The classic legal battle over evolution is the Scopes "monkey trial" of 1925 - or, perhaps more accurately, "Inherit the Wind," the 1960 movie about the trial. In the movie, the character representing the legendary trial lawyer Clarence Darrow, played by Spencer Tracy, obliterated the character played by Fredric March, representing William Jennings Bryan, the fundamentalist three-time presidential candidate and staunch opponent of evolution, on the witness stand. In real life, Darrow lost the case (the verdict was later overturned on a technicality), but the film was a stirring evocation of the importance of teaching evolution and of keeping religion from interfering with science.
Eighty years later, evolution has returned to the courtroom.
The current legal battles are not "Inherit the Wind"-style black-and-white face-offs between religion and science. The Supreme Court put and end to those when it struck down, in a 1987 case called Edwards v. Aguillard, a Louisiana law that required public schools that taught evolution to also teach creationism. By ruling that the law was an unconstitutional establishment of religion, the Supreme Court settled the question of whether public schools can teach creationism directly. They can't.
To critics of evolution, though, Edwards v. Aguillard did not settle the matter. They have been coming up with new strategies that are far more subtle than past attempts to either ban the teaching of evolution outright or inject the teaching of creationism alongside it.
Two of these strategies were beaten back by federal courts last year.
The more important of the cases, out of Dover, Pa., put the concept of "intelligent design," the latest challenger to the theory of evolution, to a searching intellectual and constitutional inquiry. Intelligent design is the notion that life is too complex to have been formed by the natural processes envisioned by Charles Darwin and must instead have been created by some higher intelligence. That intelligence is generally taken to be God but could theoretically be a space alien or other mysterious force.
The decision by Judge John E. Jones III, issued on Dec. 20, 2005, was a sweeping repudiation of intelligent design, both legally and substantively. The other case, out of Cobb County, Ga., focused on a blandly worded sticker attached to new biology textbooks used in the public schools. This sticker did not mention intelligent design or any other theories of creation but simply undermined confidence in the theory of evolution. But it, too, was held to be unconstitutional. If this decision holds up on appeal, it would be a striking warning to the anti-evolution crowd to stop disparaging evolution and let the schools teach science as the scientists understand it, not as religious conservatives would wish it to be. But an appeals court could well reverse the lower court's decision.
For those of us who deem the theory of evolution a bedrock of modern biology, these two rulings provided heartening evidence that even mildly worded, reasonable-sounding assaults on evolution by religious conservatives may well be unconstitutional.
But evolution's success in the courts may not continue. As evolution's critics become more strategic, they may hit on a formula for undermining evolution that the courts find acceptable. The appeals court hearing the Cobb County case, or a court considering another tricky assault on evolution in Kansas, may give the anti-evolution group their first major victory in years, and open the door to subtle undermining of evolution in the classroom.
I. Intelligent Design comes to Dover, Pa.
Neither the Dover, Pa., nor the Cobb County case involved the actual teaching of intelligent design or any other creationist theory in the classroom. They both focused on disclaimers about the validity of evolutionary theory and on textbooks.
In Dover, the issue was a policy that the school district adopted in 2004 that required teachers to read a statement questioning the theory of evolution and informing students that intelligent design was an alternative theory. The statement - read by administrators when teachers refused - told students that if they wanted to learn more about intelligent design, a book called "Of Pandas and People" was available at the school for them to consult.
The court's 139-page decision touched on many aspects of the school board's policy, but one of the things it focused on in greatest detail was "Of Pandas and People." The court quite effectively uses the book's own words and history to demonstrate the unconstitutionality of the school district's policy.
II. The Defective Science of 'Of Pandas and People'
"Of Pandas and People" is the foundation text of the intelligent design movement. It was first published in 1989 by the Foundation for Thought and Ethics, and updated in 1993. It remains the only intelligent design textbook in existence and was the first source to employ the phrase "intelligent design" in its current usage.
