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Reviewing a Law Review: A Darwin Defending Law Professor Seeks New Ways to Censor Skeptics

[Editor's Note: The following article was co-written by a Discovery Institute Legal Intern and Discovery Institute Staff.]

Associate Professor of Law at Stetson University College of Law Louis J. Virelli looks for new legal arguments to squelch freedom of speech on evolution in public schools in his article, "Judging Darwin: Understanding the new Distributive Model of Evolution Instruction," recently published in the University of Pennsylvania Journal of Constitutional Law. Virelli should be commended for his honest admission that it is not illegal under the Establishment Clause to permit teachers to teach legitimate scientific critiques of evolution. But as a Darwin lobbyist, he seeks new ways to censor the science that challenges Darwin.

Virelli apparently doesn't trust teachers to responsibly inform students about the scientific weaknesses in evolution, so he argues that his side needs a new legal approach grounded in administrative law. He coins a fancy-sounding term, the "distributive model," to refer to education policies supported by evolution skeptics that permit teachers to teach the scientific controversy over evolution:

[R]ecent enactments take what this Article contends is a dramatic turn from the preceding legislative or quasi-legislative prescriptions regarding evolution instruction toward a "distributive model" for addressing evolution questions, in which legislatures or regulators promulgate generalized statements that empower and encourage local educators to set evolution instruction policy through a series of individualized determinations about how evolution should be taught. ... responsibility is distributed to individual educators to make that determination by acting as policy makers who are empowered to decide for themselves how to best resolve the issue on a case-by-case basis

(Louis J. Virelli, Judging Darwin: Understanding the new Distributive Model of Evolution Instruction, 13 University of Pennsylvania Journal of Constitutional Law 81 (November, 2010).)
Virelli concedes that this model likely does not offend the Establishment Clause, so he seeks other methods to defeat it. When properly assessed, however, we will see that Virelli's arguments against this model fail both in theory and in practice.

Virelli Adopts the Rhetoric of the Darwin Lobby

Virelli makes a number of common mistakes found in the arguments of Darwin legal lobbyists. For example, he writes that educational policies that require or permit scientific critique of evolution "significantly depart from previous practice." His implication is that those states which require or permit teaching scientific critique of evolution are doing something new. If you read his footnotes, he implies that the policy of teaching evolution critically was a response to the Kitzmiller v. Dover ruling which declared intelligent design unconstitutional in Dover Area High School classrooms. Perhaps Mr. Virelli has been reading too many sources from other Darwin lobbyists that obscure the history of this issue. The position that schools should teach scientific critique of evolution in public schools is nothing new. As Casey Luskin explains:
As part of a strategy to link inquiry-based evolution-education with religion, opponents of TES [Teaching Evolution Scientifically] policies have tried to paint critical analysis of evolution as a policy approach that arose as a "fallback strategy" after the Kitzmiller v. Dover in Pennsylvania ruling struck down the teaching of intelligent design as religion. ... In fact, the Dover ruling was issued in 2005, and the history of pre-Dover public policy debates over teaching evolution makes it very difficult to seriously argue that critical analysis of evolution is a post-Dover "fallback" position. Since its first involvement with a major public policy battle in 2001 and 2002 in Ohio, Discovery Institute opposed mandating the teaching of ID in public schools and instead has recommended teaching critical analysis of evolution. This position is a matter of public record.

(Casey Luskin, The Constitutionality and Pedagogical Benefits of Teaching Evolution Scientifically, VI (1) Univ. of St. Thomas Journal of Law & Public Policy 204-277 (Fall 2009).
As explained here, a number of policies have required or permitted scientific critique of evolution for many years and have not been challenged in court.

Virelli uses another tactic common among Darwin's legal defenders by suggesting that teaching evolution scientifically is tantamount to diminishing evolution instruction in public schools. He writes:
Although the "strengths and weaknesses" language was omitted from the 2009 version of Texas' state science standards without having ever been challenged in the courts, it foreshadowed the current campaign in Texas and elsewhere around the country to modify state science standards to combat evolution instruction...
But the 2009 Texas Science Standards do not "combat evolution instruction," but instead encourage teachers to cover it as a science. According to the new standards, students must "analyze, evaluate and critique scientific explanations . . . including examining all sides of scientific evidence of those scientific explanations so as to encourage critical thinking," and also "analyze and evaluate" core evolutionary claims, including "common ancestry," "natural selection," "mutation," "sudden appearance," the origin of the "complexity of the cell," and the formation of "long complex molecules having information such as the DNA molecule for self-replicating life."

Virelli adopts the same tactic when he says that "[a]cademic freedom bills create a platform for governments that want to limit, or present alternatives to, the teaching of evolution." Virelli is wrong on both counts.

