As I emphasized in my posts during the past week, the Scopes trial did not resolve any of the major legal questions involving evolution. But many of those questions were resolved in subsequent cases over the next 80 years, as I chronicle in my book God vs. Darwin: The War Between Evolution and Creationism in the Classroom that reviewed the 80-year legal fight by religious groups to combat the teaching of the theory of evolution in public schools, that began with the Scopes trial in 1925 and ended with the Intelligent Design trial in Dover, PA in 2005
But there was one issue raised by the prosecutor in his defense of the Butler Act (that forbade the teaching of evolution) that is still unresolved and that is what is appropriate to teach children in public schools and who should get to decide it. Should it be the public through its elected representatives? Should it be educators? What should be role of subject matter experts?
In many countries, especially those with a national educational system, the answer is simple: the government does. In general, there is a ministry of education that sets the standards, curriculum, and even lesson plans and teachers are trained in it. There is no real basis for legal challenge and in theory they could decide to teach anything at all. In reality, public opinion acts as a major constraint on teaching nonsense. But in the US, education is very much a local affair, with each local community having its own school boards that determine these things, and these can vary widely. The state can set overall guidelines, while textbooks and standardized tests provide some measure of uniformity, but not much.
On day 2 of the Scopes trial, the prosecutor said that the issue was very simple and articulated the majoritarian view that the state had the right to prohibit the teaching of any subject at all. In response, the defense relied heavily on a reasonableness argument, that argued that the theory of evolution was as well established as the Copernican theory and thus forbidding teaching it was an unreasonable action by the state. Clarence Darrow invoked a slightly different argument and said that under an honest and fair interpretation of the Tennessee constitution, “the state has no more right to teach the Bible as the divine book than that the Koran is one, or the book of Mormon, or the book of Confucius, or the Buddha, or the Essays of Emerson.”
These arguments were repeated in the 1926 hearings before the Tennessee Supreme Court, where that state again argued the majoritarian view that what the elected representatives decided was binding whatever its merits. The lawyers for the state said, “What the public believes is for the common welfare must be accepted as tending to promote the common welfare whether it does in fact or not.” Defense counsel Arthur Garfield Hays said that the Fourteenth Amendment to the US Constitution prevented the state from enforcing unreasonable laws and that “Tennessee’s “absurd” antievolution statute violated this standard as much as a law against teaching Copernican astronomy would.”
In the US, there is one limitation and that is the Establishment Clause of the First Amendment, that Congress can make no laws respecting the establishment of religion. Note that the prohibition is only on Congress, but over time the US Supreme Court, using the Due Process provision of the Fourteenth Amendment, asserted that all the First Amendment guarantees are binding on any agency acting on behalf of federal or state or local governments. So as a result, educational authorities are prohibited from teaching anything that advances a religious viewpoint.
And this is where trying to ban or otherwise restrict the teaching of evolution runs into problems. Darrow argued a point before the Tennessee Supreme Court that has continued to be invoked to this day, that the anti-evolution statute in question was not designed to foster neutrality in education but that opposition to the theory of evolution essentially sprang from a religious foundation that was hostile to science. Thus any attempt to suppress the teaching of evolution was also effectively an attempt to advance religious views at the expense of science, and this went counter to the purposes of public schools.
And this is the main legacy of the Scope trial, that anti-evolution efforts are seen as inexorably tied to a religious agenda.
But this still leaves open the big question as to whether there are any limits on what school districts can insert into the curriculum, as long as it is not advancing religion. Is teaching even manifestly ridiculous ideas a sufficient reason for the courts to intervene? If a school district decides that it should teach something absurd or even flat out wrong, like the moon is made of cheese, is it allowed to do so? Can a parent complain and have the courts overturn such a policy? What would be the constitutional basis for such an action? Is unreasonableness sufficient grounds?
