Amicus Curiae Brief — Edwards v. Aguillard

No. 85-1513 |

TREE 2 i i a.

IN THI sae

Supreme Court of the United States

(OC TO]

On Appeal from the United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE CHRISTIAN LEGAL SOCIETY

AND NATIONAL ASSOCIATION OF EVANGELICALS

AS AMICI CURIAE SUPPORTING APPELLANTS

QUESTION PRESENTED

Whether a statute is permitted under the First Amend-

ment to require alternative scientific models to be uti-

lized for balanced treatment in teaching about origins in

the public school curriculum when:

(1) Instruction about origins is not required in sci-

ence, humanities or other educational programs, but is

permitted if alternative scientific models of origins are

taught as theories derived from scientific evidences; and

(2) The exclusion of evolution-science is prohibited

when scientific evidences for creation-science are taught,

just as the inclusion of scientific data supporting crea-

tion-science is required where evolution-science is taught.

(i)

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT .......000000......

EEE AIS

I.

IT.

Il.

IV.

THE APPELLATE COURT DECISION

SHOULD BE REVERSED ON PROCEDURAL

GROUNDS SINCE IT CONTRAVENED THE

RULES FOR SUMMARY JUDGMENT ............

THERE IS A DEBATE IN THE SCIENTIFIC

COMMUNITY OVER T:riE LIMITS AND

DEFINITIONS OF SCIENCE, INCLUDING

EVOLUTIONARY THEORY AND CREA-

TION-SCIENCE. THE COURT BELOW MIS-

TAKENLY TREATED THE LOUISIANA

STATUTE WITHOUT REFERENCE TO

THAT IMPORTANT CONTEXT .....000 2...

THE STATUTE IS CONSISTENT WITH AN

UNDERLYIN- PURPOSE OF THE FIRST

AMENDMENT, WHICH IS TO PROMOTE

THE FREE EXCHANGE OF INFORMATION

AND IDEAS

THE ESTABLISHMENT CLAUSE DOES NOT

REQUIRE THAT FACTUAL INFORMATION

BE SUPPRESSED

A. The Secular Purpose

B. The Primary Effect

C. Excessive Entanglement

CONCLUSION

Page

10

iv

TABLE OF AUTHORITIES

CASES:

Abrams v. United States, 250 U.S. 616 (1919)...

Aguilar v. Felton, No. 84-237 (July 1, 1985) -........

Aguillard v. Edwards, 765 F.2d 1251 (5th Cir.

IIIT." sscscdinsnncipeeetanieiepscidesiethieheaetadanieiniaideadiaunan ‘iieleaheiie 4

Aguillard v. Edwards, 778 F.2d 225 (5th Cir.

BID cccenrecsnnsscansedninsnscconsenses sainiielniincinidtlian 14,

Aguillard v. Treen, No. 81-4787, slip op. (E.D.

Se Bee ae sist insiliie ctbenaddhaidites ik hell haieliiaa,

Board of Education v. Allen, 392 U.S. 236 (1968)

Board of Education, Island Trees v. Pico, 457 U.S.

765 (1978) ' shite Lunthdiiaee

Buckley v. Valeo, 424 U.S. 1 (1976) ....................18,

Daniel v. Waters, 515 F.2d 485 (6th Cir. 1975)..

Epperson v. Arkansas, 393 U.S. 97 (1968)..

First National Bank of Boston v. Bellotti, 435 U.S.

765 (1978) ae ae keene eS

Griswold v. Connecticut, 381 U.S. 479 (1965) ...

Grove v. Mead School District No. 354, 753 F.2d

1528 (9th Cir.), cert. denied, 106 S.Ct. 85

(1985) ...... Tele nled ee aaa PRI BF PES LE er

Keyishian v. Board of Regents, 385 U.S. 589

) = vidimeisdasniaadgueaaasdiiniel al

Kleindienst v. Mandel, 408 U.S. 753 (1972)......

Lamont v. Postmaster General, 381 U.S. 301

(1965) sess spnaniiciatteisamienmepisiniananensiiaals saditedinnds

Lemon v. Kurtzman, 403 U.S. 602 (1971 13,

Linmark Associates, Inc. v. Willingboro, 431 U.S.

85 (1977)

Martin v. Struthers, 319 U.S. 141 (1943)

McDaniel v. Paty, 435 U.S. 618 (1978)

McGowan v. Maryland, 366 U.S. 420 (1961)

Perry Education Ass’n v. Perry Local Educator's

Ass’n, 460 U.S. 37 (1983) .......... Pan RACER

Red Lion Broadcasting Co. v. Federal Communica-

tions Commission, 395 U.S. 367 (1969)

Saxrbe v. Washington Post Co., 417 U.S. 843

(1974)

Scopes v. State, 154 Tenn. 105, 289 S.W. 363

(1927) ..... ciel haie RR eR lial as

11,

18,

4,

10,

14, <

. 10,

10

13

Vv

TABLE OF AUTHORITIES—Continued

Page

School District of Abingdon Township v. Schempp,

$74 U.S. 203 (1963) 2.000... a

Stanley v. Georgia, 394 U.S. 557 (1969) .......... 10

Steele v. Waters, 527 S.W.2d 72 (Tenn. 1975)... 8

Stone v. Graham, 449 U.S. 39 (1980) 17

Thornhill v. Alabama, 310 U.S. 88 (1940) ........... 10, 11

Tinker v. Des Moines Independent School District,

ES eee 11, 12,13

United States v. Ballard, 322 U.S. 78 (1944)... 11

Virginia Board of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976)... 10, 11

Wallace v. Jaffree, 105 S.Ct. 2479 (1985) .......14, 17,18

Whitney v. California, 274 U.S. 357 (1927) 11

Wolman v. Walter, 433 U.S. 229 (1977) ............... 21

STATUTES:

