Louisiana anti-science law: 3 questions, 1 suggestion

The Sensuous Curmudgeon has been providing yoeman service keeping us all posted on developments in Louisiana with the immanent implementation of Louisiana’s new “science education” law. From him we learn, for example, about the scheduled meeting Tuesday, August 19, of the Louisiana State Board of Elementary and Secondary Education (BESE).

I have a suggestion (below) for something that BESE should do at that meeting. First, though, I want to address three questions on which it seems to me there may be widespread misimpressions concerning the new law:

  1. Does the new Louisiana law make it permissible to bring “supplemental materials” into science classrooms challenging the theory of evolution?;
  2. Is there really no telling what kinds of texts may be used for challenging evolution under this new law?; and
  3. Does the law permit, or prohibit, the teaching of religion in public school science classes?

In considering each of these questions, I will be referring to the pro-Intelligent Design|creationist Discovery Institute (DI), which has been a driving force behind the Louisiana statute in particular, and the wider campaign promoting laws like this across the nation.

1. Does the new Louisiana law make it permissible to bring “supplemental materials” into science classrooms challenging the theory of evolution?

Everybody is saying that the law does that; but I don’t see that in the text. The law says that

A teacher shall teach the material presented in the standard textbook supplied by the school system and thereafter may use supplemental textbooks and other instructional materials to help students understand, analyze, critique, and review scientific theories in an objective manner, as permitted by the city, parish, or other local public school board unless otherwise prohibited by the State Board of Elementary and Secondary Education.

Before this law, were Louisiana teachers not allowed to use supplementary materials? Unless I’m missing something (which of course I could be, but during eight years of teaching graduate courses to Louisiana teachers at LSU over a dozen years ago, I never heard of any rule against teachers using supplementary materials), the only possibly new change effected by this clause is the explicit role of BESE in prohibiting the use of inappropriate materials.

The law requires the BESE Board to assist school districts, upon request, to

allow and assist teachers, principals, and other school administrators to create and foster an environment within public elementary and secondary schools that promotes critical thinking skills, logical analysis, and open and objective discussion of scientific theories being studied including, but not limited to, evolution, the origins of life, global warming, and human cloning.

So, BESE “shall” allow and assist. The explicit mandate to “allow” is new, as is the mandate to “assist.” But what assistance are they mandated to give? Until now, I thought the mandate included a mandate for BESE to approve and authorize the use of specific supplemtary materials. Reading more closely, as I write this post, I discover — to my amazement — that the statute actually does not give this mandate to the Board.

Here’s the Bill’s preamble, and then the beginning of the statutory text:

AN ACT

To enact R.S. 17:285.1, relative to curriculum and instruction; to provide relative to the teaching of scientific subjects in public elementary and secondary schools; to promote students’ critical thinking skills and open discussion of scientific theories; to provide relative to support and guidance for teachers; to provide relative to textbooks and instructional materials; to provide for rules and regulations; to provide for effectiveness; and to provide for related matters.

Be it enacted by the Legislature of Louisiana:

Section 1. R.S. 17:285.1 is hereby enacted to read as follows:

So the language “to provide relative to textbooks and instructional materials” (whatever that means) is only in the Preamble, not in the text that is now written into the State Statutes as Section 1. R.S. 17:285.1.

In fact, the language in the effective statutory part of the Bill empowers BESE to prohibit inappropriate materials, but does not actually mandate that they approve any supplemental texts — although they are mandated “to assist teachers, principals, and other school administrators to create and foster an environment … that promotes critical thinking skills, logical analysis, and open and objective discussion of scientific theories being studied …”

It seems to me that discussions of the law have involved misplaced emphasis on approval of materials by the BESE Board. The law actually says nothing about texts and materials being approved by the BESE Board — in fact, it speaks only of materials being prohibited by BESE.

Schools and science teachers are free to bring in other texts and materials to supplement the approved primary texts, and thereby to enhance the science curriculum. But this, per se, is not something newly permitted by this new legislation. The legislation requires BESE to provide help, when they are asked for it; but schools and teachers who know what they want to use, without feeling any need to ask for help from BESE, might well feel that this law gives them a green light to use things that they have or know about, without feeling any need for further assistance, approval, or permission.

