By A. Eric Johnston –

Theories of origin ask the question of “how we got here.”  For many years evolution has been taught as fact by most of the scientific community and by major public school textbook publishers.  Consequently, the information on origins taught in public schools has been confined almost exclusively to evolution.  However, during the last part of the twentieth century a debate began that questions the establishment of evolution as fact.  That debate continues today and within it is embodied the legal rights of teachers and students in public schools to critically analyze the question of our origin on earth.

Still, even accounting for the clearly significant issue of constitutional rights, the decisive issue in this conflict is that of world views.  A secular theory of evolution has no room for God; it assumes a universe with no moral order and does not recognize a higher spiritual being.  Man, instead, is the center of the evolutionist universe.  Other theories are considered nothing but superstition and myth which have no place in science.

Unfortunately, this evolutionist view is endorsed by the federal courts, the arbiters of the conflict.  Consequently, federal law blocks much of the information on origins needed for critical thinking from reaching our children in public schools.  If federal courts could overcome their erroneous view of the establishment clause, a true scientific debate of all theories of origin could begin.


First Amendment Rights

The U.S. Constitution, specifically the first amendment, is directly relevant to the issue which centers more on teachers’ rights than students’ rights.  Teachers’ rights are most affected by the amendment’s establishment clause, students’ rights by its free exercise clause.

The establishment clause, prohibiting any “law respecting and establishment of religion,” can be applied to the policies or even the study plans of teachers. Many evolutionists contend that any teaching other than evolution as the source of origin violates this clause by seeking to establish biblical creationism as fact. The question, then, is whether the teaching of any source of origin other than evolution is an “establishment of religion” and so prohibited.

The free exercise clause, which protects religious practice from restrictive laws, also protects a students’ right to hold and express her own views of origin and to make her own inquiries about it.


Past Rulings

 Two United States Supreme Court cases have dealt with the teaching of evolution and creationism in state (public) secondary schools. (More flexibility is permitted in state college curriculum, and nonpublic schools are free to teach any and all theories of origin.)

In 1968, Epperson v. Arkansas.[i] Epperson reviewed an older Arkansas law which outlawed any state-sponsored school teaching a theory that mankind ascended from a lower order of animals. The Arkansas state court ruled the law unconstitutional, claiming it violated the
principle of academic freedom embodied within the First Amendment free exercise clause. That is, the state court ruled that the law hindered “the quest for knowledge, restricted the freedom to learn and restrained the freedom to teach.” (Ironically, this is the same position creationists seek today: the opportunity for fair and open discourse.)

The Arkansas Supreme Court reversed the trial court and upheld the law, ruling that specifying public-school curriculum was an appropriate exercise of state authority. The United States Supreme Court then overruled Arkansas, simply ruling that the law qualified as an effort to establish religion.

Later, Edwards v. Aguillard[ii] involved a Louisiana law requiring that if evolution is taught, then so must “creation science.” Even though the law itself stated that its purpose was for academic freedom, the court found that it violated the establishment clause. Although this
ruling was detrimental to the cause of scientific debate, it includes at least two helpful statements that provide us clues as to the potential rulings of future cases:

“The act does not grant teachers a flexibility that they do not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life.”

“If the Louisiana legislators’ purpose was solely to maximize the comprehensiveness and effectiveness of science instruction, it would have encouraged the teaching of all scientific theories about the origins of humankind.”

The implication here is that teachers can teach what they deem necessary concerning all theories of origin.

So what rights do teachers have to provide students sufficient information for healthy debate on this issue? This question is not yet legally settled;  the US Supreme Court has not directly ruled on it.

The most relevant case we can look to is one involving student speech. In Hazelwood School District v. Kuhlmeier,[iii] the Supreme Court ruled that the public school could limit student speech based upon proper pedagogical concerns. A later Fourth Circuit Court of Appeals (an
intermediate level federal court) put Kuhlmeier in proper perspective.  Boring v. Buncombe County Board of Education[iv] said:

“A fair reading of the relevant case law leads us to conclude that the     question is not, and never has been, whether teachers have First Amendment rights in the classroom, but how much school authorities can legitimately restrict those rights. Striking a balance between the school’s role as ultimate arbiter of the school curriculum and the teacher’s limited in-class speech rights obviously presents a challenge. We believe the approach set forth in Hazelwood, of requiring school authorities to provide a legitimate pedagogical basis for in-class speech restriction, provides the best means of navigating this challenge.”

