More bad legal analysis

First some background: I am a Christian and a deacon in an evangelical church, but thanks mostly to places like this and talk.origins, I have abandoned my denomination's position on the origins question. As an insider, I thought I would offer my perspective.

First, I would agree with the author that the real issue here is government involvement in education. Those debating that issue 150 years ago warned of exactly the situation we are facing today. Education cannot be value-neutral. Unfortunately, Christians in the US seem to think it is the government's job to force everyone to act like Christians so we can go back to pretending we are a "Christian nation."

Second, there is deep paranoia in the Christian community. From arguments over "under God" in the pledge to the removal of manger scenes in front of city hall, there has arisen a deep sense that "they" are out to get "us". Feeding this is the fascination in evangelical Christianity with "end-times" events described in Revelation. Movies, books, websites, talk radio, etc. are flooded with talk of the "end times". Every news story is mined for indications that the end is near. The removal of prayer from schools and public events is seen as the pivotal event that has sent us sliding down the slope to Armageddon.

My view: First, if we assume that there is some "they" out there trying to get "us," my view is we have it coming. Compulsory education was created largely to indoctrinate Catholic children in Protestant Christianity. If the tables have turned against us, like many Christians at the time warned they would, then well...

Second, I'm perpetually confused as to why Christians assume that when they meet with opposition, they should look first to the government for redress. I've read the Gospels a number of times and have yet to find a time where Jesus appealed to Roman authority to enforce His right to free speech. Any Christian parent that doesn't like what is happening in the government schools has a simple choice: pull their kids out. This, of course, involves time, money, and effort on their part. In other words, they will be required to be Biblical parents instead of breeders.

Which leads into number three: this whining is really getting on my nerves. At no time in human history and at no place on earth have Christians had an easier time of it than right now in Western culture. I doubt any Christian could read, say, Fox's Book of Martyrs, and then claim Christians are being persecuted in the US.

So I guess my point, which I need to get to here real quick, is that whether Mr. Garry's legal analysis is correct or not is, from the Christian perspective, completely beside the point. We have been given a job (Matthew 28:19-20) that does not depend on judges or lawyers or politicians. If half the resources expended in researching and writing this book (and a few hundred like it) were focused on doing what God told Christians to do, the impact would make this discussion moot (see Acts 2:40-47).

If there's an award for Most Reasonable Christian, I hereby nominate Ric Frost. Bravo.

I appreciate Ric Frost's Comment. In conversations with evangelicals in my community who proposed that IDNet's "Objective Origins Science Policy" be adopted by the local schools, I've learned that a significant source of the 'paranoia' is fear for their salvation, and more important, fear for their children's salvation. If one genuinely believes that so-called 'Darwinism' (a catch-all term typically referring to scientific explanations of everything from the Big Bang to evolutionary biology) is inherently and necessarily atheistic and metaphysically materialistic -- as many evangelicals do -- then to allow one's children to be exposed to it is to risk their immortal souls. What parent would do that without a fight?

RBH

I am a Christian and a deacon in an evangelical church, but thanks mostly to places like this and talk.origins, I have abandoned my denomination’s position on the origins question.

I am a Christian and a deacon in an evangelical church, but thanks mostly to places like this and talk.origins, I have abandoned my denomination's position on the origins question.

Danger, Will Robinson! Insincerity alert, level 5.

I, for one, think that the specific information "FL" requested from Mr. Frost would be irrelevant to the discussion here, and I suggest that if the two of them care to debate theology and creationism that they take it to the Bathroom Wall.

For me, knowing what your specific denominational position is, would help me understand more clearly what you areand are not abandoning.

— FL

For me, knowing what your specific denominational position is, would help me understand more clearly what you areand are not abandoning.

— FL

I, for one, think that the specific information "FL" requested from Mr. Frost would be irrelevant to the discussion here, and I suggest that if the two of them care to debate theology and creationism that they take it to the Bathroom Wall.

— Andrew

In this case, Garry believes that freedom of religion includes the right to compel people to support religious views they disagree with, while I believe that religious freedom means the right to worship as you please---to, as a famous person once said, pray in your closet---without government bossing you around.

Ummmm, I didn't say anything about debating anyone, Andrew. My question for Ric, and the reason for asking, were both quite specific. I honestly question why you even felt it necessary to jump in at all.

Did you not already nominate Ric for "Most Reasonable Christian"? If so, why did you not trust Ric's ability to reasonably answer the question for himself?

(I have to suggest, maybe you should stop worrying so much about others' sincerity level, and simply look to your own for a while.)

Ric, thank you again for your upfront answer. It ~does~ make a difference what kind of Christian "origins position" we're talking about, because there's obviously more than one to consider.
Thanks for narrowing it down, and thereby offering additional clarity to your previous comments.

If we were privately communicating by email or in person, I'd probably risk exploring an additional question:
whether or not you still believed in Genesis' specific historical claims (Adam and Eve, The Fall, Noah's Flood, etc. etc.) at least as a matter of biblical faith, despite evolutionists' historical claims to the contrary.

But in this forum, I am very much content to stop at this point, and thus I close with a simple "thank you again" for the comments and responses you have given.

FL :-)

Dr. Beckwith (who, despite the fact that he does not know me, rudely insists on using my first name) asks my views on school choice. I favor school choice, and helped write briefs to that effect in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the case which upheld the constitutionality of school choice programs.

Unfortunatey, such programs are really only a help, not a solution, since all government education programs, including ones permitting parental choice as to what schools they should go to, will to some degree, take money from parents to support doctrines they find offensive. Indeed, all government inherently does that. In Massachusetts v. Mellon, 262 U.S. 447 (1923), the Court held that taxpayers lack standing to sue when they argue that expenditures of their tax dollars support programs they find offensive. The only exception to this no-standing rule is in the realm of the Establishment Clause. See Flast v. Cohen, 392 U.S. 83 (1968). In other words, the only time you can enjoin the goverment from spending your money on something you find offensive is when it is spending the money on establishment.

This exception has some things going for it. As I've said, feelings of personal offense are relevant in the Establishment Clause context but not in others because the Establishment Clause is the only instance where government is explicitly prohibited from taking a position on a subject. But I'm not convinced that the government should be immune from suit for other illegal expenditures. Since this diverges widely from the point of my post, I'll simply refer curious readers to Prof. Epstein's excellent discussion of this point, Standing And Spending--The Role of Legal And Equitable Principles, 4 Chap. L. Rev. 1 (2001).

Francis, just fyi:

Homosexuality is okay in the United States. Oh, and black people and white people are allowed to have sex with each other, too.

American taxpayers can not be burdened with ensuring that the obnoxious religious beliefs of its citizens are continually propogated, particularly when those beliefs are legally recognized as discriminatory in nature. Vouchers for private religious education which espouses bigotry mock the Establishment Clause as well as the Equal Protection Clause.

The trouble runs more deeply than I had feared.

1. While the growth of public schooling occurred during a period when there was a great influx of Catholics and there were Protestant/Catholic disputes, the Jeffersonian model was still the working model. Jefferson and Madison argued that a democratic republic is impossible without an educated populace from which to draw people to run the government, and to make decisions. Public education is a tool for democracy in America, not a tool against Catholics. The educational purposes of our public education system have always been more important than any religious indoctrination purpose. Theology has never been a great or significant topic for public schooling, while geography, writing, reading, math, history and science have been staples.