La. Rev. Stat. §§ 17 :286.1-286.7 3, 4

La. Rev. tSat. § 17 :286.2 Ree ales 15

La. Rev. Stat. § 17 :286. 3(1) . i eek 15

La. Rev. Stat. § 17:286.4C 0. 15

OTHER AUTHORITIES:

Address by C. Patterson, American Museum of

Natural History, New York City (Nov. 5, 1981)

(unpublished transcript) 00000 5

F. Aicken, The Nature of Science (1984) ... 7

Brady, “Dogma and Doubt”, Biological Journal of

the Linnean Society 79 (1982) alcatel ade 7

B. Cohen, The Birth of a New Physics (rev. 1985) . 9

Cotes, Preface to 3 I. Newton, Newton’s Mathe-

matical Principles (2d ed. 1713) (F. Cajori

Oa a 7

R. Crease and C. Mann, The Second Creation:

Makers of the Revolution in 20th Century Phys-

I 6

P. Davies, Superforce: The Search for a Gra.d

Unified Theory of Nature (1984) _....................

P. Davies, God and the New Physics (1983)....... 6

7)

vi

TABLE OF AUTHORITIES—Continued

Page

M. Denton, Evolution: A Theory in Crisis (1968) .. 4, 5, 6,

7,8

P. Grassé, Evolution of Living Organisms: Evi-

dence for a New Theory of Transformation

SND «iii in ela an ial a 5

F. Hoyle, The Intelligent Universe: A New View

of Creation and Evolution (1983) ................. ‘ 7

R. Hooykaas, Religion and the Rise of Modern Sci-

BEERS e sy aes wee eeer to eee Q

F. Hoyle and C. Wickramasinghe, Evolution From

Space: A Theory of Cosmic Creationism (1981).. 7

R. Jastrow, God and the Astronomers (1978)........ 5, 6,9

R. Jastrow, Until the Sun Dies (1977) ..................... 4,6, 10

T. Kuhn, The Structure of Scientific Revolutions

A a ceeeaininiatbonn 7,8

M. Midgley, Evolution As A Religion: Strange

Hopes and Stranger Fears (1985) .................... 5

D. Papineau, Theory and Meaning (1979) ee 7

G. Rattray Taylor, The Great Evolution Mystery

ELEC Oe ox A On een were 6,7

Ruse, The Ide ology of Darwinism, in Darwin To-

ETE Ene Tee eae nee 5

R. Shapiro, Origins: A Skeptic’s Guide to the Cre-

ation of Life on Earth (1986) ~.....00...00.00200002.... 6,7

C. Thaxton, W. Bradley and R. Olsen, The Mystery

of Life’s Origin: Reassessing Current Theories

~]

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-1513

EDWIN W. EDWARDS, in his Official Capacity as

Governor of the State of Louisiana, et al.,

Appellants,

v.

DON AGUILLARD, et al.,

Appellees.

On Appeal from the United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE CHRISTIAN LEGAL SOCIETY

AND NATIONAL ASSOCIATION OF EVANGELICALS

AS AMICI CURIAE SUPPORTING APPELLANTS

INTEREST OF THE AMICI CURIAE

The Christian Legal Society (CLS) is a non-profit

Christian professional association, founded in 1961, with

a present membership of 3,500 judges, attorneys, law pro-

fessors, and law students. Concerned about Constitu-

tional rights, it founded the Center for Law and Religious

Freedom in 1975 to protect and promote the freedoms

guaranteed by the First Amendment through advocacy

and education. The Center has been active in public edu-

2

cation law issues, including released time, curriculum and

values, and freedom of speech.

While CLS members hold diverse views about the vari-

ous theories of the origins of the universe, they favor

the presentation of all scientific evidence in the public

school classroom regardless of whether such evidence

seems to support or oppose a religious belief. This is the

crux of the instant case.

The National Association of Evangelicals, located in

Wheaton, Illinois, is a non-profit association of evangeli-

eal Christian organizations, colleges, and universities, as

well as some 44,000 churches from 74 denominations. It

serves a constituency of 10 to 15 million people.

The letters from the parties consenting to the filing of

this brief are submitted herewith to the Clerk pursuant

to Rule 36.2

SUMMARY OF ARGUMENT

Both the Appellate Court and the trial court mischar-

acterized creation-science as non-scientific without regard

for current developments in science. The court erred in

granting a motion for summary judgment against appel-

lants by failing to take as true uncontroverted eviden-

tiary facts submitted by appellants.

While it is unnecessary to reach the merits of the

statute, it is apparent that the Louisiana statute avoids

Constitutional infirmity by mandating a facially neutral

and inclusive treatment of two scientific models in the

treatment of origins in public school instruction. It thus

advances a vital interest of the freedom of speech,

namely, to promote the dissemination of ideas. There-

fore, judgment should be reversed and the matter re-

manded for trial.

3

ARGUMENT

I. THE APPELLATE COURT DECISION SHOULD BE

REVERSED ON PROCEDURAL GROUNDS SINCE

IT CONTRAVENED THE RULES FOR SUMMARY

JUDGMENT.

Amici urge that the judgment of the Fifth Circuit be

reversed, that judgment in favor of the appellants be

entered or, in the alternative, the case remanded to the

district court for trial. The appellate court’s panel

opinion, 765 F.2d 1251 (5th Cir. 1985), assumed that

La. Rev. Stat. §§ 17.286.1 - 286.7 (hereinafter “the Act’’)

was deficient and disserved academic freedom because

the Act required the teaching of the creation theory

only if the theory of evolution is taught. It ignored the

point that the converse is also true. The Act mandates

the teaching of evolution-science if creation-science was

taught.

