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:
- Does the new Louisiana law make it permissible to bring “supplemental materials” into science classrooms challenging the theory of evolution?;
- Is there really no telling what kinds of texts may be used for challenging evolution under this new law?; and
- 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:
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.