[I]t remains to be demonstrated whether it is possible, even if desirable, to ... completely ... isolate and cast out of secular education all that some people may reasonably regard as religious instruction. Perhaps subjects such as mathematics, physics or chemistry are, or can be, completely secularized. But it would not seem practical to teach either practice or appreciation of the arts if we are to forbid exposure of youth to any religious influences. Music without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view.... Even such a "science" as biology raises the issue between evolution and creation as an explanation of our presence on this planet. Certainly a course in English literature that omitted the Bible and other powerful uses of our mother tongue for religious ends would be pretty barren. And I should suppose it is a proper, if not an indispensable, part of preparation for a worldly life to know the roles that religion and religions have played in the tragic story of mankind.... One can hardly respect a system of education that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being prepared. (1)
~Justice Robert H. Jackson
In recent years, there has been a revival of the debate over the origin of the human family. The debate reaches well beyond the question of what to teach public schoolchildren, although that is perhaps its most visible aspect. On a deeper level, it raises questions about the role of parents in, and the traditionally local character of, public education. In this sense, the debate represents a microcosm of centuries-old issues at the heart of liberty, self-governance, and our federalist system. This Note addresses three major aspects of the origins debate by answering three pivotal questions: What should be taught? Who should decide what is taught? And at what level should that decision be made? Analyzing these questions is not merely an academic exercise, for as Aristotle aptly observed, "All who have meditated on the art of governing mankind have been convinced that the fate of empires depends on the education of youth." (2)
In answering these three vital questions, this Note counters the scholarship of Kevin Trowel, whose Note, Divided by Design: Kitzmiller v. Dover Area School District, Intelligent Design, and Civic Education ("Divided by Design"), (3) received the 2007 Scribes Law Review Award for the best student-written law review piece in the nation. (4) Trowel's grand motif in Divided by Design is that teaching intelligent design (5) causes social division. (6) Implicit in his argument is that teaching evolution does not. This Note refutes that argument. Teaching intelligent design does not cause social division any more than teaching evolution does. The central origins question, What is the explanation of the origin of the human family?, is itself controversial. Evolution and intelligent design confidently propose two distinct answers to that question. (7) Yet the answer to that timeless question implicates deeply held religious and philosophical beliefs (8)--and therein lies the true source of the controversy.
Part I of this Note briefly paints the legal and cultural backdrop that informs and frames the modern origins debate and submits that the current framework is founded on an unjust and unjustifiable premise: that religious views should occupy virtually no place in the public realm. Part II argues the case for local control in origins curriculum decisions. And Part III insists that parents be given the opportunity to meaningfully participate in origins curriculum decisions. Finally, Part IV answers the sixty-four-million-dollar question, What should be taught?, by proposing that public schools be permitted (should they so desire) to include religious perspectives on the origins question as part of an academic, nonsectarian curriculum. This solution provides the child with a comprehensive education, establishes no state religion, and promotes the democratic principles of self-governance and local control. Furthermore, it retreats from the intolerance and hostility that have been exhibited toward religion over the last haft century and, in a measure, "restore[s] religion to an honorable place in public life." (9)
LEGAL AND CULTURAL BACKGROUND: REFRAMING THE DEBATE
From a Generalized Protestantism to a Generalized Secularism
Ironically, the historical debate surrounding this subject originated with a controversy over teaching evolution, not intelligent design or creationism. (10) In fact, until relatively recent times, public schools in some areas continued to teach creationism as the only explanation of origins. (11) Where such was the custom, and where teaching a particular version of creationism was used to forward a "generalized Protestantism," the practice amounted to a "semi-establishment of one religion" that was unfair to students (and parents) who did not believe the general Protestant creationist account. (12) Today, much to the credit of the courts, public schools are no longer constitutionally permitted to teach origins in a denominationally slanted manner. (13)
The pendulum, however, has swung far in the other direction, eroding the very fairness that led to the prohibition of the sectarian-specific creationism that once prevailed. Today, evolution enjoys a virtual monopoly on origins because public schools are strictly forbidden from teaching creationism, (14) "creation-science," (15) and even, in some cases, intelligent design. (16) Needless to say, the banishment of all viable alternatives to evolution has not ended the controversy. (17) Indeed, many believe that the modern evolution-only paradigm is just as wrong as was the once-prevalent sectarian-specific creationism. (18)
Today's debate has largely shifted to the constitutionality of teaching intelligent design. (19) Although this Note does not weigh in directly on that question, some of what is written here may have some bearing on it. This Note proposes a solution that moves beyond the bounds of the debate as it is presently framed. Merely debating whether intelligent design is constitutional under current Establishment Clause jurisprudence is problematic because the framework of that debate assumes from the outset that public school curricula must be strictly secular, leaving little or no room for the discussion of religious views. (20) Such an approach is defective insofar as it demands as a prerequisite irreligious secularity. (21) Moreover, current Establishment Clause jurisprudence ignores the reality that teaching evolution implicates, and in many cases contradicts, religious views. (22) Ignoring this reality is unfair and logically inconsistent. For these reasons, this Note argues that a new approach to teaching origins is in order under a fresh, original interpretation of the First Amendment. (23)
The Origins of Social Division
It has been said that "differences over belief are the deepest and least easily negotiated of all." (24) Kevin Trowel's major premise in Divided by Design is that teaching intelligent design is a divisive, society-splintering undertaking. (25) His unstated assumption is that teaching evolution is a neutral and uncontroversial exercise that has a unifying, cohesive effect on society. His argument fails because teaching evolution is no less divisive or controversial than teaching intelligent design. Both purport to answer the same question, What@ the explanation of the origin of the human family? (26) Trowel insists that intelligent design's answer to that question is divisive, but that somehow evolution's answer is not.
Simply put, Trowel misapprehends the source of the controversy, which arises not from teaching intelligent design, but from addressing the origins question itself. That question and its answer have distinctly religious and philosophical components. (27) For starters, how one answers the origins question directly affects the formation of one's worldview, with all that that entails. Because Trowel overlooks this dynamic of the origins debate, he cannot see that the controversy inherent in teaching origins exists independent and distinct from teaching either evolution or intelligent design.
In the closing argument of Kitzmiller v. Dover Area School District, (28) the lead attorney who argued against the constitutionality of intelligent design insisted that "one of the major concerns that prompted adoption of the religion clauses was that the framers and the citizens of their time intended to guard against the civil divisiveness that follows when the government weighs in on one side of a religious debate." (29) He was right. Civil divisiveness does naturally ensue when the government chooses sides in a religious contest. (30) But based on that logic, does not the government provoke civil divisiveness when it excludes all religious views from a curriculum that itself implicates religious beliefs? (31) In that case, is not the government "weigh[ing] in on one side of a religious debate"--namely the side that excludes traditional religious viewpoints and promotes only ostensibly secular ones? (32) Even if one believes that the government acts appropriately by banning religious perspectives from origins curricula, it is fanciful to argue that by so doing the government has chosen no position or that its position is one of strict neutrality. (33)
Furthermore, when ostensibly secular ideas promoted by the government negate, or define as untenable, traditional religious views, they unseat the traditional religious views, thus becoming themselves religious, or at least pseudo-religious. Accordingly, it is futile to argue, as Trowel has, that a governmental ban against the discussion of traditional religious viewpoints (or even against the...