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The Media Passes Hasty Legal Judgment on 2 of 3 New Science Education Bills

The Huffington Post, Washington Post and the only slightly less objective Mother Jones each reported last week on three science education bills filed in the legislatures of New Hampshire and Indiana, respectively. Each media outlet dismissed all three bills as promoting "creationism," a form of religious public school instruction long deemed unconstitutional. Although one of the bills is clearly creationist in form and aim, and would thus be unlawful if passed, as explained below, the language, purpose and likely effects of other two bills are sufficiently murky right now to resist the creationist label. In light of the following, the press would do well to resist the urge to hastily pass legal judgment.

Indiana's SB 89 provides that "the governing body of a school corporation may require the teaching of various theories concerning the origin of life, including creation science, within the school corporation." Here's the problem with that. Following Edwards v. Aguillard, a science education law won't pass constitutional muster unless it at least passes the Lemon test, which roughly requires a believably secular purpose behind the law that, when implemented, would not primarily advance religion or entangle the state in religious matters. The fastest and clearest way to run afoul of Lemon is to explicitly authorize the teaching of creationism, which is what SB 89 would do if passed. In that case, there'd likely be an immediate challenge followed by an appeal-proof trial court decision that the law is unconstitutional on its face, with no constitutional application in sight.

New Hampshire's HB 1148, if passed, would "[r]equire evolution to be taught in the public schools of this state as a theory, including the theorists' political and ideological viewpoints and their position on the concept of atheism." (Emphasis added.) The theory-not-fact or just-a-theory approach intimated in the language above led to the case of Selman v. Cobb County and, if enacted by the New Hampshire legislature, may well lead to similarly wasteful litigation. That said, the legality of HB 1148 is completely unknown right now, as is the meaning, applicability and persuasive authority of Selman, in part because an appellate court vacated the ruling on appeal. The primary problem here is pedagogical, not legal. That is, the fact/theory dichotomy and the nonscientific views of theorists may be properly treated in, say, a graduate-level humanities course addressed to hard problems in the philosophy of language and the sociology of science, but these subjects are not fit for the high school biology classroom.

New Hampshire's HB 1457, if made law, would "[r]equire science teachers to instruct pupils that proper scientific inquir[y] results from not committing to any one theory or hypothesis, no matter how firmly it appears to be established, and that scientific and technological innovations based on new evidence can challenge accepted scientific theories or modes." Unlike the other two bills, the language of HB 1457 would not obviously invite legal challenge, but it is still problematic because the first two clauses would apparently encourage teachers to inculcate distrust of all established scientific theory. Discovery Institute's model academic freedom bill, to be discussed in a subsequent article, encourages healthy but not unbridled skepticism. Like HB 1148, the problem with HB 1457 is not primarily legal so much as pedagogical.

Establishment Clause jurisprudence and case law is notoriously disjointed and indeterminate which should make reporters reticent to fix the legally significant label "creationist" to nascent science education bills, especially when a bill would not likely be deemed unconstitutional on its face, as is the case with HB 1148 and HB 1457. This is not news to major news organizations, of course, which causes one to wonder why three national, independent media outlets would all print the same hasty judgment. I propose that, when it comes to this subject, journalists have evolved the uncanny ability to see the world of science education law in just two shades: scientific and creationist. To add even a third shade (never mind seeing all available positions in living color) would make it much harder to see and announce who the bad guys are, which is what reporting on this subject has long been about.