US District Judge John E. Jones III, who presided over the Kitzmiller v. Dover Area School District case in Dover, PA in 2005 (which, like the Scopes trial, had many comedic elements), delivered a ruling that was a resounding defeat for the idea of Intelligent Design, where he said that it was clearly a religious belief and not science and thus did not belong in the public school science curriculum. He spoke at my university a couple of years later and I was able to ask him directly whether there was any legal basis to challenge the teaching of a nonsensical idea if there was no religious element involved. He said that he did not think there was. But this question has not been directly tested.
Although it is an interesting hypothetical exercise, in reality we may never be able to decide it legally because it is is unlikely that it will ever go before the courts. The teaching of a purely secular educational issue, however ridiculous but with no religious overtones, will not result in laws and lawsuits because the only time that people feel so strongly about teaching things for which there is no evidence that they are willing to appeal to the courts or legislatures to intervene and enforce such policies is when religious convictions drive their beliefs.
Clarence Darrow’s approach in the Scopes trial set out to argue that religious beliefs were just nonsense and that no sensible person should believe them, let alone want to teach them to their children. After all, no one is asking schools to teach children other nonsensical ideas such as that the Earth is flat, that the Sun orbits the Earth, or that there are fairies at the bottom of the garden. No legal steps have been necessary (at least not yet) to prevent teachers from telling students that objects fall to the ground because the Earth is at the center of the universe. Religious people do not demand that schools teach alternatives to the theory of gravity out of a sense of fairness. They do not demand that schools ‘teach the controversy’ over Newton’s laws. They do not demand ‘equal time’ for theories other than Maxwell’s laws of electromagnetism. If they did, parents would be up in arms about their children’s time being wasted on such nonsense. It is only when the ideas have a religious basis that people get all worked up over trying to get them taught. It is hard to disentangle the ridiculous from the religious.
So while the form and tactics of the fight against the teaching of evolution has undoubtedly changed since the time of William Jennings Bryan and the Scopes trial, the one constant feature underlying that struggle has been the feeling that the theory of evolution is somehow dangerous to religion and has to be either overthrown or arbitrarily limited in its scope or its teaching balanced with ideas favorable to a God-centered view of life and creation.
But the question of whether schools can teach anything at all as long as it is not religious, remains (as far as I am aware) legally unresolved.
I agree that it’s unlikely to ever happen with a topic in a hard science like physics or astronomy. But I wouldn’t be at all surprised if, a couple decades from now, schools somewhere (cough*TEXAS*cough) are teaching history classes about the “stolen” 2020 election, when “brave patriots” attempted to “correct the problem” by “peacefully” entering Congress to engage in “heated debates”.
I _will_ be pleasantly surprised if we still have a functional court system by then, with rational judges like Judge Jones who are able to shut that down.
… no one is asking schools to teach children other nonsensical ideas such as that the Earth is flat …
The governor of Florida insists that schools must teach that slavery was (partly) beneficial to the enslaved.
[insert exploding-head emoji here]
I could add several anecdotes from my Southern California public high school social studies classes in support of imperialism and the military-industrial complex.
#1
Oklahoma schools are already required to teach about “descriptions” in the election
https://www.wgbh.org/news/2025-05-14/oklahoma-education-standards-say-students-must-identify-2020-election-discrepancies
Mano, this has been an interesting series of articles and this final entry brings up two questions:
1. As you’ve stated, thus far we’ve been able to prevent religion-based ideas from being taught in school, but it seems that some other nonsensical ideas could be challenged in court. For instance, there are many people fiercely opposed to vaccines or other proven modern medical procedures and while some are religiously motivated, many have objections based on nothing more than conspiracy theories. Could they possibly make a sensible legal claim to stop these proven medical practices?
2. Do you advocate changing our education system to some version of a federally-mandated and run system?
Based on your reporting, it seems to me that the best solution for the U.S. is for the federal government to pass whatever laws or constitutional amendments it would take to enact a “European-style” mandated curriculum for all schools in the country. Probably would want to decouple local education from property tax revenue and guarantee that every student in every locale and at all levels gets the same educational standards. Private or religious instruction would not be forbidden, but would be at a family’s own expense and not accepted as meeting the federally-mandated minimum standards which would apply at all levels nationwide. There’s also the problem of the massive, systemic income and wealth inequality in the U.S., a topic for another day.
