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MEMO

TO: Dr. Robert Bowers and the
        Science Standards Committee, Ohio State Board of Education

FROM: John Calvert
DATE: February 4, 2002
RE: The Freiler Case

•••••••••••••••••••••••••

I would like to thank you for inviting me to speak on January 13 and being interested in carefully exploring key issues about what Ohio should tell students about where they come from. I would also like to discuss a legal issue that arose at the close of that meeting that may be important to your deliberations.

Dr. Bowers may recall that following the meeting, we had a brief discussion about the case of Freiler v. Tangipahoa Parish Board of Education, No. 94-3577 (E.D. La. August 8, 1997).(1) It was suggested that the Freiler case had held that Intelligent Design was "creation science" and therefore it was subject to the prohibitions directed by Edwards v. Aguillard and McLean v. Arkansas against "creation science." I disagreed. This memo is intended to explain my disagreement and to provide a further discussion of the legal issues that I did not have time to cover at the January meeting.

Freiler did not consider, deal with or hold against intelligent design at the District Court, Circuit Court or Supreme Court levels. Furthermore it did not equate the Design Hypothesis to "creation science" as defined in Edwards, McLean or other cases discussed below that deal with that subject. It dealt only with a statement to be read to science classes that was found to promote the "Biblical version of Creation."

It is understandable that members of the Committee might be confused. I expect it is likely the result of a very misleading summary of the Freiler case that has been circulated to you and the Science Advisory Committee by proponents of censorship of the design inference. That summary contains the following misleading statement:

"Besides addressing disclaimer policies, the [District Court's Freiler] decision is noteworthy for recognizing that curriculum proposals for 'intelligent design' are equivalent to proposals for teaching creation science."

This description appears to be subtly designed to lead you to the wrong conclusion. Although the statement does not expressly say so, it makes a powerful suggestion that design is prohibited because it is "creation science." This is the conclusion that you are led to because the other cases described in the same document generally state that "creation science" is prohibited. The conclusion that design is prohibited is not valid because the definition of creation science that has been used in cases to exclude "creation science" from the curriculum have been limited to the biblical creation account. Those cases have not considered or discussed the design hypothesis and have not included that hypothesis within the definition of any prohibited "creation science" account. In other words, the definition of "creation science" used by Judge Livaudais in an off-hand discussion of the background of the case is not the same definition that has been used by other courts to censor "science" that seeks to promote the Genesis account in the Bible and which has been labeled "creation science."

In the District Court opinion Judge Livaudais simply noted as a part of the background for the case that a month before the board adopted the disclaimer that was viewed as promoting the "Biblical concept of Creation," the school board had considered but rejected a proposal to permit the teaching of "the theory that the universe, including all forms of life, was created literally in the manner described in the Bible by a higher Being, or, as, as alternatively described, the theory of intelligent design or creation by a Divine Creator." The court said, "as the term shall be used HEREIN," I will refer to this list of concepts as "creation science." There is no further discussion, consideration or characterization anywhere in the opinion about "intelligent design" and essentially no further significant discussion of "creation science" as defined by Judge Livaudais.

It is obvious from a reading of the opinion that the Court was doing nothing more than adopting a short-hand definition for a group of items without intending that any legal significance be attributed to that definition. The lone reference to intelligent design, is itself fairly cryptic. The only thing we can discern about intelligent design from the entire case is that it literally appears in the quoted phrase as something being different than creation by a higher "Being" discussed in the "Bible" and something different than "creation by a Divine Creator." In this sense it is accurate to list it separately, since the design hypothesis postulates neither biblical creation nor creation by a Divine Creator. However, the opinion tells us nothing more about how "intelligent design" was "described" in this unused proposal that really has nothing at all to do with the decision in the case.

The important point, is that the Freiler court does not in any way pass judgement on intelligent design as a prohibited concept. Indeed, the Court's opinion seems to suggest that the concept of "critical thinking" that is necessary for all good science requires the consideration of alternative origins theories and that the School Board was correct in not suppressing the discussion of alternative theories:

"Both parties stipulated that critical thinking and gathering of information are encouraged in all classes, and specifically in science classes. It was also stipulated that "[e]ven before the Disclaimer resolution was adopted, teachers in Tangipahoa Parish had the right to mention viewpoints other than evolution to their students, and often discussed those viewpoints and encouraged students to explore them. Therefore, it is undisputed that the teachers of Tangipahoa Parish public schools had the right to discuss alternate theories of the creation of life and could independently research such topics."

