Divided by Design: Kitzmiller v. Dover Area School
District, Intelligent Design, and Civic Education
KEVIN TROWEL*
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
856
I. KITZMILLER V. DOVER AREA SCHOOL DISTRICT . . . . . . . . . . . . . . . . .
859
II. THE CULTURAL LANDSCAPE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
862
A.
B.
......................
863
1.
Scopes and the Emerging Culture of Science . . . . . . . . .
864
2.
Science, Culture, and the Cold War . . . . . . . . . . . . . . . .
866
3.
Current Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
867
SCIENCE AND AMERICAN CULTURE
THE COEXISTENCE OF SCIENCE AND RELIGION IN AMERICAN
.......................................
868
III. DIVIDED BY DESIGN? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
870
CULTURE
A.
.............
871
1.
Urban-Rural . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
871
2.
Dividing Affected Communities . . . . . . . . . . . . . . . . . .
872
3.
Separating Students . . . . . . . . . . . . . . . . . . . . . . . . . . .
873
4.
The Tyranny of the Parent . . . . . . . . . . . . . . . . . . . . . .
874
..............
875
1.
Rural Communities on the Periphery of Urban Centers . .
876
2.
Rural Communities Farthest from Urban Centers . . . . . .
879
IV. REVERSING THE WITHDRAWAL . . . . . . . . . . . . . . . . . . . . . . . . . . .
881
B.
THE DIVISIVE EFFECT OF CREATIONIST THEORIES
DEMOGRAPHIC CHANGE AND RURAL IDENTITY
A.
REPUBLICAN EDUCATION
............................
882
B.
EDUCATION AND SOCIALIZATION IN THE SUPREME COURT
.......
883
* Georgetown University Law Center, J.D. expected 2007; Oxford University, M.Phil., 2003;
University of Maryland, B.A., 1998. © 2007, Kevin Trowel. Many thanks to Professor Mark Tushnet
for his guidance and insightful comments on earlier drafts, Professor Robin West for initial encouragement on this project, and to Ania and my family for their patience and support.
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1.
Democracy and Citizenship . . . . . . . . . . . . . . . . . . . . .
884
2.
Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
886
3.
Economics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
887
.
888
1.
The Endorsement Test . . . . . . . . . . . . . . . . . . . . . . . . .
889
2.
Considering “Divisiveness” . . . . . . . . . . . . . . . . . . . . .
891
3.
Addressing Future Intelligent Design Challenges . . . . . .
892
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
894
C.
REPUBLICAN EDUCATION AND ESTABLISHMENT CLAUSE DOCTRINE
INTRODUCTION
Over the last eighty years, few topics have remained as consistently divisive
as the teaching of creationism in public school classrooms. Since the infamous
Scopes “monkey trial” in 1925, the grounds upon which opponents and proponents of creationism disagree have remained largely constant. Over that period,
proponents of creationism have made numerous attempts to introduce antievolution material into school curricula, generating headlines, inspiring controversy,
and ultimately leaving a trail of state and federal court decisions that reaches
into the present day.
The judicial history of post-Scopes creationism is written in three primary
episodes. The first was inspired in part by Cold War fears that the United
States was falling behind the Soviet Union in science. The issue reached the
Supreme Court for the first time in Epperson v. Arkansas,1 which overturned
a law prohibiting the teaching of evolution in Arkansas public school
classrooms.2 Two cases followed: Smith v. State3 and Wright v. Houston
Independent School District.4 Smith overturned a state law similar to Arkansas’s with minimal fanfare,5 and Wright dismissed an antievolutionist’s First
Amendment claim based on the school district’s textbook selection with
equal alacrity.6
Antievolutionists’ retreat after Epperson was brief. Perhaps in reaction to
Justice Fortas’s exhortation that “Arkansas’s law cannot be defended as an act
of religious neutrality,”7 antievolutionists soon reframed the issue as one in
1. 393 U.S. 97 (1968).
2. Id. at 109.
3. 242 So. 2d 692 (Miss. 1970) (invalidating MISS. CODE ANN. §§ 6798–6799 (1952)).
4. 486 F.2d 137 (5th Cir. 1973).
5. Smith, 242 So. 2d at 697 (“There can be little doubt, if any, that the [Supreme Court] would make
the same finding relative to our statute.”).
6. Wright, 486 F.2d at 138 (“Contrary to the sincere, able, and vigorous arguments of plaintiffs, the
Federal courts cannot by judicial decree do that which the Supreme Court has declared the state
legislatures powerless to do . . . .”).
7. Epperson, 393 U.S. at 109.
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which they sought only the equal treatment of evolution and creationism.8 In
this second episode, creationism was recast as “creation science.”9 Between
1973 and 1982, Tennessee, Arkansas, and Louisiana enacted statutes requiring “equal treatment” of evolution and creation science and all three resulted
in federal litigation.10 The Tennessee law was first to reach the courts in
Daniel v. Waters.11 The Court of Appeals for the Sixth Circuit overturned a
state law requiring that any textbook discussing evolution “shall give in the
same textbook and under the same subject commensurate attention to, and
an equal amount of emphasis on, the origins and creation of man and his
world as the same is recorded in other theories, including, but not limited to,
the Genesis account in the Bible.”12 Citing Epperson extensively, the Circuit
Court had little trouble finding the statute violative of the Establishment
Clause.13
The Arkansas law gave rise to McLean v. Arkansas Board of Education,14 in
which the court gave the most complete analysis of “creation science” under the
Establishment Clause. The court considered the statute under the three part
“Lemon test,” which requires that the statute: (1) have a “secular legislative
purpose”; (2) have a “principal or primary effect . . . that neither advances nor
inhibits religion”; and (3) does not foster “excessive government entanglement
with religion.”15 After tracing the history of creation science from its origins in
nineteenth-century fundamentalism, the court found that the statute violated all
three prongs of the Lemon test: it was simply an attempt to introduce the Bible
into school curricula and thus lacked a secular purpose,16 it would have the
effect of advancing particular religious beliefs,17 and it would foster excessive
government entanglement with religion.18 Under Lemon’s effects prong, the
8. See Edwards v. Aguillard, 482 U.S. 578, 581 (1987) (“The Creationism Act forbids the teaching
of the theory of evolution in public schools unless accompanied by instruction in ‘creation science.’ No
school is required to teach evolution or creation science. If either is taught, however, the other must also
be taught. The theories of evolution and creation science are statutorily defined as, ‘the scientific
evidences for [creation or evolution] and inferences from those scientific evidences.’” (alteration in
original) (citations omitted)).
9. See id. (quoting LA. REV. STAT. ANN. § 17:286.1 (1982)).
10. Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987), also fits broadly
in this “wave.” The case is slightly different, however, in that it did not involve a state or school board
action. Rather, a group of Tennessee public school students and parents challenged the evolutionary
content of the school board’s science standards on Free Exercise Clause grounds. The Sixth Circuit
Court of Appeals rejected the claim, finding no evidence of government compulsion. See id. at 1070.
11. 515 F.2d 485 (6th Cir. 1975) (invalidating 1973 Tenn. Pub. Acts ch. 377); see also Joyce F.
Francis, Comment, Creationism v. Evolution: The Legal History and Tennessee’s Role in That History,
63 TENN. L. REV. 753, 761–62 (1996).
12. Daniel, 515 F.2d at 487 (quoting 1973 Tenn. Pub. Acts ch. 377).
13. See id. at 489–92.
14. 529 F. Supp. 1255 (E.D. Ark. 1982) (invalidating 1981 Ark. Acts 590).
15. Id. at 1259; see also Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).
16. McLean, 529 F. Supp. at 1264.
17. See id. at 1266.
18. See id. at 1272.
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court went on to conclude that the bill established a “contrived dualism”
between evolution and creation science that was “fallacious pedagogy.”19 As a
result, the court concluded that creation science as described in the Arkansas
law was “simply not science.”20
The Louisiana law reached the Supreme Court in Edwards v. Aguillard.21 The
case was argued for the State by “Special Assistant Attorney General” Wendell
Bird, author of a seminal student note supporting the equal treatment of
creationism and evolution.22 The Court struck down Louisiana’s equal treatment
law on Establishment Clause grounds, holding that because equal treatment acts
are “designed either to promote the theory of creation . . . or to prohibit the
teaching of a scientific theory disfavored by certain religious sects[,] . . . [their]
primary purpose . . . is to advance a particular religious belief.”23
In the third and most recent episode, creationism has again been recast—
this time as “intelligent design.”24 Just as the “creation science” approach
developed in response to certain language in Epperson, “intelligent design”
has apparently emerged in response to Justice Brennan’s assertion in Edwards that “teaching a variety of scientific theories about the origins of
humankind to schoolchildren might be validly done with the clear secular
intent of enhancing the effectiveness of scientific instruction.”25 Alleging
that intelligent design has a secular purpose,26 proponents of the theory have
again made headlines with cases in Pennsylvania,27 Georgia,28 Louisiana,29
19. See id. at 1266–67.
20. See id. at 1267.
21. 482 U.S. 578, 581 (1987) (invalidating 1981 La. Acts 685).
22. See Note, Freedom of Religion and Science Instruction in Public Schools, 87 YALE L.J. 515
(1978). Bird also authored the Arkansas Balanced Treatment Act. See Greg J. Whitehair, Note, Teaching
the Theories of Evolution and Scientific Creationism in the Public Schools: The First Amendment
Religion Clauses and Permissible Relief, 15 U. MICH. J.L. REFORM 421, 443 n.99 (1982).
23. Edwards, 482 U.S at 593.
24. Intelligent design theory suggests “that intelligent causes may have played a crucial role in the
origin of the universe and of life and its diversity. It holds that design is empirically detectable in
nature, and particularly in living systems.” William S. Harris & John H. Calvert, Intelligent Design:
The Scientific Alternative to Evolution, 2 NAT’L CATH. BIOETHICS Q. 531, 538 (2003).
25. Edwards, 482 U.S at 594; see also (Revised) Brief of Amicus Curiae, The Discovery Institute at
9–11, Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707 (M.D. Pa. 2005) (No. 4:04-CV-2688)
[hereinafter Brief for Discovery Institute], available at http://www.discovery.org/scripts/viewDB/filesDBdownload.php?command⫽download&id⫽646 (quoting the cited passage from Edwards and arguing
that teaching of intelligent design serves important secular purposes).
26. See Brief for Discovery Institute, supra note 25, at 10–12.
27. See Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707 (M.D. Pa. 2005).
28. See Selman v. Cobb County Sch. Dist., 390 F. Supp. 2d 1286 (N.D. Ga. 2005). The action taken
by the Cobb County School Board did not directly implicate intelligent design. This Note will treat this
case as part of the larger intelligent design controversy, however, because the recent popularity of the
theory and the lobbying efforts of its proponents were the background against which the school board
adopted its disclaimer sticker. See id. at 1293–95.
29. See Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337 (5th Cir. 1999). Like Selman, Freiler
was also not specifically about intelligent design. Also like Selman, the case is, however, part of the
general trend dating from the mid-1990s in which “the [intelligent design] movement has served as a
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and most recently, California.30
This Note will examine recent intelligent design controversies, particularly
Kitzmiller v. Dover Area School District,31 the only court decision to squarely
address the constitutionality of intelligent design. This Note discusses the deep
social divisions inspired by the movement to teach intelligent design in public
schools and suggests an additional, overlooked factor—rapid demographic
change—that may be relevant in explaining why these divisions occur. The
Note argues that intelligent design’s divisiveness undermines the Supreme
Court’s long-held ideal of civic education, and it concludes that the Court’s
discussion of civic education may be elevated from dicta through an overlooked
aspect of the endorsement test.
Part I will briefly discuss the Kitzmiller decision, its basis for invalidating the
action of the Dover School Board, and its impact. Part II will discuss the
importance of science in American culture and the cultural tradition of its
coexistence with religion. Part III.A will argue that intelligent design—a theory
that rejects science and its compatibility with religion—encourages divisions
that affect all levels of society. Part III.B will suggest that some intelligent
design proponents may welcome these divisions as a response to rapid demographic changes in their communities. Part IV will consider “civic” education as
a possible response to this withdrawal: Section A will discuss civic education
generally, section B will examine the Supreme Court’s long history of support
for civic education, and section C will suggest that the Court’s advocacy of
civic education may be elevated from dicta and reconnected with Establishment
Clause doctrine through an underutilized aspect of the endorsement test.
I. KITZMILLER V. DOVER AREA SCHOOL DISTRICT
On October 18, 2004, the Dover School Board passed an intelligent design
resolution by a vote of 6–3 mandating that “[s]tudents . . . be made aware of
gaps/problems in Darwin’s theory and of other theories of evolution, including,
but not limited to intelligent design.”32 A month later, the School District issued
a press release announcing that teachers at Dover High School would be
required to read an intelligent design statement in ninth grade biology class:
catalyst towards renewed interest in attacking evolution.” See Steve Benen, Science Test, CHURCH &
STATE, July/August 2000, at 8, 12.
30. See Complaint at 10–11, Hurst v. Newman, No. 1:06-CV-00036-OWW-SMS (E.D. Cal. Jan. 10,
2006), available at http://www.au.org/site/DocServer/Final_Complaint.pdf?docID⫽541; Stipulation for
Dismissal with Prejudice, Hurst v. Newman, No. 1:06-CV-00036-OWW-SMS (E.D. Cal. Jan. 14,
2006), available at http://www2.ncseweb.org/hurst/Hurst_stipulated_dismissal_signed%20by_
court_20060117.pdf.
31. 400 F. Supp. 2d 707 (M.D. Pa. 2005).
32. Id. at 708; see also Heidi Bernhard-Bubb, “Design” Bedevils School Board, THE YORK DISPATCH
(York, Pa.), Nov. 2, 2004.