The Foundation for Thought and Ethics's articles of incorporation describe it as a religious, Christian organization, so it presumably had religious motivations for publishing "Pandas," although its president, in seeking to intervene in the Dover trial, tried to disavow that objective.
The second and current edition of the book, published in 1993, was written by Percival Davis and Dean Kenyon, who have both acknowledged, in other contexts, that they are creationists. Intelligent design proponents always insist that their concept is not simply creationism made more presentable, in constitutional terms, by omitting mentions of God or creation. But the Dover trial judge disagreed, and with good reason.
To begin with, there is the description in "Pandas" of intelligent design. The book asserts that the term "means that various forms of life began abruptly through an intelligent agency, with their distinctive features already intact - fish with fins and scales, birds with feathers, beaks and wings, etc." That sure sounds like a statement in favor of "special creation" of separate life forms as opposed to their gradual evolution from a common ancestor, as envisioned by the theory of evolution.
The most damning evidence of the book's creationist underpinnings was provided by Barbara Forrest, a professor of philosophy at Southeastern Louisiana University, who analyzed successive drafts of "Pandas" that had been ferreted out during the litigation. Dr. Forrest found that early drafts of the book repeatedly used the words "creation," "creationism" and "creationist" until 1987, when the Supreme Court decided Edwards v. Aguillard. After the Edwards ruling that creation science was a religious concept and could not be taught in public school science classes, the book's authors systematically deleted "creation" and related words from the text and replaced them with "intelligent design" and related words, with no other significant change in content.
The book's original definition of creationism - that life began abruptly through an intelligent agency with distinctive features already intact - was retained as the definition of intelligent design. Only the name for this process had been changed.
The trial judge in the Dover case expressed astonishment at these manipulations. "This word substitution is telling, significant, and reveals that a purposeful change of words was effected without any corresponding change in content," his opinion stated. The judge called this compelling evidence that intelligent design is simply "creationism re-labeled."
The text of "Pandas" is written in a tone that sounds reasonable and judiciously scientific. Anyone unfamiliar with the scientific record - and that includes just about everyone not an expert in the fields discussed - might easily conclude that the text deserved respectful attention. But the Dover trial, a six-week inquiry with hours of testimony by experts on both sides, revealed just how wrongheaded and misleading this supplemental textbook really is.
In summing up the weight of the scientific testimony, the trial judge found that "Pandas" contained "outdated concepts and badly flawed science." He cited unrebutted expert testimony that the textbook "distorts and misrepresents evidence in the fossil record about pre-Cambrian-era fossils, the evolution of fish to amphibians, the evolution of small carnivorous dinosaurs into birds, the evolution of the mammalian middle ear, and the evolution of whales from land animals."
In the case of whales, for example, "Pandas" asserts that while Darwinists generally believe that whales evolved from a land mammal, "there are no clear transitional fossils linking land mammals to whales." But Kevin Padian, from the University of California at Berkeley, the only paleontologist who testified at the trial, described a series of fossil finds that most scientists would deem transitional. He showed slides of an extinct land animal whose ear features are found only in whales, not in other land creatures. He showed another land animal that had developed large and paddlelike limbs, a third with hips decoupled from the backbone, allowing the backbone to move up and down as in a whale's swimming motion, and others with nostrils moving backward along the skull to mimic a whale's blowhole. Many of these fossils were discovered after the publication of "Pandas" in 1993, but others were older. One had been known since the Civil War.
A central argument made on behalf of intelligent design is that some biochemical and molecular processes within the body - like the complex biochemical cascade that produces blood clotting, the multifaceted immune system and the whiplike structures known as flagella that propel bacteria through water - have so many interacting and essential parts that they could not have emerged gradually through slight modifications of precursor systems through the pressure of natural selection. Instead, the whole system must have been created in one fell swoop.
Yet expert testimony showed the fallacy of this reasoning. Structures and processes that look "irreducibly complex" at first may not look so on closer inspection, and biological processes that can't be explained today may well be understood tomorrow as science advances. As the National Academy of Sciences has pointed out, natural selection can bring together biochemical components to make a system that serves one function initially and then later combine that system with other components to produce a complex system with an entirely different function.