In other words, those who want to teach against evolutionary science might feel authorized to do so by this new law — and those who would defend science education might feel inhibited from standing in the way — but not by virtue of the law’s legal effect or operation, but rather as the rhetorical, ideological, and political effects of the legislation.

2. Is there really no telling what kinds of texts may be used for challenging evolution under this new law?

In a post titled Louisiana Teachers: Here’s Your “Supplemental Material”, The Curmudgeon points to one crackpot example of the kind of thing that people might want to bring into Louisiana schools (also featured here on Curricublog.) More seriously, in a different post, The Curmudgeon writes:

IN DUE COURSE there will be a furious round of litigation in Louisiana resulting from their new Louisiana Science Education Act, which authorizes teachers to use unspecified “supplementary materials” for teaching evolution in state-run science classes.

Where will the Louisiana schools get such materials? The website of the neo-theocrats at the Discovery Institute’s Center for Science and Culture (a/k/a the Discoveroids) is already promoting various creationist books — excuse us, we mean Intelligent Design books — for befuddling the young minds of Louisiana.

Curmudgeon’s post (Discovery Institute: Their Recommended Reading List) includes examples from the DI site, proclaiming “So here they are, the recommended (or at least promoted) reading list of the Discovery Institute. Louisiana teachers, your legislature has given you the green light. Step right up and take your pick.”

There’s been a lot of speculation about what will be used, or promoted, as “suppplemental materials”; but much of it overlooks the text developed by DI for just this purpose. While DI was engineering legislative campaigns across the states, they were developing a text called Exploring Evolution, which was tailor-made (one might say, “intelligently designed” to fit just this new niche) for this new legal/political environment.

Explore Evolution purports to be a book totally devoted to a critical, evidence-based exploration of “the arguments for and against Neo-Darwinism,” without any mention of any kind of an alternative, be it creationism, “Intelligent Design,” or any other. In fact, although “flagellum” and “irreducible complexity” appear in the index and glossary, there are no entries for creation, design, or ID. This book was created to fit precisely the use described in the legislation, without any reference to religion, or to any possibly contaminated alternative to the “Neo-Darwinist” theory that it purports to assist students in putting to the test (for the purpose, of course, of promoting the development of their criticial thinking skills — see ‘Out of the Mouths of Creationists: “The LA Science Education Act Promotes Critical Thinking” (Wink Wink, Nudge Nudge)’).

So, while there might be other proposed supplements swirling around in this environment, we can and do know exactly what will be pushed by the instigators of the movement. Fortunately, I have heard from a trustworthy source that the folks allied through NCSE are preparing very thorough critiques of Exploring Evolution.

3. Does the law permit, or prohibit, the teaching of religion in public school science classes?

When the law was passed, Americans United for Separation of Church and State [AU] reported in a press release that

The Louisiana House of Representatives today approved a measure that opens the door to teaching creationism in public schools, an action that is likely to spark litigation, says Americans United for Separation of Church and State.

In a post titled “Americans United Misrepresents the Facts about Louisiana Science Education Bill” John West at DI quoted the first part (“The Louisiana House of Representatives today approved a measure that opens the door to teaching creationism in public schools”), and responded:

Well, no, it didn’t. The proposed Louisiana law expressly states in Section 1C that it “shall not be construed to promote any religious doctrine, promote discrimination for or against a particular set of religious beliefs, or promote discrimination for or against religion or nonreligion.” Americans United conveniently neglects to mention that section of the bill. If any school districts or teachers try to use the bill to promote creationism or other religious views, they will be violating the law itself. Any supplemental textbooks adopted under the law would have to abide by this prohibition in Section 1C. In addition, any inappropriate supplemental textbooks or instructional materials could be vetoed under the law by the State Board of Elementary and Secondary Education. (West’s emphasis)

So, which is it? What AU says is true, as a matter of practical politics, if not as a technical matter of law. As a matter of fact, though, when John West says Section 1C is a “prohibition” against using the law to promote creationism or other religious views, and that such promotion would be “be violating the law itself,” he’s saying things that flat out are not true.

Sure enough, those words are in the law (although I don’t know where his “1C” reference comes from. It’s Section D in the Louisiana law, and Section 7 in the DI Master Copy that the various state bills are copied from; maybe he’s looking at a draft from one of the other states where this is being copied).