Accordingly, if the District court opinion stands for anything, it stands against the censorship that is being proposed in the first draft of the proposed Ohio science standards.

The vice that the courts have consistently ruled against is not critical thinking and consideration of alternative theories, rather it is against state promotion of particular religious or "nonreligious" viewpoints. The Genesis account of creation in the Bible is obviously a particular religious viewpoint. The design hypothesis is not. It is merely a logical inference derived per the scientific method using scientifically accepted design detection methods.

The "Creation Science" that has been proscribed by the courts appears to have been first defined in McLean v. Arkansas Board of Education, 529 F.Supp 1255 (E.D. Ark 1982). In that case, the Arkansas district court found that a statute that mandated the teaching of "creation science" was unconstitutional. As defined in the statute, "creation science" included a number of tenets relating to the age of the earth, a world wide flood and similar matters found in the first eleven chapters of Genesis. The Court found that this definition was, in effect, a restatement of those provisions of Genesis and that teaching this material would have the effect of promoting a particular religion or religious view. A similar "creation science" statute was held to be unconstitutional by the Supreme Court in the case of Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573 (1987). The holding in Edwards was based on the same reason - that the statute had the effect of promoting a particular religious view - the Genesis account found in the Bible.(2) Subsequent cases that have found against teachings relating to origins have all been based on a finding that the position being promoted was one designed to promote the Genesis account.(3) None of these cases have involved a teaching of the evidence of design or criticisms of Darwinian theory. In particular, the Edwards court noted that its decision was not intended to proscribe the teaching of scientific critiques of evolution(4) or other theories about biological origins:

"In a similar way, teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction."(5)

As has been discussed in great detail in Teaching Origins Science in Public Schools,(6) a design inference says nothing about the validity or invalidity of the Genesis account. It does not promote any particular religious doctrine or viewpoint. A policy that permits the showing of the evidence of design has a number of clear secular purposes. It logically addresses the question raised - what is the cause of life and its diversity? It assures that teachings about origins science are consistent with the scientific method. It implements the requirement for constitutional neutrality in a religious arena. It is protective of the rights of teachers, students and parents that teachers be academically free to provide scientific viewpoints not driven by religion or philosophy on issues relevant to the subject matter of the forum. These secular purposes are designed to avoid indoctrinating students in naturalism and generating the kinds of misinformation that such a dogma spawns. Indeed, a showing of all the relevant evidence regarding origins science is necessary to provide a comprehensive teaching with the scrupulous objectivity that is required in this religiously charged historical science that permits wide latitude for subjective rather than objective explanations. Adherence to such a policy will enhance the overall effectiveness of teachings about origins science.

If there is any question about whether a design inference is a religion, it should be noted that secular humanism and other broad concepts that generate religious implications have been held to not constitute a "religion" for establishment clause purposes. [Peloza v. Capistrano Unified School District, 37 F3rd 517, 521 (9th cir 1994): holding that secular humanism is not a religion; and Alvarado v. City of San Jose, 94 F. 3rd 1223, 1230 (9th Cir 1996) finding that "New Age" beliefs are not a religion for establishment clause purposes]. Furthermore, the courts have ruled that the establishment clause is not violated simply "because the material to be taught happens to coincide or harmonize with the tenets of some or all religions."(7) Thus, a design inference does not become a religion simply because it happens to support theistic beliefs.

If implications of a teaching generated a violation of the establishment clause, then Darwinism would not be permissible since it supports the view that life does not result by design and thereby denigrates religion. This denigration was published with prominence in the July 2000 issue of Scientific American. A six page article focuses on the way that Darwinism has changed "Modern Thought" by replacing theistic religion with a Darwinian basis for our morals and ethics.

"First, Darwinism rejects all supernatural phenomena and causations.

*****

".....Darwin provided a scientific foundation for ethics.

*****

"To borrow Darwin's phrase, there is grandeur in this view of life. New modes of thinking have been, and are being, evolved. Almost every component in modern man's belief system is somehow affected by Darwinian principles."(8)

As indicated below, the only neutral way to deal with these religious implications is to allow teachers to show relevant scientific evidence that relates to both the Naturalistic and Design Hypotheses. If the evidence supporting the Design Hypothesis is censored then Darwinism, protected by the censoring mechanism of Naturalism, is indeed a religion as Michael Ruse has so eloquently stated.(9)

"Evolution is promoted by its practitioners as more than mere science. Evolution is promulgated as an ideology, a secular religion -- a full-fledged alternative to Christianity, with meaning and morality. I am an ardent evolutionist and an ex Christian, but I must admit that in this one complaint -- and Mr. Gish [a proponent of Creation Science] is but one of many to make it -- the literalists are absolutely right. Evolution is a religion. This was true of evolution in the beginning, and it is true of evolution still today." (emphasis added)

Dr. Ruse's plea can only be realized by eliminating methodolgical naturalism from origins science. So long as the irrebuttable naturalistic assumption is used, evolution will be promoted as a "nonreligion" in a manner contrary to the holding in Epperson v. Arkansas. The only way to legitimate Darwinian evolution and teach it in a religiously neutral manner is to remove the philosophical device that protects it from criticism and testing by the competing design hypothesis.