2. Because public schools are set up to provide good citizens, funding for public education is not a right given to any one student (exept in some states), but is instead an obligation of all citizens. Vouchers that take money from public education are based on the idea that education is a right to a transfer payment, and not an obligation of the payer of the tax. Litigation based on such fuzzy notions of how and why we have public education will only fuzz up the issues more.

3. Claiming Doe to be a free exercise case is bizarre. People keep forgetting the facts of the case. To get around the First Amendment issues, the local school district sponsored an election at the high school to determine whether prayers would be said. That selection being in favor of prayers, they sponsored an election to select a "chaplain" to pray. In the contest year, the daughter of the local Baptist minister won a landslide over a Mormon kid. (If your establishment violation radar is not all atingle, you need to get it adjusted.) Then, when Catholics and Mormons sued to stop the prayers, the district instead wrote out detailed rules for prayers. The prayers were to be said at a set time and place, etc., etc.

I've often noted a shorthand way to determine whether there is an establishment clause violation: There is a violation if any governmental entity tells one whether to pray, or when to pray, or where to pray, or how to pray, or what to pray for, or to whom or what to pray.

This case has no relationship to the teaching of evolution in science class.

4. It's troubling to see legal scholars citing Beckwith's error-prone analysis. I find it interesting, in the cited section, that Beckwith claims that learning about evolution, which is just gathering knowledge, is religiously offensive to some. Not even fundamentalist Christians in the U.S. are usually so bold as to admit they are pro-ignorance. That is the root of the noxious weed creationists have planted on our education and legal systems.

We just had a post by a "Barney Frank" complete with email address that suggests that he really is in Congress and hense really is the Rep. Frank (D-Ma).

If it really was Rep. Frank then I apologize in advance. It must be hard to be famous and then have everyone doubt that you are who you say you are. Welcome to the Panda's Thumb and please feel free to invite all 434 of your fellow members of the House to read it.

Can someone in managment here check to see if this person is coming from a ISP that Rep. Frank might be using? Two hours after a comment on homosexuality appears in a reader's comment in a minor blog a reply comes from a congressman who is well known in regards to this issue! I suspect an impersonation which is a violation of policy here.

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Anti-spam: replace "usenet" with "harlequin2"

Mr. Frank says that "[v]ouchers for private religious education which espouses bigotry mock the Establishment Clause as well as the Equal Protection Clause." I disagree. Public education inherently involves spending taxpayer money on the propagation of ideas which are offensive to some. It offends me greatly, for example, that my tax dollars are spent to teach California students certain leftist political doctrines. But personal offense is therefore not enough to "mock" the Equal Protection Clause.

It is true that the Establishment Clause is different---there, the state is prohibited from putting its imprimatur on religious doctrines. (It is not prohibited from putting its imprimatur on all espousing of bigotry, however. Racial bigotry, maybe,* but schools may teach students, for instance, that France sucks, even though that may not be true.) The reason, however, that school choice programs do not violate the Establishment Clause is that they do not put such an imprimatur on the religious doctrines taught at religious schools: parent exercise their own choices in where to send their children to school, which cuts off any potential signal of government endorsement. "[P]eople know that the government doesn't necessarily endorse private choices that people make with government funds, any more than it endorses cabbage by letting people use food stamps to buy the food of their choice, which may include cabbage. The government doesn't endorse Catholicism by helping GIs go to Notre Dame . . . ." Eugene Volokh, Equal Treatment Is Not Establishment, 13 Notre Dame J.L. Ethics & Pub. Pol'y 341, 357-358 (1999).

Mr. Darrell makes two points with which I disagree, although they are not really germane to my post. First, it is certainly true that the concept of public education is based on what he calls "the Jeffersonian model," that the success of republican government depends on an educated populace, and therefore that public schools are a "tool for democracy in America." But I don't think one can say that "[t]heology has never been a great or significant topic for public schooling, while geography, writing, reading, math, history and science have been staples." In fact, religious instruction was historically considered just as important as science, history, or math, in effecting the "tool for democracy." I personally disagree with that position, but that's the historical record. Indeed, one of the first public education laws in America was Massachusetts' "Old Deluder Satan Act," which declared that the "old deluder, Satan" profited by spreading ignorance, and therefore the state should create schools to prevent the moral destruction of Our Children. Again, not something to which I'm sympathetic, but them's the facts.

Second, Mr. Darrell says that "funding for public education is not a right given to any one student (exept in some states), but is instead an obligation of all citizens. Vouchers that take money from public education are based on the idea that education is a right to a transfer payment, and not an obligation of the payer of the tax." Now, I would think a tax is itself an obligation, for one thing, rather than a privilege for which one has to pay by going to a government school. For another, all of government is, inherently, wealth transfer. Public education is no exception. When a state declares that a student has a "right" to a taxpayer-funded education, as California has, it is saying that the student has a right to take money from other people to pay for his own education. I certainly do not agree with this, but, again, them's the facts. Once a state determines that a student has the right to force taxpayers to buy him an education, there is no reason it may not also decide to force taxpayers to buy him an education at the school of his parents' choosing---which is all that school choice programs do. In making such a decision, however, the state retains---and, as Justice Breyer pointed out in his Zelman dissent, has already exercised---the authority to regulate the schools at which the vouchers are spent.

Mr. Darrell sees education as a duty we owe to the state. This is deeply troubling for one who believes, as I do, in individual liberty, but I must concede that he has a point. As Hayek said,

The very magnitude of the power over men's minds that a highly centralized and government-dominated system of education places in the hands of the authorities ought to make one hesitate before accepting it too readily. Up to a point, the arguments that justify compulsory education also require that government should prescribe some of the content of this education. As we have already mentioned, there may be circumstances in which the case for authority's providing a common cultural background for all citizens becomes very strong. Yet we must remember that it is the provision of education by government which creates such problems as that of the segregation of Negroes in the United States---difficult problems of ethnic or religious minorities which are bound to arise where government takes control of the chief instruments of transmitting culture.

The Constitution of Liberty 379 (1960). See also Henry Adams, The Education of Henry Adams 78 (Boston: Houghton Mifflin, 1961) (1918) ("All State education is a sort of dynamo machine for polarizing the popular mind; for turning and holding its lines of force in the direction supposed to be most effective for state purposes.")

*-The Thirteenth Amendment prohibits badges and incidents of slavery, which, along with the Equal Protection Clause, might prohibit the state from endorsing racial bigotry in the same way that the Establishment Clause prohibits the state from endorsing a religious view. See, e.g., Hamilton v. Alabama, 376 U.S. 650 (1964), rev'g Ex parte Hamilton, 275 Ala. 574 (1963).

Mr. Frank says that "[v]ouchers for private religious education which espouses bigotry mock the Establishment Clause as well as the Equal Protection Clause. It offends me greatly, for example, that my tax dollars are spent to teach California students certain leftist political doctrines. But personal offense is therefore not enough to "mock" the Equal Protection Clause.

Came across "barney frank" on another chat/blog site (maybe evangelical outpost?) and decided he wasn't "the" Barney Frank

As Mr. Frank says, this has diverged from the topic. But I will respond to his points on my own weblog, Freespace.

*-Update:Here is my response.