Further, the appellate court missed the point that

maximum discretion was lett to the teacher as to how

these subjects were to be treated in order to give a bal-

anced treatment to the scientific evidences supporting

either model. Finally, ignoring the evidence provided by

appellants concerning the definition, nature and char-

acteristics of both scientific models, the court below said,

“The Act’s intended effect is to discredit evolution by

counterbalancing its teaching at every turn with the

teaching of creationism, a religious belief.” Jd. at 1257.

The court below would be correct if after a trial concern-

ing the nature of creation-science and evolution-science.

it determined (1) that the two models treated in the

statute were not alternative scientific theories; or (2

that there was no serious normal scientific research apart

from an evolution-science model; or (3) that some evolu-

tionary theory was not being challenged by leading sci-

entists as non-science. However, since the record is clear

that uncontroverted evidence was presented to the con-

o< , ; . . ~¢ “10 } + yea ] T-T-tL TT

rary, there were material; triable issues of fact. Judg-

4

ment should be reversed and judgment entered in favor

of appellants, or, in the alternative, the case remanded

to the district court for trial.

Il. THERE IS A DEBATE IN THE SCIENTIFIC COM-

MUNITY OVER THE LIMITS AND DEFINITIONS

OF SCIENCE, INCLUDING EVOLUTIONARY THE-

ORY AND CREATION-SCIENCE. THE COURT BE-

LOW MISTAKENLY TREATED THE LOUISIANA

STATUTE WITHOUT REFERENCE TO THAT IM-

PORTANT CONTEXT.

“What is the ultimate solution to the origin of

the Universe? The answers provided by the as-

tronomers are disconcerting and remarkable.

Most remarkable of all is the fact that in sci-

ence, as in the Bible, the world begins with an

act of creation.”

—Astronomer Robert Jastrow, in

Until the Sun Mes (1977)

This case is not about the teaching of religious dogma

in science classes under the guise of science.’ This case

is not about protecting a science teacher’s right to teach

as fact now discredited macroevolutionary dogma,

such as the universe was created out of nothing by

chance; that humans evolved from inorganic life, or that

random selection can account for all major transforma-

tions in life forms.? This case is about the arbitrary

1This case is distinguished from Epperson v. Arkansas, 393

U.S. 97 (1968), in that the language of La. Rev. Stat. §§ 17:286.1-

286.7 permits the teaching of origins, but requires both creation-

science and evolution-science models as “scientific theory” to be

utilized, considering scientific evidences for each model, thereby

providing an appropriate limitation to avoid subjects beyond the

range of normal scientific inquiry, such as religious dogma. Fvr-

thermore, the Act is neutrally “inclusive’’, allowing the teaching of

both evolution-science and creation-science as scientific models, and

not “exclusive”, preferring one over the other

2 See M. Denton, Evolution: A Theory in Crisis (1986), a scien-

tific critique of the current Darwinian model from paleontology to

molecular biology. The bankruptcy of evolution as a general theory

5

judicial exclusion of scientific evidence about origins

from public school instruction as provided by a state

statute. Noted astronomer, an agnostic in matters of

religion,* founder of NASA’s Goddard Institute for Space

Studies, Professor Robert Jastrow refers to such evidence

when he writes, “Now we see how the astronomical evi-

dence leads to a biblical view of the origin of the world.” *

The subject of public school instruction about origins is

controversial. Evolutionists exhibit an intense commit-

ment to their “beliefs to protect against any challenge

to the Darwinian postulate of “uniformity of natural

causes in a closed system” now under serious scientific

attack. For example, one scientist has recently said,

requires exotic meta-scientific explanations from leading authorities

to recurring questions, such as “hopeful monsters’, “miracle”,

“almost miracle” and “panspermia” (seeding life on earth from

space). Jd. at 227-230, 249-271. Denton says, “Nothing illustrates

more clearly just how intractable a problem the origin of life has

become than the fact that world authorities can seriously toy with

the idea of panspermia.” Jd. at 271. See also French evolutionist

P. Grassé, who says, “. . . [Evolution’s] problems are very far

beyond the means of present-day science.” P. Grassé, Evolution of

Living Organisms: Evidence for a New Theory of Transformation

243 (1977).

3 R. Jastrow, God and the Astronomers 1i (1978).

4 Id. at 14.

5 See philosopher of biology M. Midgley, Evolution As A Religion:

Strange Hopes and Stranger Fears (1985) (“Evolution ... is the

creation myth of our time.” Jd. at 30.); M. Denton, supra note 2

at 93-118, 345-359; M. Ruse points out the ideological element in

evolutionary theory. Ruse, “The Ideology of Darwinism,” in Geissler

and Scheler, Darwin Today, 246 (1983). See also British paleontolo-

gist C. Patterson, “Evolutionism and Creationism,” Address at the

American Museum of Natural History, New York City, November

5, 1981. Among his remarks was the following: “Can you tell me

anything you know about evolution, any one thing, any one thing

that is true? I tried that question on the geology staff at the

Field Museum of Natural History and the only answer I got was

silence. I tried it on the members of the Evolutionary Morphology

Seminar in the University of Chicago, a very prestigious body of

6

“Ultimately the Darwinian theory of evolution is no

more nor less than the great cosmogenic myth of the

twentieth century. Like the Genesis based cosmol-

ogy which it replaced, and like the creation myths

of ancient man, it satisfies the same deep psycho-

logical need for an all embracing explanation for the

origin of the world. .. .” Michael Denton, in Evolu-

tion: A Theory in Crisis 358 (1986)

Just so, there are fundamentalists who still think Dar-

winian theory poses a threat to their beliefs. To focus

on the concerns of either is a red herring. This case is

not about evoluticn as religion or religion as science. The

challenged Louisiana statute was intended, in the inter-

est of academic freedom, to present the scientific evi-

dences for two theories of evolution-science and creation-

science.

