The Volokh Conspiracy - Establishment Clause Violation for Public High School Teacher To Call Creationism "Superstitious Nonsense":

So holds C.F. v. Capistrano Unified School Dist., decided Friday. I understand the logic of the case -- the Court has repeatedly said that the government's disapproving of religion is as unconstitutional as the government's endorsing religion, and the district court decision tries to implement that. But it seems to me that this just helps illustrate the difficulties posed by the endorsement test.

To begin with, the court concludes that it "cannot discern a legitimate secular purpose in [the] statement," applying the Lemon test's "secular purpose" prong. But I would think the legitimate secular purpose is clear: The speaker is trying to get students to accept the theory of evolution, which he believes to be much more conducive to scientific thinking, and much more likely to produce useful results, than creationism. That's a perfectly secular purpose. To be sure, it's a purpose that is accomplished using the means of deriding religion. But that doesn't stop the purpose (promoting belief in a scientific theory that the speaker thinks is sound, useful, and conducive to scientific thinking) from being secular.

Nonetheless, the court also has a different argument, which strikes me as more doctrinally sound on the facts: "Corbett's statement primarily sends a message of disapproval of religion or creationism." I take it the point is that creationism is a religious claim about God's having created humans (or some similar claim that involves God acting), and that disapproving of creationism thus expresses disapproval of a certain belief about religion, just as approving of it endorses a certain belief about religion. And I stress again that this fits well with the Court's doctrine on this, and perhaps is even dictated by the Court's doctrine.

Yet how does this play out in other situations? Here's an example: When I taught criminal law one year, one of the hypotheticals involves the question whether casting a voodoo spell on someone, believing that it would cause the person to die, should count as a criminally punishable attempted murder. That's a difficult question; as I noted before, a few court opinions have considered it and quickly concluded that it shouldn't so count, but as a doctrinal matter it's not clear why -- generally speaking, trying to kill someone is attempted murder even if the attempt is clearly doomed to failure, for instance because you think your gun works but it's actually broken, or because you use a substance that you think is poison but really isn't. Why not if you use a method (voodoo) that you think works but actually doesn't?

One possible answer is offered by the Model Penal Code § 5.05, which says that "If the particular conduct ... is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger ...," a lower penalty may be imposed or the prosecution might be entirely dismissed. And I pointed out that, because voodoo is bunk, this section might well apply (which of course raises the question whether would-be voodoo killers are still dangerous because they might turn to non-voodoo attempts if the voodoo attempt fails, but that's a different matter).

A couple of students after class actually told me that they thought this might be offensive to people who believe in voodoo, but my view was that I can't teach my classes with an eye towards not offending people who believe in voodoo, just as I don't have to worry about people who believe in ghosts or werewolves or unicorns. But under the court's reasoning, would I have been violating the Establishment Clause? (Recall that the endorsement test isn't limited to high schools, but generally applies to public universities as well.) What if a student says that the Earth is 6000 years old because that's what the Bible says; is a public university or high school teacher constitutionally barred from dismissing that theory as "nonsense"? What if a student calls belief in astrology "nonsense," fully aware that some people (not many, but some) have a religious belief system that treats astrology as sensible and in fact as something like a sacrament?

Now I suppose it's possible for teachers, both high school and college, to carefully avoid calling anything that might possibly be linked to a religious belief system "nonsense," and instead just say "it's scientifically unfounded" or some such (though wouldn't that be disapproval, too?). But that would make the discussion pretty artificial, with the teacher being constitutionally barred from saying what is pretty obviously on his mind. Nor would it be true to the principle that schools should be forthright about what's true and what's false: Do we really want high schools and universities to be places where one can't call astrology or voodoo bunk? And while in some classes the pedagogically superior practice would be to talk about why a particular belief system is indeed unfounded, that often won't be so: My class, for instance, wasn't a class about the scientific reasons why voodoo isn't going to work.

Now of course there are plenty of good practical and institutional distinctions to be drawn here. The development of the human species is a subject that's much further from us in time than is the effectiveness or not of voodoo or astrology. There's more room for debate about whether evolution offers an adequate explanation of the origin of mankind.

And of course it's probably practically wiser to avoid calling a very common religious belief system nonsense, in order to maintaining a good working relationship with the students. On the other hand, tip-toeing around labeling as nonsense that which nearly all educated people agree is nonsense might actually interfere with a good working relationship with the students, for the reasons I mentioned above. But it's hard for me to see how these distinctions can be translated from pragmatic guidelines into constitutional rules.

I say it again: The court may have been quite right as a matter of existing doctrine, and if we are going to say that public institutions can't advocate in favor of creationism, it makes sense for the doctrine -- which has been defended by claims of symmetry, such as that the government may neither endorse nor disapprove of religion, may neither advance nor inhibit religion, and may neither show favoritism nor hostility -- to also bar statements that creationism is superstitious nonsense. But the result is either that (1) teachers can't condemn voodoo, astrology, young-Earthism, and so on as the bunk that they are, (2) courts have to draw lines between which religious beliefs may be disapproved of and which may not be, or (3) teachers are even more at see about what they are constitutionally barred from saying than we've seen from past endorsement cases.

Thanks to Religion Clause for the pointer. I should also say that I'm not at all defending the teacher in this case; some of his statements, as quoted in the opinion, strike me as hard to defend as a matter of either pedagogy or accuracy, but that's a separate question from whether they are actually unconstitutional.