“Several of our sister circuits have agreed that the Hazelwood analysis should apply to teacher speech in the classroom as well as to student speech.”

“Cf. Bishop v. Aronov, 926 F.2d 1066, 1074 (11th Cir. 1991) (applying Hazelwood to examine a restriction on a university professor’s classroom comments about religion). This limit on teacher speech, like the limit on student speech, insures that students learn whatever lessons [an] activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.”

The referenced Bishop case is from the 11th Circuit Court of Appeals, which is the controlling law for Alabama, Georgia, and Florida. Bishop held that academic freedom is not an independent right under the First Amendment free speech clause. Also, a university professor may not interject his religious views into the classroom, though he may properly respond to students’ questions involving religion. In essence, Bishop held that the university may restrict the teacher’s speech. This might seem problematic, but it still offers a significant amount of latitude. Bishop permits the state to limit speech, but does not require it to do so. The state of Alabama, for example, has chosen to permit speech, rather than limit it.

State Law

In 1995, 2001 and 2005, the Alabama State Board of Education adopted inserts to be put into Alabama science textbooks. The textbooks had contained information only on evolution; no other theories were discussed. The Board, seeking intellectual and academic honesty, composed the inserts, which speak to the possibility of the student inquiring into other theories of origin. The inserts appropriately recognize evolution as a theory and seek to inspire intelligent critical thinking. Many states have now adopted similar efforts.

Much of what happens in public schools is decided at the local level. However, public schools and school boards cannot restrict general state law. If a local public school diminishes the rights extended by the State Board of Education, then an investigation should be begun and the problem corrected.

Federal Law

These rights are further enhanced by the 2002 effort of President George W. Bush called the “No Child Left Behind Act.”[v]  The purpose of this Act is to enhance student learning in public elementary and secondary schools.  Concerning the debate on origins, the Congressional Conference Report specifically addresses the issue.  Speaking on the floor of the House of Representatives, Senator Rick Santorum (R-PA) said:

Mr. President, I am very gratified that the House and Senate conferees included in the conference report of the elementary and secondary education bill the language of a resolution I introduced during the earlier Senate debate.  That resolution concerned the teaching of controversies in science.  It was adopted 91-8 by the Senate.  By passing it we were showing our desire that students studying controversial issues in science, such as biological evolution, should be allowed to learn about competing scientific interpretations of evidence.  As a result of our vote today, that position is about to become a position of the Congress as a whole.

When the Senate bill was first under discussion in this body, I referenced an excellent Utah Law Review article, Volume 2000, Number 1 by David K. DeWolf, Stephen C. Myer and Mark Edward DeForrest.  The authors demonstrate that teachers have a constitutional right to teach, and students to learn, about scientific controversies, so long as the discussion is about science, not religion or philosophy.  As the education bill report language makes clear, it is not proper in the science classrooms of our public schools to teach either religion or philosophy.  But also, it says just because some think that contending scientific theories may have implications for religion or philosophy that is no reason to ignore or trivialize the scientific issues embodied in those theories.  After all, there are enormous religious and philosophical questions implied by much of what science does, especially these days.  Thus, it is entirely appropriate that the scientific evidence behind them is examined in science classrooms.  Efforts to shut down scientific debates, as such, only serve to thwart the true purposes of education, science and law.

There is a question here of academic freedom, freedom to learn, as well as to teach.  The debate over origins is an excellent example.



 While there is uncertainty in the debate of evolution and other theories of origin, there is certainty in the evolution of the law in this area.  One certainty at this point, as noted above, is the radical application of the First Amendment’s establishment clause to find a relationship to religion in any alternative theory of origins. It is believe3d that there must be an evolutionary process in the law in order to provide the scientific community an opportunity to examine science without interference.  It may be that the source of all living things may never be scientifically determined.  Notwithstanding, the scientific community must be free to make the appropriate empirical inquiries. Therefore, laws that are passed requiring alternative theories will be treated as violations of the establishment clause.

Scientists who have been involved in the debate can tell stories about the acrimony between evolutionists and others. The issue of what can be taught arises because, for the evolutionists, it is not really a debate over different theories of origin, but over religion.  It is the view of evolutionists that other theories are nothing but religion and myth, which have no place in science.