This case is about whether a court may determine and

then impose as a matter of law a definition of science con-

trary to that provided by state statute without a trial

to determine material issues of fact. That a court could

so rule ignores the developments and extraordinary com-

plexity of modern science and the scientific theories about

origins. Indeed, the panel opinion states that an idea

evolutionists and all I got there was silence for a long time and

eventually one person said ‘I do know one thing—it ought not to

be taught in high school.’ . . . We know it ought not to be taught

in high school and that’s all we know about it.... So I think many

people in this room would acknowledge that during the last few

years if you had thought about it at all, you’ve experienced a shift

from evolution as knowledge ic evolution as faith. I know that’s

(emphasis added).

6 See R. Jastrow, God and the Astronomers (1978); R. Jastrow,

Until the Sun Dies (1977); G. Rattray Taylor, The Great Evolution

Mystery (1983) ; C. Thaxton, W. Bradley and R. Olsen, The Mystery

of Life’s Origin: Reassessing Current Theories (1984); P. Davies,

Superforce: The Search for a Grand Unified Theory of Nature

(1984); P. Davies, God and the New Physics (1983); R. Crease

which has its religious counterpart, presumably such as

the one offered by Professor Jastrow above, is inadmis-

sible “irrespective of whether it is fully supported by

scientific evidence.” ’ Thus, in the view of the court be-

low, scientific evidences cannot be taught if such are

merely consistent with religious belief!

There is no unanimity within the scientific community

about the definitions of science, evolution-science and

creation-science.* What is clear is that old assumptions

are breaking up and that evolutionary theory is as much

at risk as an outmoded paradigm as some believe crea-

tion-science to be; erroneously thinking that the creation-

science of 1950 is the same as it is today.’ Evolutionists

are not in agreement about the place of evidence of intel-

ligent design or non-chance concepts within their theory.

and C. Mann, The Second Creation: Makers of the Revolution in

20th Century Physics (1986); R. Shapiro, Origins: A Skept

Guide to the Creation of Life on Earth (1986); F. Hoyle, The

Intelligent Universe: A New View of Creation and Evolution

(1983); and F. Hoyle and C. Wickramasinghe, Evolution Fron

Space: A Theory of Cosmic Creationism (1981).

1 Aguillard v. Edwards, 765 F.2d 1251, 1253 (1985)

8 For divergent views on science and its methodologies, see T.

Kuhn, The Structure of Scientific Revolutions 2d Ed., enlarged

(1962, 1970) ; D. Papineau, Theory and Meaning (1979) ; F. Aicken,

The Nature of Science (1984). For varied views on evolution, see

M. Denton, supra note 2, and G. Rattray Taylor, supra, note 6

Taylor recognizes that “creationists are of several kinds’. /d. at 2.

Thaxton, et ol., illustrate scholarly scientific research critical of

the evolutionary model, supra note 6. On the integration of ex-

perimental science and belief in the purposeful order and objectivity

of the natural world created by the Creator, see R. Cotes, Preface

to the Second Edition, Newton’s Mathematical Principles in 1713

and I. Newton’s General Scholium, third book, both in F. Cajori,

trans., Newton's Mathematical Principles (1946).

®See Denton, supra note 2; and R.H. Brady, “Dogma and

Doubt”, Biological Journal of the Linnean Society 79 (1982).

Creation-scientists are not in agreement about the place

of evolution within their theory. Nevertheless, both the-

ories can be taught as scientific theory resting on scien-

tific evidence without violating the Establishment Clause.”

If evolution by pure chance can be taught without in-

doctrination into a “faith” in a materialistic and reduc-

tionist universe, then scientific evidences for intelligent

design can be taught without propagating religious faith.

If serious, credible scientists are engaged in such tasks,

then the Louisiana legislature acted properly. It was

then well within its province to encourage by an inclusive

and neutral methodology the consideration of such scien-

tific evidences. Scientists of one school may predictably

neglect data because it doesn’t fit their theory and con-

sider their theoretical opponents, non-scientific.* Hostil-

ity to a theory of relativity or the origin of the moon or

any number of “radical” ideas does not mean that they

will not later be widely accepted.

The Louisiana statute achieves a laudable balance. It

allows the teaching of both models as scientific and the-

oretical, basing understanding on scientiiic evidences. It

protects the inclusion of evolution-science. It does im-

plicitly recognize that the term “creation” (like the term

“light”’) does not belong to religion alone. In this, the

legislature has acted consistently with scientific terminol-

ogy employed for modern scientific understandings of the

universe and its origin. The word “creation” belongs as

10 The use of the terms “creation”, “light”, “heavens”, “void’’,

“ehaos”’, are recurring in non-theistic scientific literature. See

supro. note 6. For the discussion of evidences for the “puzzle of

perfection”, see Denton, supra note 2, at 326. See also Daniel v.

Waters, 515 F.2d 485 (6th Cir. 1975). Steele v. Waters, 527 S.W.2d

72 (Tenn. 1975). See also Ore. Attorney Gen. Op., Mem. No. 382,

1980-81, Dec. 17, 1980; 58 Calif. Attorney Gen. Op. 263 (1975).

11 See T. Kuhn, supra at 18-19, 144-159.

g

much to science as it does to religion. The science of Kep-

ler and Newton was not predicated upon the “uniformity

of natural causes in a closed system.” ” If the scientific

mode! allows for an open system, then the quest for evi-

dences of intelligent design is isomorphic to the methodol-

ogy of anthropology. The supposition of a grand design,

a great plan, an ordered universe, an intelligent pur-

pose, a rationality behind the order and laws of nature

was assumed by Albert Einstein and earlier generations

of eminent scientists.”

The statute has the secular effect of allowing an alter-

native scientific methodology, a non-evolutionary theory

in science, provided it treats with scientific evidences.

This does not require a religious premise.’* This allows

for the consideration of evidentiary data, by the applica-

tion of scientific method. Excluding such evidence (that

could otherwise be ignored if the evolutionary model

taught was limited to evidences favoring a neo-Darwinian

synthesis) would be to substitute ideology for science.