If the Board wishes to make its practices consistent with Freiler, it will promote critical thinking by permitting rather than censoring objective consideration of the competing hypothesis.

In closing I ought to comment briefly on the other seven cases mentioned in the document that appears to generate this discussion - "Eight Significant Court Decisions."

Case 1, the holding in Epperson would seem to proscribe the use of methodological naturalism to censor design and thereby promote only a naturalistic account of our origins. Case 2, Segraves would seem to stand for the same proposition because it requires that "any speculative statements concerning origins, both in texts and in classes, should be presented conditionally, not dogmatically." The use of Methodological Naturalism to censor design and thereby promote unconditional allegiance to Darwinian evolution is the epitome of dogmatism.

Case 2, Freiler, Case 3, McLean, Case 4, Edwards and Case 5, Webster, are all cases dealing with the teaching or promotion of the biblical account of origins in a science class. They do not discuss or deal with intelligent design or the use of methodological naturalism.

Case 6, Peloza, and Case 8, LeVake, deal only with the theory of evolution. They do not deal with the use of methodological naturalism in origins science to censor the design inference. That is the issue before the Ohio State Board.

Of course, the list does not include or discuss a number of other cases that support the arguments in Teaching Origins Science In Public Schools.

One recent case that the Board should give considerable attention to and that is not mentioned in either the list of 8 or Teaching Origins Science in Public Schools (published prior to the June 2001 decision) is Good News Club, et.al. v. Milford Central School, ____ U.S.___, No. 992036 (June 11, 2001). In that case a school excluded a religious club from using school facilities that were made available to the public after hours. The school argued that it was required to exclude the club to satisfy its establishment clause obligations. In reversing the school, the Court held that refusing access to the club would threaten satisfaction of the school's establishment clause obligations to remain neutral. According to Justice Thomas, "allowing the Club to speak on school grounds would ensure, not threaten, neutrality toward religion." By same token, eliminating methodological naturalism from the teaching of origins science would "ensure, not threaten, neutrality toward religion."

I will be happy to discuss this with you further at your convenience.

John H. Calvert, Esq.


NOTES

1. See Note 3 below as to the subsequent case history at the Circuit and Supreme Court levels.

2. "Here, it is clear that religious belief is the Balanced Treatment Act's 'reason for existence.' The tenets of creation-science parallel the Genesis story of creation,4 and this is a religious belief." 107 S.Ct. 2588.

3. Tangipahoa Parish Board of Education, et. al. v. Freiler, 185 F3rd 337, 346 (5th Cir 1999), cert. den. 120 S.Ct. 2706 (2000), (prohibiting a disclaimer which had "the primary effect of protecting and maintaining a particular religious viewpoint, namely belief in the Biblical version of creation."); and Webster v. New Lennox School District # 122, 917 F2nd 1004, 1006 and 1008 (7th Cir 1990); (prohibiting discussions of religious issues and "creation science" teachings to rebut textbook statements that the earth is over four billion years old).

4. Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 2582 (1987); "We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught."

5. Ibid. at 2583.

6. John H. Calvert, J.D., William S. Harris, Ph.D., Teaching Origins Science in Public Schools: Memorandum and Opinion (Intelligent Design network, inc., March 21, 2001) at http://www.IntelligentDesignNetwork.org/legalopinion.htm.

7. Ibid. at 2588; Alvarado v. City of San Jose, at 1232 and Fleischfresser v. Directors of School District 200, 15 F3rd 680, 689 (7th Cir 1994).

8. Ernst Mayr, "Darwin's Influence on Modern Thought," p. 81-83, (July 2000, Scientific American).

9. Michael Ruse, How Evolution Became a Religion, http://www.nationalpost.com, (May 13, 2000). Dr. Ruse is a highly regarded philosopher of science who testified against the "Creation Science" stature in McLean v. Arkansas.


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