Kansas will Cope with COPE

Tom Toles cartoon (2006): Blackboard says Evolution, with alternating apes and humans in a parody of the iconic March of Progress image. A student quips: It's slower here in Kansas.TOLES Copyright 2013 The Washington Post. Used courtesy of the creator and Universal Uclick. All rights reserved.

When the Kansas Board of Education voted in June 2013 to adopt the Next Generation Science Standards, I thought my former home state had finally broken free of its sad history of battles over science standards. Unfortunately, the state’s creationists can’t leave well enough alone, and a creationist group is trying to block implementation of the new standards with one of the least plausible lawsuits imaginable.

In 1999, and again in 2005, creationists captured the state board of education and forced changes into new standards. The first time, they tried to simply strip evolution out of the standards, and in the second case they tried to redefine science and introduce language from the “intelligent design” creationist playbook. In both cases, the attack was only reversed by the election of a new board of education.

This time, the board sent a clear message, voting 8-2 to adopt the new standards, standards that cover evolution, climate change, and other sciences clearly and thoroughly.

The legislature tried to intervene, with a Tea Party contingent trying to pass a law defunding implementation of Common Core standards and  the NGSS. One the law’s sponsors was Sen. Steve Abrams, a former member (and chair) of the board of education in 1999 and 2005 who tried to write evolution out of the standards. The ultra-conservative contingent refused to pass a state budget package until they were given a chance to vote on defunding science standards, a vote which ultimately failed.

Now comes Citizens for Objective Public Education, suing to block the standards. COPE’s board of directors consists largely of remnants from IDNet, a creationist group that was active in the 2005 Kansas standards fight, and in contemporaneous battles in Ohio and New Mexico. After losing those battles, and the broader collapse of ID creationism thanks to Kitzmiller v. Dover, the group seemed to dissipate. But COPE’s lawsuit was filed by John Calvert, IDNet’s founder, the ringleader in 2005’s infamous Kansas kangaroo court, and the plaintiffs include other figures from that battle.

As I told the Associated Press, this lawsuit is making largely the same argument Calvert made in the pseudolegal proceedings in 2005; “They’re trying to say anything that’s not promoting their religion is promoting some other religion,” I explained, calling the charge “silly.” The thing is, Calvert knows it’s silly, because his 2005 pseudolegal papers explain where the reasoning of his current suit fails.

He contends in his current suit that there is a nebulous “Orthodoxy” which NGSS promotes, which “supports (but does not require belief in) non-theistic religions like atheism and Religious (‘secular’) Humanism.” Contrast that claim with his recognition in his 2005 “legal opinion” to the board of education: “secular humanism and other broad concepts that generate religious implications have been held to not constitute a ‘religion’ for establishment clause purposes. Furthermore, the courts have ruled that the establishment clause is not violated simply ‘because the material to be taught happens to coincide or harmonize with the tenets of some or all religions.’” (Emphasis added.)

Indeed, the current lawsuit objects that there’s not enough religion in the standards: “The most critical omission is that the F[ramework] & S[tandards] employ the Orthodoxy but do not…inform students about…the nature of the Orthodoxy and how its use in origins science affects religious beliefs.” (The bogus distinction between origins science and experimental science is a staple of the creationist literature, and of past attacks on Kansas science standards.)

The COPE lawsuit is notable for lacking virtually any citations to relevant case law, even though similar claims have been tested in court and routinely rejected. In 2005, Calvert recognized this, citing cases like McLean v. Arkansas, where the judge ruled, “it is clearly established in the case law, and perhaps also in common sense, that evolution is not a religion and teaching evolution does not violate the Establishment Clause”; and Peloza v. Capistrano School District, where the 9th Circuit appellate court considered, and rejected out of hand, a claim remarkably similar to that which Calvert advances today:

According to Peloza’s complaint, all persons must adhere to one of two religious belief systems concerning “the origins of life and of the universe:” evolutionism, or creationism. Id. at 2. Thus, the school district, in teaching evolutionism, is establishing a state-supported “religion.”

We reject this claim because neither the Supreme Court, nor this circuit, has ever held that evolutionism or secular humanism are “religions” for Establishment Clause purposes. Indeed, both the dictionary definition of religion and the clear weight of the case law are to the contrary. The Supreme Court has held unequivocally that while the belief in a divine creator of the universe is a religious belief, the scientific theory that higher forms of life evolved from lower forms is not.

Only if we define “evolution” and “evolutionism” as does Peloza as a concept that embraces the belief that the universe came into existence without a Creator might he make out a claim. This we need not do. To say red is green or black is white does not make it so. Nor need we for the purposes of a 12(b)(6) motion accept a made-up definition of “evolution.” Nowhere does Peloza point to anything that conceivably suggests that the school district accepts anything other than the common definition of “evolution” and “evolutionism.” It simply required him as a biology teacher in the public schools of California to teach “evolution.” Peloza nowhere says it required more.

The district court [where Peloza’s suit originated] dismissed his claim, stating:

Since the evolutionist theory is not a religion, to require an instructor to teach this theory is not a violation of the Establishment Clause.… Evolution is a scientific theory based on the gathering and studying of data, and modification of new data. It is an established scientific theory which is used as the basis for many areas of science. As scientific methods advance and become more accurate, the scientific community will revise the accepted theory to a more accurate explanation of life’s origins. Plaintiffs assertions that the teaching of evolution would be a violation of the Establishment Clause is unfounded.

We agree.

Calvert didn’t mention 1980’s Crowley v. Smithsonian, in which a creationist group sued the Smithsonian to try to block an exhibit on human evolution. The group claimed that evolution should be seen “as, and only as, part of the religion of secular humanism,” and insisted that the exhibit violated its members’ First Amendment rights to free exercise of religion, and freedom from government establishment of religion. As the DC Court of Appeals ruled:

the essential question posed by appellants has been resolved by authoritative decisions permitting public schools to teach the facts and theory of evolution to children who, unlike appellants, are compelled by law to come and look and listen. Such public involvement in evolution was not only permitted by the first amendment, but the Courts have further held that to bar or inhibit such teaching would, under some circumstances, itself violate the establishment clause.

It’s hard to see COPE’s suit as anything but John Calvert’s desperate grasping for one last taste of the limelight. The reasoning of the lawsuit is shoddy and at odds with the case law (and we know Calvert is familiar with that case law). It’s a shame that Kansas will have to waste staff time and attorney’s fees fighting the case, but it’s difficult to imagine the case lasting long. The board has asked the state’s attorney general to defend the case and is expected to file an answer to COPE by November 5, 2013.

When the suit was filed, the AP reporter asked me when the roller coaster of Kansas science standards battles might end. Trying to think of a less morbid version of Max Planck’s explanation of scientific progress, I answered, “When John Calvert finds a new hobby.”

Josh Rosenau
Short Bio

Josh Rosenau is a former Programs and Policy Director at NCSE.

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