Instead of limiting instruction to one scientific paradigm,

an alternative is posed, thus exposing the premises and

promises of each to rational scientific inquiry: setting

forth an hypothesis; investigating by experimentation or

calculation to verify or falsify the claim; then analyzing

the methodology employed and the results obtained. Se-

rious science is being done using words like “creation”’,

and even “miracle’’, to explain how science is up against

a limit in explaining a scientific phenomenon under dis-

12 See R. Hooykaas, Religion and the Rise of Modern Science

19 and 35, (1972) (Creative scientific inquiry proceeded from their

view of a reasonable God creating by design or mathematical prin-

ciples) ; B. Cohen, The Birth of a New Physics, revised and updated,

184, 238-239 (1985) (on Newton’s creative scientific reasoning).

13 See Jastrow, God and the Astronomers 28 (1978): and note 12.

14 Compare authorities supra note 6.

10

cussion.* The state legislature’s right to provide that

public school students may consider such scientific evi-

dences should outweigh any speculative concern of the

statute’s misuse. The statute has not been implemented

due to the preemptory and arbitrary judicial rejection

of the appellants’ right to a trial on these issues.

Ill. THE STATUTE IS CONSISTENT WITH AN UN-

DERLYING PURPOSE OF THE FIRST AMEND-

MENT, WHICH IS TO PROMOTE THE FREE EX-

CHANGE OF INFORMATION AND IDEAS.

A fundamental purpose of the First Amendment is to

protect and promote the exchange of ideas among per-

sons. “{P]ublic access to discussion, debate, and the dis-

semination of information and ideas” is a core value of

the First Amendment. First National Bank of Boston v.

Bellotti, 435 U.S. 765, 783 (1978); Board of Education,

Island Trees v. Pico, 457 U.S. 853, 866 (1982) (plural-

ity opinion). Society has a strong interest in enhancing

the free flow of information. Virginia Board of Phar-

macy v. Virginia Citizens Consumer Council, Inc., 425

U.S. 748, 764-65 (1976); Linmark Associates, Inc. v.

Willingboro, 431 U.S. 85, 95-96 (1977). The discussion

and dissemination of information among individuals are

vital to the maintenance of a free, self-governing society.

See Bellotti, 485 U.S. at 777; Saxbe v. Washington Post

Co., 417 U.S. 843, 863-64 (1974) (Powell, J., dissent-

ing) ; Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940).

The First Amendment also protects the right of the in-

dividual citizen to receive information for use in decision-

making and personal development. Pico, 457 U.S. at

866-67 (plurality opinion), citing, Stanley v. Georgia,

394 U.S. 557, 564 (1969); Kleindienst v. Mandel, 408

U.S. 753, 762-63 (1972); Martin v. Struthers, 319 U.S.

141, 143 (1943); Lamont v. Postmaster General, 381

15R. Jastrow, Until the Sun Dies 58 (1977) uses the term

“miracle” as a chapter heading.

11

U.S. 301, 308 (1965) (Brennan, J., concurring). See

Virginia Board of Pharmacy, 425 U.S. at 756-57. If an

individual is deprived of information, his or her self-

expression and search for truth may be irreparably

harmed. Governmental action that limits its citizens’ ex-

posure to ideas is constitutionally suspect, since “[t]he

State may not, consistently with the spirit of the First

Amendment, contract the spectrum of available knowl-

edge.” Pico, 457 U.S. at 866 (plurality opinion), quot-

ing, Griswold v. Connecticut, 381 U.S. 479, 482 (1965).

See Bellotti, 485 U.S. at 783 (First Amendment prohib-

its the government “from limiting the stock of informa-

tion from which members of the public may draw’’).

The underlying assumption of the First Amendment is

that, if the discussion and dissemination of ideas are pro-

tected, true ideas and information will eventually pre-

vail over incorrect and false ideas in the marketplace of

ideas. Abrams v. United States, 250 U.S. 616, 630

(1919) (Holmes, J., dissenting). Thus, the First Amend-

ment rejects out of hand the notion that ideas, even false

ones, are to be quashed out of fear of their acceptance,

but instead insists that free and open debate on any and

all ideas be allowed. Whitney v. California, 274 U.S. 357,

3877 (1927) (Brandeis, J., concurring). Correct ideas

will eventually prevail on their own merits without the

substantive danger of government “thinking for’’ its citi-

zens, while false ideas eventually will die in the confron-

tation with truth. See, e.g., United States v. Ballard,

322 U.S. 78, 87 (1944); Virginia Board of Pharmacy,

425 U.S. at 768-70; Thornhill, 310 U.S. at 95.

These First Amendment values carry over into the

school environment. Tinker v. Des Moines Independent

School District, 393 U.S. 503 (1969) ; Keyishian v. Board

of Regents, 385 U.S. 589, 603 (1967). The plurality

opinion in Board of Education v. Pico stressed the right

of public school students to receive information and ideas:

“(J ]ust as access to ideas makes it possible for citizens

12

generally to exercise their rights of free speech and press

in a meaningful manner, such access prepares students

for active and effective participation in the pluralistic,

often contentious society in which they will soon be adult

members.” Pico, 457 U.S. at 868 (plurality opinion).

See Tinker, 393 U.S. at 511.

Unlike the factual situation in Pico in which school

authorities sought to restrict access of students to cer-

tain ideas, in the instant case the state has sought to

widen the range of students’ access to a broader set of

ideas and information. In opposition, a group of citizens

has sought to have removed from the curriculum the pre-

sentation of ideas with which they personally disagree.

