Legal Opinion: Why It's Unconstitutional to Teach "Intelligent Design" in the Public Schools, as an Alternative to Evolution

Last week, the American Civil Liberties Union sued the Dover, Pennsylvania School Board. The ACLU argues that the School Board violated the Constitution's Establishment Clause by mandating that students in public school biology classes be taught the theory of "intelligent design" as an alternative to evolution.

Proponents of intelligent design--which is closely related to what is sometimes called "creationism"--point to gaps in the fossil record and other uncertainties to argue that evolution by natural selection cannot explain the emergence of new species. They contend instead that an intelligent agent must have been guiding the course of life on Earth.
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Evolution opponents have recently scored political victories outside Dover, Pennsylvania as well. In Cobb County, Georgia, public school textbooks discussing evolution must now contain a disclaimer warning that evolution is "a theory, not a fact." That policy, too, is the subject of pending litigation.

And the November election returns in Kansas have given critics of evolution a majority on that state's school board. It is only a matter of time until Kansas mandates the teaching of alternatives to evolution.

Yet Supreme Court precedent holds that state-sponsored attacks on evolution in the public schools are unconstitutional. Why, then, are evolution opponents in Dover, Cobb County and Kansas, trying to change curricula? Aren't these efforts doomed to fail once they are challenged in court? Are the evolution opponents engaging in mere symbolic protest?

The surprising answer is: Perhaps not. That is because the leading Supreme Court decision, in the 1987 case of Edwards v. Aguillard, contains an apparent loophole that evolution's critics may hope to exploit.

Aguillard appears to rest on the Justices' finding that the proponents of theories like intelligent design were subjectively motivated by religion. Accordingly, by keeping their religious motivation secret, proponents of the policies in Dover, Cobb County, and elsewhere may hope to evade the Aguillard decision.

However, as I argue below, this evasion should not succeed. Instead, the First Amendment should be construed to bar the mandatory teaching of intelligent design regardless of the purposes expressed by those imposing the mandate.