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Is "Academic Freedom" Another Way to Say "Religion"?

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Josh Rosenau of the National Center for Science Education (NCSE) predicts that the new academic freedom law in Tennessee will be challenged in court and declared an unconstitutional establishment of religion. He bases his prediction on the proposition that the Tennessee law is basically the same as the Louisiana "Balanced Treatment" law struck down as an establishment of religion by the U.S. Supreme Court in Edwards v. Aguillard back in 1987.

However, as I explained earlier, they aren't the same. The point bears repeating and a bit of elaboration. First, the legislative histories of the two laws differ significantly. This was the main point of my prior post. Second, the texts of the two laws differ significantly. But don't take my word for it, or Rosenau's. See for yourself.

Here is the full text of the Louisiana law invalidated by Edwards, with pertinent parts marked like this:

§286.1. Short title

This Subpart shall be known as the "Balanced Treatment for Creation-Science and Evolution-Science Act." Added by Acts 1981, No. 685, §1.

§286.2. Purpose
This Subpart is enacted for the purposes of protecting academic freedom. Added by Acts 1981, No. 685, §1.

§286.3. Definitions
As used in this Subpart, unless otherwise clearly indicated, these terms have the following meanings:

(1) "Balanced treatment" means providing whatever information and instruction in both creation and evolution models the classroom teacher determines is necessary and appropriate to provide insight into both theories in view of the textbooks and other instructional materials available for use in his classroom.
(2) "Creation-science" means the scientific evidences for creation and inferences from those scientific evidences.
(3) "Evolution-science" means the scientific evidences for evolution and inferences from those scientific evidences.
(4) "Public schools" mean public secondary and elementary schools.
Added by Acts 1981, No. 685, §1.

§286.4. Authorization for balanced treatment; requirement for nondiscrimination
A. Commencing with the 1982-1983 school year, public schools within this state shall give balanced treatment to creation-science and to evolution-science. Balanced treatment of these two models shall be given in classroom lectures taken as a whole for each course, in textbook materials taken as a whole for each course, in library materials taken as a whole for the sciences and taken as a whole for the humanities, and in other educational programs in public schools, to the extent that such lectures, textbooks, library materials, or educational programs deal in any way with the subject of the origin of man, life, the earth, or the universe. When creation or evolution is taught, each shall be taught as a theory, rather than as proven scientific fact.

B. Public schools within this state and their personnel shall not discriminate by reducing a grade of a student or by singling out and publicly criticizing any student who demonstrates a satisfactory understanding of both evolution-science or creation-science and who accepts or rejects either model in whole or part.

C. No teacher in public elementary or secondary school or instructor in any state-supported university in Louisiana, who chooses to be a creation-scientist or to teach scientific data which points to creationism shall, for that reason, be discriminated against in any way by any school board, college board, or administrator.
Added by Acts 1981, No. 685, §1.

§286.5. Clarifications
This Subpart does not require any instruction in the subject of origins but simply permits instruction in both scientific models (of evolution-science and creation-science) if public schools choose to teach either. This Subpart does not require each individual textbook or library book to give balanced treatment to the models of evolution-science and creation-science; it does not require any school books to be discarded. This Subpart does not require each individual classroom lecture in a course to give such balanced treatment but simply permits the lectures as a whole to give balanced treatment; it permits some lectures to present evolution-science and other lectures to present creation-science.
Added by Acts 1981, No. 685, §1.

§286.6. Funding of inservice training and materials acquisition
Any public school that elects to present any model of origins shall use existing teacher inservice training funds to prepare teachers of public school courses presenting any model of origins to give balanced treatment to the creation-science model and the evolution-science model. Existing library acquisition funds shall be used to purchase nonreligious library books as are necessary to give balanced treatment to the creation-science model and the evolution-science model.
Added by Acts 1981, No. 685, §1.

§286.7. Curriculum development
A. Each city and parish school board shall develop and provide to each public school classroom teacher in the system a curriculum guide on presentation of creation-science.
B. The governor shall designate seven creation-scientists who shall provide resource services in the development of curriculum guides to any city or parish school board upon request. Each such creation-scientist shall be designated from among the full-time faculty members teaching in any college and university in Louisiana. These creation-scientists shall serve at the pleasure of the governor and without compensation.
Added by Acts 1981, No. 685, §1.

