How Have Darwin Lobbyists Misused the Santorum Amendment?
Gonzaga University law professor David DeWolf's recent article in University of St. Thomas Journal of Law and Public Policy retells the history of the Santorum Amendment. This first installment explained the circumstances surrounding the adoption of the Santorum Amendment language into the Conference Report of the No Child Left Behind Act. This second installment will quote further from his article, "The 'Teach the Controversy' Controversy," and give examples of how evolution lobbyists have not only wrongly accused "teaching the controversy" proponents of "misleading" school boards "as to the content of the law," but also how these same Darwin advocates have themselves understated the importance of Congress's statement in the Santorum Amendment. Professor DeWolf's full article can be read here.
Opponents of the "teach the controversy" approach went to great lengths to mischaracterize what Congress did. One of the first opportunities to debate the significance of the Santorum language was at a public hearing held by the Ohio State Board of Education in early 2002. After the Board received competing recommendations for new science standards, it voted to hold a public hearing, inviting advocates of the "teach the controversy" strategy to debate opponents of this approach. Representing the proponents' view were Stephen C. Meyer, director of the Discovery Institute's Center for Science and Culture and co-author of the language that was cited by Senator Santorum in introducing his amendment, and Dr. Jonathan Wells, an embryologist, author of Icons of Evolution.79
Meyer proposed that Ohio should adopt the "teach the controversy" principle in part because "federal educational policy calls for precisely this kind of approach."80 Kenneth Miller, a biologist at Brown University and author of a widely used high school biology textbook, was a representative of those who opposed "teaching the controversy," and spent part of his time in the hearing demonstrating that the Santorum language had been "struck from the bill" and was not part of the No Child Left Behind Act.81 He claimed:During the March 11, 2002 panel discussion on evolution in front of the Ohio Board of Education, the Discovery Institute's Stephen Meyer claimed that two purportedly anti-evolution sentences known as the "Santorum Amendment" were part of the recently-signed Education Bill, and therefore that the State of Ohio was obligated to teach alternative theories to evolution as part of its biology curriculum. I answered Meyer's contention by showing, using my own computer, that the Santorum language was not in the Bill, a copy of which I had downloaded from the Congressional web site. The effect on the crowd in attendance was devastating. A proponent of "Intelligent Design" had been caught misleading the Board as to the content of the law.82
Similar claims were made by other Santorum opponents. In a law review article Professor Jay Wexler addressed both the "teach the controversy" concept in general, as well as the Santorum amendment and its developments in Ohio. He reported that, following the vote in the Senate, evolution supporters wrote to the Chairmen of the House and Senate Education Committees asking for deletion of the Santorum language from the bill.83 After describing the justifications contained in the letter, Wexler reports:The evolutionists got their wish. When the Joint House and Senate Conference Committee conferred in December, 2001 to create a final version of the education bill to present to the President. . .it deleted the controversial amendment from the text of the legislation. Instead, an altered version of the amendment was inserted into the explanatory committee report, which does not itself constitute a source of law. . .Thus, although it flirted with the idea for a while, for the time being at least, the U.S. Congress as a whole has made no official pronouncement on the question of how public schools ought to teach their students about the origins of life and the universe.84
In a book-length attack on the Intelligent Design movement, Barbara Forrest and Paul R. Gross claim:Despite the shaky (or even nonexistent) legal status of the Santorum amendment, the Wedge accomplished what they initially set out to do: they managed to influence the legislative process regarding legislation of signal importance to science education, getting the initial sense of the Senate passed with an overwhelmingly supportive vote (91--8) before it was removed by the conference committee.85
Forrest and Gross recognize that the language in the joint explanatory statement "left intact" the language from the Santorum amendment, but they rely on the erroneous claim of Professor Hirsch that conference report language is insignificant.86
Opponents of the Santorum language would also argue that even if the Santorum language did have some faint legal effect, it would still fail to offer support for advocates of alternative theories such as Intelligent Design, because the Conference Report language only encouraged the presentation of "the full range of scientific views."Furthermore, they assert that Intelligent Design falls outside of "anything that could be properly included among the "full range of scientific views," Santorum offers no support for altering science education.87
These valiant efforts to spin the Santorum language do not change a few basic facts: first, the Santorum language was initially enthusiastically endorsed by the United States Senate, and then endorsed in a slightly modified form by the entire United States Congress. The significance of this fact should be seen in light of the usual association of "evolution opponents" with small rural school boards with sincere but non-professional members. Because the Santorum language was never intended to require that schools teach the controversy, but only convey Congressional endorsement of that approach, it does not resolve the question of whether such an approach would be constitutional, or even if it were, whether it constitutes good educational policy. Critics of the 'teach the controversy" approach continue to deny both propositions.
(David K. DeWolf, "The 'Teach the Controversy' Controversy," University of St. Thomas Journal of Law & Public Policy, Vol. VI (1): 326-353 (Fall, 2009).
[79.] Edwards v. Aguillard, 482 U.S. 578, (1986).
[83.] Jay D. Wexler, Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools, 56 Vand. L. Rev. 751, 766 (2003).
[84.] Wexler, at 766--67 (footnotes omitted).
[85.] Barbara Forrest & Paul A. Gross, Creationism's Trojan Horse, pp. 244--45 (2004).
[86.] "[T]he watered down version that appeared in the explanatory statement was added at the behest of a special interest group and did not receive the endorsement of Congress as a whole. In such situations, courts give legislative history little weight even as an interpretive tool. They in no way treat it as the considered `federal law' on the subject." Forrest & Gross, supra note 85 at 244.