Jason Rosenhouse’s new article at EvolutionBlog, about the Hedin affair, “Dubious legal analysis from the Discovery Institute” (DI), is really going to tick off the DIers and advocates of intelligent design (ID), but I think Jason has a good point. And that point is that although it’s illegal (as well as dereliction of duty) to teach intelligent design creationism in public schools and universities, it is okay to criticize it, for you can criticize ID on the grounds of bad science without bashing religion.  And I think Jason’s right, especially given the legal rulings so far on what constitutes an incursion of religion into public schools.

The issue of whether teaching intelligent design in science classes constitutes a violation of the First Amendment in college courses has never been adjudicated, although it’s clearly illegal in high schools (Kitzmiller et al. v. Dover Area School District et al.). As one constitutional lawyer wrote me, the higher-education issue is a bit murky:

There’s never been a direct decision, but SCOTUS has said several times that they apply the Establishment Clause [EC] more strictly, the younger the students are.  Of course, this doesn’t make sense.  If the government is not allowed to act in a way that favors religion as required by the EC, then how can the age of the people impacted change that?  The idea is that college is a time to expand your horizons, explore new ideas, etc.  But I don’t think that is a license to violate the Constitution.

All that being said, the fact remains that courts do treat colleges differently than elementary schools.  And even high schools differently from elementary schools sometimes. For instance, the Equal Access Act applies only to secondary schools, not elementary schools because high school students are mature enough to understand that schools “do not endorse everything they fail to censor.”  Mergens at 30.  (Statutory interpretation but still germane to EC analysis).  Moreover, in free speech cases, which the brick could easily be categorized as, age is also an issue.[JAC: SCOTUS is the Supreme Court of the US]

I would love to see this adjudicated, but of course we not only have a hyper-conservative Supreme Court, but Constitutional lawyers are happy enough to see ID booted from science classes—as it was at Ball State University (BSU)—without having to go through the time-consuming and expensive process of litigation, which in this case would probably have wound up in the Supreme Court.

Last week I put up a post on the creationist Discovery Institute’s continuing attempts to revive this case and allow ID to be taught at BSU. That post was was motivated by the incisive comments of several reader, who noticed that DI Vice-President John West seemed to be admitting that ID was religious, something that they’ve tried to avoid at all costs:

“Ball State ought to be careful,” West said. “I think their mishandling of this could turn into a much bigger deal. Certainly, we are not going away. The speech code against intelligent design is vague and too broad and may not be being applied evenhandedly. We determined through public documents one science class is covering intelligent design in order to bash it. If they allow that, it’s tantamount to state endorsement of an anti-religious view.”

But a post by Joshua Youngkin at the DI creationist Evolution News and Views site did some furious backpedaling, arguing that the Discovery Institute’s claim was not tantamount to admitting it was religion or religiously motivated. Youngking’s post is a masterpiece of equivocation, but fortunately Jason has shown why it’s wrong. First, here’s Youngkin’s defense of ID as not religious:

Is Coyne right? Is this an admission from Discovery Institute that intelligent design is religion? No, it is not. Why not? Because, in short, the case law on the establishment clause of the First Amendment (which covers the area of life we’re talking about now) generally looks to the state actor’s (e.g., BSU administration) motive and purpose for acting as they act.

So, for example, if BSU administrators want to offer a course bashing intelligent design because they believe it is religion, and because they are hostile to religion, then that motivation when put into effect might constitute to a reasonable observer (e.g., a hypothetical student in the class, as determined by a court) state endorsement of anti-religion, which in turn arguably constitutes a violation of the establishment clause of the First Amendment.

That is, the law that governs this area of life cares about what’s going on inside the minds of state employees when they do what they do. In this case, it does not care whether intelligent design really is religion, as Coyne seems to think. It, again, only cares what state employees think it is, particularly when that thinking is part of state employees’ motive or purpose for, say, promoting or bashing religion on state property using state resources.

Yes, this stuff can get pretty esoteric. And this is just the tip of the iceberg. But at least now you know a little more about what’s going on, at least from a legal standpoint. For some perspective on how the “explicit admission” came about, it’s best to let John West speak for himself. He tells me:

“Although the reporter generally quoted me accurately in the article, in this particular instance he left out some important context. I made clear that I was focusing on BSU’s claim that intelligent design is religion. My argument was that if this is BSU’s claim, then BSU has to be consistent in how it applies its view when it comes to regulating speech of its faculty. If, according to BSU, endorsing intelligent design is tantamount to endorsing religion, then according to BSU’s own standard, attacking intelligent design would be tantamount to attacking religion. My point is that BSU can’t have it both ways.”

I believe a reader predicted that West would claim he was misquoted, but at least his statement is much clearer than the garbled analysis of Youngkin.  As West argues, if you can ban ID from science classes because that violates the First Amendment, then you cannot criticize ID either, for that also entangles religion with science in public institutions.