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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.33
Less than a month later, a group composed of students enrolled in Dover area
schools, their parents, a former science instructor at Dover High School, and a
former member of the Dover Area School Board and her husband brought suit
alleging that the intelligent design statement violated the Establishment Clause
of the First Amendment.34
Shortly after the School Board’s public announcement, the press flocked to
Dover as it became clear that the court would squarely address the constitutionality of intelligent design for the first time.35 The trial began on September 26,
2005, ended on November 4, 2005, and Judge John E. Jones III, a 2002 Bush
appointee, issued his voluminous opinion invalidating Dover’s policy on December 20, 2005.36
The decision is a straightforward application of the “endorsement test”37 and
“Lemon test”38 to Dover’s intelligent design policy. Judge Jones begins by
noting that he will take the “belt and suspenders” approach39 of applying both
the endorsement test and Lemon test concurrently due to uncertainty about
33. Kitzmiller, 400 F. Supp. 2d at 708–09.
34. Id. at 709–10.
35. See Lauri Lebo, Eyes of the Country Are on Dover ‘Intelligent Design’ Curriculum, THE EVENING
SUN (Hanover, Pa.), Nov. 24, 2004.
36. See Kitzmiller, 400 F. Supp. 2d at 711.
37. See Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring) (“The central issue
in this case is whether Pawtucket has endorsed Christianity by its display of the crèche. To answer that
question, we must examine both what Pawtucket intended to communicate in displaying the crèche and
what message the city’s display actually conveyed. The purpose and effect prongs of the Lemon test
represent these two aspects of the meaning of the city’s action.”).
38. See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971) (“First, the statute must have a secular
legislative purpose; second, its principal or primary effect must be one that neither advances nor
inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with
religion.’” (internal citations omitted)).
39. See Kitzmiller, 400 F. Supp. 2d at 714 n.4.
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Establishment Clause doctrine.40 Beginning with the endorsement test, Judge
Jones locates Kitzmiller within the tradition established by Epperson and Edwards, concluding that intelligent design “is nothing less than the progeny of
creationism.”41 Given that, Judge Jones then holds that the plain language of the
disclaimer would be interpreted as “a strong official endorsement of religion”
from the perspective of an objective student because (1) it sets evolution apart
as something that must be learned to satisfy state academic standards; (2) it
suggests that evolution is “just a theory” in the sense that it is merely an
“opinion” or “hunch”; and (3) having thus discredited evolution, it posits
intelligent design as an alternative “explanation.”42 Finally, within the framework of the endorsement test, Judge Jones finds that intelligent design was not
science43 because it invokes “supernatural causation,” it employs the same
irreducible complexity argument that “doomed creation science in the 1980s,”
and because science has refuted intelligent design’s attacks.44
The court then turns to the “purpose prong” of the Lemon test. Beginning
with a School Board member’s comments during a Board retreat in January
2002, Judge Jones exhaustively retraces the School Board’s steps leading up to
the announcement of the statement to be read to students in November 2004.45
During the trial, School Board members “either testified inconsistently, or lied
outright under oath on several occasions” in an attempt to conceal the religious
purpose of the intelligent design policy.46 Judge Jones concludes that “[a]ny
asserted secular purposes by the Board are a sham and are merely secondary to
a religious objective.”47 He then easily dispenses with the Lemon test’s “effects
prong” by noting that, “since [intelligent design] is not science, the conclusion
is inescapable that the only real effect of the [intelligent design] [p]olicy is the
advancement of religion.”48
Many hailed Kitzmiller as a thorough rebuke of intelligent design and a
substantial setback for its proponents.49 The lead ACLU attorney suggested that
40. See, e.g., Tangipahoa Parish Bd. of Educ. v. Freiler, 530 U.S. 1251, 1253 (2000) (Scalia, J.,
dissenting from denial of certiorari) (“Like a majority of the Members of this Court, I have previously
expressed my disapproval of the Lemon test.”).
41. Kitzmiller, 400 F. Supp. 2d at 721.
42. See id. at 724–25.
43. This echoes the holding in McLean v. Arkansas Board of Education, in which the court held that
“creation science” was not “science.” See 529 F. Supp. 1255, 1267 (E.D. Ark. 1982) (establishing five
“essential characteristics of science”). Because both creation science and intelligent design have been
found to be creationism under a different name, this Note often refers to them interchangeably.
44. See Kitzmiller, 400 F. Supp. 2d at 735.
45. See id. at 747–62.
46. Id. at 752.
47. Id. at 763.
48. Id. at 764. Judge Jones also noted that the effects prong and endorsement test have substantial
overlap. Therefore, in the effects inquiry, he incorporated his earlier endorsement test holdings by
reference. See id. at 764.
49. See, e.g., Lisa Anderson, Intelligent Design Flunked: In Scalding Ruling, Federal Judge
Denounces Challenge to Evolution, CHI. TRIB., Dec. 21, 2005, at C1; Editorial, Intelligent Ruling: Judge
Jones Brings Wisdom to the Dover Case, PITTSBURGH POST-GAZETTE, Dec. 23, 2005, at B6; Laurie
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“the judge’s decision will discourage people from trying to implement Intelligent Design in [other] school curriculums.”50 The Ohio School Board, which
had instituted an intelligent design proposal in 2004,51 seemed to support this
interpretation when it reversed its stance in reaction to the Kitzmiller decision.52
Nevertheless, intelligent design proponents were unwilling to concede defeat:
“From [the Discovery Center’s] point of view, intelligent design is not a legal
strategy, it’s a scientific theory . . . . It’s a robust theory, and we’re getting more
and more interest in it all the time.”53 Richard Thompson, President and Chief
Counsel of the Thomas More Law Center, which represented the defendants in
Kitzmiller, said “[a] thousand opinions by a court cannot make a valid scientific
theory invalid, or an invalid scientific theory valid . . . . Regardless of the
opinion, the issue of intelligent design will go forward.”54 Evidence regarding
the controversial textbook supported by the Dover School Board further suggested that intelligent design’s proponents were not prepared to end their legal
battle. “Early drafts of the [pro-intelligent design text] book [Of Pandas and
People] showed that the words creation and creationism were changed to
intelligent design in 1987, when the U.S. Supreme Court ruled against the
teaching of creation science [in Epperson]. A yet-to-be-published update replaces intelligent design with sudden emergence.”55
Judge Jones’s opinion in Kitzmiller is a thorough analysis of intelligent
design under the Establishment Clause. Nevertheless, it is clear that his decision
will not be the last word on intelligent design. The remainder of this Note will
attempt to build upon Judge Jones’s analysis in Kitzmiller by examining the
social context in which these controversies occur and suggesting an approach
that encourages courts to consider this context in a manner consistent with the
Establishment Clause.
II. THE CULTURAL LANDSCAPE
Having examined the recent Kitzmiller decision and Judge Jones’s rationale
for overturning the Dover School Board’s intelligent design policy, this Note
Goodstein, Issuing Rebuke, Judge Rejects Teaching of Intelligent Design, N.Y. TIMES, Dec. 21, 2005, at
A1; Judge Bars Intelligent Design Lesson, ST. PETERSBURG TIMES, Dec. 21, 2005, at 1A.
50. Nana Ama Sarfo, Attorney to Speak at U. Pittsburgh, THE PITT NEWS, Feb. 16, 2006.
51. See Leo Shane III, Education Board Snubs Scientists, CINCINNATI ENQUIRER, Mar. 10, 2004, at
1A.
52. See Jodi Rudoren, Ohio Board Undoes Stand on Evolution, N.Y TIMES, Feb. 15, 2006, at A14.
53. Bryn Nelson, Energized on Evolution: Clergy, Educators, Scientists at National Conference
Strategize Against Theory of Intelligent Design, NEWSDAY (New York), Feb. 21, 2006, at A37.
54. See Martha Raffaele, “Intelligent Design” Debate Splits Town, LEADER TIMES (Kittanning, Pa.),
Dec. 27, 2005, available at http://www.pittsburghlive.com/x/search/s_407805.html.
55. Catherine Candisky, Intelligent-Design Push, THE COLUMBUS DISPATCH, Feb. 13, 2006, at 1C; see
also infra text accompanying note 272. This issue is also discussed in Kitzmiller. See Kitzmiller v.
Dover Area Sch. Dist., 400 F. Supp. 2d 707, 721 (M.D. Pa. 2005) (“This word substitution [of
“intelligent design” for “creationism”] is telling, significant, and reveals that a purposeful change of
words was effected without any corresponding change in content . . . .”).
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will now look more generally at the recent wave of intelligent design controversies. As previously noted, challenges to the teaching of evolution have occurred
in waves: first creationism, then creation science, and most recently, intelligent
design.56 In addition to the cases that have gone to trial—the primary focus of
this Note—a number of school boards have entertained or are currently entertaining proposals to introduce intelligent design into public school classrooms.57
This Note will approach these controversies as part of a cultural whole stemming from similar, even if not identical, causes.
Section A of this Part begins by examining the place of science in American
culture. This section focuses on two historical episodes—the Scopes trial and
the Cold War—and includes a brief examination of current trends. Section B
then considers the interrelation of science and religion, and suggests that their
coexistence is also a powerful American cultural tradition. Placing intelligent
design in its cultural context is necessary to understand the ways in which the
theory rejects certain ideas that are fundamental to American culture.
A. SCIENCE AND AMERICAN CULTURE
Science has deep roots in American culture. Americans have long identified
with the idea of progress, and in turn they have identified progress with
science.58 The relationship is more complicated than that, of course, and science
frequently faces resistance from certain groups within the culture. Even in
mainstream culture, the relationship is not one of unquestioning fealty: “On the
one hand, we proudly support basic research that yields stunning breakthroughs
and Nobel Prizes. We then relish the ensuing debate about implications of
scientific advances.”59 In spite of these reservations, American culture is generally “organized on the principle that social progress leading to a new and better
tomorrow should be the basis of consensus, that technology is to be embraced
passionately, and that science is to be in the center of the agenda.”60 In the
56. See supra text accompanying notes 1–27.
57. See, e.g., Eric P. Martin, Note, The Evolutionary Threat of Creationism: The Kansas Board of
Education’s Omission of Evolution from Public School Curricula, 27 J. LEGIS. 167, 167–68 (2001);
Ryan Alessi, Intelligent Design Remarks Get Reaction: Why Fletcher Brought Topic Up is Talk of
Capitol, LEXINGTON HERALD-LEADER, Jan. 11, 2006, at A1; Laura Lynn Brown, Between Evolution and
Creation Intelligent Design Advocates Are the Latest Voice in the Evolving Discussion over What
Should Be Taught in Public School Classrooms, ARK. DEMOCRAT-GAZETTE, June 25, 2005. Ohio recently
rescinded its intelligent design proposal in reaction to the Kitzmiller decision. See Rudoren, supra note
52.
58. See Clarke A. Chambers, The Belief in Progress in Twentieth-Century America, 19 J. HIST. IDEAS
197, 220 (1958) (arguing that American belief in progress has “exhibited remarkable toughness” and is
based, in part, on man’s perceived ability to “compel the material world to serve his purpose through
science”); see also STEVEN GOLDBERG, CULTURE CLASH: LAW AND SCIENCE IN AMERICA 70 (1994) (“The
original relationship between science and religion in America turned in part on the American infatuation with progress.”).
59. GOLDBERG, supra note 58, at 1.
60. Arnold Thackray, The Historian and the Progress of Science, 10 SCI., TECH. & HUM. VALUES 17,
26 (1985) (discussing historical challenges to science and concluding that current challenges are part of
the “great tradition” of scientific progress).
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intelligent design context, two historical episodes—the Scopes trial and the
Cold War—and a brief discussion of recent trends will serve to illustrate this
relationship between culture and science in the United States.
1. Scopes and the Emerging Culture of Science
Science’s place in American culture was apparent even at the time of Scopes,
the birth of the creationism controversy in the United States. The “trial of the
century,” as it was called, pitted science against religion and the nation tuned in
to follow the battle61—it was one of the first “media circuses” in modern
American history.62 That religion was capable of eliciting such support may
come as no surprise; what is remarkable about the Scopes trial is that it
demonstrated the inroads that science—particularly evolution—had made into
American culture by the 1920s.63 There were numerous subtexts to the trial.
Some, such as the conflict between populism and intellectualism, were very
real.64 Others, like the perceived battle between the “civilized” North and
“backwards” South, were perhaps added to the myth of Scopes after the fact.65
Nevertheless, the issue that dominated the trial and captured America’s attention
was the perceived challenge that evolutionary theory posed to religion.66
The legacy of Scopes confirms this analysis. John Scopes, the Tennessee
teacher prosecuted67 under the Tennessee “monkey law,” was convicted by a
61. See EDWARD J. LARSON, SUMMER FOR THE GODS: THE SCOPES TRIAL AND AMERICA’S CONTINUING
DEBATE OVER SCIENCE AND RELIGION 170 (1997).
62. See Cullen Murphy, Religion and the Cultural Elite: A Lecture Given at Saint Ambrose
University, in Davenport, Iowa, THE ATLANTIC ONLINE, Apr. 7, 1994, http://www.theatlantic.com/unbound/
cullen/cmrel.htm; see also LARSON, supra note 61, at 202–03 (“[J]ournalists wired two million words
from Dayton during the trial, including more from America to Europe than just about any prior news
event. . . . The great southern sociologist Howard W. Odum tracked press coverage at the time and
counted that ‘some 2,310 daily newspapers in this country’ covered the Scopes trial, and found ‘no
periodical of any sort, agricultural or trade as well, which has ignored the subject.’”).
63. Darwin’s Evolution of Species was published in 1859. As the theory of evolution took hold in the
scientific community, it also began appearing with increasing frequency in the American classroom. As
the number of American pupils skyrocketed from 200,000 in 1890 to almost two million in 1920, the
theory of evolution touched an increasing number of American lives. See LARSON, supra note 61, at 24.