Mr. Sanderfur urges the original Massachusetts act requiring villages and towns to educate kids as evidence of theological indoctrination. However, I think a fair reading of what that 1647 law actually says supports my point: It calls for the establishment of schools to teach kids to read, and it requires no theological education. The American consensus (prior to 1954, as best I can determine) was that ignorance was dangerous and close to a sin, if not a sin outright. Laws prior to the Constitution frequently cited promotion of good morals as a reason for the laws, but none that I can find call for education in theology (see the various Northwest Ordinances, for examples; after calling for religious freedom, they note that morality is important, and urge education as a precursor to morality -- they do not call for theological education). Instead, they call for education in reading. Few go so far as Jefferson did when he said it was essential to get the Bible out of the schools, and then urged teaching morality instead. I have not found evidence that theology was ever a major component of education in publicly-supported or government schools. Allegations that early schools were more theologically inclined were found lacking evidence for the school prayer cases in the 1960s. We need to be careful not to confuse occasional calls for a Bible verse or a prayer here and there for real theology study.

Consequently, arguments that are based on an assumption that we have a long history of favoring Christian ideas in all phases of curricula in public schools tend to lead us astray. Schools were not intended to indoctrinate kids in religion (especially in western Massachusetts in the 18th century, where Congregationalists faced the reality of diversity among Christians). Consequently, creationist/intelligent design claims that teaching science (such as evolution) in schools is intended to counter their faith are historically in error.

Second, I think it's important to understand that most kids have no legal right to a public education. That was part of the point I was trying to make on vouchers, and I think it affects the evolution discussions significantly. If kids have a right to an education, that right could easily find expression in a suit demanding that schools NOT teach creationism except in its errors. A right to education would be a right to correct information, not folderol. I think that creationists and other religisously-motivated people who start from the assumption that the state has a duty to educate their kids as they see fit, miss the point. Jefferson wanted to amend the Constitution to provide education rights, but that proposal never made it to paper. There is no federal right. States, like Texas, sometimes mention a duty of the state to provide schools, but I don't think any state has established a right to education for any citizen.

Education is not a right, nor is it a duty the kid to be educated owes anyone. The provision of education to preserve our republican democracy is a necessity, and therefore it is an obligation tax-paying citizens owe to the rest of our citizens. Because there is no right to education at stake, creationists don't have a right to avoid confrontation with the great ideas of western civilization. We're a diverse nation, and we can tolerate a great deal of ignorance among our fellow citizens -- but that does not require that we inculcate such ignorance, nor does it establish a right for people to be ignorant.

The minority of creationists is louder than Christian Scientists, but still a minority. What would be the effect of Christian Scientists claiming a right to have inserted into biology books all the arguments against germ theory? If creationists have a right to get anti-evolution materials inserted into courses to avoid offense to their religion, why wouldn't Christian Scientists have the same right against much of the rest of biology?

Perhaps if the fundamentalists started taking exception to the religious teachings of Pythagoras, and called for the Pythagorean Theorem to be deleted from math books, we might put the issue in its proper focus. Knowing an idea is not the same as endorsing it -- but ignorance is a serious problem. Avoiding ideas can be dangerous, and there is no duty the government has to protect delicate religious sensibilities from the facts of life.

Ignorance isn't a free speech right, and calls to protect ignorance under the guise of avoiding offense to religious sensibilities of religious minorities are not free exercise or free speech issues -- they are establishment issues, and so far the courts have dealt with them pretty well. There is no free speech or free exercise right to be ignorant, even ignorant of ideas one wishes didn't exist for whatever reason.

Mr. Darrell makes some interesting points with regard to teaching of Christianity in schools in early America, although I don't find it as easy to distinguish theology from religious morality education as he does.

However, he's not quite right to say that "most kids have no legal right to a public education." It's true as a philosophical matter that nobody has a right to an education, because educations are provided by others, and nobody has the right to compel another person to provide him with an education, any more than a person has the right to compel another person to provide him with a car or a television set or any other transfer of wealth. All coercive transfers of wealth are violations of rights. But as far as a "legal right" goes, many states, perhaps most states, have determined that such a right does exist. California's Supreme Court, for instance, has determined that a public education is a "fundamental right." See, e.g., Butt v. State of California, 4 Cal.4th 668, 686 (1992). The federal Supreme Court, fortunately, has determined otherwise as far as the Federal Constitution is concerned. San Antonio School District v. Rodriguez, 411 U.S. 1 (1973).

Does this mean that "[a] right to education would be a right to correct information, not folderol"? Well, there have been lawsuits against the state arguing that the right to an education means the right to a quality education, and arguing that the state has violated this right by providing the poor quality public schools that California has. I don't know if these have been successful, but I don't believe so. Courts tend to defer to the Legislature's judgment, or the judgment of local school districts, as to how to fund and operate public schools. Nor do the courts intervene when it comes to poor quality teaching. Attempts to sue public school teachers for malpractice, for example, have not succeeded because Courts refuse to intervene to determine what constitutes a quality education. See, e.g., Brown v. Compton Unified Sch. Dist., 80 Cal. Rptr. 2d 171 (1998); see further Todd A. DeMitchell and Terri A. DeMitchell, Statutes And Standards: Has The Door to Educational Malpractice Been Opened?, 2003 B.Y.U. Educ. & L.J. 485. Once again, I disagree with this holding---I agree that if the state undertakes to educate, it ought to educate competently, but them's the breaks. I highly doubt a court would entertain a suit against a creationist teacher on the grounds that he is violating the right to a quality education---but hey, why not try?

Mr. Darrell's statement that "Education is not a right, nor is it a duty the kid to be educated owes anyone. The provision of education to preserve our republican democracy is a necessity, and therefore it is an obligation tax-paying citizens owe to the rest of our citizens"---makes no sense to me. I see no distinction between an unchosen "obligation" imposed on "tax-paying citizens" by "the rest of our citizens" and a "duty." And I think it's terrible to say that a person owes an obligation to the state to attend public schools in order to preserve the state. This is nothing less than a justification of government mind control, of which we ought to be extremely skeptical, if for no other reason, than because the public choice effect is unavoidable---such schools will be taken over by whatever political interest group is most adept at taking them over. As John Stuart Mill said, "A general state education is a mere contrivance for moulding people to be exactly like one another and the mould in which it casts them is that which pleases the predominant power in the government, whether this be a monarch, a priesthood, an aristocracy, or a majority of the existing generation, in proportion as it is efficient and successful and establishes a despotism over the mind, leading, by natural tendency, to one over the body." (quoted in Hayek, supra at 376. Even if it were not for the public choice effect, government education is inherently contrary to the spirit of skepticism and individual thought necessary to making good republican citizens. See Karl Popper, 1 The Open Society And Its Enemies 135 (5th ed. 1966).

Nor do I agree that "There is no free speech or free exercise right to be ignorant, even ignorant of ideas one wishes didn't exist for whatever reason." Actually, I think the right to be ignorant is an absolutely essential part of these rights. I have the right, and I exercise it every Sunday, to be ignorant of the alleged blessings of Episcopalianism, which are taught a block away. Now, one's right to be ignorant does not mean that he has the right to silence another person, but he certainly has the right to turn off his TV or choose not to read his junk mail. And parents do have the right to teach their children untrue things---troubling as this is to me. But that's what "free exercise" means.

Finally, I have never heard that "Jefferson wanted to amend the Constitution to provide education rights, but that proposal never made it to paper." I would be quite shocked if this were true. Could you provide me with more information on this, Mr. Darrell?