Rosenhouse maintains that West’s (and Youngkin’s) arguments are wrong, basically because ID is not only motivated by religion, but it’s also lousy and discredited science. Therefore, you can ban it from science classes as simply being discredited science—and tell the students why—so long as you don’t use that criticism to go after religion itself. Criticizing bad science has a secular purpose, but teaching ID has no secular purpose: it’s a deliberate attempt to sneak a discredited, religiously-based theory into the class. Or so Jason claims, and I think his claim has merit. Remember Gora’s statement explaining why ID could not be taught in Ball State science classes? I’ve put that statement at the bottom: it talks not only about the constitutional issues, but also about ID being discredited science. And notice that Gora does not say that discussing (or even attacking) ID is verboten, so long as it’s not in science classes. I agree: it’s a valid subject for discussion in philosophy or “Dangerous Ideas,” classes, so long as it’s not presented in a one-sided way, or as scientifically validated.

Here’s a bit of Jason’s analysis. Referring to Youngkin’s statement, he says:

This, sadly, is not correct. The motivation behind a state action is not relevant at all to determining its constitutionality, at least not directly. You cannot go into court and argue that a state action is unconstitutional because it was motivated by anti-religious fervor. (Not if you expect to win, at any rate.) A state action can have both a religious (or anti-religious) intent and also a religious (or anti-religious) effect and still be constitutional.

The current legal standard for adjudicating these claims is the so-called Lemon test, from the 1971 Supreme Court case Lemon v. Kurtzman. The test has three prongs, the first of which is most relevant for assessing Youngkin’s claim. This prong says that to be constitutional, the state action must have a secular legislative purpose. Of course, you can always just make up a secular purpose to obscure the religious intent of the action. So, subsequent case law has established the principle that the given secular purpose must be legitimate, and not just a sham.

This is the place where the motivation behind the action might have some indirect relevance to determining its constitutionality. Evidence that the action was motivated by religious concerns might also constitute evidence that the publicly-given secular purpose is just a sham. Even in that case, however, the action’s unconstitutionality has nothing to do with its motivation, but is instead the result of its not having a legitimate secular purpose.

This is precisely what played out in the Dover trial in 2005. . . The totality of this evidence convinced the judge that the board’s stated secular purpose was just a sham and that really there was no legitimate secular purpose behind the board’s action.

Here’s the heart of Jason’s argument:

With that in mind, let’s revisit Youngkin’s hypothetical. Imagine a shadowy cabal of university administrators who decide they want to use their science classes as a tool for bashing religion. Towards that end, they decide that they are going to offer a course that really goes to town on intelligent design. As long as what actually plays out in class is a calm, measured, discussion in which the professor says something like, “Proponents of intelligent design make certain scientific arguments. These arguments are worth addressing because they are so prevalent, but they are poor for the following reasons…” then the course would not be unconstitutional. In this case, the secular purpose of presenting the best science is plainly not a sham, rendering irrelevant any concerns about the motivations behind the course.

Incidentally, the second prong of the Lemon test says that the primary effect of the state action cannot be to advance or hinder religion. Secondary effects are, once more, irrelevant. So even if the administrators specifically wanted to bash religion, and even if the course had the secondary effect of making some students question their faith, that still would not be enough to show that it is unconstitutional. That there is a legitimate secular purpose behind the course (to present the best science) and that the primary effect has noting to do with religion (that effect being to leave students properly informed about the state of science), renders all other concerns moot. (Leaving aside the third prong of the Lemon test, for the purposes of this discussion.)

And, finally, Jason analyzes West’s clear statement, but also finds it wanting:

In making this argument, West can avoid the charge that he was carelessly admitting that intelligent design was religion. It is, however, a ridiculous argument. If the Discovery Institute wants to sue Ball State for offering a course critical of ID, then they would have to explain to a judge why the purpose or primary intent of the course was anti-religious. Given the many adamant statements by ID’s leading defenders that it is all about science and has nothing to do with religion, they might find that a tough case to make. That BSU’s administrators were hypothetically motivated by anti-religious fervor would be neither here nor there. [JAC: Note Gora’s statement below, though.]

Furthermore, you can have it both ways. No one is denying that ID folks make scientific assertions. Refuting those assertions plainly has nothing to do with religion, and is clearly a legitimate purpose in a science class. Claiming that ID is religion is just shorthand for saying that it’s scientific arguments are so bad that it is reasonable to look at the motivations behind the people making them, and one does not have to look too hard to see that those motivations are entirely religious and political).

I think that, given the accepted criteria of the Lemon test, Jason has a good argument here. Criticizing ID—as science, not religion—has a legitimate secular purpose, just as secular as criticizing homeopathy in health class or astrology in psychology class. You can say that these are all instances of bad science, and tell the students why. I criticize creationism in my evolution class as being contravened by the data (the contrast between creationist and evolutionist explanations of biological and geological data is a major part of Darwin’s Origin, and was one of the reason why people were convinced to abandon creationism as “bad science”), and I do that without dissing religion. (I do mention, though, that some forms of creationism, and those addressed by Darwin, were based on Genesis, for that’s where the theory originated.)