The bacterial flagellum, for example, may have evolved from a simpler syringelike system that helps nasty bacteria inject their poisons into a human cell. The flagellum system has some 40 protein parts, and research has already shown that 10 of them match those used by nasty bacteria to make their molecular syringes. Presumably, as research continues, scientists will learn that many of the 30 other parts also had different uses in precursor systems. The flagella were not discussed in "Pandas" but have emerged as a staple argument for intelligent design. There are still sharp disputes over how the flagella might have developed, but in the end, science is likely to discover that the flagella were crafted gradually by natural selection instead of in one fell swoop by an intelligent designer.
Similarly, the blood-clotting cascade, which is cited in "Pandas" as a very strong argument for intelligent design, probably developed through evolutionary changes to genes and proteins that allowed precursor systems to merge into a complex clotting mechanism. Although "Pandas" had asserted that all components of the blood-clotting system had to be working for the system to function properly, thus implying all-at-once creation by a designer, an expert witness cited research showing that blood is able to clot quite nicely in dolphins, whales and puffer fish, even though all are missing parts of the cascade.
Michael Behe, a biochemist at Lehigh University who wrote the blood-clotting section of "Pandas," argued that the missing parts were not essential, but the trial judge concluded that his redefinition of what was essential to the cascade had no scientific justification and was likely designed to circumvent evidence that demolished his argument.
A telling omission in "Pandas" is its failure to grapple with an issue that is difficult for believers in intelligent design to explain away, namely the fact that a vast majority of all species that ever existed have become extinct. "An intelligent designer who designed things, 99.9 percent of which didn't last, certainly wouldn't be very intelligent," said Kenneth Miller, a Brown University biologist who was a co-author of the textbook used in both Dover and Cobb County. He complained that "-'Pandas' simply does not address the issue."
Most of the arguments put forth in "Pandas" and other intelligent design literature amount to attacks on the theory of evolution for failing to explain one thing or another. The chief positive argument made on behalf of design is that some complex biological systems, such as the blood-clotting system, look like a purposeful arrangement of parts to accomplish a goal beyond the capacity of any single component. But purposefulness, of course, lies in the eye of the beholder. There are no quantitative criteria for determining how many parts or what degree of complexity suggests design rather than natural processes.
"Pandas" is clearly out of date in the fast-moving field of biology - more than a decade behind the latest advances in science and not even up to speed on the latest arguments of the intelligent design movement. Its obsolescence, coupled with the excoriating critique by the Dover trial judge, should discourage any school district planning to use "Pandas" as a supplemental text.
"Pandas" remains at its core a relabeled creationist text, crammed with dubious assertions and arguments. The National Center for Science Education, a nonprofit group that advocates on behalf of the theory of evolution and against its creation-minded critics, has a long list of critical reviews of "Pandas" on its Web site. But the intelligent design community still stands behind "Pandas." Defenses of the text, or of intelligent design generally, can be found at the Discovery Institute Web site and on the main Web site of William A. Dembski, a founder of the intelligent design movement, which contains a detailed rebuttal of the pro-evolution witnesses at the Dover trial. A third edition of "Pandas" is now being prepared, with Mr. Dembski serving as the principal author. The book will be drastically expanded in size and scope, renamed and presumably scrubbed cleaner of anything that looks like creationism in disguise. But it is likely to be the same old wine in a new and bigger bottle.
Meanwhile, in Dover, a new school board was elected, ousting the religious conservatives who backed intelligent design. The new board shows no inclination to appeal the adverse decision. Instead, board members say they may decide to teach about intelligent design in an elective course on comparative religion. That is a far more appropriate place to discuss a concept that is religious, not scientific.
III. The Cobb County Textbook Stickers
In Cobb County, Ga., the challenge to evolution was even more subtle.