The United States Supreme Court has played a significant role in determining the debate.  In the 1960’s, several cases involving public schools were decided interpreting the religion clauses of the First Amendment to the United States Constitution. For example, in Engel v. Vitale (1962),[vi] beginning the school day with prayer was found unconstitutional and Abington School District v. Schempp (1963)[vii] removed public school practices of beginning the school day with reading Bible verses or praying the Lord’s Prayer.

There is continuing litigation on these issues.  Presently, there are cases focusing on inserts in textbooks which teach evolution as fact.  The efforts have been similar to the Alabama inserts noted above, but inserts vary in their language.  A notable recent case is one in Pennsylvania where “intelligent design” theory must be taught.  Similar efforts have and are taking place in Georgia, Wisconsin, Minnesota, Kansas, and in other local public school districts.  A recent Georgia federal district court decision (trial court decision not binding on other courts) struck down a Georgia textbook insert as an unconstitutional establishment of religion.  The lesson is this: it is important how your insert is worded.  What each are searching for is the ability to teach proper science.  Yet, there continues to be the impediment of federal court decisions and the continuing resistance of the evolutionist scientific community.


A Noteworthy Effort

 An effort to clarify teachers’ and students’ rights was introduced as a legislative bill in the Alabama 2004 regular session of the Alabama Legislature.  The Academic Freedom Bill[viii] came very close to passage, but did not.  It has been reintroduced in the 2005 regular session.

The purpose of the bill is to demonstrate a “secular need” to protect scientific inquiry regarding origin.  The bill utilizes language from the Edwards decision that “scientific critiques of prevailing scientific theories” should be taught.  The bill does not require, suggest or protect the presentation of religious critiques of evolutionary theory, often referred to as “creationism.”  Even so, there is no basis for censuring scientific theories because they have implications for or against particular religious views.

What this proposed law does is to protect any K-12 public school teacher or college instructor from discipline or discrimination because he or she presents “scientific information pertaining to the full range of scientific views in any curricula or course or learning.”  It also provides that students shall not be penalized because they “subscribe to a particular position on scientific views.”  The bill does not single out any theory of origin, but simply states that the right of teachers and students to critically think is protected “when topics are taught that may generate controversy (such as biological or chemical origins).”



 If the Academic Freedom Bill becomes law, there is every reason to believe that there will be a court contest.  However, the bill is expected to prevail, thereby conclusively and constitutionally establishing the rights of teachers and students to consider other theories of origin.  This legislation provides a significant roadmap for establishing and protecting rights which have long been denied.

Until when and if the Academic Freedom Bill becomes law, teachers and students have rights which they must protect.  This article has provided a basic explanation of the debates that exist and what the rights are.  With some amount of uncertainty, teachers and students do have rights which they should exercise.  If their rights are denied them, appeals should be made to local school authorities and to the State Board of Education, as appropriate.  If all else fails, qualified professional legal advice should be sought to protect these rights.

Alabama public schools should follow the mandate of the science textbook insert.  Public schools in other states should follow similar opportunities if they exist.  Public school teachers should feel free to supplement materials with other valid scientific materials.  Students should ask questions and expect valid answers.  In the end, the students today will become the scientists of tomorrow.  A free and open academic culture with unhindered inquiring minds will lead us to intellectual galaxies far beyond our present comprehension.


Eric Johnston is an attorney and is also president of the Southeast Law Institute, a non-profit constitutional and civil liberties organization.  Among the purposes for the Southeast Law Institute are protection of teachers’ and students’ rights in public schools.  For legal issues or additional information, please see the website of or contact Mr. Johnston at


For additional information on the legal and scientific debate of origins, go to on the internet.  The Discovery Institute is the primary legal and scientific organization for the promotion and understanding of the issues discussed in this article.


[i] 393 U.S. 97 (1968).

[ii] 482 U.S. 578 (1987).

[iii] 484 U.S. 260 (1988).

[iv] 98 F. 3d 1474, 1482 (4th Cir. 1996).

[v] See on the internet and click on “No Child Left Behind” link for more information.

[vi] 370 U.S. 421 (1962).

[vii] 374 U.S. 203 (1963).

[viii] For the status and content of the Academic Freedom Bill, go to and follow the Legislative Activities links.  The Academic Freedom Bill is promoted by Professor Don McDonald of Troy State University.  He may be reached at: