By Gaffney, Edward McGlynn, Jr.
First Things: A Monthly Journal of Religion and Public Life
Federal courts in Louisiana recently reached the conclusion that too much thinking about the difficult issues involved in evolution can be downright dangerous. The Tangipahoa Parish Board of Education required its teachers to read a statement before any classroom discussion dealing with evolution urging the students "to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion" regarding "the origin of life and matter." Some parents filed suit alleging that this violated the First Amendment religion clause, a federal trial court agreed, and a three-judge panel of the Fifth Circuit Court of Appeals affirmed. The U.S. Supreme Court declined to review the case.
The school board had hoped its policy would pass First Amendment muster because it disclaimed any attempt to promote religion. Elsewhere, the Court has claimed that a disclaimer can go a very long way in allowing conduct in the public square that might otherwise be prohibited. For example, in Capitol Square Review Board v. Pinette (1995) the Ku Klux Klan wanted to erect a cross in a public square in Columbus. The authorities denied access to this forum on the grounds that allowing the Klan to use the public square in this way would implicate the government in the hatred and violence symbolically associated with the Klan's cross-burnings. The Court held that the Klan's display was expression fully protected under the Free Speech Clause, and Justice Antonin Scalia noted that a modest disclaimer from the authorities would suffice to clarify that the State was not endorsing the racist theory advocated by the Klan.
Yet because the underlying subject of the Tangipahoa case was evolution, the Court seemed to think, a disclaimer was not enough. In Epperson v. Arkansas (1968) the Supreme Court invalidated a statute that forbade the teaching of evolution in public schools. In Edwards v. Aguillard (1987) the Court struck down a Louisiana statute that required the teaching of creationism whenever evolution was also taught. Neither of these cases control the Tangipahoa case because the school district had neither forbidden the teaching of evolution nor required the teaching of creationism. The offending policy simply required teachers to inform students before discussions of evolution that teaching "the Scientific Theory of Evolution [is intended] to inform students of the scientific concept and not intended to influence or dissuade the biblical version of Creation or any other concept"; further, the statement said, "it is the basic right and privilege of each student to form his/her own opinion or maintain beliefs taught by parents on this very important matter of the origin of life and matter." Invoking Lemon v. Kurtzman (1971), the trial court invalidated the policy on the ground that it lacked a secular purpose. The announced purpose of the policy--to promote critical thinking by students on the subject of the origin of life--was a sham. The real reason, opined the court, was to promote religion.
Courts normally don't treat legislation with such suspicion, just as people normally trust their friends to tell the truth. From time to time, though, judges do need to treat the actions of elected officials with skepticism, just as sometimes we have to confront our friend over his deceptive behavior. Skepticism is important sometimes, but this sort of constitutional power play is rarely employed even in those cases, such as nonestablishment cases, where the purpose of a policy is important to its constitutionality. In dozens of cases in which the Court has either sustained or invalidated programs of financial assistance to children attending religious schools, the Court has never ruled that any of these programs lacked a valid secular purpose. The only instances in which it has relied on the secular purpose requirement of Lemon to invalidate a school policy have been with regard to the posting of the Ten Commandments and the teaching of evolution in public schools. …