LeVake v. Independent School District: Administrators May Control the Evolution Curriculum
In this LeVake v. Independent School District, the Minnesota Court of Appeals did NOT find it was illegal to offer scientific critiques of evolution. What they did find is that administrators may exercise tight control over the curriculum, and may discipline teachers who would express doubts Darwin in the classroom. Cases like this show the need for academic freedom legislation to protect the rights of teachers to discuss both the evidence for and against evolution in the classroom. For podcast interviews with the plaintiff in this case, Rodney LeVake, see here and here.
In LeVake v. Independent School District, high school biology teacher Rodney LeVake was reassigned after he allegedly failed to adequately cover the curriculum requirements for evolution and told his administrators that he intended to teach scientific criticisms of evolution.127 LeVake stated, "I will accompany [the] treatment of evolution with an honest look at the difficulties and inconsistencies of the theory without turning my class into a religious one."128 There was no indication that Mr. LeVake intended to teach creationism or intelligent design.129 LeVake was subsequently transferred to teach a ninth-grade natural science class.130 LeVake brought suit alleging violation of his right to free exercise of religion, free speech, freedom of conscience, as well as due process and academic freedom rights, maintaining that the material he wanted to teach his students was lawful.131 The issue in LeVake became whether or not Mr. LeVake's speech rights as a teacher trumped the district's ability to exercise control over the science curriculum.132 The Minnesota Court of Appeals sided with the school district, holding that "LeVake's responsibility as a public school teacher to teach evolution in the manner prescribed by the curriculum overrides his First Amendment [free speech] rights as a private citizen."133
2. Importance and Commentary
The LeVake ruling reflects the low degree of academic freedom that teachers have below the university level, absent some form of legislative protection.134 The ruling is consistent with an earlier U.S. Supreme Court ruling that held that administrators may impose "reasonable restrictions" on teacher speech in public schools.135 While academic freedom is to think critically about topics, and evolution would be one of them. And so I didn't think it as a defiant proclamation on my part. I was just simply mentioning that I thought that Darwinian evolution had some flaws that would be worthwhile taking a look at. understandably restricted, there must come a point where restrictions are no longer "reasonable." For example, if state or local statutes require that textbooks must be accurate,136 it could be unreasonable to prevent a teacher from using scholarly sources to provide scientific criticisms of incorrect claims made in textbooks about evolution. Teachers may also address the controversy over evolution whenever there is current public debate over origins science.137
As noted, the Supreme Court already implied in Edwards that it is possible for a legislature to "require that scientific critiques of prevailing scientific theories be taught."138 Indeed, even groups such as the ACLU and Americans United for the Separation of Church and State acknowledge that "any genuinely scientific evidence for or against any explanation of life may be taught."139 Yet teacher academic freedom is limited, and LeVake demonstrates the need for clear legislative protection of academic freedom for teachers to assert such rights.
It has been this author's experience that LeVake is sometimes miscited as holding that it is unconstitutional to teach scientific criticisms in public schools. This case stands for no such thing. At base, this is an employment law case about the freedom of speech retained by a government employee when acting in the course of his employment. The court did not attempt to make any determinations about the constitutionality of scientifically critiquing evolution in public schools. It simply balanced Mr. LeVake's academic freedom rights to offer material outside the curriculum against the interests of the school district to control the curriculum.
In the final analysis, the fact pattern in LeVake may have made it a poor test case for teacher academic freedom. According to the court, Mr. LeVake had previously failed to teach the evolution curriculum and had stated that he could not teach the curriculum in the future.140 Commentator Francis Beckwith observes that "[i]n light of the deference accorded states in matters of public education, and given the school district's legal duty to teach the curriculum correctly, the court seemed to have balanced the interests of LeVake and the school district appropriately."141 But Beckwith concludes that if LeVake had both "agreed to teach the curriculum in precisely the way he was told to do so, and subsequently taught everything required in the curriculum" and only "offered nonreligious criticisms of evolution" from legitimate scholarly sources, that he might have had "a case with law in his favor."142 If the court had found that Mr. LeVake had taught the required curriculum under legislatively protected teacher academic freedom, there is little doubt that he would have won his case.143 This case therefore does not offend the proposition that teachers who fulfill the required curriculum and teach the evidence for evolution may assert the academic freedom to also teach students about scientific problems with evolution.
