific community. So will the new Congress.

U.S. Rep. John Boehner (R-Ohio), incoming speaker of the House of Representatives, has supported teaching creationism in public schools. In 2002, for example, he backed an amendment to an education reform bill that would have urged public schools to expose students to “the full range of scientific views that exist” and to “help students to understand why this subject generates so much continuing controversy.”

NCSE’s Scott said it is worrisome that the climate toward science that the country faced under the administration of President George W. Bush may be reemerging. But the situation would be even worse without Kitzmiller.

The decision was a huge blow to Religious Right groups, who were sure the case was going be a slam dunk for their side. Jones was a Bush appointee, and soon after Jones issued the opinion, he was attacked by various groups for choosing to uphold the Constitution rather than parroting Religious Right views. 

“Judge John E. Jones III could still be chairman of the Pennsylvania Liquor Control Board if millions of evangelical Christians had not pulled the lever for George W. Bush in 2000,” groused far-right warhorse Phyllis Schlafly in an e-mail to her supporters following the decision. “Yet this federal judge, who owes his position entirely to those voters and the president who appointed him, stuck the knife in the backs of those who brought him to the dance in Kitzmiller v. Dover Area School District.”

Jones shrugged off the criticism, noting that the judicial system does not work that way. Since the ruling, he has been giving speeches to groups about the importance of an independent judiciary.

“Judicial independence is something I had to give a lot of thought to since the Dover case,” he said during his address to Americans United. “My background is Republican and that created a set of expectations of me when I had this case arrive on my docket. I guess those expectations are that federal judges throw one for the home team when you get appointed. And that’s not true, and that’s not how the federal judiciary operates.”

The science and civil liberties communities have been grateful that Jones took his duty to the Constitution seriously.

Kenneth R. Miller, a biology professor at Brown University and one of the leading witnesses in the lawsuit, said he was beyond impressed with the way Jones conducted the trial.

“Both sides played by the rules and did their best to keep matters focused on the issues at hand,” he told Church & State in February 2009. “And the judge…did an extraordinary job of moving things along fairly and openly. At the end, I think that both sides had to admit that they had been given every opportunity to make their case. The experience impressed me with the fairness and openness of the federal judicial procedure and renewed my confidence in our court system.” 

Editor’s note: Judge John E. Jones’ Nov. 14 speech to Americans United may be viewed online in its entirety. Here’s the link: http://au.org/judge-jones.