MSU Law Faculty in the News

Law professor: Intelligent Design expelled for lack of standing
February 12, 2009
Detroit Legal News
By John Minnis

Michigan State University College of Law professor Dr. Frank Ravitch held court Tuesday, Feb. 10, on the whether intelligent design, the latest chapter in the creationist story, had legal standing. He tossed the case out.

Ravitch's ruling – "Playing the Proof Game: The Law and Intelligent Design" – was part of MSU's month-long Darwin Discovery Day events marking the 200th anniversary of the Feb. 12, 1809, birthday of Charles Darwin, co-founder of the theory of evolution by natural selection. It also celebrates the 150th anniversary of Darwin's seminal work, "On the Origin of Species."

Professor Ravitch is the author of Masters of Illusion: The Supreme Court and the Religion Clauses, Law and Religion, A Reader: Cases, concepts, and Theory and School Prayer and Discrimination: The Civil Rights of Religious Minorities and Dissenters. He recently presented a paper, "When Religious Subjects Become Legal Objects" to students at Penn State's Dickinson Law School.

"Intelligent design is taking up a lot of my time," he told the 40 some students and faculty attending his evening lecture. "ID's sort of a moving target."

ID (intelligent design) was most recently made part of the pop culture by Ben Stein's laic documentary, "Expelled: No Intelligence Allowed." Steins apologia for ID had been preceded by a skillful dissection by British biologist Richard Dawkins.

Intelligent design is the argument that the universe and living organisms are best explained by the necessity of an intelligent cause, rather than a naturalistic process, such as evolution by natural selection. ID is the modern incarnation of the age-old teleological argument for the existence of God. ID, however, purports to avoid specifying the nature or identity of the designer.

Ravitch pointed out that ID is a modern makeover of creation science, which the courts have ruled against in three key cases: Epperson v. Arkansas, Edwards v. Aguillard and Kitzmiller v. Dover Area School District.

In Epperson (1968), the U.S. Supreme Court ruled that an Arkansas statute that banned the teaching of evolution – or, more specifically, that "that mankind ascended or descended from a lower order of animals" – violated the First and 14th Amendments.

Though the statute banning the teaching of evolution was promoted under the guise of "academic freedom," the High Court found that the sole reason for the Arkansas law was that a particular religious group considered the evolution theory to conflict with the account of the origin of man set forth in the Book of Genesis.

"The U.S. Supreme Court said you can't do that," Ravitch said. "The purpose in preventing the teaching of evolution was to promote a religion. You have to have a secular purpose."

Edwards (1987) involved a Louisiana "academic freedom" statute that mandated that if the theory of evolution is taught, then the theory of creation science should also be taught. The statute did not mandate that either theory be taught, but if one were taught, the other must be as well.

But the U.S. Supreme Court found that Louisiana's "Creationism Act" was "facially invalid as violative (sic) of the Establishment Clause of the First Amendment, because it lacks a clear secular purpose" and that the act "impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind."

Rather than promoting academic freedom, the Creationism Act limited it by forcing the teaching of two theories or not teaching at all, Ravitch said.

Kitzmiller (2005) involved a U.S. District Court case that was the result of a Dover, Penn., school board decision in 2004 requiring biology teachers to read a statement before beginning instruction on evolution:

"The Pennsylvania Academic Standards require students to learn about Darwin's theory of evolution and eventually to take a standardized test of which evolution is a part.

"Because Darwin's Theory is a theory, it is still being tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

"Intelligent design is an explanation of the origin of life that differs from Darwin's view. The reference book, ‘Of Pandas and People' is available for students to see if they would like to explore this view in an effort to gain an understanding of what intelligent design actually involves.

As is true with any theory, students are encouraged to keep an open mind. The school leaves the discussion of the origins of life to individual students and their families. As a standards-driven district, class instruction focuses upon preparing students to achieve proficiency on standards- based assessments."

Three school board members and several teachers resigned in the face of the "theory" statement. Eleven parents filed suit against their school board.

In a scathing, 139-page opinion and findings of fact, Judge John E. Jones III found the Dover mandate unconstitutional and prohibited the teaching of intelligent design in public school science classrooms. He said the religious nature of ID would be "readily apparent to an objective observer, adult or child." He further called ID a "religious argument" rather than a scientific theory.

He even accused the defendants of perjury:

"It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID policy."

One month prior to Judge Jones's ruling, all eight Dover school board members who were in favor of intelligent design were defeated for re-election in the Nov. 8, 2005, election.

For ID to succeed in the classroom, it has to prove it is a science, and that is not likely.

"The argument ID is not religion will never be won," Ravitch said. "There's not a court in the country likely to consider ID science. If ID reaches the Supreme Court, it will find it unconstitutional."

Still, ID proponents keep up the good work.

Just last year, Ravitch's testimony helped get a "stealth" ID law rejected in the Michigan Legislature. Such stealth laws have two approaches: 1) Force schools (i.e., science classes) to be open forums for ideas (i.e., intelligent design) or 2) "suck the money out" of science education.

"They will always find new legal arguments," Ravitch said of the religious right. "This is especially true of creationism. Not so much with school prayer."

Ravitch is not anti-religion.

"I'm a believer in God and evolution," he said. "The ID people don't like me because I am religious."

Basically, all the ID/creationist arguments – just a theory, gaps, irreducible complexity, probability theory, academic freedom and discrimination –are red herrings, Ravitch said.

"This is a rhetorical debate designed to win the culture wars," he said. "These people aren't stupid. They know marketing. They know framing. But we can use rhetoric, too."