[Editor's Note: This survey of LeVake v. Indep. Sch. Dist. is an excerpt from the article "Does Challenging Darwin Create Constitutional Jeopardy? A Comprehensive Survey of Case Law Regarding the Teaching of Biological Origins," Hamline University Law Review, Vol. 32(1):1-64 (Winter, 2009), published by Hamline University School of Law. This excerpt covers the case LeVake v. Indep. Sch. Dist.; the full article can be read here.]
[127.] LeVake v. Indep. Sch. Dist. No. 656, 625 N.W.2d 502 (Minn. Ct. App. 2001),cert. denied, 534 U.S. 1081 (2002)at 505-06. Mr. LeVake claims that he did in fact not fail to teach or refuse to teach the required evolution curriculum. According to an interview the author conducted with Mr. LeVake:
Casey Luskin: "There have been people including both the court and some Darwinists involved with this situation who claimed that you refused to teach evolution. Is that true?
Rodney LeVake: "No, that was actually not the case at all. It wasn't that I was refusing to teach evolution. They wanted to know my views about what I thought about evolution. And I told them that I had some concerns about it from a scientific standpoint. I thought that would be a good quality to have and help my biology students to think critically about this. After all, that's what science is all about, trying to help students
Casey Luskin: "They've also said Mr. LeVake that you refused to teach basically the full curriculum regarding evolution and what you were supposed to teach. Was that a true charge against you?
Rodney LeVake: "No. As I had mentioned, on the side as I was talking earlier, I was teaching the very same thing as my mentor teacher was right next door. Every single day I taught the very same thing that he taught."
See ID the Future Podcast, Rodney LeVake: Expelled Science Teacher, Part 1. (edited for clarity).
[128.] LeVake, 625 N.W.2d at 506.
[129.] See id. at 505.
[130.] Id. at 507.
[132.] Id. at 508.
[133.] Id. at 509.
[134.] Such legislative protection may come from academic freedom bills, such as the ones proposed in Alabama, Maryland, Oklahoma, and Florida in recent years. See, e.g., David DeWolf, Seth Cooper & John G. West, Legal Analysis of the Alabama House Substitute for SB 336, May 14, 2004, (discussing one of these bills).
[135.] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988).
[136.] For example, California has a statute requiring that "[a]ll instructional materials adopted by any governing board for use in the schools shall be, to the satisfaction of the governing board, accurate, objective, and current and suited to the needs and comprehension of pupils at their respective grade levels." CAL. EDUCATION CODE § 60045(a) (West 2003). A scholarly source discussing inaccuracies in textbooks over the evidence supporting evolution might be Jonathan Wells, Icons of Evolution (2000).
[137.] See, e.g., Piver v. Pender County Bd. of Educ., 835 F.2d 1076, 1078 (4th Cir.1987), cert. denied, 487 U.S. 1206 (1988) (indicating that a public employee's "[s]peech is constitutionally protected only if it relates to matters of public concern . . . and if the interests of the teacher and the community in discussing these issues outweigh the interests of the school in maintaining an efficient workplace" (citations omitted)).
[138.] Edwards v. Aguillard, 482 U.S. 578, 593 (1987).
[139.] American Civil Liberties Union, Religion in the Public Schools: A Joint Statement of Current Law, Apr. 12, 1995,
[140.] LeVake v. Indep. Sch. Dist. No. 656, 625 N.W.2d 502, 505 (Minn. Ct. App.
2001), cert. denied, 534 U.S. 1081 (2002). Mr. LeVake claims he did not fail to teach the curriculum. See supra note 128.
[141.] Francis J. Beckwith, A Liberty Not Fully Evolved?: The Case of Rodney LeVake and the Right of Public School Teachers to Criticize Darwinism, 39 San Diego L. Rev. 1311, 1319 (2002).
[142.] Id. at 1319-21.
[143.] Id. at 1323-25.