Relying on the right of access to ideas and the broad

power of the state to control the public school curriculum,

the federal courts have generally rejected such efforts by

private citizens’ groups to censor the public school cur-

riculum to conform to their particular viewpoints. See,

e.g., Grove v. Mead School District No. 354, 753 F.2d

1528, 1533 (9th Cir.), cert. denied, 106 S.Ct. 85 (1985).

Furthermore, in this case the right of increased access

to ideas is coupled with, rather than opposed to, the broad

power of state and local authorities to prescribe the cur-

riculum of the public schools. Cf., Pico, 457 U.S. at 863-

64 (plurality opinion). Indeed, it would be odd for the

state to have the power, albeit a very limited one, to re-

quire privately owned media to provide equal treatment

of certain opposing views, and yet not have the authority

to require balanced treatment of certain ideas in its pub-

lic school curriculum. Cf., Red Lion Broadcasting Co. v.

Federal Communications Commission, 395 U.S. 367

(1969).

Thus, this case presents an interesting twist in the

line of cases involving protection of the dissemination

and discussion of ideas. The Balanced Treatment Act

is an “effort, not to abridge, restrict, or censor speech,

but rather to use public money to facilitate and enlarge

13

public discussion.” Buckley v. Valeo, 424 U.S. 1, 92-93

(1976) (per curiam). A powerful group of citizens has

challenged the law in an effort to have the federal courts

block access to information in the public schoojs that a

state believes its future citizens should have. Unlike the

majority of cases in which citizens challenge state laws

that restrict the free flow of information, the discomfit-

ing feature of this case is the attempt of one group of

private persons to restrict the free flow of information

to other persons.

It is this critical twist that makes this case the con-

stitutional inverse of Epperson v. Arkansas, 393 U.S. 97

(1968). In Epperson, the state passed a law restricting

the access of its future citizens to a set of ideas regard-

ing the origins of man. Like the supporters of the laws

under consideration in Epperson and Scopes v. State, 154

Tenn. 105, 289 S.W. 363 (1927), the opponents of the

Balanced Treatment Act seek to limit access to ideas in

the science classroom regarding the origins of man. They

want one set of ideas—and no others—taught as ortho-

doxy in the public school science curriculum. Such view-

point discrimination in itself implicates First Amendment

values. Tinker, 393 U.S. at 511; Perry Education Asso-

ciation v. Perry Local Educators’ Association, 460 U.S.

37, 46 (1983). As in Epperson, this effort to suppress

ideas should be rebuffed. The Constitution does not man-

date that a particular set of ideas regarding the origins

of the universe be given a monopoly in the public school

curriculum.

IV. THE ESTABLISHMENT CLAUSE DOES NOT RE-

QUIRE THAT FACTUAL INFORMATION BE SUP-

PRESSED.

A. The Secular Purpose.

The court of appeals and the district court held the

Balanced Treatment Act unconstitutional, ruling that it

violated the secular purpose prong of the Establishment

14

Clause tripartite test. See Lemon v. Kurtzman, 403 U.S.

602 (1971). However, neither court properly applied

the secular purpose test but instead relied on “visceral

knowledge regarding what must have motivated the

legislators”, disregarding “completely the existing mani-

festations of intent” and instead imposing their “per-

sonal, subjective ideas” as to the true motive of the

Louisiana legislature. Aguillard v. Edwards, 778 F.2d

225 (5th Cir. 1985) (Gee, J., dissenting from denial of

rehearing en banc). Neither court made factual findings

based upon the legislative history to support its holding

that the legislation had an unconstitutionally religious

purpose. Although the Fifth Circuit had this Court’s

decision in Wallace v. Jaffree, 105 S.Ct. 2479 (1985), to

guide its reasoning, it ignored the principles set forth in

that opinion and instead relied on a superficial and en-

tirely unsatisfactory analysis that failed to support its

conclusion.

As this Court stated in Jaffree, a statute is unconsti-

tutional if it is “entirely motivated by a purpose to ad-

vance religion”. Jd. at 2490; id. at 2494 (Powell, J.,

concurring). In Jaffree, the legislative record affirma-

tively showed that a desire to return voluntary prayer

to the public school classrooms was the sole motivation

for the statute. Indeed, at trial, the primary legislative

sponsor testified that this was his sole motivation. Fur-

thermore, at trial, the state did not present evidence of

any secular purpose. Jd. at 2490-91; id. at 2494 (Powell,

J., concurring). Finally, a permissible purpose of the

statute was served by a statute already in effect.

A “statute should be keld to have an improper purpose

only if it is beyond purview that endorsement of religion

or a religious belief ‘was and is the law’s reason for

existence’.” Jaffree, 105 S.Ct. at 2590 (O’Connor, J.,

concurring). The Balanced Treatment Act in its text

cites a very plausible reason, protecting academic free-

dom, for requiring balanced treatment of two scientific

15

viewpoints in the public schools. It can hardly be argued

that the purpose of the statute is to endorse a religious

viewpoint, when the text of the statute requires balanced

treatment of two scientific theories taught as science.

In contrast to the statute in Jaffree, the Balanced

Treatment Act states that its purpose is to protect aca-

demic freedom. La. Rev. Stat. § 17:286.2. Note that

the statute does not prescribe any time be spent on pre-

sentation of origins. Most importantly, it leaves the de-

termination of whether to discuss the topic of origins

as well as the determination of what constitutes bal-

anced treatment to the judgment of the classroom

teacher, who determines the information and _ instruc-

tion “necessary and appropriate to provide insight into

both theories”. La. Rev. Stat. § 17:286.3(1). The

legislative record supports the fact that academic free-

dom, the concern that students in the public schools in

Louisiana be receiving a balanced view of an important

topic of education, was certainly a secular purpose moti-

vating the statute.