This conversation, too, has drifted, so I will post any further discussion at Freespace.

At the risk of taking this further off track, I will try to bring it back on track (if that makes any sense whatsoever).

1. Whether or not the "Native Americans" of the mid-19th century were successful in using the bludgeon of compulsory education laws to combat the spread of Catholicism says nothing about their intent, which is clear from editorials and debates in the state capitals at the time.

2. My main point was, like the "Native Americans" of the mid-19th century (and likely many other times and places), Christians today are quick to call on government to stop people from doing things they don't like, whether it's homosexual marriage, inter-racial marriage, alchohol, tobacco, or teaching "evil-ution." Reliance on legal doctrines and judicial muscle to transform people rather than the life-changing power of the Gospel is, to put it bluntly, sin.

Although I am not a Christian, I absolutely agree with Deacon Frost's second point. I can't think of anything more obviously contrary to the actual teachings of Christ than the constant seeking of government aid, government protection, and government coercion.

I'm occupied trying to update my business law course, so my inability to communicate adequately may have an excuse. In any case I'm not making the necessary point to Mr. Sandefur. I apologize; I'll make one more run.

Mr. Sandefur says, "And I think it's terrible to say that a person owes an obligation to the state to attend public schools in order to preserve the state."

I agree, and that's not what I said. The obligation I'm talking about is the obligation of citizens (beyond the general ages of education, we may hope) to support schools. It is true that all states now have compulsory education laws, and like Jefferson I wonder whether a right to education wouldn't be a better path -- but when he structured a school system, Jefferson's plan offered the right only to read and do basic math to all; the top 10 percent in selected fields were those who would win further education.

I'm asking that we regard public education from the other end of the scope we've been using: Money spent on a kid's education is not a right the kid has, and the kid has no right to insist on a choice of how or where to spend that money; instead, money spent is an investment by the citizens who pay the money. Fittingly, in most of the more than 15,000 jurisdictions where local school boards rule education in America, the bulk of the money comes from property taxes. This system produces some unfortunate inequalities, such as those we struggle with here in Texas. But the simple fact remains that education is a duty of the citizen who pays for the next generation to learn, and not a right of the student, nor even necessarily a duty of the student to learn. Education is an obligation of the taxpaying citizen.

Yes, we may choose to be ignorant of the religious beliefs and persuasions of others; there are other things that it is crime not to know, which we expect kids in public schools (or any school) to get, such as basic rules of driving and some basic public health and safety rules. But this is the distinction: Anti-science, anti-evolution views are inherently religious, and therefore prevented by the establishment clauses of state and federal constitutions.

Finally, I don't have at my fingertips the passage in which Jefferson discussed his plans to put a right to education in federal law. It was in correspondence with Madison or Rush as I recall, and it was not outlined well enough to know what he may have had in mind. I should have it more accessible and will continue to look through my library. We do know he regarded education as the foundation of morality in a person, however, and that he worked to keep religion qua religion out of the curriculum of schools throughout his life. Looking quickly to see if I could find the passage, however, I did run into Jefferson's letter to the Philadelphia bookseller Nicholas Gouin Dufief, complaining of censorship of biology books (letter of April 19, 1814). The book in question was Sur la Creation du Monde, un Systeme d'Organization Primitive, authored by a fellow named de Becourt. The copy Jefferson ordered from Philadelphia was not delivered, appearing to have been intercepted by some local court in Pennsylvania as inappropriate for Christians to read. "I am really mortified to be told that, in the United States of America, a fact like this can become a subject of inquiry, and of criminal inquiry, too, as an offence against religion; that a question about a sale of a book can be carried before the civil magistrate. Is this then our freedom of religion? and are we to have a censor whose imprimatur shall say what books may be sold, and what we may buy? And who is thus to dogmatize religious opinions for our citizens? . . . It is an insult to our citizens to question whether they are rational beings or not, and blasphemy against religion to suppose it cannot stand the test of truth and reason. If M. de Becourt's book be false in facts, disprove them; if false in its reasoning, refute it. But for God's sake, let us freely hear both sides, if we choose. . ." This offers clues for where Jefferson would stand on a law such as that which snared John Scopes, or which angered Mr. Aquillard.

If creationists insist their faith and their children cannot stand the test of truth and reason, should we listen to them?

If creationists insist their faith and their children cannot stand the test of truth and reason, should we listen to them?

My response to Mr. Darrell is here.

Anti-science, anti-evolution views are inherently religious, and therefore prevented by the establishment clauses of state and federal constitutions.

Duh. Point (3) is inherently religious. If Demsbski et al. were truly not making any assumptions about the identity of their designer, their hypothesis would be null on face.

"Any possible universe could be explained as the work of some sort of designer. Even a universe that is completely chaotic, without any laws or regularities at all, could be supposed to have been designed by an idiot." (Steven Weinberg, Skeptical Inquirer, Sept. 2001).

Since ID purports on face to distinguish between "completely random" and "non-random" instances of design, it necessarily imputes certain characteristics to the designer, and THAT is a religious exercise.

*sigh* whack one troll, and five take his place....

.please show me where any or all of Dembski's specific 3-point ID hypothesis is inherently religious, in and of itself. Thanks.

3. Intelligent causation is the best explanation for specified complexity.

A curious remark. Let me ask you something. Given the following 3-point ID hypothesis: 1. Specified complexity is well-defined and empirically detectable. 2. Undirected natural causes are incapable of explaining specified complexity. 3. Intelligent causation is the best explanation for specified complexity. . . . .please show me where any or all of Dembski's specific 3-point ID hypothesis is inherently religious, in and of itself. Thanks.

Dr. Beckwith (who, despite the fact that he does not know me, rudely insists on using my first name) asks my views on school choice. I favor school choice, and helped write briefs to that effect in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the case which upheld the constitutionality of school choice programs.

Frank

See 4368 where you referred to The Sandman by his given name: "Tim." Personally, I think this naming formality carries no weight in the blogosphere unless it's explicitly set forth as a "rule" by the blog owner.

Regarding the MLK mal mot. I am really getting tired of fundamentalists, most of whose churches were institutionally opposed to Dr. King while he was alive and working, invoking his memory as they mount their favorite theocratic hobbyhorse. King saw and used religion properly, as strength and motivation, not as a literal view of science and life.

"Any possible universe could be explained as the work of some sort of designer. Even a universe that is completely chaotic, without any laws or regularities at all, could be supposed to have been designed by an idiot." (Steven Weinberg, Skeptical Inquirer, Sept. 2001).

Any possible universe could be explained as the work of some sort of natural mechanism or mechanisms. Even a universe that appears completely designed, with laws or regularities that can be measured and put in the forms of complex mathematics, could be supposed to have been not designed by any mind whatsoever.

Frank See 4368 where you referred to The Sandman by his given name: "Tim." Personally, I think this naming formality carries no weight in the blogosphere unless it's explicitly set forth as a "rule" by the blog owner.

I just was engaging in a bit of playfulness in my reply. My wife is right, "Know your audience."

Dr. Beckwith asks:

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But isn't the opposite true as well? Here's what I mean:

Any possible universe could be explained as the work of some sort of natural mechanism or mechanisms. Even a universe that appears completely designed, with laws or regularities that can be measured and put in the forms of complex mathematics, could be supposed to have been not designed by any mind whatsoever.
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Um, so your argument is that we can detect neither randomness nor design? Isn't that an admission that ID is worthless? If so, we happily agree.

