Andrew Cline, "Stretching the Constitution to keep out intelligent design" (2006)

Stretching the Constitution to keep out intelligent design

By ANDREW CLINE
> Originally published January 2, 2006<br> Federal Judge John E. Jones III, a George W. Bush appointee, has ruled unconstitutional the referencing of intelligent design in public school science classes in Dover, Pa. He called it a "mere re-labeling of creationism" and said it amounted to an unconstitutional establishment of religion. Which raises a question: How intelligently designed are public schools in which intelligent design cannot even be referenced?

Unlike the Scopes case of 1925, the Dover case did not involve politicians yanking evolution from the classroom and replacing it with creationism. It involved a statement the Dover school board required biology teachers to read to their students:

"The Pennsylvania Academic Standards require students to learn about Darwin's theory of evolution and eventually to take a standardized test of which evolution is a part.

"Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered. The theory is not fact. Gaps in the theory exist for which there is not evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

"Intelligent design is an explanation of the origin of life that differs from Darwin's view. The reference book, Of Pandas and People, is available in the library along with other resources for students who might be interested in gaining an understanding of what intelligent design actually involves.

"With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the origins of life to individual students and their families. As a standards-driven district, class instruction focuses upon preparing students to achieve proficiency on standards-based assessments."

I disagree with the wording of that statement. But it defies logic to say it establishes a state religion. And in fact, Judge Jones does not conclude that. Under Establishment Clause jurisprudence, he doesn't have to.

In the 1984 case Lynch v. Donnelly, Supreme Court Justice Sandra Day O'Connor created a new standard that redefined the Establishment Clause. Government policies don't have to "establish" a state religion - as the Constitution requires - to be unconstitutional. They simply have to "endorse" a religious point of view. Justice O'Connor succeeded in rewriting the First Amendment, and Judge Jones used that rewrite to strike down the intelligent design statement.

As the Establishment Clause morphs into a general anti-religion clause and judges continue to strike down not the establishment of religion, or even the teaching of it, but the mere practice of pointing it out to students, it is easy to imagine a day when no reference to God, religion or spirituality will be allowed in school.

After all, the Dover school board did not replace evolution with intelligent design. The board made students aware of its existence and instructed them to make up their own minds. If that is unconstitutional, then surely it is conceivable that some ambitious parent could sue successfully under the Establishment Clause because a civics teacher quotes George Washington - "The fate of unborn Millions will now depend, under God, on the courage and conduct of this army" - or Abraham Lincoln - "With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in."

Assuming, of course, that George Washington and Abraham Lincoln are still taught in public schools.

The ruling moves us another step toward a place the Founding Fathers would not have recognized, a place in which religion and public life are kept rigidly separate.

Yet as much as champions of this ruling have gloated in the past two weeks, the struggle over science curricula, or religion in school, is far from settled. The heart of the Dover case really is not creationism vs. Darwinism. It is parents vs. government. As long as children are compelled to attend government-run schools, parents will fight over what is taught in those schools.

The real solution lies not in another court challenge to another curricular guideline, but in a more intelligent design of our public school system. When public education is financed by the government but provided in the private sector, and parents can choose the schools their children attend, these sorts of disputes will evaporate.

What we really are arguing about in these cases is who gets to decide what children learn in school. The more control we give to parents, the less control zealous school board members, or judges, will have.

Andrew Cline is editorial page editor of the New Hampshire Union Leader in Manchester, N.H. His e-mail is [email protected].