64. This aspect of the trial was personified by the trial attorneys, the “Great Commoner” William
Jennings Bryan for the prosecution and the fiercely agnostic attorney Clarence Darrow for the defense.
See id. at 103–04. The President of Columbia University described fundamentalists and antievolutionists as “new barbarians” and argued that unless the “true liberal . . . can stand his ground and make his
voice heard and his opinions felt, it will certainly be some time before civilization can resume its
interrupted progress.” Id. at 111.
65. Larson suggests that the North versus South subtext was concocted by Frederick Lewis Allen in
his 1931 book that gave an informal history of the 1920s. See id. at 225–26. But elsewhere, Larson’s
account of the trial suggests this subtext was apparent even at the time. See id. at 222 (describing what
he saw as “the tendency of northern evolutionists to blame Southerners for the Scopes trial”).
66. See id. at 170–71. On the opening day of trial, both the prosecution and defense framed the issue
as one of religion versus science. See id. at 171.
67. Scopes was actually recruited for this role by the ACLU, which sought to challenge the law. See
id. at 90. That the ACLU felt prepared to attack this law also suggests that science had assumed a
certain critical mass as a cultural phenomenon to make such a challenge worthwhile.
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jury after just nine minutes of deliberation.68 The decision was annulled by the
Tennessee Supreme Court,69 perhaps in order to avoid Supreme Court review.70
Nevertheless, on paper at least, Scopes was a loss for evolution and a win for
creationism. But it was a pyrrhic victory. The wider culture soon mythologized
the trial as a victory for science and a stinging defeat for antievolutionary
forces. Edward Larson traces this aspect of the Scopes legacy in part to the 1931
best-seller Only Yesterday: An Informal Account of the Nineteen-Twenties,
which painted the trial as a “decisive defeat” for antievolutionists.71 To this day,
the actual outcome of the case is often disregarded or misremembered, and the
trial is thought to represent a turning point at which science defeated religion.72
Arguably, even creationism’s supporters interpreted Scopes as a loss. Shortly
after the trial, creationists began to couch their theories in the language and
method of science. In 1935, for example, a fundamentalist group formed the
Religion and Science Association, followed by the Deluge Geology Society, and
in 1941, the American Scientific Affiliation.73 Because the wider culture interpreted Scopes as a loss for creationism, creationists appropriated scientific
language in hopes of sidestepping the trial’s cultural legacy. That creationists
felt obliged to play by science’s rule does not suggest a group emboldened by
victory.
This tendency to frame creationism as science is one of the lasting legacies of
the Scopes trial and an “extraordinary demonstration of the role of science in
American society.”74 The idea that “revelation or faith must be subordinated to
empiricism” “would come as a shock to many in other cultures,”75 but it
68. See id. at 191.
69. See Scopes v. State, 289 S.W. 363, 367 (Tenn. 1927).
70. See LARSON, supra note 61, at 221.
71. See id. at 225–27.
72. See id. at 245 (“The Harvard Paleontologist Steven Jay Gould summarized and criticized [the
Scopes legend] as follows: ‘John Scopes was persecuted, Darrow rose to Scopes’s defense and smite
the antediluvian Bryan, and the antievolution movement then dwindled or ground to at least a
temporary halt. All three parts of the story are false.’”). While Gould is correct to point out the faults in
the Scopes legend, doing so does little to refute the obvious cultural significance of the memory of
Scopes. The actual Scopes decision has faded into obscurity, but the Scopes legend—in which science
emerges as the victor—continues to resonate. In the Kitzmiller context, for example, many journalists
reported on the proceedings in Dover as inextricably related to the Scopes trial. See, e.g., Lisa
Anderson, Intelligent Design Flunked: In Scalding Ruling, Federal Judge Denounces Challenge to
Evolution, CHI. TRIB., Dec. 21, 2005, at C1 (“Kitzmiller is likely to be regarded as the Scopes case of the
21st Century—celebrated and lamented alike as the case that commanded not only the separation of
church and state but also the alienation of religion and science . . . .”); George Johnson, For the
Anti-Evolutionists, Hope in High Places, N.Y. TIMES, Oct. 2, 2005, at D3 (“Sometimes compared to the
Scopes ‘monkey trial’ of 1925, Kitzmiller et al. v. Dover Area School District opened last week in
Federal District Court in Harrisburg . . . .”); Chris Mooney, Trial and Error, THE NEW REPUBLIC, Oct.
17, 2005, at 18 (noting the widely held belief among journalists covering Kitzmiller that “a new Scopes
‘monkey’ trial is afoot here”).
73. See LARSON, supra note 61, at 233.
74. GOLDBERG, supra note 58, at 75; see also TOM SORELL, SCIENTISM 2 (1991) (“The creationists
agree with their opponents in using ‘science’ as an honorific term . . . .”).
75. GOLDBERG, supra note 58, at 76.
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resonates strongly in the American intelligent design controversies. Since Epperson, creationism has assumed an ever more “scientific” façade.76 This “reflects
the growing hegemony of science in a society where arguments need to be seen
as scientific for them to carry weight.”77 Creationism’s proponents have approached each legal defeat as an opportunity to reformulate the doctrine and to
prepare it for future challenges.78 It is therefore unlikely that Kitzmiller represents the final attempt to recast creationism in scientific garb.79 Thus, in many
important ways, Scopes and its legacy established the framework within which
all subsequent debates about creationism have taken place. That framework has
been and continues to be science.
2. Science, Culture, and the Cold War
The importance of science in American culture was again on display three
decades later at the peak of the Cold War. Following the successful launch of
the Soviet satellite Sputnik in 1957, the United States entered a period of
collective panic. Science became a weapon that threatened to make the Cold
War hot and deliver it directly to America’s doorstep.80 In response, “American
scientists were summoned forward by President Eisenhower to restructure our
nation’s scientific infrastructure from kindergarten up so that such a defeat
would not occur again. . . . Americans mobilized for a war on scientific ignorance.”81 As America entered this period of self-doubt and self-examination, the
underlying belief that science would restore America’s pre-eminence was readily
apparent. The American public reacted with little hesitation. The period of quiet
76. See Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 718 (M.D. Pa. 2005) (discussing
the reformulation of creation science as intelligent design); see also supra text accompanying notes
2–23. See generally Whitehair, supra note 22, at 423 (discussing the teaching of scientific creationism
in public schools).
77. Shankar Vedantam, Eden and Evolution, WASH. POST, Feb. 5, 2006 (Magazine), at W8.
78. The reformulation of creation science as intelligent design would seem to be a response to
Justice Brennan’s suggestion in Edwards that “teaching a variety of scientific theories about the origins
of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the
effectiveness of science instruction.” Edwards v. Aguillard, 482 U.S. 578, 594 (1987). This language
may also be the impetus for intelligent design proponents’ exhortation to “teach the controversy.” See
Melissa Nann Burke, Constitutional Law “ID” Handed Over to Judge, PA. L. WKLY., Nov. 14, 2005, at
1.
79. It is possible proponents of creationism use scientific terminology not because science has such a
preeminent place in American culture, but rather because the Establishment Clause of the United States
Constitution demands it. This would explain why, since the 1969 Supreme Court decision in Epperson
v. Arkansas—the first case barring creationism on Establishment Clause grounds—proponents of
creationism have used the language of science. It does not, however, explain why they did so in the
previous forty years between that decision and Scopes. Prior to Epperson, it was not clear that
creationists needed to reformulate their arguments at all, since creationism had carried the day in
Scopes. That creationists used scientific arguments even without coaxing from the Court suggests that
the reasons were and are cultural rather than constitutional.
80. See LARSON, supra note 61, at 249; see also HOWARD E. MCCURDY, SPACE AND THE AMERICAN
IMAGINATION 53 (1997) (quoting Lyndon Johnson as saying “control of space means control of the
world”).
81. Gregory Gelfand, Of Monkeys and Men, 16 J.L. & EDUC. 271, 282 (1987).
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complacency between Scopes and Sputnik ended, and science was made a
priority in school curriculums.82 Because the idea of science as progress (and, in
the Cold War context, as safety) was already firmly established in the American
psyche, Eisenhower’s “war against scientific ignorance” faced little, if any,
opposition.83
This perceived scientific gap between the Soviet Union and the United States
inspired more judicial interference during the 1960s and 1970s in school
curricular decisions.84 The belief that science was progress, and that the United
States was in danger of being left behind, was clearly a motivating factor for
judicial intervention, even if it was sometimes buried in analogy.85 In the
context of the Cold War, the choice was clear and science’s influence on
American culture was reasserted.
3. Current Trends
The sort of cultural reexamination that occurred after Sputnik was not unique.
Periodically, perceived threats to American military or economic pre-eminence
inspire wide-ranging and very public debates about the place of science in
American culture.86 The United States may, in fact, be undergoing just such a
period of self-examination now. A recent issue of Time magazine examines
current American attitudes to science and asks “Are We Losing Our Edge?”87 In
that article, former Secretary of Commerce Donald Evans suggests that current
challenges to America’s scientific dominance are “like Sputnik” and need to be
82. See McLean v. Ark. Bd. of Educ., 529 F. Supp. 1255, 1259 (E.D. Ark. 1982) (describing the
post-Sputnik reaction in education).
83. See LARSON, supra note 61, at 249 (describing how following Sputnik, even the three states with
antievolution laws adopted the textbooks developed by the Biological Sciences Curriculum Study,
which “stressed evolutionary concepts”); see also, e.g., Donald N. Michael, The Beginning of the Space
Age and American Public Opinion, 24 PUB. OPINION Q. 573, 579 (1960) (discussing American public
opinion reaction to Sputnik’s launching). Shortly after Sputnik was successfully launched, 74% of
respondents with an opinion “thought we should work harder and in general do the same as the
Russians, only more so.” Michael, supra. “In the surveys made during the period of the Sputnik shock
it appeared that the large majority of the public was willing to see educational standards tightened; a
greater emphasis placed on science, mathematics, and foreign languages; and more money spent on
education in general.” Gabriel A. Almond, Public Opinion and the Development of Space Technology,
24 PUB. OPINION Q. 553, 568 (1960).
84. See Martin, supra note 57, at 172.
85. See Moore v. Gaston County Bd. of Educ., 357 F. Supp. 1037, 1043 (W.D.N.C. 1973) (“[T]he
effect that this stifling of scientific inquiry, under the theory of ‘heresy,’ had upon the technological and
scientific development of Italy and Spain is well known; it was through Newton and others in Britain
and Northern Europe that the ensuing advancements of systematic scientific learning took place.”).
86. See e.g., NAT’L COMM’N ON EXCELLENCE IN EDUC., A NATION AT RISK: THE IMPERATIVE FOR
EDUCATIONAL REFORM 5–6 (1983) (“Our once unchallenged preeminence in commerce, industry, science
and technological innovation is being overtaken by competitors throughout the world. . . . This report
. . . seeks to generate reform of our educational system in fundamental ways . . . .”).
87. See Michael D. Lemonick, Are We Losing Our Edge?, TIME, Feb. 13, 2006, at 22.
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given “the same focus and energy.”88 Similarly, a recent issue of U.S. News &
World Report asks “Can America Keep Up?”89 The article begins by asserting:
“The next time there’s a moon shot, don’t expect the United States to take the
prize.”90 These periodic episodes of self-examination demonstrate that science
and scientists still have a powerful place in the American cultural idea. After all,
scientists “won the war, they got us to the moon, they protected us from polio
and dozens of other illnesses, and they gave us a standard of living far higher
than that of any other country.”91 In recent decades, the idea of science has
made further inroads into popular culture, increasing the cultural role of science
and scientists in America.92 Thus, despite occasional challenges to science from
within American culture, science has withstood numerous challenges and increased in its cultural importance.93
B. THE COEXISTENCE OF SCIENCE AND RELIGION IN AMERICAN CULTURE
That religion is also critically important to American culture is an idea that
hardly needs elaboration.94 But more resonant in American culture than either
science or religion alone is the idea that science and religion together can
coexist. This idea lies at the heart of the First Amendment. On one hand, the
“framers of the Constitution . . . cherished the Enlightenment ideal that science
could illuminate everything from chemical reactions to political theory. But the
framers were also descendants of people who had come to America in large part
seeking religious freedom.”95 This delicate balance between science and religion is part of what underlies the Establishment Clause.96
The belief that science and religion can and should coexist remains a powerful cultural idea today, even among many scientists. The programs of the
88. Id. It speaks to the power of science in American culture that even President Bush, who is
regarded by many as anti-science, nevertheless regards it as critical to sustaining American preeminence in the field. See Michael Specter, Political Science, THE NEW YORKER, Mar. 13, 2006, at 58.
89. See Richard J. Newman, Can America Keep Up?, U.S. NEWS & WORLD REP., Mar. 27, 2006, at
48.
90. See id.
91. Lemonick, supra note 87; see also Specter, supra note 88, at 61 (discussing the interplay of
science and politics in twentieth century America).
92. See Kevin Kelly, The Third Culture, 279 SCIENCE 992 (1998) (discussing the rise of popular
culture based on science and technology).
93. Evolution plays a central role in science generally. “Almost all science is the study of evolution
of one system or another . . . . Thus, evolution is an indispensable concept across all the sciences.”
LAWRENCE S. LERNER, THOMAS B. FORDHAM FOUND., GOOD SCIENCE, BAD SCIENCE: TEACHING EVOLUTION IN
THE STATES 1–2 (2000). “That evolution is the central organizing principle of all the historical sciences
is not a controversial issue among scientists . . . .” Id. at xi. Because science and evolution are
inextricable, science’s importance to American culture is evolution’s importance and vice versa.
