04/18/2012 10:31 am ET Updated Aug 21, 2012

Dumb ALEC and Its "Breathtaking Inanity"

On Tuesday, April 10, Tennessee HB368/SB893 became law without the signature of Republican Governor Bill Haslam. The bill passed easily, 72-23 in the Tennessee State House and 25-8 in the Senate.

The bill purportedly protects teachers who might somehow face disciplinary action for teaching (for example) intelligent design or denial of anthropogenic climate change. The fact that no teacher has ever been disciplined for teaching these concepts troubles the sponsors of the legislation not a whit. Just as some elements fight a voter fraud problem that doesn't exist, this bill creates the impression of a "problem" where none exists.

According to the bill,

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 becoming intelligent, productive, and scientifically informed citizens;

(2) The teaching of some scientific subjects, including, but not limited to, biological evolution, the chemical origins of life, global warming, and human cloning, can cause controversy; and

(3) Some teachers may be unsure of the expectations concerning how they should present information on such subjects.

In point of fact, only about 28 percent of high school biology teachers surveyed by the National Survey of High School Biology Teachers teach evidence for evolution at all. Another 13 percent teach creationism or intelligent design in a favorable way.

Some intelligent design proponents claim that teachers have been disciplined for teaching intelligent design, but a quick read of cases here, here and here makes it clear that it wasn't the teaching of intelligent design, but some other crazy behavior or simple misunderstandings, that were the root problems in each case.

Not surprisingly, 60 percent of high school teachers totally avoid this keystone subject entirely, which is exactly what bills like this intend. While wrapping themselves in the flag and waving a cross, these legislators purport to protect the rights of teachers while in reality quashing discussion of scientific topics. Not surprisingly, the bill was not authored by Tennessee legislators or their assistants. Rather, the bill was crafted by the American Legislative Exchange Council (ALEC), a group that crafts "model" legislation that uniformly advances an anti-science, conservative, know-nothing agenda.

There is still some scientific disagreement about man-caused (i.e. anthropogenic) climate change, this much is true. But there is no debate or controversy whatsoever on evolution; it's generally accepted science in broad terms -- though there is still plenty of debate about the details -- and no reputable scientific evidence exists for so-called "intelligent design."

Science may never truly be "settled", but case law can be. In 2005, Bush appointee John E. Jones III not only gave this backdoor attempt to interject faith into science classes a cold stare decisis, but gave it the hairy eyeball.

The Dover Area School District Board passed a measure that required teachers to read this statement, creepily similar to ALEC's wording as represented in the Tennessee bill:

The Pennsylvania Academic Standards require students to learn about Darwin's Theory of Evolution and eventually to take a standardized test of which evolution is a part.

Because Darwin's Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

Intelligent Design is an explanation of the origin of life that differs from Darwin's view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.

You see? All they want is for students to exhibit "critical thinking" or to "keep an open mind." Who could be against that? In his decision in Kitzmiller v. Dover Area School District, Jones reviewed the legal landscape of such measures arising from the 1968 Epperson decision in which the Supreme Court unanimously overturned Arkansas' anti-evolution teaching law.

Post-Epperson, evolution's religious opponents implemented "balanced treatment" statutes requiring public school teachers who taught evolution to devote equal time to teaching the biblical view of creation; however, such statutes did not pass constitutional muster under the Establishment Clause. See, e.g., Daniel, 515 F.2d at 487, 489, 491. In Daniel, the Sixth Circuit Court of Appeals held that by assigning a "preferential position for the Biblical version of creation" over "any account of the development of man based on scientific research and reasoning," the challenged statute officially promoted religion, in violation of the Establishment Clause.

The Daniel decision arose from a 1973 attempt by the Tennessee Legislature to enforce the denegration of evolutionary theory. The writing of the Sixth Circuit in Daniel is crystal clear.

Throughout human history the God of some men has frequently been regarded as the Devil incarnate by men of other religious persuasions. It would be utterly impossible for the Tennessee Textbook Commission to determine which religious theories were "occult" or "satanical" without seeking to resolve the theological arguments which have embroiled and frustrated theologians through the ages.

The requirement that some religious concepts of creation, adhered to presumably by some Tennessee citizens, be excluded on such grounds in favor of the Bible of the Jews and the Christians represents still another method of preferential treatment of particular faiths by state law and, of course, is forbidden by the Establishment Clause of the First Amendment.

We deem the two constitutional violations described above to be patent and obvious on the face of the statute and impossible for any state interpretation to cure.

Jones' legal decision in Kitzmiller -- binding only on parts of Pennsylvania, and never appealed, so it never applied to at the District Court or national level -- was crystal clear.

[O]ur conclusion today is that it is unconstitutional to teach ID [intelligent design] as an alternative to evolution in a public school science classroom.

It's not at all certain which part of these statements was unclear to ALEC or the Tennessee Legislature. Jones slapped down the action of the Dover Area School Board with this scathing assessment:

The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

Why should we believe that the action of the Tennessee legislature will be judged any less harshly by history? In the next election after the Kitzmiller decision, the Dover Area School Board was ejected en masse by the voters. We can only hope the same will be true of the Tennessee State Legislature. Unfortunately, science denialism has strong roots. It will likely not be that easy to kill.

Crossposted from