Those words might be there (as dictated in DI’s own draft model of the legislation), but they are by no means a “prohibition” against promoting religion in the classroom. What they try to prohibit is judicial construction of the law as one that promotes religious doctrine or discrimination. It’s like saying “this law is not to be construed as doing anything that’s unconstitutional.” That wouldn’t stop a court from examining the law’s constitutionality — although that’s just what the language is meant to do. (Unfortunately, we shouldn’t be too sure about this: This kind of explicit declaration by the legislature was enough to satisfy Justices Scalia and Thomas in Louisiana’s “Balanced Treatment” case — see Scalia’s dissent in Edwards v. Aguillard. Who knows where Roberts and Alito will come out on Establishment Clause analysis?)

Besides being an injunction addressed to judges — directing them not to construe the law as doing something that’s unconstitutional — it is also an advisory to school people and others, warning them that they should not invoke the law as legislation that condones unconstitutional state sponsorship of religion. One thing that it is not, is a prohibition of religious teaching. Promotion of religion by the public schools is already prohibited by the First Amendment of the U.S. Constitution. This law adds nothing to that prohibition. If a teacher, school, or public school district adopts a policy of promoting creationism, there is nothing in this law that they’d be violating. The quoted language only tells them that this law cannot be used in their defense. The law does not prohibit the promotion of religion; it only tries to preclude anyone from construing the law as a law that promotes religious doctrine.

Taking stock, and my suggestion for BESE

Taking stock of the situation: To summarize where things now stand, in light of everything above:

The law is by no means so benign as its promoters pretend. It will unleash all manner of chaotic mischief. On the other hand, there is a method to this madness, making it predictable that the perpetrators’ strategy will be to insinuate Exploring Evolution into the state’s (and then other states’) public schools.

BESE and the school districts cannot comply with the statute, which commands that

The State Board of Elementary and Secondary Education and each city, parish, or other local public school board shall adopt and promulgate the rules and regulations necessary to implement the provisions of this Section prior to the beginning of the 2008-2009 school year.

There are legal requirements (public notice, etc.) for adopting administrative rules for implementing legislation that make it impossible for that to be done by every state and district school board before the new school year begins.

So what can BESE do?

My suggestion is that BESE, at it’s meeting Tuesday, should move to request an opinion from the State Attorney General. They should ask him for an opion advising them, the district Boards of Education, and individual school principals, as to who will be responsible for the costs of defending against litigation for unconstitutional state promotion of religion in the use of supplemental materials. Presumably, if there’s a suit brought directly against BESE itself because of the substance of a text they have approved, then they would be defended by the AG’s office, on behalf of the state (like when the AG hired Wendell Bird as as special assistant for defending the state’s “Balanced Treatment” law). But will the AG commit his office to defending every district, every school, and every teacher whose use of “supplemental materials” is challenged for violation of the First Amendment?

There could be cases where BESE is not named as a defendent, where a teacher, school, or district uses materials that have not been approved by BESE. There could also be cases where BESE has approved something and is still not named as a defendant, because use of the approved materials themselves would not per se violate the Constitution, but where the First Amendment is being violated by what teachers are doing when they bring in the materials.

Such a request could put the Attorney General in a tough spot, which he might deal (or not deal) with by simply not responding to the request. Even without an opinion from the AG, however, just the request from BESE by itself could alert the district boards and principals that this law does not mean that the new law provides state protection for anything they bring into their classrooms for teaching against evolutionary biology.

Much of the public discussion has assumed that what will happen as a result of this law depends on BESE’s decisions to approve or not to approve specific texts and materials. From my observations above, that seems unlikely. More likely is a chaos in which individual boards, schools, and classroom teachers feel that the law will now provide support for anything they do in opposing evolution, so long as it is not explicitly religious, and so long as it has not been specifically prohibited by the State or District Board. I think a public request from BESE for an opinion from the AG could raise awareness that the law provides no such protection; and the request could thereby make it more likely that districts, schools, and teachers will not strike out on their own without BESE approval specifically for the “supplemental materials” and instruction that they’re bringing into classes.

The fight against use of Exploring Evolution will still need to be waged, but hopefully just once, and at the BESE level.