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You guys are the experts. I'm just a philosopher with a graduate degree in law. What do I know?
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Oddly enough, that's my exact background as well.

-Andrew

Dr. Beckwith asks: But isn't the opposite true as well? Here's what I mean: Any possible universe could be explained as the work of some sort of natural mechanism or mechanisms. Even a universe that appears completely designed, with laws or regularities that can be measured and put in the forms of complex mathematics, could be supposed to have been not designed by any mind whatsoever. ------- Um, so your argument is that we can detect neither randomness nor design? Isn't that an admission that ID is worthless? If so, we happily agree.

Okay, then I'll clarify. Weinberg's argument is that it is meaningless to postulate design without attributing specific characteristics to the designer.

I take your response to mean that perhaps it is similarly meaningless to postulate naturalistic processes without attributing specific characteristics to those processes.

If true, then one of two implications would follow. Either (1) this means that we can neither postulate naturalistic processes nor design -- which I'm okay with -- or (2) it means that, unlike IDists, scientists can actually attribute specific characteristics to naturalistic processes. I'm okay with that, too.

I read with interest both the analysis of the law and especially Ric's comments.

Firstly, I agreed in part and disagreed in part with the article. And it is an issue I struggle with on an intellectual level. As a college professor who occasionally teaches Cultural Anthropology (I'm an economist by training), I think that learning (correctly) the case for evolution is extremely important. Though i teach at a State Institution many of my students have evangelical/fundamentalist backgrounds. All I have to do is make reference to humans having foraged for over 100,000 years and I can see the walls go up. When I have to confront this issue as a college professor, I prefer to confront it head on-that is talk about the issues directly, honestly and openly. If that means discussing YEC or ID for a few minutes and indicating why i reject them as valid theories, then I'm willing to do that. I also find that it is helpful to indicate to students that they don't have to **believe** what I tell them, they just have to learn the material and understand why evolution is the only real viable research program and why it is important to understanding a number of debates in Cultural Anthropology and even to grasping the concept of culture.

Under some interpretations of the establishment clause, that much **might** be precluded in a high school science classroom. I say I wrestle with this because I can see many reasons to take such a rigid approach to the high school science classroom. Yet the reality is that presenting evolution is frightening to evangelical and fundamentalist students on many levels and that fear is an obstacle to effective teaching and learning.

Thus for a lot of reasons, I personally would prefer more emphasis on the "exercise" and "free speech" component of the 1st amenmdment and less on the establishment. Don't misunderstand me-I do not support any form of coerced public religious ceremony.

And so I wonder-why would this not be an effective, workable compromise. We won't give or require "equal" time but we could allow teachers and/or school districts to discuss the issues, including some of the assumptions and issues about what science is and is not.

I can see reasons why this might not work, but I can also see reasons why it could work, if implemented with great care.

I agree, Andrew. What Weinberg was talking about was pretty clear.

We can tell this toaster was designed by intelligence without knowing the engineer, therefore we can tell the same about natural organisms, IDers say. But something's missing. You've seen engineers. You have a rough idea what their capabilities are. Most importantly, you start from a list in your head of known objects engineers have designed. You aren't really detecting some 'design' quality, you're detecting similarity to known objects with a certain specific relationship to a known intelligence.
When you know that a dishwasher, refrigerator, and microwave were designed by a guy, it's not hard to look at an oven and guess that it too was designed by a guy.
When you look at a kindergartner's picture of his mommy, and a picture of his daddy, it's not hard to look at a picture of a doggy and guess that it's his.
You can only do this when you have prior knowledge of the creator/created relationship. And even then, you might be wrong. Maybe the oven was designed by aliens. Maybe the picture was produced by a guy with Down's Syndrome. The ability to equate created with creator is a heuristic which only works when you have a good understanding of the creator, and examples of the created works, and some other criteria.
We don't have definite knowledge of a god. We don't have examples of worlds god created, vs worlds left to their own devices. And we have an alternate method for producing the supposedly 'designed' objects. So natual organisms don't even meet the criteria of the heuristic. And the heuristic's not even science.

How long will it take before IDers realize they're trying to promote a flawed heuristic to the status of science? And when they do realize it, and jump ship to the next god-proving scientific-sounding notion, will any of them realize they're in search of evidence to confirm their religious beliefs, a bass-ackward way to act?

IDers could at least construct a valid inference if they would be up front about the identity of their Designer. Then, they could describe his attributes with specificity from scripture (I guess -- I'll leave that to the theologians), and go search for evidences of his creation.

I commend to you Elliot Sober's excellent essay "How not to detect design" (available on both his website and reprinted in Pennock's Intelligent Design Creationism and its Critics.) Here and elsewhere he points out that all judgments about design are made with reference to known designers. So while we can scientifically infer the existence of designers for analogues of design processes we know (e.g. in anthropology), there is no independent evidence for a designer for Biology, because the process is unobserved.

The fact is that we infer design repeatedly and reliably without knowing characteristics of the designer or being able to assess what a designer is likely to do. Humeans in their weaker moments admit as much. Take Elliott Sober. Before he permits intelligent design into biology, he wants to know the characteristics of the designer, the independent evidence for the existence of and what sorts of biological systems we should expect from such a designer. According to Sober, if the design theorist cannot answer these questions, then intelligent design is untestable and therefore unfruitful for science. Yet in a footnote that deserves to be part of his main text, Sober admits, "To infer watchmaker from watch, you needn't know exactly what the watchmaker had in mind; indeed, you don't even have to know that the watch is a device for measuring time. Archaeologists sometimes unearth tools of unknown function, but still reasonably draw the inference that these things are, in fact, ~tools~." (Testability", 1999 presidential address to the American Philosophical Association.) Because he is wedded to the Humean inductive tradition, Sober views all our knowledge of the world as an extrapolation from past experience. Thus for design to be explanatory, it must fit our preconceptions, and if it does not, it must lack empirical justification. For Sober, to predict what a designer would do requires first looking to past experience and determining what designers in the past have actually done. And yet his comment about watchmakers and watches belies such a view, for he admits that we could know that watches were designed even if we knew nothing about watchmakers and that mysterious tools were designed even if we knew nothing about the toolmakers or or even the precise function of the tools. Within the Humean inductive tradition, designers are in the same boat as natural laws, with their explanatory power located in an extrapolation from past experience. To be sure, designers, like natural laws, can behave predictably. (Designers often institute policies that other designers then dutifully obey). Yet unlike natural, which are universal and uniform, designers are also innovators. Innovation, the emergence of true novelty, eschews predictability. It therefore follows that design cannot be subsumed within a Humean inductive framework. Designers are inventors. We cannot predict what an inventor would do short of becoming that inventor. But the problem goes deeper. Not only can't Humean induction tame the unpredictability inherent in design, but it can't account for how we recognize design in the first place. Sober, for instance, regards the design hypothesis for biology as fruitless and untestable because it fails to confer an ascertainable probability on biologically interesting propositions. But take a different example, say from archeology, in which a design hypothesis about certain aborigines predicts certain artifacts, say arrowheads. Such a design hypothesis would, on Sober's account, be testable and thus acceptable. But what sort of archeological background knowledge had to go into that design hypothesis to make it a successful predictor of arrowheads? At the very least, we would need past experience with arrowheads. But how did we recognize that the arrowheads in our past experience were designed? Did we see humans actually manufacture those arrowheads? If so, how did we recognize that these humans were acting deliberately as design agents and were not just randomly chipping away at random chunks of rock? (Carpentry and sculpting entail design, but whittling and chipping, though performed by intelligent agents, do not.) As is evident from this line of reasoning, the induction needed to recognize design can never get started. Our ability to recognize design must therefore arise independently of induction and thus, independently of a Humean inductive framework. This was precisely (Thomas) Reid's point, and in making it, he demolished once and for all Humean induction as applied to design... (Dembski, The Design Revolution, c2004 Intervarsity Press, pp 227-29.)