First, academic freedom bills do not "limit" the teaching of evolution because they (1) require teachers to present the standard curriculum and (2) only protect teaching more about evolution, not less. (See Lobbyists Resort to Myth Information Campaign on Academic Freedom Legislation for details.)

Second, academic freedom bills do not typically cover topics not already in the curriculum, and thus do not protect the teaching of alternative theories like intelligent design, which are not in the curriculum anywhere. (See Tennessee House Passes Academic Freedom Bill by 70-23 Vote for details.)

Virelli must live in an alternate universe, where calls for students to "analyze and evaluate" the evidence for evolution, or laws that allow teachers to cover evolution "objectively," somehow become attempts to "combat" or "limit" evolution instruction. Like many Darwin lobbyists, Virelli is misconstruing what it means to "teach the controversy" in an attempt to insulate evolution from scientific scrutiny in public schools.

Looking for New Ways to Censor the Controversy over Evolution

Historically, courts have used an Establishment Clause analysis to strike down laws that limit the teaching of evolution. Virelli admits that attempts to teach the scientific debate over the theory of evolution (what he calls the "distributive model") amounts to "facially neutral policy," meaning that at first blush, they do not appear to violate the Establishment Clause. As Virellis writes, "the distributive model's omission of religious language . . . helps distance the model from the reach of existing Establishment Clause doctrine." He goes on to say that "[a]ntievolutionist policies have become increasingly secular in their language and their stated purpose." Virelli wants to help Darwin lobbyists find alternative legal weapons to strike down the teaching of critical analysis over evolution.

Usually, people praise government policies that do not violate the Establishment clause. Not Virelli. He goes on to describe "the distributive model's facial neutrality for reviewing courts under the Establishment Clause" as a "problem" and bemoans factors that "make[] the Establishment Clause an even less attractive vehicle for plaintiffs challenging the policy on an as-applied basis." Virelli suggests administrative law may be that solution: "the distributive model is best understood through application of administrative law principles."

Virelli highlights several principles of administrative law that, he believes, can be used to attack the distributive model. He applies the concepts of agency expertise, accountability, and efficiency to attempt to break down aspects of the distributive model's political legitimacy. When those standards are applied, however, we see that they fail to strike down the distributive model.

Agency Expertise

Virelli cites "agency expertise" as a problem for the distribute model. According to Virelli, since the majority of scientists are Darwin supporters, the pro-Darwin viewpoint is the only explanation of human origins that should be taught in public schools. He writes:
Considered against the backdrop of these principles, the distributive model demonstrates significant weaknesses. The most obvious and oft-discussed is the problem of agency expertise. The overwhelming majority of current scientific experts support Darwinism as the only scientifically sound explanation of human origins, and opponents of evolution instruction have yet to present an alternative to Darwinism that survives scrutiny under the scientific method. Regardless of whether a scientific revolution is on the horizon, the scientific debate about human origins does not appear sufficiently robust in its current form to legitimize a policy decision based on encouraging students to confront that very debate in public school science classes.
There are two serious problems with Virelli's argument.

First, scientific debates aren't decided by numbers, and some scientific experts see serious scientific problems--grounded in the peer-reviewed scientific literature--with evolutionary explanations. This makes it highly ironic that Virelli mistakenly thinks that peer-review will keep scientific critique of evolution out of schools. As he writes:
A widely-used and popular approach to dealing with scientific reliability issues related to policy making is the use of independent peer review. Peer review involves the consideration by independent experts in the relevant field of the scientific "inputs" on which the policy--in this case the distributive model--is based.
Virelli suggests that without such "protective measures, scientific reliability and accuracy could suffer in ways that may bring the legitimacy of the entire distributive model into question."

At this point, it's revealing that Virelli chooses not to elaborate on what happened in Texas in 2009. When Texas adopted its new science standards, it heard from qualified scientific experts on all sides of this debate. Some of those experts testified that there is no scientific controversy over evolution; other experts testified that there are scientific controversies and they provided dozens of peer-reviewed scientific papers to back up their claims. The Texas State Board of Education was convinced that there are sufficient scientific problems with evolution to warrant exposing students to this controversy.

In practice, when agencies rely upon experts to make decisions about evolution instruction, the result is that agencies often wish to teach the controversy. The only way that Virelli can rely on "agency expertise" to stifle scientific criticisms of evolution is to censor the many scientific voices that are critical of Darwinian evolution from being a part of the public policy-making process. Is that what Virelli wants? In any case, this much is clear: When peer-review is fairly considered, it achieves the opposite goal that Virelli wants because it justifies teaching scientific weaknesses in evolution.