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11 Comments

  1. Posted August 18, 2008 at 4:24 am | Permalink

    Tony, you’ve hit on the major holes in the law as I see it. It seems quite clear that whoever drafted the law has very little experience in drafting laws, and less experience in trying to carry out such laws.

    The law passes responsibility for deciding whether to teach religious materials to the local school boards. Local school boards had that duty before, of course. This bill seems to encourage them to dive in. But it offers no support for the board when it comes time to defend the thing in court.

    Especially missing is any guidance on what might be construed as religious among any alternative materials in biology, physics or chemistry. A good lawyer would notice that Louisiana has been down this path before, that the case went to the Supreme Court, and that the Supreme Court said “no creationism.” A wise lawyer would notice that intelligent design had been determined to be religious and “creationist,” at least enough to get the local school board in Dover, Pennsylvania in trouble (though that case is in a different circuit and a weasel attorney would argue that it doesn’t apply).

    This bill is quite clearly bait to get local districts sued. No teacher has authority to act without board approval; no board has indemnity from being sued; no creationism material has indemnity, either.

    I suspect that this foggy, ambiguous, “let’s you and him sue each other” language was intentional to a degree.

    Last time the Louisiana legislature got involved in this sort of stuff the district federal court looked at the debates in the legislature and incriminating statements made by legislators to determine the intent of the bill was impermissible, to promote religion in the classroom. So, this time around, they avoided saying anything at all about the religious elephant in the House and Senate chambers.

    Consequently, the legislature genuinely failed to discuss these serious issues.

    I suppose that asking the state AG for an opinion is a good, safe move. That opinion will provide very little cover for districts, schools or teachers, even if the AG were to say that certain materials are okay to teach as alternative. The AG’s office is not competent to rule on what is science and what is not, only to advise school districts on what standards exist in federal law.

    Your proposal is a wise one. Creationists really need to wait for cover, probably from amendments to this law in the next legislative session, unless they want to get sued.

    Want to wager whether the school board in Tangipahoa Parish will offer to sacrifice their parents’ money to be sued, rather than wait?

  2. Posted August 18, 2008 at 8:43 am | Permalink

    Ed writes

    It seems quite clear that whoever drafted the law has very little experience in drafting laws, and less experience in trying to carry out such laws.

    Since the Louisiana law is virtually unchanged from DI’s model legislation, the primary drafter may have been Casey Luskin, their boy genius “lawyer” and “scientist.” He seems as good a lawyer as he is a scientist.

    === added later ===
    It turns out Luskin was not the principal drafter; rather, it was DI’s David K. DeWolf. I have more on this now — along with Luskin’s letting the cat out of the bag, and then West’s damage control efforts — on another post.

    Also, Ed asks

    Want to wager whether the school board in Tangipahoa Parish will offer to sacrifice their parents’ money to be sued, rather than wait?

    Well, I don’t know about Tangipahoa, but Ouachita Parish may be raring to go on this, given their history. See the PDF file at http://www.opsb.net/downloads/forms/Ouachita_Parish_Science_Curriculum_Policy.pdf .

  3. Posted August 21, 2008 at 6:08 pm | Permalink

    Tony, you’ve made as good an analysis as is possible, given that the law seems drafted with two purposes in mind: (1) to allow Intelligent Design to be introduced via “supplementary materials,” and (2) to create a bureaucratic mess that can’t really function with any degree of clarity.

    But whether intended or not, it does appear that BESE has the power to prohibit “supplementary materials.” Even if that grant of power is ambiguous, the responsible course (to avoid classroom chaos and litigation) is that they should act as if they had that power.

    In that regard BESE should promptly issue emergency “guidelines.” Official regulations can come later, because they’re cumbersome and take too much time. The guidelines should be simple, and should make two points: (a) that materials already approved by recognized scientific or teaching organizations are okay to use (an impeccable list of several such organizations should be included), and (b) materials promoted or sold by creationist and ID organizations (with a representative list) are not approved. They can also provide for some kind of administrative appeal procedure for unapproved materials that some teacher really wants to use, with a hearing, witnesses, etc.

    The case of Edwards v. Aguillard can be cited for the creationism material, and the Dover decision can be cited for ID material.