Helen Keller never saw an engineer. I guess for her there were no toasters. :-)

I hate to be picky, but technically none of us has actually seen an engineer. What you've seen is a body from whose actions you infer an engineer exists. Given the speed of light nobody has immediate apprehension of physical objects, let alone engineers. And besides that all you see are images of bodies and their actions from which you draw an inference to agency.

Here's a thought experiment that all this has inspired. Let's suppose that the world is populated with unconscious robots that are made by an engineer nobody in the world has ever seen. Suppose that you are the only real person in the world. In fact, the entire world was created as a ruse to make you think that there are billions of others. But alas, there are not. You are it, but you do not know, yet. Some of the robots are programmed to behave and act like what you've been taught are engineers. You own a toaster and you think you are warranted in believing that it was built by an agent who happens to be an engineer. But actually the toaster was built by a robot who is not an agent, but a pre-programmed automaton made to look like and act like he is an agent. Suppose, by accident, one of the robots trips and falls and he "cuts" himself and you begin to get suspicious given the wires and circuits you see under his "skin". Over a decade you come to the conclusion, after careful and detailed investigation, that you are the only conscious personal organism on earth. Would you be justified in inferring a robot-maker--a super,duper engineer--even if you have never seen one?

You're right, some conservatives jump on the King bandwagon when in fact they probably would have resisted him if they were alive at the time.

Chip Poirot writes

When I have to confront this issue as a college professor, I prefer to confront it head on---that is talk about the issues directly, honestly and openly. If that means discussing [Young-Earth Creationism] or ID for a few minutes and indicating why [ I] reject them as valid theories, then I'm willing to do that. I also find that it is helpful to indicate to students that they don't have to believe what I tell them, they just have to learn the material and understand why evolution is the only real viable research program and why it is important to understanding a number of debates in Cultural Anthropology and even to grasping the concept of culture. Under some interpretations of the establishment clause, that much might be precluded in a high school science classroom.

Not so---or at least, not under any correct understanding of the Establishment Clause. The Establishment Clause only prohibits the state from taking an official position on a religious issue which would amount to "an establishment of religion." It does not prohibit the state from teaching students the facts of science under any circumstances, and that is especially true where a teacher includes the sort of disclaimer that Prof. Poirot mentioned. (In fact, the disclaimer itself is much more troublesome as far as the Establishment Clause is concerned. See, e.g., Tangipahoa Parish Bd. of Ed. v. Freiler, 185 F.3d 337 (5th Cir. 1999) cert. denied, 120 S.Ct. 2706 (2000).

It is true that "presenting evolution is frightening to evangelical and fundamentalist students on many levels...." I'm not very sensitive to this concern, because my reaction is "get over it." But I understand that this is the case, and that "get over it" isn't a helpful way of teaching---that's why I'm not a teacher.

Interestingly, Prof. Poirot says "I personally would prefer more emphasis on the 'exercise' and 'free speech' component of the 1st amendment and less on the establishment." I actually agree. Free exercise and free speech are more interesting because, among other things, they actually protect individual rights. Establishment may not protect individual rights---a discussion I and Jonathan Rowe have been having for a while now. Establishment Clause law is also more complicated and often more subjective than Free Exercise and Free Speech law. And in the age of the regulatory welfare state, that complication is even worse. It is practically impossible to consistently abide by the Establishment Clause today, because of the vast (and unconstitutional) extent to which government controls our lives. If the government were to operate within the scope that the Constitution actually conceives, we would have far fewer Establishment Clause problems to begin with, and we wouldn't have the problem with cases like Smith. I mean, the problem with Smith is that Christians think it's unfair that a law that, in effect, deprives them of religious freedom isn't unconstitutional so long as it was passed for some other neutral criterion. So, under Smith, as Garry correctly notes in his article, a law which prohibited all alcohol consumption could be enforced to shut down the Eucharist, and the Court would do nothing about that. That's a serious problem, I think. But it's a problem that ought to be handled by returning government to its Constitutional limits, not by coming up with ever-more-complicated First Amendment caselaw.

In short, there is no way to run a government education system that won't violate people's constitutional rights. But because we insist on having government education systems, we're stuck with it.

In short, there is no way to run a government education system that won't violate people's constitutional rights."

1. Specified complexity is well-defined and empirically detectable. 2. Undirected natural causes are incapable of explaining specified complexity. 3. Intelligent causation is the best explanation for specified complexity.

Great White Wonder asks, "where does the constitutional "right" of parents to prevent their kids from learning science come from, Mister Sandefur?"

Parents have a natural right to raise their children. Courts have long recognized this, but the most famous cases on the subject are Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923).

In Pierce, the state of Oregon made it illegal for parents to send children to private schools. It did so on the grounds that the state should run education for children---for essentially the reasons Mr. Darrell cited in his earlier posts. The Court held---correctly, I believe---that this law

unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

268 U.S. at 534-35. The Court cited its earlier decision in Meyer, which struck down a law prohibiting schools from teaching children the German language. (A law written during the anti-German hysteria of the first World War.) There, the Court held, again, correctly, that the

statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment: "No state...shall deprive any person of life, liberty or property without due process of law." While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men....

262 U.S. at 399-400. Although the Court agreed that "the state may do much, go very far, indeed, in order to imporve the quality of its citizens, physically, mentally and morally," it held that "the individual has certain fundamental rights which must be respected."

In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any Legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution. The desire of the Legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war and aversion toward every character of truculent adversaries were certainly enough to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of the state and conflict with rights assured to plaintiff in error. The interference is plain enough and no adequate reason therefor in time of peace and domestic tranquility has been shown.

262 U.S. at 401-02.

Also, in the recent case of Troxel v. Granville, 530 U.S. 57 (2000), the Supreme Court struck down a Washington law which required parents to allow grandparents visitation rights, even if the parents didn't want to. The Court noted that"[t]he liberty interest at issue in this case---the interest of parents in the care, custody, and control of their children---is perhaps the oldest of the fundamental liberty interests recognized by this Court." Id. at 65.

While we may disagree with the way fundamentalist parents raise their children, they do have, within limits, the right to do so, and to, as Wonder puts it, "brainwash or otherwise control the facts their children are exposed to...." If for no other reason, than because Wonder has that right also, and he would expect a fundamentalist to respect his right to raise his child as he chooses.

Again, that right has limits---parents can't deny their children medical care for religious reasons, for instance, and can't refuse to educate children. But when it comes to teaching---or not teaching---parents have significant, and legitimate control.

Andrew says: "IDers could at least construct a valid inference if they would be up front about the identity of their Designer. Then, they could describe his attributes with specificity from scripture" Exactly, they could do that. they do it all the time. It's theology, it's philsophy. But they want to call it science.

