Legalities and Theistic Evolution

PZ Myers makes a statement about legal strategy:

If he can’t, we’re going to have an interesting time at the next trial. Maybe the gang at the NCSE should rethink their strategy a bit, because the way I see it, any defense that uses separation of church and state as its basis is becoming increasingly untenable.

There are ways in which that statement is true, and ways in which it is false.

The true:

The composition of the Supreme Court has changed, and with that demographic change there is speculation that in future church-state separation cases the key to the court will be Justice Kennedy’s position on a particular case. It seems likely that both the “endorsement test” and the “Lemon test” reasoning about cases will be explicitly rejected. What’s left? Simply the issue of explicit coercion: does the government, in whatever policy is being considered, coerce belief in some particular religious doctrine? It is in the sense that what the Supreme Court will consider a violation will have to meet a much, much higher bar than before that one could think of making “separation of church and state” an untenable strategy. And that is, like I said, speculative. At the moment, existing case law says that church-state separation complaints are anything but untenable.

The false:

The implication is that there is some other legal strategy generally available for use. Nope, sorry; defending the content of science classes simply is not generally an interest of the courts. There are certain specific instances where other legal grounds fit the bill. Got a teacher who is teaching creationism instead of evolution? If the state standards or the locally accepted curriculum are substantially different from what the teacher is teaching, then they can be sued for non-compliance with the specified curricula. Note that that doesn’t have anything to do, per se, with the correctness of the content, and everything to do with upholding the ability of the employer to specify what the employee will do as its agent in the classroom. If the state or local authority specifies that creationism is acceptable content in the curriculum, there is a slim chance that one could apply regulations in place concerning professional conduct of teachers that may mention best available knowledge or the like. That, though, is not a general, nationwide thing.

It is an unfortunate fact that science content is not a protected entity under the law. When it comes to protecting public school science from incursions of religiously-motivated anti-science, the church-state separation provisions of the US and state constitutions are still our first and best lines of defense (modulo what I noted about what changes in the SCOTUS may lead to).

I’ll note here that NCSE has not been proceeding in a legal vacuum. While I was with NCSE, they had a weekend seminar with about thirty legal scholars and lawyers from across the country to discuss potential strategies concerning various threats to science education. They also are in regular contact with a core group of legal scholars concerning particular instances. PZ may not think NCSE has the right bead on this, but I can tell you that NCSE has taken keeping up with the legal situation seriously. Certainly the Kitzmiller case and the Selman re-trial have validated NCSE’s approach to the legal question thus far.