94. See, e.g., GEORGE GALLUP JR. & D. MICHAEL LINDSAY, SURVEYING THE RELIGIOUS LANDSCAPE:
TRENDS IN U.S. BELIEFS 1 (1999) (“One cannot understand America if one does not have an awareness
and appreciation of the religious underpinnings of our society.”); N.J. Demerath III, Excepting
Exceptionalism: American Religion in Comparative Relief, 558 ANNALS AM. ACAD. POL. & SOC. SCI. 28,
30 (1998).
95. GOLDBERG, supra note 58, at 69.
96. Id. at 70.
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American Association for the Advancement of Science97 and the National
Center for Science Education,98 for example, both make room for religion. A
scientist working as part of Boston College’s seminar “The Alienation of
Intellectuals From Religion Within American Culture” suggested that “in his
experience, those working in the hard sciences, especially physics, were the
people in academe most open to discussing seriously the question of the
existence of God.”99 He found religion and science to be mutually reinforcing,
such that “with each new advance . . . we seem only to deepen the mystery of
existence, even as the architecture of physical reality is cause of dizzying
wonder.”100 In Kitzmiller, plaintiffs’ lead expert, Brown University biology
professor Dr. Ken Miller, personified the compatibility of religion and science.
He authored the textbook Biology that the Dover School Board was to have
ordered before the controversy began and is a “devout Catholic” who has no
trouble balancing his faith and his profession.101
Nor is the idea foreign to many religions and religious leaders in the United
States. At the time of the Scopes trial, there were numerous religious congregations that resisted the antievolution position of their co-religionists. Some saw
the need to accommodate science as part of a long tradition in which “Christian
theology adjusted itself to Copernican theory[] and to the facts of geology, and
for a majority of Christian scholars the adjustment to the facts of evolution has
already been made.”102 In the wake of Scopes, a movement among evangelical
religious leaders ignored the decision and the attendant cultural baggage and
“sought to reconcile conservative Christians to modern science.”103 Among
those undertaking this task was the influential evangelical preacher Billy Graham. Today, Graham’s website is explicit about the need for his followers to
accommodate religion and science; it states that “you certainly can be a
Christian and a scientist. In fact, some of the most brilliant scientists in
history—men like Pascal and Newton—were strong believers in God. . . . As a
Christian, you also will want to be the best scientist you can possibly be . . . .”104
97. See Vedantam, supra note 77, at 4; see also Alan I. Leshner, Redefining Science, 309 SCIENCE 221
(2005) (nothing that the author, the Chief Executive Officer of the American Association for the
Advancement of Science and Executive Publisher of Science, believes “it is appropriate to teach about
belief-based concepts like [intelligent design] in humanities courses, in classes comparing religious
points of view, or in philosophy courses that contrast religious and scientific approaches to the world”).
98. See Eugenie C. Scott, Science, Religion and Evolution, National Center for Science Education,
http://www.ncseweb.org/resources/articles/528_science_religion_and_evoluti_6_19_2001.asp (“Teachers need to correct the misconception that evolution is incompatible with religious faith.”) (last visited
Oct. 14, 2006).
99. Murphy, supra note 62.
100. Id.
101. See Vedantam, supra note 77; see also Matthew Chapman, God or Gorilla: A Darwin
Descendant at the Dover Monkey Trial, HARPER ’S, Feb. 2006, at 55 (“Like many of the plaintiff’s
witnesses, Miller, a practicing Catholic, had no trouble believing in both evolution and God.”).
102. LARSON, supra note 61, at 119.
103. Id. at 261.
104. Billy Graham, Billy Graham Evangelistic Ass’n, My Answer, http://www.billygraham.org/
MyAnswer_Article.asp?ArticleID⫽1662 (last visited Oct. 15, 2006).
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Most recently, Dean Michael Zimmerman of Butler University began The
Clergy Letter Project to garner support for evolution from community religious
figures.105 As of October 15, 2006, the project had 10,383 signatures from
Christian clergy.106 Given the long history of coexistence between science and
religion and the prevalence of this belief among both scientists and religious
leaders, the idea of coexistence is arguably as culturally powerful as either
science or religion on its own.
Intelligent design theory, however, rejects the idea that science and religion
can coexist. Instead, intelligent design offers only a “negative argument against
evolution.”107 As Dr. Miller puts it: “If a lack of scientific explanation is proof
of God’s existence, the counterlogic is unimpeachable: A successful scientific
explanation is an argument against God. That’s why this reasoning, ultimately,
is much more dangerous to religion than it is to science.”108 This theory pits
science and religion against each other such that science’s failure is religion’s
success. But paradoxically for the adherents of intelligent design, this approach
puts religion in the position of accepting science’s “leftovers.” As scientific
advances answer previously unanswerable questions, religion’s foothold must,
as Dr. Miller points out, be slowly eroded. Even if one avoids the trap of
scientism109 and resists the urge to conclude that religion will be essentially
explained away, it is nevertheless apparent that in the intelligent design scheme,
religion is on the defensive.
III. DIVIDED BY DESIGN?
Because the theory of intelligent design offers a choice between science and
religion, its emergence has had a deeply polarizing “us versus them” effect on
American society. In the coverage of the Kitzmiller trial, the divisions wrought
by intelligent design at the inter-community level—rural America versus urban
America, in particular—were obvious. Perhaps surprisingly, however, the divisions also have a substantial intra-community element, reaching deeply into the
affected communities and the individual lives of their residents.
Proponents of creationism have in the past sought to turn inward and away
from mainstream culture. Following the Scopes trial, for example, fundamentalist proponents of creationism “did little to contest the popular interpretation
105. See The Clergy Letter Project, http://www.butler.edu/clergyproject/clergy_project.htm (last
visited Oct. 15, 2006).
106. The Clergy Letter Project, http://www.butler.edu/clergyproject/religion_science_collaboration.
htm (last visited Oct. 15, 2006).
107. Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 738 (M.D. Pa. 2005); see also
McLean v. Ark. Bd. of Educ., 529 F. Supp. 1255, 1266 (E.D. Ark. 1982) (explaining that the “contrived
dualism” of evolution and creation science “is an extension of Fundamentalists’ view that one must
either accept the literal interpretation of Genesis or else believe in the godless system of evolution”).
108. Vedantam, supra note 77.
109. See SORELL, supra note 74, at 1 (“Scientism is the belief that science, especially natural science,
is much the most valuable part of human learning . . . the most authoritative, or serious, or beneficial.”).
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stamped on the trial by secular commentators and historians.”110 Instead, their
response was to enter a period of “self-imposed isolation from the broader
culture.”111 In this Part, this Note will discuss the divisive effects that intelligent
design has at the inter- and intra-community level. This Note will suggest that
this divisiveness may be a welcome effect of intelligent design controversies for
some proponents of the theory. This may, in turn, signal a return to fundamentalists’ desire for self-imposed exile from the “broader culture.” This Note will
then suggest that rapid demographic change in some rural communities may be
an additional, overlooked factor that helps to explain these communities’ inward
turn.
A. THE DIVISIVE EFFECT OF CREATIONIST THEORIES
1. Urban-Rural
Because the controversies have taken place exclusively in rural communities,
their most obvious impact has been to further alienate rural and urban communities from each other. Creationism’s effect in this regard has been clear since
Scopes, as urban northerners sneered at backwards, rural southerners.112 More
recently, disdain for the proponents of intelligent design in the elite urban press
was unmistakable. A New York Times op-ed noted sarcastically that “any
community that is worried about the ability of its students to compete in a
global economy would be wise to keep supernatural explanations out of its
science class.”113 At an opening for a museum exhibition on Darwin, newscaster Tom Brokaw implored “those of us who care about science and Darwin . . . to take a stand.”114 Perhaps it is this attitude in the elite urban press that
has led intelligent design proponents to self-identify as a persecuted group. One
adherent suggested, “Just like they say you can’t discriminate against black
people, or against gays, maybe they will say you can’t discriminate against
Darwin-doubters.”115
Far more troubling than mere geographic snobbery, however, is the possibility that creationist theories may serve to undermine geographical mobility
between urban and rural communities. This issue was apparent at the state,
rather than community, level in the 1970 case Smith v. State.116 In that case, a
Mississippi public school student challenged the state’s antievolution law on
two grounds. First, she claimed that she was “being deprived of the opportunity
110.
111.
112.
113.
114.
LARSON, supra note 61, at 236.
Id. at 237.
See supra note 65 and accompanying text.
Editorial, Intelligent Design Derailed, N.Y. TIMES, Dec. 22, 2005, at A32.
George Rush & Joanna Rush Molloy, Exhibit on Darwin Creates Bush Bash at Museum Gala,
DAILY NEWS (New York), Nov. 18, 2005, at 26 (“It was supposed to be a fund-raiser for the American
Museum of Natural History. But a new exhibit on Charles Darwin caused the Wednesday evening gala
to evolve into something of a rally against President Bush’s preferred theory of intelligent design.”).
115. See Vedantam, supra note 77.
116. 242 So. 2d 692 (Miss. 1970).
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to gain a basic educational foundation from which she can receive the necessary
technical, scientific training required to engage in the profession or business
which depends upon scientific knowledge of anthropology and related subjects.”117 Second, she claimed that her ability to compete with students from
other states on standardized tests was impeded by the prohibition on the
teaching of evolution.118 The Mississippi Supreme Court struck down the
statute on grounds that it was unconstitutional under Epperson.119
The possibility that teaching creationist theories may limit students’ educational opportunities reappeared recently when the University of California
admissions department instituted a system-wide policy to reject all applicants
taught from the Bob Jones University science text, which includes lessons in
Biblical creationism.120 The University of California system defended its approach, noting that the Bob Jones text does not reflect “knowledge generally
accepted in the scientific and educational communities and with which a student
at the university level should be conversant.”121 The plaintiff in Smith made a
theoretical claim that her opportunities were being stunted by the state’s failure
to teach her science; the University of California’s policy has made that threat
very real.122
Although the University of California may currently be an outlier on this
issue, the university’s assessment is ominous even for those students taught
creationism and admitted to other universities with less drastic policies. If the
University’s predictions regarding students schooled in creationism are true, it is
perhaps unreasonable to expect that many such students will be able to “catch
up” sufficiently to pursue a scientific education in any meaningful way. Furthermore, even if these students have internalized the creationist lesson such that
they are unaware that their opportunities have been limited, the limiting effect
would still be a loss for society if entire educational cohorts are prevented from
gaining anything from, or making any contribution to, the sciences.
2. Dividing Affected Communities
While less obvious than the urban-rural divisions, intelligent design controversies have also created deep fissures even within the communities that have
sought to teach these theories. In Kitzmiller, a plaintiff whose family has resided
117. Id. at 694.
118. See id.
119. Id. at 698.
120. The Lord’s Word: A New Front in the Culture Wars, THE ECONOMIST, Dec. 17, 2005, at 27–28;
see also Home Science Tools, Bob Jones Science Curriculum, http://www.hometrainingtools.com/catalog/
science-curriculum/cat_bob-jones-science-curriculum.html (selling and describing Bob Jones University textbooks) (last visited Apr. 5, 2006).
121. The Lord’s Word, supra note 120, at 27–28.
122. The University of California system has been sued by the Association of Christian Schools
International, a California Christian School, and six of its students. See University of California, UC
Policies for High School Course Approval, http://www.universityofcalifornia.edu/news/factsheets/
courseapproval.pdf (last visited Mar. 22, 2006).
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in Dover “for generations” testified that the controversy had “driven a wedge
where there hasn’t been a wedge before. People are afraid to talk to people for
fear, and that’s happened to me. They’re afraid to talk to me because I’m on the
wrong side of the fence.”123
The battle lines are not drawn along easily predictable lines, either. In Dover,
the controversy “pits neighbor against neighbor,” but the divisions are not
strictly “between those who are religious and those who are secular; religiosity
abounds on both sides of the controversy.”124 Bernadette Reinking, a selfidentified “devout Roman Catholic,” ran for the Dover School Board in opposition to the intelligent design policy.125 While campaigning door to door, members
of her own community “slammed doors in [her] face . . . [and] made monkey
noises.”126 The controversy is thus personalized, and “more than any abstract
culture war issue, [it] has forced this conservative town to determine the degree
to which it wants religion to be part of its public life.”127
The cases discussed in this Note are, of course, the most potent evidence of
the deep community divisions caused by intelligent design controversies. Tammy
Kitzmiller and her co-plaintiffs undermine the oversimplified portrayal of these
communities as united in their support for intelligent design. When Kitzmiller
made her first visit to an attorney regarding the Dover School Board’s policy,
“she ran into two other residents, and it was like being spotted sitting on the
wrong side of the bleachers at a home game. The man told her, ‘You didn’t see
us here, and we didn’t see you here.’”128 The divisions wrought by intelligent
design, so obvious at the inter-community level, also reach deep into the
affected communities themselves.
3. Separating Students
But the fissures go deeper still, reaching individual students in the classroom,
where they are most vulnerable.129 In Dover, the School Board’s policy required
123. Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 762 (M.D. Pa. 2005).
124. Jason Zengerle, Dover Soul, NEW REPUBLIC, Nov. 14, 2005, at 10; see also Robert Little, God’s
Not Scorned, and All’s Quiet: Dover, Pa., Gets a Respite From the Spotlight Over Intelligent Design,
BALT. SUN, Nov. 11, 2005, at A1 (noting how intelligent design “divided this community, neighbor
against neighbor”). Creationist theories had a tendency to divide even the most religious communities
as far back as Scopes: “The antievolution movement split [religious] factions along the crucial fault line
of an evolutionary versus a literal interpretation of the Bible.” LARSON, supra note 61, at 116.
125. See Zengerle, supra note 124.
126. Id.
127. Id.
128. Christina Kauffman, If You Do Speak Up, You Can Make a Change, YORK DISPATCH (York, Pa.),
Jan. 25, 2006.