Thus, the statute requires that a certain area of scien-

tific facts be presented to students but leaves the bulk of

the responsibility for determining how to carry this out

in the hands of the classroom teacher. Contrary to the

Fifth Circuit’s mischaracterization of academic freedom

as the exercise by classroom teachers of unlimited dis-

cretion, the state sets the general framework for the

curriculum in public education and then allow the teach-

ers to determine how best to teach the general topics it

has required.'® Thus, the purpose and effect of this stat-

16 Section 286.4C of the statute prohibits discrimination against

a teacher “who chooses to be a creation-scientist or to teach scien-

tific data which points to creationism ...”. This provision has been

questioned because it does not mention teachers who are evolu-

tionists or who teach data to support evolution; however, this sec-

tion would be consistent with a purpose to protect academic free-

16

ute encourages the balanced dissemination of information

to students.

In reaching its holding, the panel below relied on two

premises, neither of which adequately supports its hold-

ing. First, the panel below made much of “the historical

fact that the controversy between the proponents of

evolution and creationism has religious overtones.” E£d-

wards, 765 F.2d at 1256. That is true, but not determina-

tive. Many controversies in our society have had religious

overtones, yet that does not mean that ideas on all sides

of the controversy could not be discussed. See, e.g., Mc-

Daniel v. Paty, 485 U.S. 618 (1978). The history of this

particular controversy merely shows that the extremists

on both sides of the controversy have been willing to use

the law, either through the legislatures or the courts, to

try to eliminate from public consideration the other side’s

point of view. Neither side should be allowed a monopoly

of viewpoint in the public school curriculum.

The second premise of the opinion below is an offen-

sive, if not dangerous, one. The panel below assumed

that any idea that corresponds to beliefs of some or many

religions may not be discussed in the public schools “irre-

spective of whether it is fully supported by scientific evi-

dence”. Edwards, 765 F.2d at 1253.7 At times in the

past, some scientific evidence could not be taught unless

it supported religious beliefs; today, the court below sug-

gests that one cannot teach scientific evidence if it sup-

dom, if legislators believed that teachers who teach scientific data

supporting creation-science run a greater risk of discrimination

within the educational establishment.

17 Another way the court below frames this is by saying that “the

theory of creation is a religious belief”. Edwards, 765 F.2d at 1256.

However, creation is not the exclusive domain of religion, but

increasingly is considered a possibility by persons espousing various

theories of evolution. Furthermore, the lower court itself admits

there are probably some people to whom the theory of creation is

not solely and exclusively a religious tenet.

17

ports a religious belief. Both views are repugnant to

normal scientific inquiry.

As this Court has held, it does not follow that a statute

vioiates the Establishment Clause because “[It] happens

to coincide or harmonize with the tenets of some or all

religions”. McGowan v. Maryland, 366 U.S. 420, 442

(1961). The issue is not whether religious doctrine can

be taught, for it cannot be. The issue is whether facts

can be taught in a public school curriculum even if stu-

dents may derive from those facts implications that may

be consistent with a religious belief.

Of course, ideas that parallel religious ideas are often

taught in the public schools. See, e.g., School District of

Abington Township v. Schempp, 374 U.S. 203, 225

(1963). Thus, monogamy can be taught to be the pre-

ferred form of marriage in sex education or home eco-

nomics classes, even though that teaching corresponds

directly to religious teachings. Similarly, the public

schools can teach students that it is wrong to steal,

regardless of the fact that that is also the Eighth Com-

mandment. Jaffree, 105 S.Ct. at 2497 (O’Connor, J., con-

curring); Stone v. Graham, 449 U.S. 39 (1980) (per

curiam). Certainly in the civics classroom students should

be taught “all men are created equal’, even though the

Declaration of Independence makes clear at its opening

and concluding paragraphs that this central tenet di-

rectly relies on a belief in a Creator. It would be logi-

cally inconsistent to allow the scientific concept of crea-

tion to be discussed in the civics classroom while simul-

taneously forbidding its discussion in the science class-

room,'*

18 The opponents make much of the fact that the state has not

cited to any curricular materials that could be used to teach

creation-science. Since the textbook market, like any other, responds

to demand, this is not surprising since previous demand for such

materials has not existed. However. the material cited in the

States’ brief as well as materials cited in this brief, demonstrate

18

Oddly, the panel below said the Act was unconstitu-

tional because its “intended effect [was] to discredit evo-

lution by counterbalancing its teaching at every turn with

the teaching of creationism, a religious belief”. Edwards,

765 F.2d at 1257. The panel forgot that it is not the

role of the government, including the courts, to protect

any ideas from being discredited. If evolution can be dis-

credited merely by students being allowed to hear true

scientific facts, then it deserves to be discredited. As

the dissent to the denial of rehearing in the court below

observed, Clarence Darrow believed that truth was truth

and could always be taught whether it favored religion

or not. Edwards, 778 F.2d at 226. The First Amend-

ment protects the free flow of ideas; it does not protect

the ideas themselves from being discredited. See Buckley,

424 U.S. at 48-49. (“The concept that government may

restrict the speech of some elements of our society in

order to enhance the relative voice of others is wholly

foreign to the First Amendment.”) See also, Linmark

Associates, Inc., 431 U.S. at 93-94.

As this Court has cautioned, reviewing the motivation

of a statute, for purposes of holding the statute uncon-

stitutional, is a serious and weighty function of the judi-

ciary. The scope of the secular purpose inquiry should be

deferential and limited. Jaffree, 105 S.Ct. at 2500 (O’Con-

nor, J., concurring). The courts should generally defer

to the stated intent of the statute, “[if] the legislature

expresses a plausible secular purpose . . . in either the

text or the legislative history. ...” Jd. It is extremely

disturbing that the courts below should strike down a

state statute without making specific factual findings to

support the holding.’® In the strong words of the dissent-

that there is factual scientific evidence to support a discussion of

creation without any resort to religious doctrine.