    This wouldn’t be perfect, but it gives general guidance and creates a framework for working out disputes — before such material is used in class.

  4. Posted August 21, 2008 at 7:08 pm | Permalink

    The Curmudgeon writes that

    … BESE should promptly issue emergency “guidelines.”

    The guidelines should be simple, and should make two points: (a) that materials already approved by recognized scientific or teaching organizations are okay to use (an impeccable list of several such organizations should be included), and (b) materials promoted or sold by creationist and ID organizations (with a representative list) are not approved. …

    The case of Edwards v. Aguillard can be cited for the creationism material, and the Dover decision can be cited for ID material.

    That makes sense, I think. However, although the Dover case would provide political cover for BESE doing this, I think the DI’s Exploring Evolution may be crafty enough that it’s not legally covered by Dover (even if it were in the same judicial district) clearly enough for, say, a Summary Judgment.

  5. Posted August 21, 2008 at 7:36 pm | Permalink

    My sense of it is that BESE has been set up to be the patsy, or fall guy. When things go crazy — and they will — the legislature can duck the blame by saying that they turned the details over to BESE, and BESE dropped the ball. (Lots of mixed metaphors there.)

    I’m aware that by banning all Discovery Institute material there will be some controversy. That’s why I suggested that the guidelines should (a) mention the Dover case (see my excerpt from it: Kitzmiller v. Dover: Is ID Science?), and (b) the administrative hearing “remedy” with witnesses and such to decide contested materials.

    It’s possible that some carefully written ID book could slip through, but the witnesses at the hearing should be able to handle it. Anyway, this seems to be a prudent course, and it should keep BESE out of trouble, personally, when it all hits the fan.

  6. Posted August 22, 2008 at 7:52 am | Permalink

    The Curmudgeon writes

    It’s possible that some carefully written ID book could slip through, but …

    It’s understandable that people who’ve been enmeshed in this history could have trouble appreciating this, but the whole point of Exploring Evolution is that it’s supposed to not be an ID book.

    Its advocates will insist on evaluation based on what is in the text itself, and that the text should stand on its own merits without imputing anything (e.g., based on its DI authorship) that’s not in the text.

    They will argue that the text includes nothing but “scientific arguments” on strengths and weakness, based on “scientific evidence,” without any breath of a suggestion of Intelligent Design.

    I agree that competent witnesses should be able to show that it’s not even bad science — it’s just not science. But that needs to be shown on the merits of what’s there, in the book. Trying to impeach the book based on the agenda of its authors (as Judge Jones could do so easily, with Forrest’s help, in the case of Pandas) would be playing into DI’s game plan. The text itself needs to be disqualified.

    This is all in response to the DI gameplan. Unfortunately for them, when they open this Pandora’s box, they open the stage for all those fundy creationists whose support they need, but who really don’t have a clue as to the DI strategy (like the old Dover school board), so there will be all sorts of things proposed and used in classrooms that would easily be exposed as unconstitutional.

  7. Kevin Currie
    Posted August 22, 2008 at 6:52 pm | Permalink

    You have pointed out that the drafter of this law has not much legal understanding but no real understanding of how education works. As Dr. Whitson alluded to in his post, this bill really doesn’t do to education anything that wasn’t alrady there. The idea that this “gives” teachers the right/ability to use supplementary materials imples that they couldn’t before. As a science educator, my district ENCOURAGES me to use supplementary materials already, as the curriculum is designed to leave space for us to create our own lessons around it.

    It almost seems like the bill’s proponents think that the state was not able to choose the direction of the curriculum before, and that this bill gives them the freedom to do so. As far as I know, the reason no states teach criticisms of evoluiton is not because of any lack of freedom on their parts, but because doing so would make that state’s science program a nonscience program and a running joke amongst anyone who knows anything about science. Suggesting that this bill ‘gives’ states any type of permission to create, change, or allow teachers to supplement their curricula is to misunderstand that states already HAVE that power and simply haev chosen to teach science in the science classroom. (Just because you have the freedom to radically change a curriculum doesn’t mean that this will be done.)

    But what else can we expect from the co-author of Traipsing Into Evolution – a book that thoroughly misunderstands the Dover case on practically every page?