Yes, I do remember reading those cases in my Family Law class some years ago. Oy. Nasty stuff.

Honestly, I think the dicta in those cases stinks to high heaven, although I don't disagree with the results necessarily. What we end up with is a tyranny of the parents.

I can discern no difference between a parent refusing to educate his child and a parent educating his child that "God hates guys" or that ID creationism is "science." And neither can the Supremes.

I also disagree with you that I have the Constitutional right to brainwash my child. I have every right to believe anything I want to believe. But I do not believe that the Constitution grants me the right to teach children --any children-- that blacks, women and/or gays are less-than-human or otherwise worthy of discrimination. It's criminal. Or at the very least, it should be criminal and a law prohibiting such instruction would surely not be held unconstitutional.

Likewise, I think a law prohibiting the teaching of creationism to children as a FACT would also be constitutional. If it's taught to children as a religious belief or practice (in a church, for example), no problem. But in a school (even a private school)?

I say: ban it.

Oh, I really do appreciate the helpful citing, Tim. It'd take me an hour to do that properly! I need two more heads and a four more hands, then I could really make some hay. ;)

And here's some relevant news, hot off the press:

http://www.cnn.com/2004/LAW/07/01/lesbian.custody.ap/index.html

Great White Wonder goes, I think, beyond reason to say that the natural right of a parent to raise a child is "[n]asty," and "stinks to high heaven...."

There are many reasons to oppose the state taking a monopoly of education. I've mentioned some of them in this thread---state control over the mind is a very bad thing, and if preventing it means opening the way for some dogmatists, that's fine. There is perhaps no place where the public choice problem could have more dangerous repercussions than in giving the state a total monopoly on education. Such a thing has been met with disastrous results every time it has been tried. Of course it's bad for a parent to teach a child untrue things, or try to shut off a child's mind from encountering new and different ideas. But if you arrogate to yourself the right to tell a fundamentalist to raise his child, then you are giving him a license to tell you how to raise your child. And that's a serious problem, since there are more of them than there are of you.

In any case, if parents have no right to educate their own children, then where do they get the right to educate someone else's child? If Wonder has no right to direct the teaching of his child, then where does Wonder get off telling his legislator to create a school to teach my child? As Jefferson said, "Sometimes it is said that man can not be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him?" Where does Wonder imagine that he'll find perfectly dispassionate educational experts capable of never being influenced by fundamentalist parents, or any other parents with whom Wonder disagrees, who can run a school that teaches only true things?

But in any case, neither Wonder nor anyone else has no right to force someone to educate his child---it is simply none of your business. Now, the child might have such a right---since it is clearly the child's business. And the state might legitimately intervene on the child's behalf. Indeed, it already does so, in the form of truancy laws. The state draws lines around a parent's authority to ensure that the parent's authority does not become a license for what Wonder calls "a tyranny of the parents." We don't let parents refuse medical treatment, such as blood transfusions, for example, even though their objections are religiously based. But there are serious problems with stretching this too far. For one thing, if faced with the choice between tyranny of parents and tyranny of the state, I would prefer the former. In that case, at least we know that responsible people, like Wonder, will teach their children to think for themselves. We don't have that guarantee at all in the latter case.

Now, Wonder says "I can discern no difference between a parent refusing to educate his child and a parent educating his child that 'God hates g[a]ys' or that ID creationism is 'science.' And neither can the Supremes." That's not true. There is a difference. In the former case, the parent is refusing to educate a child, and in the latter, the parent is teaching untrue things. That's a difference, and that's enough for the law in many states. The Court has even upheld a parent's right to refuse to send a child to school beyond a certain grade level, on religious grounds. See further Wisconsin v. Yoder, 406 U.S. 205 (1972). Wonder may "disagree with [the Supreme Court] that I have the Constitutional right to brainwash my child," but the alternative is fraught with serious dangers---not the least of which is that there is no clear line between "brainwashing" and "teaching." Teaching is brainwashing. To coin a phrase, I educate, you lobby, they propagandize.

Yet Wonder says "I do not believe that the Constitution grants me the right to teach children---any children---that blacks, women and/or gays are less-than-human or otherwise worthy of discrimination. It's criminal. Or at the very least, it should be criminal and a law prohibiting such instruction would surely not be held unconstitutional."

My god, this is a truly shocking statement. The First Amendment says "no law...abridging the freedom of speech." The Court has repeatedly said that this encompasses the right to teach students---a right which may be limited by school boards, but which nevertheless is protected under the term "academic freedom." In the middle of the 20th century there were a series of cases involving universities which sought to punish communists for teaching communism in their classrooms. Now, communism is at least as evil as racism or anti-homosexual bigotry---actually, far worse. Yet the Court rightly held that teachers have academic freedom to teach what they view as true, and that the state may not punish these teachers. We ought not to embrace the notion that the state may criminalize the teaching of any doctrine, no matter how hateful or untrue.

I'm sorry, folks, but creationists have rights too!

"The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government." Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." The classroom is peculiarly the "marketplace of ideas." The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth "out of a multitude of tongues, (rather) than through any kind of authoritative selection."

Keyishian v. Board of Regents of University of State of New York, 385 U.S. 589, 602-03 (1967).

No, public schools may not teach creationism, but private schools may. And parents may. If you don't like it, the proper thing to do is to teach more evolution, not to silence your enemies. See further 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 498 (1996) (plurality op.) ("Justice Brandeis wrote, in explaining his objection to a prohibition of political speech, that 'the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.'") And if the parent blocks you from doing so, and puts his child in a private school, and orders you not to speak to the child, then you must respect the parent's right to do so---until the child comes of age. Then, by all means, go right on teaching the former child evolution.

We ought not to embrace the notion that the state may criminalize the teaching of any doctrine, no matter how hateful or untrue.

communism is at least as evil as racism or anti-homosexual bigotry---actually, far worse.

Once again, Dr. Beckwith leads with misdirection.

I pointed out that his last comment (an attempt to turn Weinberg's argument on its head) meant either that:

1) Neither design nor naturalistic processes are empirically detectable; or

2) That scientists (unlike IDers) are willing to ascribe positive elements to naturalistic processes, which makes naturalism uniquely a valid inference.

Which is it?

A response to Tim in 4441:

Thanks for your very thoughtful comments and the references to the case law. Fortunately, I don't teach in public high schools and hence am pretty much free in my own teaching to not worry about it.

I have read, in different places, varied interpretations of what the law does and does not allow high school teachers to do. My understanding is that the local district first and foremost really has the right to define the curriculum. So the First Amendment rights of the teacher (as opposed to the student) in a high school or elementary context is very limited (of course, this might vary depending on the school's tenure code). The First Amendment rights and responsibilities and restrictions, apply primarily to the school district and to the teacher as an employee of the district. This of course limits the ability of teachers to go off on a frolick of their own and substitute ID or Creationism for the required high school curriculum. It also limits the right of history teachers to discuss openly and critically the fact that Martin Luther threw feces at the devil-unless the school district OK's bringing this controversial material into the classroom.

I actually think that the establishment clause and its precedents are vague enough and broad enough, that schools probably deal with the issue much as they and other employers deal with sexual harassment-that is-poorly. The temptation is to avoid controversy and statements that even might land the school in court, or worse yet, result in a principal having to meet with disgruntled parents.