129. See Edwards v. Aguillard, 482 U.S. 578, 583–84 (1987) (“The Court has been particularly
vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools
[because] . . . [s]tudents in such institutions are impressionable and their attendance is involuntary[,] . . .
[t]he State exerts great authority and coercive power through mandatory attendance requirements, and
because of the students’ emulation of teachers as role models and the children’s susceptibility to peer
pressure.” (internal citations omitted)).
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that parents receive a letter when their children are enrolled in ninth grade
biology, “‘asking if anyone has a problem with the [disclaimer] statement,’ and
calling on them to decide whether to allow their children to remain in the
classroom and hear the religious message or instead direct their children to
leave the room.”130 Concurring with the majority in Abington v. Schempp,
Justice Brennan concluded that such policies subject children “to a cruel
dilemma. In consequence, even devout children may well avoid claiming their
right and simply continue to participate in exercises distasteful to them because
of an understandable reluctance to be stigmatized as atheists or nonconformists
simply on the basis of their request.”131 Thus, in programs like those at issue in
Kitzmiller and Abington, nonparticipating students are physically segregated
from participating students, inspiring fear that “the children’s relationships with
their teachers and classmates [will] be adversely affected,”132 and that the
students’ actions will carry the “imputation of punishment for bad conduct.”133
While the divisions at the intra- and inter-community levels are generally
ideological, in their classroom application, creationist theories physically separate believers from nonbelievers in an obvious and exclusionary way.
4. The Tyranny of the Parent
Creationism thus divides urban from rural, it divides the rural communities in
which attempts are made to teach it, and it divides students from one another.
Among intelligent design proponents, however, there is yet another level. Taken
to its extreme, intelligent design’s divisive effects lead to a system in which the
adherent alone is “us” and everyone else is “them.” This is the most dramatic
manifestation of the theory’s divisiveness, for it separates each individual
family from any other that does not adhere to an approach identical to the last
detail. The testimony of creationism’s adherents demonstrates the tendency of
these controversies to degenerate quickly from a purported expression of what
the community wants134 to one of what an individual parent wants. In Mozert v.
Hawkins, one parent testified that she “did not want her children to make critical
judgments and exercise choices in areas where the Bible provides the an-
130. Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 731 (M.D. Pa. 2005).
131. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 290 (1963) (Brennan, J., concurring).
132. Id. at 208 (majority opinion).
133. Id. at 208 n.3; see also id. at 292 (Brennan, J., concurring) ( “[T]he excluded pupil loses caste
with his fellows, and is liable to be regarded with aversion, and subjected to reproach and insult.”
(quoting Weiss v. Dist. Bd. of Sch. Dist. No. Eight, 44 N.W. 967, 975 (Wisc. 1890))); id. (“The
exclusion of a pupil under such circumstances puts him in a class by himself; it subjects him to a
religious stigma; and all because of his religious belief.” (quoting Herold v. Parish Bd. of Sch. Dirs., 68
So. 116, 121 (La. 1915))).
134. See McLean v. Ark. Bd. of Educ., 529 F. Supp. 1255, 1272 (E.D. Ark. 1983) (detailing the use
of creationist teaching material by a particular school district); see also Lisa D. Kirkpatrick, Forgetting
the Lessons of History: The Evolution of Creationism and Current Trends to Restrict the Teaching of
Evolution in Public Schools, 49 DRAKE L. REV. 125, 127 (2000) (noting that intelligent design
controversies originate in “local, majoritarian orthodox[ies]”).
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swer.”135 With regard to the mention of other religions in the public classroom,
she insisted that “if the practices of other religions were described in detail, or
the philosophy was ‘profound’ in that it expressed a world view that deeply
undermined her religious beliefs, then her children ‘would have to be instructed
to [the] error [of the other philosophy].’”136
In the context of school vouchers, Professor Ackerman has noted that providing an outlet for excessive parental control “legitimates a series of petty
tyrannies in which like-minded parents club together to force-feed their children
without restraint.”137 The mother’s testimony in Mozert shows that in the
context of religion, certain parents’ belief systems may be so extreme, and
theological disagreements so divisive among even the most devout,138 that what
remains may be “petty tyrannies” of one.
A Pew Research Center study demonstrates the vast potential for the tyranny
of the individual parent. Among respondents believing in creation, 54% believe
that “parents [should have] the primary say in how evolution is taught.”139 Only
21% of the general public would leave it to elected school boards.140 Given this
disparity, it is wrong to suggest that intelligent design controversies are about
local control. Instead, the data suggest individual parents seeking “a right to
dictate the conduct of the Government’s internal procedures.”141 That any
purported attempt to assert local democracy should lead to such a result is
paradoxical. When the divisions that follow from creationist theory are followed
to their ultimate conclusion, however, it becomes apparent that “[a] religiously
diverse democracy must . . . choose between the disestablishment of religion
within public schools and the de facto, if not de jure, disestablishment of
democratic schools.”142 When religion—in the form of creationism—is brought
into the public school environment, democracy itself breaks down at the hands
of individual parents who seek to micromanage the material to which their
children are exposed. This point illuminates the extraordinary difficulty of
teaching intelligent design in a way that would satisfy even its proponents, and
it illustrates the profoundly isolating effect that the controversies have on the
society, communities, and individuals involved.
B. DEMOGRAPHIC CHANGE AND RURAL IDENTITY
The previous section described the deep divisions that intelligent design
controversies inspire between and within communities. An observer might
135. Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1069 (6th Cir. 1987).
136. Id. at 1064 (alterations in original).
137. BRUCE ACKERMAN, SOCIAL JUSTICE 160 (1980).
138. See, e.g., LARSON, supra note 61, at 237 (describing the disagreement among fundamentalists
surrounding William Jennings Bryan’s adherence to the “day/age theory” in interpreting Genesis).
139. PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, PUBLIC DIVIDED ON ORIGINS OF LIFE: RELIGION A
STRENGTH AND WEAKNESS FOR BOTH PARTIES 11 (2005).
140. Id.
141. Mozert, 827 F.2d at 1070 (citing Bowen v. Roy, 476 U.S. 693, 700 (1986)).
142. AMY GUTMANN, DEMOCRATIC EDUCATION 104 (rev. paperback ed. 1999).
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wonder why some communities are willing to tolerate—or even encourage—
divisions that have such impact on individuals’ lives. As discussed above,
standard “culture war” battle lines of ideology and religion alone are insufficient
to explain the conflicts—within the affected communities, both adherents and
opponents of intelligent design tend to be conservative and religious.143 One
recent study attempting to explain why intelligent design controversies occur
where they do concluded that the level of “evangelical adherence” within a
community correlates with the presence of antievolution “morality policies.”144
But “evangelical adherence” appears to be neither necessary nor sufficient:
Pennsylvania, the location of Kitzmiller, has one of the lowest rates of “evangelical adherence” in the United States, at just 5%.145 Conversely, North Carolina
has a high rate of “evangelical adherence” at 28%,146 yet it received the highest
possible score for its treatment of evolution in school science standards in a
2000 survey by the Thomas B. Fordham Foundation.147
In this Part, this Note will examine the possibility that demographic change
plays a role in the recent wave of intelligent design controversies. Section one
will examine demographic changes in rural communities closest to urban
centers. Section two will look at the separate but related trend of demographic
change in rural communities farthest from urban centers.
1. Rural Communities on the Periphery of Urban Centers
The search for a single explanation that will explain why intelligent design
controversies occur is undoubtedly in vain. Nevertheless, while recognizing that
these controversies are the result of numerous, subtle, and complex social forces
and therefore lack a single “cause,” a closer examination reveals that all four
communities in which intelligent design-related litigation has occurred have
been affected by the same demographic trend: rapid population growth in
formerly rural areas near major metropolitan centers.148 This Note suggests that
demographic change may be one of the numerous forces that together give rise
to intelligent design controversies. If demographic change plays such a role, it
may help to explain why some proponents of intelligent design appear to
encourage the theory’s divisive effects. Those rural residents seeking to stop the
rapid transformation of their communities may see that intelligent design divides those who wish to retain rural insularity from those who welcome or are
indifferent to the trends. This Note does not suggest that demographic change is
the only or the primary force behind intelligent design controversies. If demo-
143. See supra text accompanying notes 123–27.
144. Troy Gibson, Culture Wars in State Education Policy: A Look at the Relative Treatment of
Evolutionary Theory in State Science Standards, 85 SOC. SCI. Q. 1129 (2004).
145. See id. at 1140 tbl.2.
146. See id.
147. See LERNER, supra note 93, at xiii fig.1.
148. See generally U.S. CENSUS BUREAU, MIGRATION AND GEOGRAPHIC MOBILITY IN METRO AND
NONMETRO AMERICA: 1995 TO 2000 (2003) (discussing migration trends and presenting data).
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graphic change is one of the social forces behind the controversies, however, it
may help to explain why this most recent episode of religious activism has such
an exclusionary, inward-looking character.
These demographic trends have occasionally been suggested in the popular
press. One article noted that “Dover’s transition from rural to suburban has
prompted some residents to increase their religiosity: In the face of change,
they’ve taken comfort in more conservative, more evangelical, more politically
assertive churches.”149 Areas like Dover were once solidly rural, but as cities,
suburbs, and exurbs expand outward, these areas are becoming “a new kind of
bedroom community” for urban transplants who are “bringing their cosmopolitan tastes with them.”150 This process erodes the unique and insular identity of
these formerly rural communities. In response to this pressure, rural communities may turn to religion. This response may be an affirmative assertion of a
unique rural identity. It may also be a rejection of an urban, suburban, or
exurban identity.
Census data confirms that these demographic shifts are real and pervasive.
Metropolitan areas have expanded rapidly in recent years, and cities’ formerly
rural peripheries have expanded at the same time.151 This trend is apparent in
the four counties that have had recent intelligent design cases: York County,
Pennsylvania; Tangipahoa Parish, Louisiana; Cobb County, Georgia; and Kern
County, California.
Since 2000, only ten of Pennsylvania’s sixty-eight counties have grown at a
rate above that of the United States as a whole.152 York County, in which Dover
is located, was one of those ten. From 2000 to 2005, York County—a bedroom
community for Harrisburg, Pennsylvania as well as nearby Baltimore, Maryland153—grew by 7.1%, more than 33% faster than the nationwide growth rate
of 5.3%.154 The intelligent design controversy in Tangipahoa Parish, Louisi-
149. Zengerle, supra note 124.
150. Mokoto Rich & David Leonhardt, Shaking off the Rust: New Suburbs Are Born, N.Y. TIMES,
Dec. 22, 2005, at F1. Although not concerned with intelligent design, this article captures the essence of
the demographic shift.
151. See U.S. CENSUS BUREAU, supra note 148. In the period 1995–2000, cities with populations of
1–2 million grew 21.7%; cities with populations 2–5 million grew 14.8%; cities with populations of
less than 250,000 grew 8%; and those with populations of 250,000–1,000,000 grew 5.3%. See id. at 5.
Large and small metropolitan areas have continued to fuel population growth since 2000. See WILLIAM
H. FREY, BROOKINGS INST., METRO AMERICA IN THE NEW CENTURY: METROPOLITAN AND CENTRAL CITY
DEMOGRAPHIC SHIFTS SINCE 2000, at 15 fig.5 (2005).
152. See ECON. RESEARCH SERV., U.S. DEP’T OF AGRIC., COUNTY-LEVEL POPULATION DATA FOR PENNSYLVANIA, http://www.ers.usda.gov/data/population/PopList.asp?TheState⫽PA%2CPennsylvania.
153. See Nicki Lefever, Comfortable Commute, YORK DAILY RECORD (York, Pa.), Mar. 16, 2006 (“In
2000, the U.S. Census Bureau reported 51,022 York County residents left the area to work in other
cities, states and countries . . . .”). The total population of York County in 2000 was 381,751. See ECON.
RESEARCH SERV., supra note 152.
154. See ECON. RESEARCH SERV., supra note 152. Nationwide growth over the same period was 5.3%.
See U.S. Census Bureau, State & County Quickfacts: USA (2006), http://quickfacts.census.gov/qfd/states/
00000.html.
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ana,155 lying just outside New Orleans, gave rise to Freiler v. Tangipahoa
Parish Board of Education.156 The case was decided by the Fifth Circuit Court
of Appeals in 1999, but the controversy in Tangipahoa began with a School
Board vote disclaiming evolution in 1994.157 This action coincided with a
period of rapid growth in the community as the county’s population expanded
by 17.4% from 1990 to 2000, nearly 33% faster than the nationwide rate of
13.1%.158 The intelligent design controversy in Cobb County, Georgia, which
sits on the outskirts of Atlanta, gave rise to Selman v. Cobb County School
District.159 Between 1990 and 2000, Cobb County’s population grew an astounding 35.7%, nearly triple the overall nationwide growth rate.160 This growth
continued after 2000, when the county again substantially exceeded the nationwide growth rate with a 7.6% population surge.161 Most recently, an intelligent
design controversy in Lebec, California, an unincorporated town with a population of 1285 located north of Los Angeles in Kern County, gave rise to Hurst v.
Newman.162 From 1990 to 2000 Kern County grew 21.4%, nearly double the
nationwide rate; from 2000 to 2005, it expanded by 14.4%, nearly triple the
nationwide rate.163
It is perhaps logical that such high growth communities would be more likely
to give rise to intelligent design litigation. “Outsiders” would appear to be the
most fertile plaintiff class since they are probably likely to be less religious,164
less apprehensive about offending local mores by challenging a school board
155. See Bonnie Lewis, Hard Realities in Tangipahoa Parish, DAILY STAR (Hammond, La.), Oct. 27,
2002 (discussing problems of urban sprawl in “lovely, rural” Tangipahoa Parish).
156. 185 F.3d 337 (5th Cir. 1999).
157. Id. at 341.
158. See ECON. RESEARCH SERV., U.S. DEP’T OF AGRIC., COUNTY-LEVEL POPULATION DATA FOR LOUISIANA, http://www.ers.usda.gov/data/population/PopList.asp?TheState⫽LA%2CLouisiana; U.S. Census
Bureau, supra note 154.
159. 390 F. Supp. 2d 1286 (N.D. Ga. 2005).
160. See ECON. RESEARCH SERV., U.S. DEP’T OF AGRIC., COUNTY-LEVEL POPULATION DATA FOR GEORGIA, http://www.ers.usda.gov/data/population/PopList.asp?TheState⫽GA%2CGeorgia.
161. See id.
162. See Complaint, Hurst v. Newman, No. 1:06-CV-00036-OWW-SMS (E.D. Cal. Jan. 10, 2006),
available at http://www.au.org/site/DocServer/Final_Complaint.pdf?docID⫽541; Stipulation for Dismissal with Prejudice, Hurst v. Newman, No. 1:06-CV-00036-OWW-SMS (E.D. Cal. Jan. 14, 2006),
available at http://www2.ncseweb.org/hurst/Hurst_stipulated_dismissal_signed%20by_court_
20060117.pdf.
163. See ECON. RESEARCH SERV., U.S. DEP’T OF AGRIC., COUNTY-LEVEL POPULATION DATA FOR CALIFORNIA, http://www.ers.usda.gov/data/population/PopList.asp?TheState⫽CA%2CCalifornia. Other school
boards that have flirted with, but ultimately rejected, intelligent design curricula include: Darby,
Montana, located in Ravalli County, see Jenny Johnson, Darby School Board Puts Objective Origins to
Rest, RAVALLI REPUBLIC, July 7, 2004; Gransburg, Wisconsin, in Burnett County, see In Wisconsin,
Local School Board Adopts Improved Policy Endorsing the Teaching of Evolution, Not Creationism, PR
NEWSWIRE, Dec. 7, 2004; and Minnetonka, Minnesota, in Hennipen County, see Dan Wascoe, Board
Rejects Change to Science Standards, STAR TRIBUNE (Minneapolis), Dec. 16, 2005, at 7B.
164. See James R. Shortridge, Patterns of Religion in the United States, 66 GEOGRAPHIC REV. 420,
433 (1976). Shortridge discusses “religious intensity” in the United States and contrasts those locations
in which “[p]opulation sparseness means that a minimum of socializing institutions can exist in this
area and that residents must use what is available,” particularly the church, with “areas of low church
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policy, and more concerned with providing their children the educational background necessary to succeed in the urban or suburban cultural environment
from which they come. Alternatively, in cases where “native” parents are
seeking to challenge intelligent design programs, the influx of “outsiders” into a
community may, for the above reasons, represent an additional source of
support that creates the critical mass of intelligent design opponents necessary
to induce someone to file a claim.
Interestingly, however, this same demographic trend also appears to be
behind controversies in some communities in which no case has yet been
litigated. In 2000, the Thomas B. Fordham Foundation graded each state on
their treatment of evolution in school science standards.165 Thirteen states
received failing grades.166 Of those thirteen, five—New Hampshire, Florida,
Georgia, Tennessee, and Alabama—had a substantial number of counties with
growth above the national average in one or both periods listed in Table 1.
Table 1: States with High-Growth Counties167
Counties with population gain above the
nationwide growth rate/total number of counties
State
Florida
1990–2000
2000–2004
58/67
86.6%
51/67
76%
4/10
50%
7/10
70%
Georgia
94/159
68.6%
71/159
50.1%
Alabama
12/67
17.9%
43/67
64.2%
Tennessee
65/95
83.2%
29/95
36.8%
New Hampshire
2. Rural Communities Farthest from Urban Centers
An examination of the remaining states with failing grades reveals a second,
related demographic trend in rural areas farthest from urban centers. While
urban, suburban, and exurban areas are growing rapidly, the most rural areas are
hemorrhaging population.168 The most obvious example of this trend is Kansas,
one of the least dense and least resource-rich states in the country169 and the
membership” that are “in the more liberal areas of the country . . . [and are] densely enough settled to
have widespread socializing institutions.” Id.
165. See LERNER, supra note 93, at xiii fig.1.
166. Id.
167. See ECON. RESEARCH SERV., U.S. DEP’T OF AGRIC., COUNTY–LEVEL POPULATION DATA, http://
www.ers.usda.gov/Data/Population.
168. See generally David A. McGranahan & Calvin L. Beale, Understanding Rural Population Loss,
17 RURAL AMERICA 2 (2002).
169. Id. at 5 fig.2, 7 fig.5.
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location of creationist and intelligent design controversies in 1999 and 2005.170
Of Kansas’s 105 counties, 57 had negative population growth from 1990 to
2000; from 2000 to 2004, that number increased to 82 counties.171 Kansas’s
rapid population loss points to a different, although related, motive to turn
inwards. Most rural communities are not seeking to remain distinct in the midst
of urban interlopers; these communities are simply trying to remain. Reestablishing a strong, unique identity that is largely incompatible with the overall trend
towards urbanization may represent one method by which these communities
can stem their rapid population losses. Of the thirteen states with failing grades
in the Fordham Foundation’s survey, six—Kansas, North Dakota, Alabama,172
West Virginia, Mississippi, and Oklahoma—have a substantial number of counties that have rapidly lost population over one or both periods.173
Table 2: States with Significant Number of Population Loss Counties174
Counties with population loss/total number of
counties
State
1990–2000
2000–2004
North Dakota
47/53
88.7%
47/53
88.7%
Kansas
57/105
54.2%
79/105
75.2%
Alabama
12/67
17.9%
43/67
64.2%
West Virginia
26/55
47.2%
30/55
54.5%
Mississippi
14/82
17.1%
43/82
52.4%
Oklahoma
20/77
26%
36/77
46.8%
Of the thirteen states with failing grades, three—Wyoming, Ohio, and
Maine—do not obviously fit either pattern.175 Each state’s social and political
climate is unique. This Note does not suggest that demographic change is a
necessary precondition to explain all antievolution controversies, nor does it
suggest that the presence of rapid demographic change is sufficient to bring
about an intelligent design controversy. This Note does argue, however, that the
fact that all four locations of intelligent design-related trials, and ten of the
170. See Peter Slevin, Kansas Education Board First to Back “Intelligent Design,” WASH. POST,
Nov. 9, 2005, at A1.
171. See ECON. RESEARCH SERV., U.S. DEP’T OF AGRIC., COUNTY-LEVEL POPULATION DATA FOR KANSAS,
http://www.ers.usda.gov/data/population/PopList.asp?st⫽KS&longname⫽Kansas.
172. Alabama appears on both the population loss and population gain charts. These two trends need
not be mutually exclusive. States may have one or two urban areas that are growing and rural
hinterlands that are losing population.
173. See infra Table 2. Since the United States’ population growth rate overall was 13.11% from
1990 to 2000 and 4.3% from 2000 to 2004, those counties losing population are true outliers.
174. See ECON. RESEARCH SERV., supra note 167.
175. See id.
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thirteen states cited in the Fordham Foundation study, have undergone one or
both of these demographic shifts may suggest that demographic change is one
of the many factors which help to explain why intelligent design controversies
occur in certain communities. To the extent that demographic change is among
those factors, it may in turn help to explain the exclusionary aspects of
intelligent design as described above. While some communities may cope with
the demographic pressures in other ways, the correlation between intelligent
design and demographic change may lend credence to the theory that intelligent
design may be seen as part of a move towards isolation, division, and social
schism in some communities affected by rapid change.
IV. REVERSING THE WITHDRAWAL
Intelligent design controversies exist at the nexus between a purely democratic system that serves the immediate whims of a particular majority and a
more (although not entirely) standardized system that serves the needs of the
nation. The latter is often referred to as a “republican” or “civic” system of
education.176
Regardless of where an educational system sits on the spectrum between
extreme localism on one end and extreme republicanism on the other, it cannot
be value-free. The key question is, therefore: Whose values should be inculcated and by what process?177 Leaving educational decisions to a raw majority
“assumes, probably erroneously, that parents, whether individually or as a
voting majority, will not make serious, virtue-threatening, education-stifling
mistakes.”178 As the intelligent design controversies aptly demonstrate, such a
system will lead “individual groups with local control over education [to] press
their own agendas to the detriment of a national education for citizenship.”179
What remains is “a collection of democratic city-states, totally neglecting our
collective interest in a common education.”180 The other end of the spectrum is
equally unappealing. “[C]entralizing all control at the national level would
eliminate any effective democratic control over schools, leaving bureaucrats,
administrators, and teachers in de facto control.”181 The choice is not either/or,
of course, and the federalist system itself, which provides for local control
within nationally established limits, contains the promise of a solution.182
In section A of this Part, this Note will describe the contours of “republican”
or “civic” education and how intelligent design undermines its ideal. Section B
then examines the Supreme Court’s approach to this problem and demonstrates
176. See generally GUTMANN, supra note 142 (discussing “civic” education generally).
177. See Suzanna Sherry, Responsible Republicanism: Educating for Citizenship, 62 U. CHI. L. REV.
131, 159–60 (1995).
178. Id. at 160–61.
179. Id. at 161; see also supra Part III.A.4.
180. See GUTMANN, supra note 142, at 73; see also Sherry, supra note 177, at 161.
181. See GUTMANN, supra note 142, at 73.
182. See id. at 74.
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that the Court has consistently viewed education as a tool for citizenship based
on the “republican” or “civic” model, but that the Court has, with rare exceptions, confined this understanding to dicta. Finally, in section C, this Note will
suggest that the endorsement test as outlined by Justice O’Connor in Lynch v.
Donnelly allows courts to give effect to education’s civic purpose, thereby
providing courts with the tools necessary to meet “social” challenges like
intelligent design on an equal footing.
A. REPUBLICAN EDUCATION
The challenge of education in a democracy is to balance individuality and
autonomy with the needs of the state.183 The state requires that students become
members of society, and it serves this goal by “encourag[ing] the political
virtues so that [children] want to honor the fair terms of social cooperation in
their relations with the rest of society.”184 To avoid homogenization, the “political virtues” must include “toleration and mutual respect, and a sense of fairness
and civility.”185 Civic education should respect social diversity, but not at the
expense of the “values and practices that should hold us together as a society.”186 Often, as a result of the “desire to respect diversity, ‘difference,’ and
particular commitments and identities, . . . many seem to forget that peaceful,
orderly, tolerant liberal diversity needs to be planned for.”187
Civic education, therefore, must provide students with the tools to be active,
critical, political, but tolerant citizens. This will sometimes put the goals of a
system of civic education in conflict with the desires of individual groups or
communities. But theorists of civic education maintain that “parents do not have
the right to indoctrinate their children any more than does the state or any other
education agent. Nor do parents have the right to pass on their own religious
beliefs if that entails exempting their children from an education for liberal
democratic citizenship.”188 A parent’s authority is limited because the child is “a
future adult and a future citizen.”189
Beyond these broad contours, educational theorists are not in complete
agreement about the ideal content of a civic education.190 The specifics of this
183. See Amy Gutmann, Civic Education and Social Diversity, 105 ETHICS 557, 557 (1995).
184. JOHN RAWLS, POLITICAL LIBERALISM 199 (1993).
185. Id. at 122.
186. Stephen Macedo, Liberal Civic Education and its Limits, 20 CAN. J. EDUC. 304, 304 (1995); see
also Gutmann, supra note 183, at 579 (“[T]eaching these civic virtues supports the widest range of
social diversity that is consistent with the ongoing pursuit of liberal democratic justice.”).
187. Macedo, supra note 186, at 304.
188. Gutmann, supra note 183, at 576.
189. WILLIAM GALSTON, LIBERAL PURPOSES: GOODS, VIRTUES, AND DIVERSITY IN THE LIBERAL STATE 252
(1991).
190. See, e.g., id. at 253–54 (contrasting Gutmann’s view of civic education, which is premised upon
the idea that “the unexamined life is not worth living,” with his own, which maintains that “liberal
freedom entails the right to live unexamined as well as examined lives”); see also Gutmann, supra note
183, at 560–61; Harry Brighouse, Civic Education and Liberal Legitimacy, 108 ETHICS 719, 719 n.1
(1998).
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debate are beyond the scope of this Note. For the purposes of analyzing
intelligent design controversies, this Note will adopt the model of civic education described by Professor Sherry, who argues that students should learn “three
things: moral character, critical thinking, and cultural literacy.” 191 When intelligent design is examined against this standard, its failure to contribute to the
creation of civic-minded citizens becomes clear. First, given the importance of
science to American culture, students educated in antievolution classrooms will
be deprived of true cultural literacy. They “will learn only a distorted version of
the common culture.”192 Second, critical thinking is necessary to provide
children with the tools to “understand and to evaluate competing conceptions of
the good life and the good society.”193 Intelligent design, directly and as a proxy
for Biblical literalism and the rejection of “secular standards of reasoning that
make evolution clearly superior as a theory to creationism,”194 is often explicit
in its intent to undermine critical thinking. The parent testifying in Mozert was
frank that she “did not want her children to make critical judgments and
exercise choices in areas where the Bible provides the answer.”195 Proponents
of intelligent design thus often affirmatively refuse to provide children “with
cultural equipment that permits the child to criticize, as well as affirm, parental
ideas.”196 Finally, “the most basic moral requirement of republican citizens, of
course, is an inclination to participate in the republic, to engage in rational
deliberation.”197 This Note has thus far attempted to demonstrate how intelligent design proponents may actively invite divisiveness and welcome their own
social exclusion. Such exclusionary behavior undermines the republican idea.
B. EDUCATION AND SOCIALIZATION IN THE SUPREME COURT
The Supreme Court has long operated from the general premise that “the
American people have always regarded education and acquisition of knowledge
as matters of supreme importance which should be diligently promoted.”198 But
within a federalist system, whether the education to be “diligently promoted”
should be of the local or national variety is a matter of great controversy. Since
those words were written in Meyer v. Nebraska in 1923, the Supreme Court has
expressed a clear preference for education’s national, civic purpose and, with
few exceptions,199 has been reluctant to permit local attempts to undermine it.
The Court has favorably discussed education’s republican virtues under three
191. See Sherry, supra note 177, at 157.
192. Id. at 161.
193. See GUTMANN, supra note 142, at 44.
194. Id. at 102.
195. Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1069 (6th Cir. 1987).
196. ACKERMAN, supra note 137, at 117.
197. Sherry, supra note 177, at 176.
198. Meyer v. Nebraska, 262 U.S. 390, 400 (1923).
199. The most notable exception is Wisconsin v. Yoder, 406 U.S. 205, 234 (1972), in which the Court
reversed the convictions of Amish parents for failure to comply with a state law requiring compulsory
education for children until the age of sixteen.
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broad headings: first and most importantly, its beneficial effects for democracy
and citizenship; second, the positive effect it has on religion; and finally and
least importantly, its economic benefits. In this section, I will examine in turn
the Court’s approach to each of these aspects of republican education.200
1. Democracy and Citizenship
The Supreme Court has repeatedly reaffirmed its belief that education underlies American democracy. This sentiment was the cornerstone of Brown v.
Board of Education, in which Chief Justice Warren noted that:
[t]oday, education is perhaps the most important function of state and local
governments. Compulsory school attendance laws and the great expenditures
for education both demonstrate our recognition of the importance of education
to our democratic society. It is required in the performance of our most basic
public responsibilities, even service in the armed forces. It is the very
foundation of good citizenship.201
The idea also played a crucial role in the Court’s decision to reject creation
science in Edwards v. Aguillard.202 In Plyler v. Doe,203 the Court reasoned that
“by denying these children a basic education, we deny them the ability to live
within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our
Nation.”204 Most recently, Justice O’Connor acknowledged the republican purpose of education in Grutter v. Bollinger,205 which upheld Michigan Law
200. Civic education is not without its limits. A basic tension exists, for while “states and local
school boards are generally afforded considerable discretion in operating public schools . . . [courts]
have necessarily recognized that the discretion of the States and local school boards in matters of
education must be exercised in a manner that comports with the transcendent imperatives of the First
Amendment.” Edwards v. Aguillard, 482 U.S. 578, 583 (1987) (citation omitted). Some limits have
been imposed by the Court. See, e.g., Bd. of Educ., Island Trees Union Free Sch. Dist. v. Pico, 457 U.S.
853, 875 (1982) (deeming it unconstitutional for a school board to remove books from public school
library to enforce political orthodoxy); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
508–09 (1969) (holding a school regulation prohibiting students from wearing arm bands in protest of
the Vietnam War unconstitutional); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)
(holding that schools may not require students to pledge allegiance to the flag); Meyer, 262 U.S. at 399
(holding a state law prohibiting the teaching of any modern language except English unconstitutional).
Defining the precise contours of civic education is complex and controversial, even among its
proponents. This question is, however, beyond the scope of this Note. Because teaching of intelligent
design as science is so deeply divisive and hence so inimical to education’s civic purpose, it is not
necessary to determine the outer limits of education’s republican purpose. A different question—
whether states may teach intelligent design as part of history or social studies curricula, for example—
would require closer scrutiny of this issue and may very well lead to a different conclusion.
201. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).
202. Edwards v. Aguillard, 482 U.S. 578, 584 (1987) (citing McCollum v. Bd. of Educ., 333 U.S.
203, 231 (1948) (Frankfurter, J., concurring)).
203. 457 U.S. 202 (1982).
204. Id. at 223.
205. 539 U.S. 306 (2003).
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School’s affirmative action program.206 Citing to Brown, Justice O’Connor
noted that the Court has “repeatedly acknowledged the overriding importance of
preparing students for work and citizenship.”207
Justice Frankfurter delivered perhaps the most forceful and detailed defense
of education as a civic, republican force writing in concurrence in McCollum v.
Board of Education.208 After delivering a lengthy exegesis on the history of
American education, Justice Frankfurter noted that the “evolution of colonial
education . . . into the public school system of today is the story of changing
conceptions regarding the American democratic society.”209 The separation of
church and state in public schools, Justice Frankfurter continued, allowed the
public school to assume its role “as perhaps the most powerful agency for
promoting cohesion among a heterogeneous democratic people.”210 In concurring with the majority that tax-supported public school buildings could not be
used for religious instruction, Frankfurter concluded that “[t]he public school is
at once the symbol of our democracy and the most pervasive means for
promoting our common destiny.”211
Civic education played its most important role in the reasoning of the Court
in Justice Powell’s majority opinion in Ambach v. Norwick.212 The case concerned a New York statute that prohibited the permanent certification of noncitizens as public schoolteachers. The Court upheld the statute against an Equal
Protection Clause challenge, relying on education’s civic purpose as “an ‘assimilative force’ by which diverse and conflicting elements in our society are
brought together on a broad but common ground.”213 “Public education,”
Justice Powell noted, “fulfills a most fundamental obligation of government to
its constituency. The importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which
our society rests, long has been recognized by our decisions . . . .”214 The Court
held that it is at least rational to believe that education by non-citizen teachers,
who “prefer to retain citizenship in a foreign country with the obligations it
entails of primary duty and loyalty,” will frustrate this crucial task.215
Justice Brennan was a vocal proponent of the civic purpose of education. In
School District of Abington Township v. Schempp,216 he described public schools
“as a most vital civic institution for the preservation of a democratic system of
206.
207.
208.
209.
210.
211.
212.
213.
214.
215.
216.
See id. at 331.
Id.
333 U.S. 203, 212 (1948) (Frankfurter, J., concurring).
Id. at 214.
Id. at 216.
Id. at 231.
441 U.S. 68 (1979).
Id. at 77 (citing, among others, JOHN DEWEY, DEMOCRACY AND EDUCATION 26 (1929)).
Id. at 76.
Id. at 80–81.
374 U.S. 203 (1963).
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government.”217 In concurring that Bible readings in public schools violated the
Establishment Clause, he pointed to schools’
uniquely public function: the training of American citizens in an atmosphere
free of parochial, divisive, or separatist influences of any sort—an atmosphere
in which children may assimilate a heritage common to all American groups
and religions. This is a heritage neither theistic or atheistic, but simply civic
and patriotic.218
Writing in dissent in San Antonio Independent School District v. Rodriguez,219 he was yet more explicit in linking education to democracy, writing that
“there can be no doubt that education is inextricably linked to the right to
participate in the electoral process and to the rights of free speech and association guaranteed by the First Amendment.”220
Also dissenting in Rodriguez, Justice Marshall charged the majority with
“acquiescence in a system which deprives children in their earliest years of the
chance to reach their full potential as citizens.”221 Justice Marshall, like Justice
Brennan, would have found unconstitutional the Texas school finance system at
issue.222 In his well known dissent, Justice Marshall went further, concluding
that education is a fundamental right under the Equal Protection Clause precisely because of its civic purpose.223 His reasoning relied heavily on the idea
that “education serves the essential function of instilling in our young an
understanding of and appreciation for the principles and operation of our
governmental processes.”224
2. Religion
The Court has also discussed the benefits of civic education for religion. The
civic benefits to religion are different than the benefits to democracy. Civic
education benefits democracy because it has the potential to disseminate a set of
values that all students are encouraged to adopt. Conversely, civic education
benefits religion by requiring that students not be encouraged to adopt any
particular set of values. Rather, as the Court noted in Edwards v. Aguillard,
parents entrust their children to schools, “but condition their trust on the
understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student or her
family.”225 By keeping religion out of the classroom, civic education allows
217.
218.
219.
220.
221.
222.
223.
224.
225.
Id. at 230 (Brennan, J., concurring).
Id. at 241–42 (internal citations omitted).
411 U.S. 1 (1972).
Id. at 63 (Brennan, J., dissenting).
Id. at 71 (Marshall, J., dissenting).
Id. at 133.
See id. at 114–15.
Id. at 113.
482 U.S. 578, 584 (1987).
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religion to flourish in the home and within the family.
In Abington, the Court cited favorably to Justice Jackson’s dissent in Everson
v. Board of Education for this point:
[P]ublic schools are organized “on the premise that secular education can be
isolated from all religious teaching so that the school can inculcate all needed
temporal knowledge and also maintain a strict and lofty neutrality as to
religion. The assumption is that after the individual has been instructed in
worldly wisdom he will be better fitted to choose his religion.”226
Justice Brennan, concurring in Abington, noted that when religious matters are
removed from public life in general, and public schools in particular, they may
properly “be left to the conscience of the citizen.”227 He also noted that the
interaction of increasing access to free public education and increasing religious
diversity in the United States “placed in bold relief certain positive values in the
consistent application to public institutions generally, and public schools particularly, of the constitutional decree against official involvements of religion.”228
Keeping religion out of schools allows individual religious beliefs to flourish
and allows the state to pursue its more important civic function.
Justice Frankfurter’s concurrence in McCollum also describes civic education’s benefits to religion. As education became increasingly secular in the
United States, it “did not imply indifference to the basic role of religion in the
life of the people, nor rejection of religious education as a means of fostering
it.”229 Rather, removing religion from public schools allowed religious freedom
to coexist with “freedom in general[,] . . . leaving to the individual’s church and
home[] indoctrination in the faith of his choice.”230
By removing religion from public schools, the state is able to acknowledge
and even encourage the idea that “we are ‘a religious people whose institutions
presuppose a Supreme Being,’”231 without compromising its duty to create
common bonds between citizens. Religion was removed from the public school
classroom because of its potential to incite sectarian conflict. Therefore, its
continued exclusion is both necessary to allow the state to succeed in its civic
aims and beneficial because it fosters individual religious freedom.
3. Economics
The economic value of civic education is rarely discussed, but it nevertheless
226. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 218 (1963) (quoting Everson v. Bd. of
Educ., 330 U.S. 1, 23–24 (1947) (Jackson, J., dissenting)).
227. Id. at 231 (Brennan, J., concurring).
228. Id. at 241.
229. McCollum v. Bd. of Educ., 333 U.S. 203, 216 (1948) (Frankfurter, J., concurring).
230. Id. at 216–17.
231. Abington, 374 U.S. at 218 (Brennan, J., concurring) (quoting Zorach v. Clauson, 343 U.S. 306,
313 (1952)).
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deserves a brief mention. Civic education provides economic benefits secondarily, as they flow from students’ ability to participate in society, and therefore
in the economy. Thus, when discussing the economic benefits of education, the
Court links individual economic opportunity with its attendant civic benefits. In
Plyler v. Doe, for example, the Court noted that “education provides the basic
tools by which individuals might lead economically productive lives for the
benefit of us all.”232 In Wisconsin v. Yoder, the Court, in spite of its anti-civic
conclusion that Amish children should be excused from compulsory education,
nevertheless conceded that “education prepares individuals to be self-reliant and
self-sufficient participants in society.”233 In Brown v. Board of Education, the
Court linked cultural literacy and economic opportunity:
[T]oday [education] is a principal instrument in awakening the child to
cultural values, in preparing him for later professional training, and in helping
him to adjust normally to his environment. In these days, it is doubtful that
any child may reasonably be expected to succeed in life if he is denied the
opportunity of an education.234
Finally and most recently, in Grutter v. Bollinger, Justice O’Connor suggested
the interconnectedness of economic and civic benefits in education by noting
the “overriding importance of preparing students for work and citizenship.”235
C. REPUBLICAN EDUCATION AND ESTABLISHMENT CLAUSE DOCTRINE
Despite the Court’s frequent and often fervent support for education’s civic
purpose in all three areas discussed above, the Court has rarely adopted it as a
central feature of its reasoning.236 Although education’s civic purpose is generally confined to dicta, it is nevertheless frequently presumed by the Court when
it analyzes educational questions. Thus, although the Court’s support for civic
education is deeply rooted, it is difficult to place within Establishment Clause
doctrine.
The above discussion suggests that intelligent design is a manifestation of
certain communities’ desire to withdraw from mainstream culture. This withdrawal jeopardizes education’s civic purpose. In this section, this Note will
conclude by suggesting that the endorsement test as originally formulated
encourages courts to consider the divisive effect of these policies when analyzing their constitutionality. Formally recognizing the divisiveness of intelligent
design—and therefore its frustrating effect on education’s civic purpose—will
reconnect Establishment Clause doctrine with one of its underlying purposes.
232. 457 U.S. 202, 221 (1982).
233. 406 U.S. 205, 221 (1972).
234. 347 U.S. 483, 493 (1954).
235. 539 U.S. 306, 331 (2003).
236. But see Ambach v. Norwick, 441 U.S. 68, 76 (1979) (finding a U.S. citizenship requirement for
public school teachers valid because of public education’s civic role).
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This will serve two purposes: First, it will give effect to the Court’s frequent
defense of civic education; second, it will provide courts with the means to fully
address all aspects of the intelligent design challenge.
1. The Endorsement Test
Establishment Clause doctrine is a particularly unsettled area of constitutional
law. Some commentators suggest that recent changes on the Supreme Court237
may signal a move in Establishment Clause doctrine towards the less restrictive
“coercion test” developed by Justice Kennedy.238 Under current doctrine, however, the Court analyzes Establishment Clause challenges using the Lemon test
and the endorsement test. “As the endorsement test developed through application, it is now primarily a lens through which to view [the] ‘effect[s]’” prong of
the Lemon test.239
Justice O’Connor’s original formulation of the endorsement test was intended
to subsume the first two prongs of the Lemon test.240 In light of the test’s
subsequent use as a means to interpret the “effects” prong, however, the most
salient definition of “endorsement” in Lynch itself “asks whether, irrespective of
government’s actual purpose, the practice under review in fact conveys a
message of endorsement or disapproval.”241 The rationale behind avoiding
endorsement or disapproval is that “[e]ndorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders, favored members of
the political community. Disapproval sends the opposite message.”242 The
underlying premise of Justice O’Connor’s formulation is that “sending a message of favoritism or preference is wrong precisely because it detracts from the
experience of equal political participation by minority and majority alike.
Insider and outsider status are wrong because they are differentially distributed.
In a good political society, everyone feels equally like an insider.”243 The
endorsement test therefore “offer[s] an equality-based answer” to the problems
237. See, e.g., Bob Holmes et al., New Supreme Court Will Touch Us All, NEW SCIENTIST, Jan. 28,
2006, at 14 (suggesting that Justice Alito may favor the coercion test); Jeremy Leaming, Confirmed
Conservative, CHURCH & STATE, Oct. 1, 2005, at 5–6 (discussing Chief Justice Roberts’s support for the
coercion test in a brief written while he was in the Solicitor General’s office).
238. See Lee v. Weisman, 505 U.S. 577, 592 (1992) (“As we have observed before, there are
heightened concerns with protecting freedom of conscience from subtle coercive pressure in the
elementary and secondary public schools. Our decisions . . . recognize, among other things, that prayer
exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited
to the context of schools, but it is most pronounced there.”).
239. Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 714 (M.D. Pa. 2005).
240. See Lynch v. Donnelly, 465 U.S. 668, 690 (1984).
241. Id.
242. Id. at 688.
243. See Noah Feldman, From Liberty to Equality: The Transformation of the Establishment Clause,
90 CAL. L. REV. 673, 697 (2002) (describing the equality-based rationale behind the endorsement test
and criticizing it as a divergence from the clause’s original liberty-based rationale).
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posed by Establishment Clause challenges.244
As discussed above, the insider/outsider dichotomy was one of the principle
reasons behind the secularization of public education.245 And as described in
Parts IV.B.1 and 2 above, the Court’s frequent references to the civic purpose of
education are explicit about the need to avoid sending the message of inclusion
to one group and exclusion to another. Because the endorsement test and secular
education share the same underlying rationale—inclusion—the endorsement
test is uniquely suited to analyzing the sort of Establishment Clause challenge
that intelligent design controversies present.
Justice O’Connor’s original formulation of the endorsement test in Lynch
supports this analysis. Justice O’Connor explained that “whether a government
activity communicates endorsement of religion is . . . in large part a legal
question to be answered on the basis of judicial interpretation of social facts.”246
Her assertion that “[p]olitical divisiveness is admittedly an evil addressed by the
Establishment Clause”247 strongly suggests that “divisiveness” is the sort of
social fact that courts may consider. Justice O’Connor concluded that “the
constitutional inquiry should focus ultimately on the character of the government activity that might cause such divisiveness, not on the divisiveness
itself.”248 This formulation is open to the objection that the “character of the
government activity” may, in fact, be “divisive.” Nevertheless, in Lynch this
tension is settled by allowing the divisive effects of state action as “evidence
that institutional entanglement is excessive or that a government practice is
perceived as an endorsement of religion.”249
The first half of this conclusion is relevant to the third, or “excessive
entanglement” prong of the Lemon test.250 The second half—which suggests
that divisiveness may be considered as “evidence . . . that a government practice
is perceived as an endorsement of religion”251—relates directly to the endorsement test as it has come to be understood since Lynch. As Judge Jones explained
in Kitzmiller, the endorsement test as currently formulated “consists of the
reviewing court determining what message a challenged governmental policy or
enactment conveys to a reasonable, objective observer who knows the policy’s
language, origins, and legislative history, as well as the history of the commu-
244. Id. at 698.
245. See, e.g., McCollum v. Bd. of Educ., 333 U.S. 203, 217 (1948) (Frankfurter, J., concurring)
(“The sharp confinement of the public schools to secular education was a recognition of the need of a
democratic society to educate its children, insofar as the State undertook to do so, in an atmosphere free
from pressures in a realm in which pressures are most resisted and where conflicts are most easily and
most bitterly engendered.”).
246. See Lynch v. Donnelly, 465 U.S. 668, 693–94 (1984) (emphasis added).
247. Id. at 689.
248. Id.
249. Id. (emphasis added).
250. See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).
251. See Lynch, 465 U.S. at 689.
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nity and the broader social and historical context in which the policy arose.”252
Justice O’Connor’s opinion in Lynch makes clear that divisiveness could be
considered evidence of an observer’s perception of endorsement; as the endorsement test has developed, it has became clear, in turn, that an observer’s
perception of endorsement is sufficient to render a policy unconstitutional.253
Therefore, it appears that a sufficient showing of divisiveness may play a
significant role in considering the constitutionality of a government action under
the endorsement test.
2. Considering “Divisiveness”
In application, the Court’s consideration of “divisiveness” has been uneven.
In Zelman v. Simmons-Harris,254 for example, whether social “divisiveness”
could be considered was a key point of contention in the 5-4 decision upholding
an educational voucher system that provided funds to be used in public or
private schools, or on tutoring assistance.255 Chief Justice Rehnquist, writing for
the majority, dismissed it as an inappropriate consideration, stating “Justice
Breyer would raise the invisible specters of ‘divisiveness’ and ‘religious strife’
to find the program unconstitutional. It is unclear exactly what sort of principle
Justice Breyer has in mind, considering that the program has ignited no ‘divisiveness’ or ‘strife’ other than this litigation.”256 Justice Breyer, on the other hand,
dissented: “I write separately . . . to emphasize the risk that publicly financed
voucher programs pose in terms of religiously based social conflict. I do so
because I believe that the Establishment Clause concern for protecting the
Nation’s social fabric from religious conflict poses an overriding obstacle to the
implementation of this well-intentioned school voucher program.”257
In Good News Club v. Milford Central School,258 Justice Scalia, in his
concurring opinion, mocked any concern for the divisive effects that might
result from a public school making facilities available for public use, including
to religious organizations. “Justice Stevens fears without support in the record . . . [that the proselytizing efforts of the Good News Club] may prove
(shudder!) divisive.”259 Justice Stevens, writing in dissent, cited to Justice
252. Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 714–15 (M.D. Pa. 2005).
253. See County of Allegheny v. ACLU, 492 U.S. 573, 599–602 (1989) (“No viewer could
reasonably think that [the crèche] occupies this location without the support and approval of the
government. Thus, by permitting the ‘display of the crèche in this particular physical setting,’ the
county sends an unmistakable message that it supports and promotes the Christian praise to God that is
the crèche’s religious message . . . . Under Lynch, and the rest of our cases, nothing more is required to
demonstrate a violation of the Establishment Clause. The display of the crèche in this context,
therefore, must be permanently enjoined.” (quoting Lynch, 465 U.S. at 692 (O’Connor, J., concurring))).
254. 536 U.S. 639 (2002).
255. Id. at 645.
256. Id. at 662 n.7.
257. Id. at 717 (Breyer, J., dissenting).
258. 533 U.S. 98 (2001).
259. Id. at 126 (Scalia, J., concurring).
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Frankfurter’s concurrence in McCollum and noted that “[s]uch recruiting meetings may introduce divisiveness and tend to separate young children into cliques
that undermine the school’s educational mission.”260
But Chief Justice Rehnquist’s assertion that “[w]e quite rightly have rejected
the claim that some speculative potential for divisiveness bears on the constitutionality of educational aid programs”261 is at odds with other recent decisions
that have, in fact, relied on a policy’s divisiveness in analyzing its constitutionality. Divisiveness was part of the majority’s reasoning in Santa Fe Independent
School District v. Doe,262 for example. There the Court overturned the school
district’s policy of allowing students to select a fellow student to recite a prayer
prior to school football games.263 Justice Stevens, writing for the majority,
noted that “[t]he mechanism [by which students selected a fellow student to
give a pre-football game prayer] encourages divisiveness along religious lines
in a public school setting, a result at odds with the Establishment Clause.”264
Similarly, the Court noted the divisive effects of an invocation and benediction
at a high school graduation in Lee v. Weisman.265 Justice Kennedy explained
that
[d]ivisiveness, of course, can attend any state decision respecting religions,
and neither its existence nor its potential necessarily invalidates the State’s
attempts to accommodate religion in all cases. The potential for divisiveness
is of particular relevance here though, because it centers around an overt
religious exercise in a secondary school environment where . . . subtle coercive pressures exist . . . .266
Justice Kennedy’s discussion of the relevance of divisiveness is particularly
appropriate in the intelligent design context. The “subtle coercive pressures”
present in a ninth grade biology class are as strong as at a high school football
game, and that a student may leave class, or not attend the game, is no
answer.267
3. Addressing Future Intelligent Design Challenges
The endorsement test as originally formulated provides courts with the means
to consider “social facts,” including the divisive effect of a given policy.268 This
Note has argued that intelligent design controversies invite deep divisiveness
within classrooms, within affected communities, and within the broader society.
260.
261.
262.
263.
264.
265.
266.
267.
268.
Id. at 131–32 (Stevens, J., dissenting).
Zelman, 536 U.S. at 662 n.7.
530 U.S. 290 (2000).
Id. at 301.
Id. at 311.
505 U.S. 577, 587–88 (1992).
Id.
See supra note 129.
See Lynch v. Donnelly, 465 U.S. 668, 694 (1984).
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The dangers posed by these divisions are particularly acute in the public school
context for two reasons: First, the policies obviously contravene the Supreme
Court’s decades-old approach to civic education; second, in public schools these
divisions have great potential to ossify in the minds of impressionable students,
causing localism and regionalism to undermine education’s civic purpose. In
students’ minds, allegiance to the community or region may come to supplant—
rather than coexist with—allegiance to the nation.
The danger of these tendencies is worth considering as a doctrinal matter
because it is consistent with the underlying concerns of the Establishment
Clause and of secular education. As described in Lynch, the Establishment
Clause is premised on the idea that religion is kept out of the public sphere at
least in part to prevent the social divisions that attend a state religious preference (or the perception of a preference).269 The Establishment Clause also
represents a delicate balance between the Founders’ scientific rationalism and
their religious faith.270 These two aspects of Establishment Clause doctrine
intersect in intelligent design controversies, presenting courts with an opportunity to analyze these cases in a way that reconnects the doctrine with the
Clause’s purpose.
Moreover, allowing courts to hear testimony about whether and how a policy
divides a community adds an additional and useful layer of information to the
Establishment Clause analysis. Specifically, analyzing intelligent design’s effect
on our “social fabric” will provide courts with the tools necessary to tease out
the underlying purposes of a given policy, regardless of how the policy is
framed. This is particularly relevant because, as noted above, proponents of
creationism have been persistent in their attempts to alter subtly the theory to
meet the perceived requirements of each decision in which the theory has been
considered.271 There is no sign of this trend changing post-Kitzmiller. The next
iteration of the theory was hinted at during the Kitzmiller trial:
[A] lawyer grilled an intelligent design proponent on why a textbook the
witness helped to write substituted “intelligent design” for “creationism” in a
later edition and with “sudden emergence theory” in a draft of a future
edition.
“We won’t be back in a couple of years for the sudden emergence trial, will
we?” the lawyer asked.272
Similarly, proponents of creationism have in recent months attempted to
269. See supra text accompanying notes 240–42.
270. See supra text accompanying notes 95–96.
271. See supra notes 53–55 and accompanying text.
272. See Laurie Goodstein, Evolution Trial in Hands of Willing Judge, N.Y. TIMES, Dec. 18, 2005,
§ 1, at 41.
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answer courts’ concerns about the lack of peer review of intelligent design.273
But peer review alone cannot and should not be sufficient to render legal a
policy that is otherwise violative of the Establishment Clause. Although factors
like the absence of peer review may be relevant to courts’ Establishment Clause
analysis, such factors have become false targets in a cat-and-mouse game
between courts and the theory’s proponents. This Note does not suggest that
such analyses should or could be entirely superseded by the “divisiveness”
inquiry. Nevertheless, as a practical matter, reconnecting Establishment Clause
doctrine and purpose in a way that focuses on the underlying effects of these
policies will help courts avoid getting bogged down in details—the absence of
peer review, for example—that may serve to obfuscate rather than clarify
underlying problems with the policy. Adding this layer of analysis will better
equip courts to understand a given policy’s constitutionality under the Establishment Clause. In short, while Kitzmiller would not have come out differently had
the court considered the policy’s divisive effects, this additional layer of analysis may assist courts in the future as they examine policies that offer merely
technical responses to specific language in the decisions without addressing the
constitutional deficiencies that underlie the creationist project.
CONCLUSION
This Note has attempted to analyze recent intelligent design controversies in
their broader social context. In so doing, this Note has shown the deeply
divisive nature of intelligent design proposals. The divisiveness of intelligent
design policies points to a dangerous trend in which certain communities may
be actively turning away from the wider culture, exacerbating existing divisions, and creating new ones. This is especially true if, as this Note suggests,
demographic change in rural communities is a factor in the recent wave of
intelligent design controversies. Over the past eighty years, the Supreme Court
has outlined and supported a system of education that would be undermined by
these communities’ inward turn. This Note argues that the endorsement test as
formulated in Lynch provides a means by which courts can give effect to this
approach by considering the divisiveness wrought by intelligent design policies.
In this way, courts can reconnect Establishment Clause doctrine with one of its
underlying purposes, while reasserting the importance of civic education to a
cohesive society.
273. See Discovery Institute, Peer-Reviewed & Peer-Edited Scientific Publications Supporting the
Theory of Intelligent Design (Annotated) (Aug. 1, 2006), http://www.discovery.org/scripts/viewDB/
index.php?command⫽view&id⫽2640 (last visited Oct. 31, 2006).