  8. Kevin Currie
    Posted August 22, 2008 at 6:54 pm | Permalink

    And you better believe that the new Exploring Evolution book is going to get into some horrible criticisms of evolution. I am all for criticisms where the criticisms are legitimate, but irreducible complexity, the dearth of fossils prior to the Cambrian, and the Demskian probability arguments have been asked, answered and answered again (in case Dembski couldn’t follow the first time).

  9. Posted August 22, 2008 at 7:16 pm | Permalink

    Kevin Currie writes:

    It almost seems like the bill’s proponents think that the state was not able to choose the direction of the curriculum before, and that this bill gives them the freedom to do so.

    This points to a previously unconnected point. While it might look like these bills seek to enable the state, their actual purpose is to disable the state from controlling curriculum in its public schools.

    These are not isolated initiatives of legislatures acting independently. They are all part of a nationwide campaign. In Florida, Ben Stein himself spoke at the press event announcing introduction of the bill. The Florida bill never made it through to final legislation in that session, but in one version it was perhaps the most explicit in depriving the state of power over the curriculum.

  10. Kevin Currie
    Posted August 23, 2008 at 9:39 am | Permalink

    Dr. Whitson,

    What you say is very true here. We are all aware that this is quite a concerted effort on the part of the DI.

    Of course, I still think the bills rest on a huge misunderstanding, or bad assumption, on the part of the states enscting them. It seems as if the bill’s authors EXPECT that stating that states and teachers have more freedom will mean AUTOMATICALLY that they will choose to add ID-based criticisms of evolution to their curricula (and that states could not have done this already!).

    I suppose my point is that it is a bogus assumption to assume that the reason states did not add ID-based criticisms to their curricula is because they were powerless to do so. (It would be like assuming that the reason I don’t shout racial epithets is because I am unaware of my freedom of speech rights. Just because I don’t do a thing I have the freedom to do doesn’t mean that my restraint is because I am unaware of my freedom. It could simply be that I prefer not to do the thing.) Thus, reminding the states that they have the freedom to criticize evolution in their curricula ASSUMES that the reason they weren’t doing so is becuase they were unaware that they could.

    Thus, they are based on what I think is a faulty assumption.

  11. Posted August 23, 2008 at 11:22 am | Permalink

    Kevin Currie says:

    Of course, I still think the bills rest on a huge misunderstanding, or bad assumption, on the part of the states enscting them. It seems as if the bill’s authors EXPECT that stating that states and teachers have more freedom will mean AUTOMATICALLY that they will choose to add ID-based criticisms of evolution to their curricula (and that states could not have done this already!).

    There’s no misunderstanding, not really.

    According to the public declarations of the law’s promoters, this “academic freedom” stuff was monumentally silly. No one ever doubted that if an interesting dinosaur fossil were discovered, and the news appeared in the papers, teachers were free to bring in the newspaper to discuss it.

    Further, if the proverbial Precambrian rabbit fossil were found — which of course would be significant evidence against evolution — that news too could have been discussed in class. Indeed, it should be discussed in class.

    The actual purpose of the law is covert, but well understood by all the creationists. Amid all the bureaucratic chaos, they can openly bring into class the recommended reading list promoted by the Discovery Institute.


5 Trackbacks/Pingbacks

  1. […] eagles & the “Academic Freedom” legislation Commenting on an earlier post, Ed Darrell writes: It seems quite clear that whoever drafted the law has very little experience in drafting laws, and […]

  2. […] strategy behind the Explore Evolution book prepared for use under “Academic Freedom” laws like that in Louisiana – without inviting litigation under the Establishment […]

  3. […] This is interesting in many ways. For one thing, it underscores the necessity of having teachers who understand their subjects well. “Flexbooks” could greatly increase the importance of the teachers relative to state boards and legislatures. Consider, for example, the implicatiions for teaching under the Louisiana “Science Education” law. […]

  4. […] This bill is patterned after the Discovery Institute’s so-called “Academic Freedom” strategy, which legislators in several states have attempted to implement in recent years. This strategy has achieved its greatest level of success with legislation in Louisiana, signed into law by Gov. Jindal, which is analyzed here. […]

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    Louisiana anti-science law: 3 questions, 1 suggestion « Tony's curricublog

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