	[Eugene Volokh, May 4, 2009 at 8:10pm] Trackbacks Establishment Clause Violation for Public High School Teacher To Call Creationism "Superstitious Nonsense": So holds C.F. v. Capistrano Unified School Dist., decided Friday. I understand the logic of the case -- the Court has repeatedly said that the government's disapproving of religion is as unconstitutional as the government's endorsing religion, and the district court decision tries to implement that. But it seems to me that this just helps illustrate the difficulties posed by the endorsement test. To begin with, the court concludes that it "cannot discern a legitimate secular purpose in [the] statement," applying the Lemon test's "secular purpose" prong. But I would think the legitimate secular purpose is clear: The speaker is trying to get students to accept the theory of evolution, which he believes to be much more conducive to scientific thinking, and much more likely to produce useful results, than creationism. That's a perfectly secular purpose. To be sure, it's a purpose that is accomplished using the means of deriding religion. But that doesn't stop the purpose (promoting belief in a scientific theory that the speaker thinks is sound, useful, and conducive to scientific thinking) from being secular. Nonetheless, the court also has a different argument, which strikes me as more doctrinally sound on the facts: "Corbett's statement primarily sends a message of disapproval of religion or creationism." I take it the point is that creationism is a religious claim about God's having created humans (or some similar claim that involves God acting), and that disapproving of creationism thus expresses disapproval of a certain belief about religion, just as approving of it endorses a certain belief about religion. And I stress again that this fits well with the Court's doctrine on this, and perhaps is even dictated by the Court's doctrine. Yet how does this play out in other situations? Here's an example: When I taught criminal law one year, one of the hypotheticals involves the question whether casting a voodoo spell on someone, believing that it would cause the person to die, should count as a criminally punishable attempted murder. That's a difficult question; as I noted before, a few court opinions have considered it and quickly concluded that it shouldn't so count, but as a doctrinal matter it's not clear why -- generally speaking, trying to kill someone is attempted murder even if the attempt is clearly doomed to failure, for instance because you think your gun works but it's actually broken, or because you use a substance that you think is poison but really isn't. Why not if you use a method (voodoo) that you think works but actually doesn't? One possible answer is offered by the Model Penal Code § 5.05, which says that "If the particular conduct ... is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger ...," a lower penalty may be imposed or the prosecution might be entirely dismissed. And I pointed out that, because voodoo is bunk, this section might well apply (which of course raises the question whether would-be voodoo killers are still dangerous because they might turn to non-voodoo attempts if the voodoo attempt fails, but that's a different matter). A couple of students after class actually told me that they thought this might be offensive to people who believe in voodoo, but my view was that I can't teach my classes with an eye towards not offending people who believe in voodoo, just as I don't have to worry about people who believe in ghosts or werewolves or unicorns. But under the court's reasoning, would I have been violating the Establishment Clause? (Recall that the endorsement test isn't limited to high schools, but generally applies to public universities as well.) What if a student says that the Earth is 6000 years old because that's what the Bible says; is a public university or high school teacher constitutionally barred from dismissing that theory as "nonsense"? What if a student calls belief in astrology "nonsense," fully aware that some people (not many, but some) have a religious belief system that treats astrology as sensible and in fact as something like a sacrament? Now I suppose it's possible for teachers, both high school and college, to carefully avoid calling anything that might possibly be linked to a religious belief system "nonsense," and instead just say "it's scientifically unfounded" or some such (though wouldn't that be disapproval, too?). But that would make the discussion pretty artificial, with the teacher being constitutionally barred from saying what is pretty obviously on his mind. Nor would it be true to the principle that schools should be forthright about what's true and what's false: Do we really want high schools and universities to be places where one can't call astrology or voodoo bunk? And while in some classes the pedagogically superior practice would be to talk about why a particular belief system is indeed unfounded, that often won't be so: My class, for instance, wasn't a class about the scientific reasons why voodoo isn't going to work. Now of course there are plenty of good practical and institutional distinctions to be drawn here. The development of the human species is a subject that's much further from us in time than is the effectiveness or not of voodoo or astrology. There's more room for debate about whether evolution offers an adequate explanation of the origin of mankind. And of course it's probably practically wiser to avoid calling a very common religious belief system nonsense, in order to maintaining a good working relationship with the students. On the other hand, tip-toeing around labeling as nonsense that which nearly all educated people agree is nonsense might actually interfere with a good working relationship with the students, for the reasons I mentioned above. But it's hard for me to see how these distinctions can be translated from pragmatic guidelines into constitutional rules. I say it again: The court may have been quite right as a matter of existing doctrine, and if we are going to say that public institutions can't advocate in favor of creationism, it makes sense for the doctrine -- which has been defended by claims of symmetry, such as that the government may neither endorse nor disapprove of religion, may neither advance nor inhibit religion, and may neither show favoritism nor hostility -- to also bar statements that creationism is superstitious nonsense. But the result is either that (1) teachers can't condemn voodoo, astrology, young-Earthism, and so on as the bunk that they are, (2) courts have to draw lines between which religious beliefs may be disapproved of and which may not be, or (3) teachers are even more at see about what they are constitutionally barred from saying than we've seen from past endorsement cases. Thanks to Religion Clause for the pointer. I should also say that I'm not at all defending the teacher in this case; some of his statements, as quoted in the opinion, strike me as hard to defend as a matter of either pedagogy or accuracy, but that's a separate question from whether they are actually unconstitutional.