19 Although when both courts below are unable to discern an

arguably valid secular purpose, the Supreme Court normally should

hesitate to find one, Jaffree, 105 S.Ct. at 2495 (Powell, J., concur-

19

ing judges on the Fifth Circuit, who found “a credible

secular purpose”: “This approach effectually makes a

farce of the judicial exercise of discerning legislative in-

tent.” Edwards, 778 F.2d at 227.

RB. Primary Effect.

The primary effect of the Balanced Treatment Act is

“not to abridge, restrict, or censor speech, but rather to

use public money to facilitate and enlarge public discus-

sion.” Buckley v. Valeo, 424 U.S. 1, 92-93 (1976) (per

curiam). As has already been discussed, the primary

effect of the Balanced Treatment Act is to require that

students receive a balanced presentation of two models of

science regarding the origins of the universe, if a teacher

chooses to teach any model of the origins of the universe.

If the teacher has in the past exclusively taught scientific

evidence to support evolution, that teacher must now

balance that teaching with teaching scientific facts sup-

porting creation-science. If a teacher has been teaching

exclusively creation-science, that teacher must now bal-

ance his or her teaching with a presentation of the scien-

tifie facts supporting evolution. The judgment as to what

constitutes balanced treatment is left in the hands of the

classroom teacher.

Since the statute requires only that scientific evidences

be taught that support both theories, the opponents’ as-

sertion that the effect of this statute will be to bring

religious doctrine into the classrom is, at best, an incor-

rect exaggeration. The statute in no way sanctions

religious indoctrination or religious devotional activities

in the classroom. It merely sanctions providing students

with factual scientific material. The district court ad-

mitted that “a public school curriculum could give bal-

ring), in this case, the courts did not make the necessary good faith

effort to discern an arguably valid secular purpose of the statute.

Because of the paucity of supporting material or rationale in the

courts’ opinions, their conclusion that the motivation for the statute

was solely religious should not be accepted.

20

anced treatment to evolution and creationism without

advocating the latter”. Aguillard v. Treen, No. 81-4787,

slip op. at 10 (E.D. La. Jan. 10, 1985). Although it per-

functorily concluded that balanced treatment would not

occur under this statute, it gave absolutely no support

for its unwarranted conclusion that the statute went

beyond “mere objective exposure of the creationism con-

cept as part of a secular program designed to educate

students concerning various theories of the origin of

man and the universe’. /d. at 11.

C. Excessive Entanglement.

The excessive entanglement arguments that the oppo-

nents of the Act make are specious, since they are issues

that have been dealt with successfully in analogous con-

texts in the public schools. Indeed, most of the entangle-

ment concerns raised by the opponents exist when evolu-

tion is the sole model being taught.

The opponents argue that school officials will have to

separate secular elements of creation-science from reli-

gious ones in their development of a curriculum and pre-

sentation of scientific material supporting the creation-

science model. However, since the statute requires only

the teaching of scientific evidence, there is no need to

sift through religious doctrine or ideas in order to comply

with the Act.

The opponents then postulate that any curriculum

developed will have to be screened and monitored con-

tinuously to prevent religious instruction, and that

teachers will be unable to avoid religious questions in the

classroom. These issues are equally present in the *lass-

room that discusses only evidence for evolution.

These concerns have been more than successfully met

in developing and implementing public school curricula

regarding not only evolution but also other topics, such

as comparative religion, history, literature, philosophy,

music, art, and psychology, all of which sometimes touch

on religious values and issues. The law assumes a teacher

21

can be neutral in a public school curricular setting, in-

cluding teaching about religion rather than teaching

religion an an article of faith. See e.g., School District of

Abington Township v. Schempp, 374 U.S. at 225 (teach-

ing religion objectively); Board of Education v. Allen,

392 U.S. 236 (1968) (textbooks to be used in religious

schools can be screened to insure that they are secular).

The law requires that a teacher be neutral in respond-

ing to classroom questions regarding religious issues. If

religious questions were raised by the students in the

science classroom, it would not be the first time for any

science classroom that has dealt with the origins of man

through evolution, let alone classrooms that deal with

comparative religion, history, literature, philosophy,

music, art, or psychology. In the words of this Court,

“lit}] can hardly be said that the supervision of public

employees performing public functions on public property

creates an excessive entanglement between church and

state”. Wolman v. Walter, 433 U.S. 229, 248 (1977).

The cases cited by the opponents all involve the supervi-

sion and monitoring problems that are present when pub-

lic school teachers enter private religious school class-

rooms or where private school teachers are government

subsidized—the salient features of the programs struck

down by this Court on entanglement grounds. Aguilar v.

Felton, No. 84-237 (July 1, 1985), slip op. 10; id. at 2

(Powell, J., concurring) ; Lemon v. Kurtzman, 403 U.S.

602, 619 (1971).

Thus, this statute raises no issues of excessive entan-

glement that have not already been successfully dealt

with in the public school curriculum. Indeed, the exclu-

sive teaching of evolution raises the same entanglement

issues.

This case provides the Court with an opportunity to

affirm the balanced treatment given by statute to two

scientific views. It will thereby further the interest of

academic freedom and the First Amendment and assure

22

that scientific views, however unpopular, will not be

subject to judicial censure without trial.

CONCLUSION

The judgment of the court of appeals should be re-

versed and judgment entered in favor of appellants, or,

in the alternative, the case should be remanded to the

district court for trial.

Respectfully submitted,

Of Counsel: MICHAEL J. WOODRUFF

ForREST D. MONTGOMERY Counsel of Record

NATIONAL ASSOCIATION OF KIMBERLEE W. COLBY

EVANGELICALS SAMUEL E. ERICSSON

1430 K Street, N.W. CHRISTIAN LEGAL SOCIETY

Washington, D.C. 20005 P.O. Box 1492

(202) 628-7911 Merrifield, VA 22116

(703) 560-7314

June 19, 1986