Second, leading science education theorists explain that the best way to teach science is to teach students about argument and debate. As a paper in the journal Science last year stated:
Argument and debate are common in science, yet they are virtually absent from science education. Recent research shows, however, that opportunities for students to engage in collaborative discourse and argumentation offer a means of enhancing student conceptual understanding and students' skills and capabilities with scientific reasoning. As one of the hallmarks of the scientist is critical, rational skepticism, the lack of opportunities to develop the ability to reason and argue scientifically would appear to be a significant weakness in contemporary educational practice. In short, knowing what is wrong matters as much as knowing what is right. This paper presents a summary of the main features of this body of research and discusses its implications for the teaching and learning of science.

(Jonathan Osborne, "Arguing to Learn in Science: The Role of Collaborative, Critical Discourse," Science, Vol. 328 (5977): 463-466 (April 23, 2010).)
The problem is that science education does not sufficiently emphasize inquiry-based learning. Yet according to Osborne, there are "a number of classroom-based studies, all of which show improvements in conceptual learning when students engage in argumentation." In Osborne's view, "Critique is not, therefore, some peripheral feature of science, but rather it is core to its practice, and without argument and evaluation, the construction of reliable knowledge would be impossible". Osborne cites work from sociology, philosophy, and science education showing that students best understand scientific concepts when learning "to discriminate between evidence that supports (inclusive) or does not support (exclusive) or that is simply indeterminate." (emphases added) (For extensive documentation of science education authorities who recommend using such inquiry methods when teaching science, see The Constitutionality and Pedagogical Benefits of Teaching Evolution Scientifically.)

Thus, Virelli's recommendation, which would dumb down of evolution instruction in favor of blandly presenting a one-sided view, is actually the exact opposite of what science education experts would recommend. When properly implemented, relying on "agency expertise" does not defeat the distributive model as Virelli hopes it will.


In Virelli's discussion of accountability, he argues that the public is not competent to assess the scientific merits of a debate over evolution, so that debate should not be presented to the public at all. Attacking the intelligence of the public, Virelli writes:
By relying on the existence of a scientific controversy over evolution to support the distributive model, policy makers leave the lay public with little choice but to evaluate the merits of the decision on the policy makers' own scientific terms; the public must either accept that a scientific dispute about evolution exists or engage the scientific issue on their own. In neither case are policy makers accountable for their decision, as the public is forced to either accept at face value the existence of a scientific controversy involving evolution and, in turn, the legitimacy of the distributive model, or to engage in an independent scientific investigation of the matter that is likely beyond its technical competence.
Virell's argument here makes no sense: public policymakers are elected by the public, and so in our model of democracy the public elects policymakers which it feels are competent to address the relevant issues. Virelli is wrong that there is no accountability for policy makers: most policy makers are elected officials and if the public does not like their decisions, they can be voted out. So accountability is also not a problem for the distributive model.

Political Legitimacy

Here, Virelli initially suggests that the distributive model does not suffer from political illegitimacy. "By empowering individual educators to make decisions about evolution instruction in real time, the distributive model is potentially as efficient as fact-specific policy making could conceivably be." Nonetheless, he argues that the decisions teachers make could become "a potentially random series of pedagogical choices" which leads to "a lack of decisional consistency." What Virelli is suggesting is the opposite of academic freedom.

And why is academic freedom bad? Those teachers who choose to inform students about scientific controversies about evolution might in fact teach evolution in a pedagogically superior fashion than those who choose to teach the standard dumbed-down version of evolution. Virelli is correct that under academic freedom there might not be absolute uniformity among what teachers teach. But given the pedagogical benefits which come with teaching scientific controversies, we would argue that professional educators should have the freedom to teach about scientific controversies if they wish to do so.

If there is any "lack of decisional consistency," it is because some teachers will now exercise the freedom to use superior pedagogical approaches (e.g. teaching the controversy), while other will stick to the status quo. Virelli sees the granting of breathing room for improvement as a bad thing; we see it as a good thing.

Additionally, Virelli apparently does not trust qualified teachers to teach the controversy over evolution in a pedagogically effective manner. He suggests that by delegating some power to local authorities like teachers or administrators, "the distributive model will most likely be challenged on grounds that require judicial scrutiny under the arbitrary or capricious standard." If that is the legal standard, then teachers who properly teach the controversy over evolution have nothing to worry about.

Teachers who properly teach the scientific controversy over evolution can rest assured that their approach is backed by peer-reviewed scientific papers and the recommendations of leading science education theorists. So long as teachers use pedagogical tools (such as Explore Evolution) that are based upon peer-reviewed scientific critiques of Darwinian evolution, and properly implement the inquiry method, the only party that needs to be worried is the Darwin lobby, and perhaps law professors like Louis J. Virelli.

Virelli relies on faulty assumptions about the debate over evolution. He questions whether a debate even exists, conflates creationism with scientific critiques of evolution, and suggests that real scientists do not support challenges to evolution. But when the facts are fairly assessed, we see that the issues Virelli raises pose no challenge to teaching evolution scientifically and objectively in public schools.