The ID people have not helped themselves by their repeated statements, both in churches and public writings, that ID really is a religiously-based theory. That includes William Dembski’s statement that “Intelligent design is just the Logos theology of John’s Gospel restated in the idiom of information theory.” The Wedge Document didn’t help, either.  There are many statements in which IDers identify the “designer” to be the Abrahamic God, and Barbara Forrest has shown clearly that the ID “textbook” Of Pandas and People is simply a lightly reworked version of older creationist materials.  Thus, no matter how much IDers claim that their theory is “science” that just happens to coincide with theism, they’ve left behind a paper record showing that both the motivation and the content of Intelligent Design is religious, and part of a strategy to dispel materialism from and inject religion into public schools.

Finally, every claim that ID is “science” (and note that their promised scientific “research” has never materialized; all they do is criticize evolutionary biology) has been dispelled by scientists like Nick Matzke, Charles Marshall, Russell Doolittle, and even religious scientists like Ken Miller. So ID is both religiously motivated, has no secular purpose, and is discredited science. On those grounds you can ban it from the science classroom as legitimate science (both on Constitutional grounds and on academic grounds) but also criticize its scientific claims (on academic grounds).  The IDers simply didn’t hide their religious purpose deep enough, for the claims of faith always burst through. And so the Discovery Intitute is scuppered.

Jason is a good boy, and he’s about to take some serious flak from the Discovery Institute. They have loads of people always at the ready to defend the lie that ID is real science.

******

President Gora’s statement, which I published and discussed here (my emphasis):

Dear Faculty and Staff,

This summer, the university has received significant media attention over the issue of teaching intelligent design in the science classroom. As we turn our attention to final preparations for a new academic year, I want to be clear about the university’s position on the questions these stories have raised. Let me emphasize that my comments are focused on what is appropriate in a public university classroom, not on the personal beliefs of faculty members.

Intelligent design is overwhelmingly deemed by the scientific community as a religious belief and not a scientific theory. Therefore, intelligent design is not appropriate content for science courses. The gravity of this issue and the level of concern among scientists are demonstrated by more than 80 national and state scientific societies’ independent statements that intelligent design and creation science do not qualify as science. The list includes societies such as the National Academy of Sciences, the American Association for the Advancement of Science, the American Astronomical Society, and the American Physical Society.

Discussions of intelligent design and creation science can have their place at Ball State in humanities or social science courses. However, even in such contexts, faculty must avoid endorsing one point of view over others. The American Academy of Religion draws this distinction most clearly:

Creation science and intelligent design represent worldviews that fall outside of the realm of science that is defined as (and limited to) a method of inquiry based on gathering observable and measurable evidence subject to specific principles of reasoning. Creation science, intelligent design, and other worldviews that focus on speculation regarding the origins of life represent another important and relevant form of human inquiry that is appropriately studied in literature and social science courses. Such study, however, must include a diversity of worldviews representing a variety of religious and philosophical perspectives and must avoid privileging one view as more legitimate than others.

Teaching religious ideas in a science course is clearly not appropriate. Each professor has the responsibility to assign course materials and teach content in a manner consistent with the course description, curriculum, and relevant discipline. We are compelled to do so not only by the ethics of academic integrity but also by the best standards of our disciplines.

As this coverage has unfolded, some have asked if teaching intelligent design in a science course is a matter of academic freedom. On this point, I want to be very clear. Teaching intelligent design as a scientific theory is not a matter of academic freedom – it is an issue of academic integrity. As I noted, the scientific community has overwhelmingly rejected intelligent design as a scientific theory. Therefore, it does not represent the best standards of the discipline as determined by the scholars of those disciplines. Said simply, to allow intelligent design to be presented to science students as a valid scientific theory would violate the academic integrity of the course as it would fail to accurately represent the consensus of science scholars.

Courts that have considered intelligent design have concurred with the scientific community that it is a religious belief and not a scientific theory. As a public university, we have a constitutional obligation to maintain a clear separation between church and state. It is imperative that even when religious ideas are appropriately taught in humanities and social science courses, they must be discussed in comparison to each other, with no endorsement of one perspective over another.

These are extremely important issues. The trust and confidence of our students, the public, and the broader academic community are at stake. Our commitment to academic freedom is unflinching. However, it cannot be used as a shield to teach theories that have been rejected by the discipline under which a science course is taught. Our commitment to the best standards of each discipline being taught on this campus is equally unwavering. As I have said, this is an issue of academic integrity, not academic freedom. The best academic standards of the discipline must dictate course content.

Thank you for your attention to these important issues. Best wishes in your preparations for a new academic year. I look forward to seeing you at the fall convocation in just a few weeks.
Sincerely,

Jo Ann M. Gora, PhD
President