The school board did not inject intelligent design or religion into the classroom, even in a brief mention. It did not refer students to "Pandas" or other intelligent design writings. It simply inserted a brief three-sentence sticker inside the front cover of a new biology textbook that raised doubts about the theory of evolution. The question was whether "Biology," a best-selling standard textbook recently acquired by the school district (and also used in Dover) needed a warning sticker that its chapters on evolution should be approached carefully and critically.
The sticker stated, in its entirety:
"This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered."
That bland statement may seem innocuous at first blush, but it amounts to a subtle effort to undermine the teaching of evolution. The first sentence sounds like a warning that the book contains some truly awful material, dealing with evolution, that parents and students should be wary of. The second sentence makes it sound as if evolution is little more than a hunch, the popular understanding of the word "theory," even though it is actually the dominant framework for understanding a wide array of biological facts and is accepted by an overwhelming consensus of scientists. The third sentence singles out evolution as the only subject needing critical judgment even though many other subjects, like history, economics, sociology and literature, involve interpretations that are far less grounded in fact and professional consensus than is the theory of evolution.
IV. An Unconstitutional Endorsement of Religion
The Cobb County sticker clearly singles out evolution for a special level of mistrust. What makes the sticker unconstitutional, though, is what the Supreme Court concluded about Louisiana's law in Edwards v. Aguillard - that it violates the First Amendment's establishment clause.
Judge Clarence Cooper of Federal District Court had no trouble looking past the words to see the true import of the sticker. In a ruling on Jan. 13, 2005, he conceded that the sticker had two legitimate secular purposes, namely to foster critical thinking and to reduce the possibility of offending students and parents whose beliefs may conflict with the teaching of evolution.
Nonetheless, he found that the sticker's overall purpose was not educational, but religious, because it endorsed a specific religious view. He was right. The sticker's assertion that "evolution is a theory, not a fact" parroted the language used by anti-evolutionists, and the sticker was adopted to placate citizens who opposed the teaching of evolution for religious reasons. Thus it advanced the viewpoint of Christian fundamentalists that evolution is a problematic theory.
The lower court decision has been appealed. The school board is arguing that the sticker should be viewed not in the context of the religious opposition to evolution, but rather in the context of how the sticker had come about: as part of an effort to increase the amount of evolution taught in Cobb County.
For years Cobb County had prohibited the teaching of evolution in elementary and middle schools and had allowed only elective classes in high school. The county's policies flagrantly violated state curriculum standards that required the teaching of evolution. The school district had been acting out of "respect for the family teachings of a significant number of Cobb County citizens."
A few years ago, the school board began to correct this omission. It adopted a new biology textbook, written by Kenneth R. Miller and Joseph S. Levine, that devoted 101 pages to evolution. In the political push and pull over these changes, the board adopted the sticker and inserted it into the textbooks in 2002, mostly to placate parents upset that evolution conflicted with their religious views.
The board's appeal brief stresses its commitment to both quality science instruction and religious neutrality. The board argues that the 33-word insert can hardly undermine the 101 pages of comprehensive instruction on evolutionary theory in the textbook. Taken as a whole, the board considers its reforms a dramatic improvement in the teaching of evolution, not some kind of insidious effort to undermine evolution.
The Cobb County case is a much closer call than the Dover case. The Cobb sticker did not discuss alternatives to Darwinism, like intelligent design. It simply tried to put the teaching of evolution in a particular context. Unlike the Dover board, the Cobb County board as a whole never voiced religious opposition to evolution, in contrast to the sentiments publicly expressed by key board members in Dover.
It is always risky to guess how judges will rule on a case before them, but the federal appeals court panel that heard the appeal may be inclined to reverse the lower court's decision that the sticker is unconstitutional. Journalists covering the oral arguments in December described the three judges on the panel as skeptical, critical and hostile in their questioning of the decision.
One judge felt the statement that evolution is a theory, not a fact, was literally accurate and thus hard to challenge. He opined that evolution might indeed be more shaky than other subjects and thus warranted more critical thinking. There were also suggestions that the trial court may have relied on erroneous facts, although some observers felt that the appeals panel itself may have misunderstood key facts.
