In 1984, three years before the Supreme Court ruled in the well-known Edwards v. Aguillard decision that "balanced treatment" of evolution and "creation science" is unconstitutional, the Attorney General of Texas put an end to another anti-evolution practice. In answer to an inquiry from a state legislator, the Attorney General gave an official opinion that the Board of Education policy requiring "disclaimers" in biology textbooks violated the First Amendment.
However, disclaimers were never actually tested in court, and in April, 1994, the Board of Education in Tangipahoa, Louisiana, adopted a disclaimer to be read aloud by teachers before they presented any material concerning evolution (NCSE Reports 14:8). The Louisiana disclaimer was followed by the Alabama Board of Education's adoption in November 1995 of a statement describing evolution as a "controversial theory"; the Alabama statement, like the Texas disclaimer, has been pasted into biology textbooks (see NCSE Reports 15: 10-11). The Alabama disclaimer has been more widely reported and was followed by proposals of similar disclaimers in a number of school districts. However, it is the Louisiana disclaimer that has been challenged in court.
In August 1997, the US District court for Eastern Louisiana found the oral disclaimer unconstitutional. In the first court decision to define "the theory of intelligent design" as another term for "creation science", Judge Marcel Livaudais wrote, "As hard as it tries to, this Court cannot glean any secular purpose to this disclaimer.... [T]he school board is endorsing religion by disclaiming evolution" (NCSE Reports 1997 17:5). (A summary of court decisions concerning "creation science" and anti-evolution legislation is available from NCSE. Readers may request copies or find this information on the World Wide Web here.
Judge Livaudais' decision is already being cited in opposition to other anti-evolution policies. However, the school district has appealed the decision, insisting that their policy served the secular purpose of encouraging critical thinking. The Christian Legal Society (CLS) and Union of Orthodox Jewish Congregations jointly filed a "friend of the Court" brief supporting the school board's policy, arguing that the policy serves still another "secular" purpose — accommodating religious diversity by disclaiming evolutionary "orthodoxy". The brief, written with the assistance of law professor Phillip Johnson, extensively cites claims in his book Darwin on Trial that evolution is a "metaphysical world view". (Readers who watched the Firing Line "special debate" on evolution will recall that Johnson took part.)
Briefs supporting the views of the plaintiffs were also filed by the American Jewish Congress and the National Committee for Public Education and Religious Liberty, of which NCSE is a member. However, these briefs concentrated on constitutional issues, and legal advisors believed that it would be important to clarify the scientific issues as well. The Board of Education's defense and the CLS brief rely heavily on the claim that there are scientific objections and "alternatives" to the theory of evolution, when in fact there are none.
Against this background, NCSE decided that there should be a separate legal brief, addressing scientific issues exclusively. NCSE is fortunate to be able to call on the services of an attorney who has helped us in the past. Though we have joined other organizations in signing other "friend of the court" briefs, this is the first time in our 15-year history that we have filed a brief independently. It is an important milestone for NCSE and potentially a major contribution to the defense of evolution education.