John T. Scopes thought it was set­tled sci­ence in 1925.

On Tues­day, April 10, Ten­nessee HB368/​SB893 became law with­out the sig­na­ture of Repub­li­can Gov­er­nor Bill Haslam. The bill passed eas­ily, 72–23 in the Ten­nessee State House and 25–8 in the Senate.

The bill pur­port­edly pro­tects teach­ers who might some­how face dis­ci­pli­nary action for teach­ing (for exam­ple) intel­li­gent design or denial of anthro­pogenic cli­mate change. The fact that no teacher has ever been dis­ci­plined for teach­ing these con­cepts trou­bles the spon­sors of the leg­is­la­tion not a whit. Just as some ele­ments fight a voter fraud prob­lem that doesn’t exist, this bill cre­ates the impres­sion of a “prob­lem” where none exists.

Accord­ing to the bill,

The gen­eral assem­bly finds that:
(1) An impor­tant pur­pose of sci­ence edu­ca­tion is to inform stu­dents about sci­en­tific evi­dence and to help stu­dents develop crit­i­cal think­ing skills nec­es­sary to becom­ing intel­li­gent, pro­duc­tive, and sci­en­tif­i­cally informed cit­i­zens;
(2) The teach­ing of some sci­en­tific sub­jects, includ­ing, but not lim­ited to, bio­log­i­cal evo­lu­tion, the chem­i­cal ori­gins of life, global warm­ing, and human cloning, can cause con­tro­versy; and
(3) Some teach­ers may be unsure of the expec­ta­tions con­cern­ing how they should present infor­ma­tion on such subjects.

In point of fact, only about 28 per­cent of high school biol­ogy teach­ers sur­veyed by the National Sur­vey of High School Biol­ogy Teach­ers teach evi­dence for evo­lu­tion at all. Another 13 per­cent teach cre­ation­ism or intel­li­gent design in a favor­able way.

Some intel­li­gent design pro­po­nents claim that teach­ers have been dis­ci­plined for teach­ing intel­li­gent design, but a quick read of cases here, here and here makes it clear that it wasn’t the teach­ing of intel­li­gent design, but some other crazy behav­ior or sim­ple mis­un­der­stand­ings, that were the root prob­lems in each case.

Not sur­pris­ingly, 60 per­cent of high school teach­ers totally avoid this key­stone sub­ject entirely, which is exactly what bills like this intend. While wrap­ping them­selves in the flag and wav­ing a cross, these leg­is­la­tors pur­port to pro­tect the rights of teach­ers while in real­ity quash­ing dis­cus­sion of sci­en­tific topics.

Not sur­pris­ingly, the bill was not authored by Ten­nessee leg­is­la­tors or their assis­tants. Rather, the bill was crafted by the Amer­i­can Leg­isla­tive Exchange Coun­cil (ALEC), a group that crafts “model” leg­is­la­tion that uni­formly advances an anti-​​science, con­ser­v­a­tive, know-​​nothing agenda.

There is still some sci­en­tific dis­agree­ment about man-​​caused (i.e. anthro­pogenic) cli­mate change, this much is true. But there is no debate or con­tro­versy what­so­ever on evo­lu­tion; it’s gen­er­ally accepted sci­ence in broad terms — though there is still plenty of debate about the details — and no rep­utable sci­en­tific evi­dence exists for so-​​called “intel­li­gent design”.

Sci­ence may never truly be “set­tled”, but case law can be. In 2005, Bush appointee John E. Jones III not only gave this back­door attempt to inter­ject faith into sci­ence classes a cold stare deci­sis, but gave it the hairy eye­ball.

The Dover Area School Dis­trict Board passed a mea­sure that required teach­ers to read this state­ment, creep­ily sim­i­lar to ALEC’s word­ing as rep­re­sented in the Ten­nessee bill:

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 con­tin­ues to be 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 who might be inter­ested in gain­ing an under­stand­ing of what Intel­li­gent Design actu­ally involves.