And here, for the sake of comparison, is the full text of the Tennessee law, pertinent parts again marked like this:
AN ACT to amend Tennessee Code Annotated, Title 49, Chapter 6, Part 10, relative to teaching scientific subjects in elementary schools.

WHEREAS, the general assembly finds that:

(1) An important purpose of science education is to inform students about scientific evidence and to help students develop critical thinking skills necessary to become intelligent, productive, and scientifically informed citizens;

(2) The teaching of some scientific subjects required to be taught under the curriculum framework developed by the state board of education may cause debate and disputation including, but not limited to, biological evolution, the chemical origins of life, global warming, and human cloning; and

(3) Some teachers may be unsure of the expectation concerning how they should present information when debate and disputation occur on such subjects; now, therefore,

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:

SECTION 1. Tennessee Code Annotated, Title 49, Chapter 6, Part 10, is amended by adding the following as a new, appropriately designated section:

(a) The state board of education, public elementary and secondary school governing authorities, directors of schools, school system administrators, and public elementary and secondary school principals and administrators shall endeavor to create an environment within public elementary and secondary schools that encourages students to explore scientific questions, learn about scientific evidence, develop critical thinking skills, and respond appropriately and respectfully to differences of opinion about scientific subjects required to be taught under the curriculum framework developed by the state board of education.

(b) The state board of education, public elementary and secondary school governing authorities, directors of schools, school system administrators, and public elementary and secondary school principals and administrators shall endeavor to assist teachers to find effective ways to present the science curriculum taught under the curriculum framework developed by the state board of education as it addresses scientific subjects that may cause debate and disputation.

(c) Neither the state board of education, nor any public elementary or secondary school governing authority, director of schools, school system administrators, or any public elementary or secondary school principal or administrators shall prohibit any teacher in a public school system of this state from helping students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught within the curriculum framework developed by the state board of education.

(d) This section only protects the teaching of scientific information, and shall not be construed to promote any religious or non-religious doctrine, promote discrimination B368 for or against a particular set of religious beliefs or non-beliefs, or promote discrimination for or against religion or non-religion.

SECTION 2. By no later than the start of the 2012-2013 school term, the department of education shall notify all directors of schools of the provisions of this act. Each director shall notify all employees within the director's school system of the provisions of this act.

SECTION 3. This act shall take effect upon becoming a law, the public welfare requiring it.

The texts of the two laws are the same, right? Of course not. A first grader could tell that they're miles apart. (Well, a really patient first grader, anyway.)

These different texts were written in different circumstances by different people to serve different purposes. (See here and here for the Tennessee law's legislative history.) So the laws are significantly different as to their respective histories and texts. But there's another reason to think that the good Tennessee law won't go down like the bad law in Edwards: each law plainly calls for different conduct.

As the Edwards majority pointed out, there is no way to follow the bad, 1987 Louisiana law -- granting equal class time to a version of the Genesis text rendered in science-talk -- without teaching religion. That's why the law was held facially invalid, invalid in all conceivable applications. But the only way to follow the spirit and letter of the Tennessee law is to not teach religion in any form, creationist or otherwise. That is, conduct pursuant to the Louisiana law is always unconstitutional whereas conduct pursuant to the Tennessee law is never unconstitutional. That's a big difference, one of several that Rosenau missed.

But then that's to be expected, I guess, since Rosenau's job is to ignore differences in his pursuit of similarities. As someone with a background in evolutionary biology, Rosenau has been trained to construct similarities -- similarities between the form of man and primates, living and dead, similarities between the DNA of man and that of primates, so on and so forth throughout Darwin's tree of life. As an official of the NCSE, Rosenau is likewise occupied by constructing similarities: between bad creationist law and good academic freedom law, in an attempt to impugn the latter.

Carefully observing differences, however, is critical to seeing how the law works. (Law is not like evolutionary biology or like writing for the NCSE, that is.) For example, jurists trace the scope of a rule by noting the facts on which the rule operated in one set of cases, and by then noting the different facts in other cases in which the rule was held inapplicable. Spotting differences is what we've done here.

When the history, text, and likely effects of one law differ mightily from that of another law, you can expect a court to treat them quite differently. In the event of challenge, the 1987 creationist Louisiana law at issue in Edwards is so different from the academic freedom law in Tennessee that the holding (the rule) of Edwards will likely find nothing to do.