Dispatches from the Creation Wars

If the Gull Lake teachers do file a lawsuit claiming that it is a violation of their rights if they are not allowed to teach creationist or other anti-evolution material in their science classes, there are three primary legal precedents for such a suit. All of them have found against the teacher’s assertion of a right to teach such material and all were summarily dismissed and the dismissal upheld on appeal. I have transcribed the rulings in two of those cases on the MCFS website and will provide a link to the third (which is already available on the TalkOrigins Archive site), along with a brief synopsis of each case.

The first is Peloza v. Capistrano Unified School District, a 1994 ruling from the Ninth Circuit Court of Appeals in California. In this case, the teacher tried to argue that teaching evolution was itself a violation of the Estabishment Clause because “evolutionism” is a religion, a claim that the appeals court called “patently frivolous.” He also claimed a free speech violation based upon the fact that the principal of the school had specifically instructed him not to discuss religion with students during instructional time in the course of a reprimand for proselytizing his students about Christianity. He also claimed that he should be awarded damages because the school district had injured his reputation by reprimanding him for that behavior. All three charges were dismissed by the trial court as frivolous and he was ordered to pay the legal fees of the school district as well. On appeal, the legal dismissal was upheld but the appeals court did reverse the decision on the legal fees.

The second is Webster v. New Lenox School District, a 1990 ruling from the Seventh Circuit Court of Appeals in Illinois. The teacher claimed here that he had a right to teach a “non-evolutionary theory of creation” under the first and fourteenth amendments. He specifically said that he taught such a “theory” in order to rebut the claim in the textbook he used that the earth was 4 billion years old. The district court had, like the case above, dismissed the case for failure to make a legitimate Federal claim and the appeals court upheld that dismissal. In so doing they stated that his was in fact quite an easy legal decision:

At the outset, we note that a narrow issue confronts us: Mr. Webster asserts that he hasa first amendment right to determine the curriculum content of his junior high school class. He does not, however, contest the general authority of the school board, acting through its executive agent, the superintendent, to set the curriculum.

This case does not present a novel issue. We have already confirmed the right of those authorities charged by state law with curriculum development to require the obedience of subordinate employees, including the classroom teacher…There is a compelling state interest in the choice and adherence to a suitable curriculum for the benefit of our young citizens and society. It cannot be left to individual teachers to teach what they please.

The third is LeVake v. Independent School District # 656, a Minnesota case from 2001 that, once again, resulted in the teacher’s charges being dismissed and a summary judgement for the school district. In this case, the teacher asserted a right to teach the “difficulties and inconsistencies” of evolution in his 10th grade biology class. The school determined that this was an inadequate means of teaching the approved curriculum and reassigned LeVake to teach a different class. He filed suit claiming free exercise of religion and free speech violations and the judge issued a summary judgement for the defendants. That judgement was upheld on appeal, the appeals court concluding, “Because LeVake’s position paper and his statement to Hubert make it clear that LeVake would not teach the required course curriculum in the manner established by the school board, LeVake has not presented any genuine issue of material fact regarding his free exercise, free speech, and due process claims.”

I really do find it hard to believe that the Thomas More Law Center thinks they can win this case as the plaintiff. In Dover, they are defending the school board’s policy of putting ID into the classrooms and we are the plaintiffs, so the burden of asserting a constitutional wrong is on us. But in Gull Lake, should they file such a suit, they would be the plaintiff and the burden would be on them to do so. As the examples above show, such an assertion is a legal no-brainer. They can’t really believe they will fare any better. The courts have repeatedly ruled that public school teachers do not have free speech in the exercise of their job because curriculum is determined by the school board and the state board of education and they are required to teach within those guidelines. That makes me wonder what their real motivation is here. I can think of two possibilities:

A. They’re trying to put pressure on the school board to cave in to their threat and allow the teachers to teach it so that we will file suit and they can then defend the school board as in Dover. This is certainly a possibility. We have not threatened such a suit, but we have advised the Gull Lake school board of the various legal precedents that forbid the school to teach creationism in science classrooms.

B. They don’t care if they win or not. The TMLC, like the ACLU, does not charge their clients so they are taking on the full financial burden themselves for the case. But it’s also certainly possible that, regardless of whether they have any real chance of winning the case, by taking it they will put themselves in a position to receive huge financial donations from individuals and foundations on their side. Or perhas they’re interested primarily in the media attention, which will eventually result in more money flowing in. Either way, I can’t imagine they actually think they can win the case on its merits.


  1. #1 spyder
    April 25, 2005

    I have a question, then a comment. If Congress were to pass the Constitutional Restoration Act of 2005, once they have exercised the nuclear option in the Senate, would not the Supreme Court have to rule the law unconstitutional, in which case it would need to reformulated as an amendment and thus require a much greater degree of public scrutiny??? If not, then the TMLC suit opens the door, under the CRA2005, to claim that such behavior by the teachers would fall directly under the protections specified in the Act?

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