The district court was right to order the stickers removed. But even if that decision is reversed, it will not change the fact that Cobb County students are finally getting to learn about one of the most important theories in all science.
V. Kansas: The Next Battlefield?
It seems clear that Dover and Cobb County will not be the end of the latest round of evolution wars.
The next major battlefield may turn out to be Kansas. The state's board of education, which has flipped between being controlled by religious conservatives and moderates, is once again under the control of religious conservatives. The board recently adopted new state science education standards that challenge the theory of evolution.
The standards, which form the basis for statewide testing and thus shape classroom teaching, were approved by a narrow 6-to-4 vote after months of acrimonious debate. The ensuing controversy made it all but certain that most or all of the conservative board members up for re-election this year will be challenged by appalled moderates in the Republican primary and, if they survive that, by strongly pro-evolution candidates in the general election.
The steps taken in Kansas fall midway between those taken in Dover and Cobb County in terms of injecting intelligent design or creationism into the curriculum. In Dover, the school board tried to promote intelligent design by mentioning it in class and referring students to a supplementary textbook on the subject. In Cobb County, the board made no effort to promote alternative theories but simply inserted a sticker in textbooks raising doubts about evolution. Now Kansas is also eschewing overt promotion of intelligent design or creationism but is making a more concerted effort than Cobb County to cast doubt on the theory of evolution and ultimately open the way for competing explanations.
The new state standards do this in two ways.
First, while stipulating that students must understand the theory of evolution, they give undue attention to supposed weaknesses in the data supporting it. The standards' most significant flaw is that they challenge the notion that living things are descendants of a common ancestor by relying on reasons that the overwhelming majority of scientists would not accept. The standards also question whether the theory of evolution can explain biochemical systems that appear "irreducibly complex," not used in the standards adopting an argument and terminology associated with intelligent design but rejected by most scientists.
Second, the standards subtly change the definition of science in ways that could, at some future point, allow intelligent design or creationism to be discussed in science classes. The old standards properly defined science as an activity that seeks "natural explanations" for what we see around us based on observation, experimentation and logical argument. The new standards drop any mention of natural explanations and focus only on the methods used by science to gain "more adequate explanations" for natural phenomena. Although board leaders insist that they are not trying to put supernatural explanations into the science curriculum, it is hard to see any other reason for dropping an otherwise innocuous reference to natural explanations.
The board emphasizes that the new standards do not include intelligent design.
That is literally true, but it is also misleading. The board describes intelligent design as a "scientific disagreement" with standard evolution theory and says the new standards "neither mandate nor prohibit teaching about this scientific disagreement." That formulation reflects the latest tactic used by religious critics of evolution, namely pushing for schools to "teach the controversy" between pro- and anti-evolution viewpoints. Science classes should focus on scientific, not religious or philosophical, disagreements.
The Kansas standards will likely be challenged at the polls this year, just as earlier, even more benighted standards were challenged six years ago. If the standards lose, it will be just the latest pendulum swing of many in Kansas' ongoing political wars over evolution.
In 1999, a religiously conservative state board gutted the science standards to eliminate evolution as an explanation for the development of human life and also tossed out the Big Bang theory of the creation of the universe. The following year voters threw out three of the conservative board members, and in 2001, the newly moderate board restored evolution to its rightful place in the curriculum. But the moderates let down their guard, and conservatives gradually regained their majority. Now the pro-evolution forces are plotting a comeback and the state's Democratic governor has hinted she may help.
If the supporters of evolution win, they will have time to repudiate the current standards before they go into effect. If they lose and the standards stay in place, the standards are likely to be challenged in court.
How the courts would rule on state standards that are cast as purely scientific is hard to predict. Sooner or later, religious critics may find an approach to undermining the teaching of evolution that is subtle enough to pass constitutional muster. But it would be a shame - and given the increasingly competitive global economy, a major national blunder - if this resulted in a science curriculum that interferes with students' getting a firm grounding in the theory of evolution, one of the best-established, and most significant, theories in all of science.