I think this results in evolution actually being avoided in many instances-or if it is taught, it is taught poorly and rushed through as a mandatory part of the curriculum-rather than fully integrated as a core, unifying concept of biology.

So we have this weird paradox of evolution being poorly taught and poorly understood, and yet school districts scared to death to say the R word at all, even when the R word is on the table as in a history class that covers the Reformation. Though the example is a little irrelevant (though not entirely) I experience this myself in a freshman survey of the Social Sciences class when the text I was using reduced the Protestant Reformation to "Martin Luther was a free thinking monk whose ideas spread through Europe like wildfire". This statement, it seems to me, is as offensive and absured to secular agnostics like myself as it would be to devout Lutherans! And yet that is the level I see the rigid line of disestablishment leading to along with the imprimatur of not offending anyone when a textbook is published.

So, while the law may allow more than people actually think it does, the reality is that the law has unintended consequences.

So, I stand by what I said-I'd like to see courts move away from disestablishment and back towards free expression and free speech.

I'm not sure what a "freeper detector" is, but in any case, even if Wonder thinks communism is not evil, I do. So which one of us has the right to control the education of Wonder's children vis-a-vis communism? Him, or me? I think it's not only evil, but factually untrue---I think, for instance, that, as Mises pointed out, the price computation problem makes communism economically impossible. So do I have the right to criminalize Wonder's teaching of his children with regard to communism? Or do I instead have to try to convince people that communism is wrong---while simultaneously respecting Wonder's right to teach his children what he thinks is right---including if Wonder tells his children to stay away from me? Wonder says that "Freedom of Speech has limits...." Yes it does, but this is emphatically not one of them. You have the right to teach anything you want, including to children. If you don't, then freedom of speech means nothing.

Now, Wonder thinks things are different when he's "teaching doctrines to children of course." I don't understand why this difference is relevant. It is relevant in the Establishment Clause context, yes, but only to a limited degree, since the state is prohibited from embracing religion even in front of adults. But a teacher has a right to teach children, even teaching children things that Wonder disagrees with. The only exception to this of which I am aware is in the Establishment Clause context.

(Wonder also adds, "my attention, of course, i focused on education which receives Federal Funding...." I don't remember him saying so, but in this context the issue might be different. The federal government has the authority to limit what its grants are spent on. So the federal government may give federal dollars to schools on the condition that...such-and-such. That's fine. Whether that violates the First Amendment or not is an issue of serious contention, but the Court favors federal authority. See, e.g., United States v. American Library Ass'n, Inc., 539 U.S. 194 (2003)).

Wonder writes, "Sure, creationists have rights. Adult creationists can do whatever they want.... But a right to indoctrinate children to believe anything?? In the context of an educational setting? Nope. There is no constitutional right to mess with young brains that way. If so, we wouldn't have all these laws 'protecting' children from 'obscene' or 'violent' material (gee, and who are the people behind those laws, I wonder???)"

First, the question is not whether the Constitution "contains" a right to "mess with young brains." The Constitution is a limitation on liberty, not a grant of it. So the question ought to be whether the Constitution permits Wonder to interfere with my right to freedom of speech, even if I use that right to "mess with young brains." The answer is, in most cases, no.

Second, if there is no right to "mess with young brains," then where does Wonder get the right to mess with the young brain of a fundamentalist's child? He is claiming the right to teach evolution to the child of a person who does not want the child to learn this. Where does Wonder get such a right, if he himself says no such right exists?

Third, laws which "protect" children from "obscene and violent material" are routinely struck down by the courts because such laws frequently interfere with a person's right to "mess with young [and old] brains." For example in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Court struck down a law prohibiting "virtual child porn." The Court noted that such a law could prohibit a production of Romeo and Juliet.

Now, the courts do allow some laws which "protect[ ] children from 'obscene' or 'violent' material," but only in extremely narrow circumstances---in fact, only in circumstances where the law is not going to block a person from messing with young brains. You see what I mean? The First Amendment certainly does protect the right to "mess with brains"---that is, in fact, the entire purpose of the First Amendment. And yes, that includes children's brains. It includes Wonder's right to mess with his child's brain, a fundamentalist's right to mess with his child's brain, and their rights to mess with the brains of each other and of each other's children (so long, in the latter case, that the parents have no objection.)

Wonder asks,"Is it brainwashing to teach a five year old that 2+2=4? No, it's not. Is it brainwashing to teach a five year old that they are going to go to hell if the accept what all those deluded scientists say about evolution? Yeah. I think it is." That's certainly fine, but of course, a fundamentalist will see things quite differently, and, most importantly, has the right to see things differently. Brainwashing is one of those words that means pretty much what a person wants it to mean---sort of like "judicial activism" or "God" or "market failure." Here's a dictionary definition: "Intensive, forcible indoctrination, usually political or religious, aimed at destroying a person's basic convictions and attitudes and replacing them with an alternative set of fixed beliefs." Now, if that doesn't describe government schooling, I don't know what does. I remember what it was like to go to high school (it was only ten years ago). I showed up---against my will, so it was "forcible"---and had to attend hour after hour, day after day, of classes involving in many cases political issues, such as in my civics class. I was taught that the American Constitution was written for white men and only for white men and that America was a nasty horrible place of slavery and capitalist exploitation. These things challenged my basic convictions---I was a conservative in those days---and these things were certainly aimed at replacing my convictions with an alternative set of fixed beliefs. Indeed, believers in government schooling, such as Mr. Darrell, believe that the entire purpose of government schooling is "democratic" indoctrination---to teach people to be good citizens. Fine enough, but that is indistinguishable from "brainwashing." It may be indoctrination you agree with, but it's still indoctrination.

And what is the antidote to indoctrination? More indoctrination. As I learned more, I discovered that my teachers were often right about things. I saw that my conservative views were wrong about many things, and I changed my mind.

Listen---there is nobody on earth less sympathetic to creationists than I am. I will fight them in every way I can. If they try to teach my child (should I ever have one) creationism, I will hale their asses into court the instant I can. If they try to spend tax dollars to propagate their pernicious nonsense, I will fight them. When they publish silly articles like the one I discussed in this original post, I will argue against them. I will hector and ridicule and propagandize as much as I can against them. But we who believe in evolution and fear the scientific illiteracy that creationists propagate---we must not allow our zeal to lead us into trampling the rights of those who disagree with us. We must respect their rights to raise their children, to teach them their beliefs, and to spread their own doctrines as they please. The Constitution applies to the lunatic, the communist, the racist, the homophobe, the Democrat, the Keynesian, the Krishna and the Ku Kluxer just as much as it applies to you and me. It's an important thought to keep in mind for Fourth of July weekend.

Chip Poirot writes "[f]ortunately, I don't teach in public high schools and hence am pretty much free in my own teaching to not worry about it." Good for you, Professor! We need more like you. And I agree with all his points. I especially agree with his statement that "while the law may allow more than people actually think it does, the reality is that the law has unintended consequences." That is a very important point. One of the worst things is that school districts get terrible legal advice. As a result, they just shy away from religion completely, much more than they are actually required to do, and there are three results: first, it harms education, because children ought to learn about religion, to some degree; second, it often ends up violating the free exercise rights of a child, as when a district prohibits the child from praying or something; third, it leads fundamentalists into a sense that they are a legally persecuted minority. They really like that. It is a big boon to them politically, to portray themselves as being picked on.

Until next time---have a good holiday.