“Religious people do not demand that schools teach alternatives to the theory of gravity out of a sense of fairness.”
Funnily enough, I was taught “alternatives” to the theory of gravity.
In high school:
-- Caveman theory: what goes up must go down
-- Aristotle (I think?): heavier objects drop faster than lighter objects
-- Galileo: Nonsense, if I use a bit of string to connect a boulder to a pebble, does the boulder drag the pebble down? does the boulder+pebble combo drop faster than the boulder itself? Everything accelerates at the same rate! F = mg
-- Newton: F = -GMm/r^2
And finally in college:
-- Einstein: theory of general relativity (okay, my physics teacher in high school also mentioned it, but understandably did not give any of the math.)
Similarly in biology, my bio teacher also explained Lamarckian (sp?) evolution, before explaining how Darwin discredited it (I am not a biologist and this was 30 years ago… I may have my facts wrong!)
The point here of course is that, instead of “teaching the controversy”, my teachers intended to bring across the idea of science as continual refinement. Theories are not so much ‘wrong’, but the next theory might just be a slightly better approximation to reality.
So I certainly think it’s useful for schools to teach “wrong” theories, as long as they are still useful, and not only for the “evolution of science” idea I expressed above. If you are building a bridge on the surface of planet Earth, all you need to know is F = mg, even though it’s technically “wrong”.
crivitz @#4,
You raise an interesting point in #1 about whether people can object to vaccinations. Interestingly, this was the case in Mississippi and the state Supreme Court ruled in 1979 that parents could not object to having their children vaccinated on general philosophical reasons but could only do so under very, very narrow grounds.. As a result, that state, while lagging behind on so many measures, has the highest vaccination rates for kindergarteners with 99.7% of its kindergarteners fully vaccinated, compared with 94.5% nationwide.
As to #2, I think that in a large country like the US, there is something to be said for states setting their own policies on many issues, rather than the federal government setting one policy for all. The federal structure was designed so as to allow states to be testing grounds for which policies work best, with the hope that the most effective policies would be copied by others. Which policies should have this flexibility is a matter for debate
Mano @#6.
On issue 2, I think I mostly agree with your recap of the original intent of the federal system. And to be sure, while I referred to a “European-style” national education system, I remember now that at least in Germany, each of the 16 federal states control their own education system among other things.
…I was able to ask him directly whether there was any legal basis to challenge the teaching of a nonsensical idea if there was no religious element involved. He said that he did not think there was. But this question has not been directly tested.
Offhand (IANAL) I’m pretty sure a nonsensical idea could be challenged, if it could be shown to be defamatory or prejudicial toward certain individuals or groups of people (i.e., a “Jewish conspiracy”); or if it has an effect of inciting criminal action, hatred or ignorant fear against others; or if it consisted of bad advice that would cause serious harm to oneself or others if acted on (i.e., “don’t vaccinate against preventable diseases that could kill you”); or if it denied or ignored relevant facts that people need to know in order to behave responsibly as citizens; or if it misrepresented public law, or was clearly contrary to basic values of society and the state.
Well, it obviously depends what type of cheese! If it’s claimed that the moon is made of what is called “cheese” in American supermarkets, then this should obviously be banned. But if it’s a noble source of sustenance and pleasure such as Wensleydale…
Robert@5,
In general I agree with you but there is a distinction between what you call “wrong” theories which give a historical context to the understanding of the subject and what are being put forth as “theories” which are not theories at all but are all manner of nonsense like vaccines and autism, flat earth, creationism, etc. The critical difference being theories explain reality/data and make predictions while creationism and the like do not perform either of these functions with anything approaching reliability/fact/pick your metric.
Mano has had topics and commenters that brought up why there should be a required history of science class that talks about why science works and why the BS doesn’t but I don’t see that that happening in the US anytime soon.