With respect to 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.

You see? All they want is for stu­dents to exhibit “crit­i­cal think­ing” or to “keep an open mind”. Who could be against that? In his deci­sion in Kitzmiller v. Dover Area School Dis­trict, Jones reviewed the legal land­scape of such mea­sures aris­ing from the 1968 Epper­son deci­sion in which the Supreme Court unan­i­mously over­turned Arkansas’ anti-​​evolution teach­ing law.

Post-​​Epperson, evolution’s reli­gious oppo­nents imple­mented “bal­anced treat­ment” statutes requir­ing pub­lic school teach­ers who taught evo­lu­tion to devote equal time to teach­ing the bib­li­cal view of cre­ation; how­ever, such statutes did not pass con­sti­tu­tional muster under the Estab­lish­ment Clause. See, e.g., Daniel, 515 F.2d at 487, 489, 491. In Daniel, the Sixth Cir­cuit Court of Appeals held that by assign­ing a “pref­er­en­tial posi­tion for the Bib­li­cal ver­sion of cre­ation” over “any account of the devel­op­ment of man based on sci­en­tific research and rea­son­ing,” the chal­lenged statute offi­cially pro­moted reli­gion, in vio­la­tion of the Estab­lish­ment Clause.

The Daniel deci­sion arose from a 1973 attempt by the Ten­nessee Leg­is­la­ture to enforce the dene­gra­tion of evo­lu­tion­ary the­ory. The writ­ing of the Sixth Cir­cuit in Daniel is crys­tal clear.

Through­out human his­tory the God of some men has fre­quently been regarded as the Devil incar­nate by men of other reli­gious per­sua­sions. It would be utterly impos­si­ble for the Ten­nessee Text­book Com­mis­sion to deter­mine which reli­gious the­o­ries were “occult” or “satan­i­cal” with­out seek­ing to resolve the the­o­log­i­cal argu­ments which have embroiled and frus­trated the­olo­gians through the ages.

The require­ment that some reli­gious con­cepts of cre­ation, adhered to pre­sum­ably by some Ten­nessee cit­i­zens, be excluded on such grounds in favor of the Bible of the Jews and the Chris­tians rep­re­sents still another method of pref­er­en­tial treat­ment of par­tic­u­lar faiths by state law and, of course, is for­bid­den by the Estab­lish­ment Clause of the First Amendment.

We deem the two con­sti­tu­tional vio­la­tions described above to be patent and obvi­ous on the face of the statute and impos­si­ble for any state inter­pre­ta­tion to cure.

Jones’s legal deci­sion in Kitzmiller — bind­ing only on parts of Penn­syl­va­nia, and never appealed, so it never applied to at the Dis­trict Court or national level — was crys­tal clear.

[O]ur con­clu­sion today is that it is uncon­sti­tu­tional to teach ID [intel­li­gent design] as an alter­na­tive to evo­lu­tion in a pub­lic school sci­ence classroom.

It’s not at all cer­tain which part of these state­ments was unclear to ALEC or the Ten­nessee Legislature.

Jones slapped down the action of the Dover Area School Board with this scathing assessment:

The breath­tak­ing inanity of the Board’s deci­sion is evi­dent when con­sid­ered against the fac­tual back­drop which has now been fully revealed through this trial. The stu­dents, par­ents, and teach­ers of the Dover Area School Dis­trict deserved bet­ter than to be dragged into this legal mael­strom, with its result­ing utter waste of mon­e­tary and per­sonal resources.

Why should we believe that the action of the Ten­nessee leg­is­la­ture will be judged any less harshly by his­tory? In the next elec­tion after the Kitzmiller deci­sion, the Dover Area School Board was ejected en masse by the vot­ers. We can only hope the same will be true of the Ten­nessee State Leg­is­la­ture. Unfor­tu­nately, sci­ence denial­ism has strong roots. It will likely not be that easy to kill.