Outline
- 1. Introduction
- 2. The bill itself violates the Establishment Clause of the U.S. Constitution
- 3. The bill violates the equal rights of conscience of teachers
- 4. The bill could subject counties and municipalities to civil rights lawsuits that they would be powerless to stop
- 5. The bill usurps the powers of the State and local Boards of Education to decide curriculums
1. Introduction
This is a basic quick analysis of Alabama’s "Academic Freedom Act" based on some legal concerns that I as an attorney have. However, before reading further, I caution readers that this is, as said above, a "quick" analysis, and I have not had the chance to undergo a thorough research of the entire bill or subject matter that it involves and thus there may be other legal problems that can be raised.
In any event, there appear, on the face of the bill, to be numerous practical and constitutional issues raised by this bill.
2. The bill itself violates the Establishment Clause of the U.S. Constitution
The bill on its face does not establish a state church or religion. However, the Courts have taken a broader view of the Establishment Clause in the last few decades and the bill thus might still create problems. One of the major Establishment Clause decisions of the last 20 years is the decision by the U.S. Supreme Court, Edwards v. Aguillard, 482 U.S. 578 (1987) which held as unconstitutional a Louisiana bill requiring the teaching of "Creation Science" in Louisiana schools. The Court in that case also held that Creation Science was a religious viewpoint, and by implication not a true science. Page 596. The bill pending in front the Alabama Legislature does not require the teaching of Creation Science, but clearly allows for a teacher to do so. As such, it could be argued that the bill violates the three part Lemon test for determining whether an act violates the Establishment Clause: First, the legislature must have adopted the law with a secular purpose. Second, the statute's principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). It is my opinion that the purpose behind this bill is to advance religion, and the bill has no secular purpose whatsoever. I seriously doubt that any teacher has been disciplined for teaching creationism in class and certainly there has not been a strong trend here against teachers who do so. Thus the first two prongs of the Lemon test are met, but the third is more problematic. I believe that a strong argument could be made that while this bill itself does not entangle itself with religion, it essentially allows state actors, i.e. teachers, to entangle the state in religion without fear of its consequences and in so doing entangles the state with religion. It is clear that even "voluntary" school prayers are violations of the Establishment Clause. Alabama has already fought and lost the battle over so-called "voluntary" prayer in the famous case of Wallace v. Jaffree, 472 U.S. 38 (1985). Furthermore in 1992, the Supreme Court held that simply having prayers read by ministers at graduation is a violation of the Establishment Clause. Lee v. Weisman, 505 U.S. 577 (1992). Thus if such "voluntary" prayers can create constitutional issues, so too can the teaching of creationism. A bill that allows for public officials to violate the Establishment Clause without fear of impunity, in my opinion, essentially violates the Establishment Clause.
Nor do I think the Senate’s "savings clause" helps the bill significantly. In the Aguillard case, the Court found that the stated purpose of the act, to protect academic freedom (which is the same in Alabama’s act), was merely a sham and that there was no threat to academic freedom in Louisiana requiring this bill. The same can be said here. I would challenge anyone to find a teacher already being disciplined for teaching creationism. Additionally the Court found that the bill's discriminatory treatment of creation science over evolution also indicated a religious purpose. As pointed out below, this bill creates a preference for those who teach creationism over those who teach evolution in almost identical ways to the Louisiana law.
However, the above analysis is somewhat problematic. I cannot say for sure that the U.S. Supreme Court would rule in the same way that I see this. I would be interested in hearing what NCSE lawyers think about this issue. I have not had the time to go into this entire issue in depth and to get a more definite answer would take a considerable amount of time.
3. The bill violates the equal rights of conscience of teachers
The bill protects the teaching of only "alternative" viewpoints. Those teachers who teach traditional evolution are not protected. As such, I see serious issues raised, both with respect to the Equal Protection Clause of the 14th Amendment, and to violations of the rights to free speech and free exercise of religion for teachers who do not subscribe to non-"alternative" theories. Quite simply the bill favors creationists over evolutionists this creates not only problems for the rights of conscience of evolutionists and denies them the equal protection of the law, but also is a strong argument for the third prong of the Lemon test cited above. Also the difference in treatment between Creation Science and evolution was a prime factor in the Supreme Court’s ruling against Louisiana’s Balanced Treatment Act in Edwards v. Aguillard: "The Act forbids school boards to discriminate against anyone who "chooses to be a creation-scientist" or to teach "creationism," but fails to protect those who choose to teach evolution or any other noncreation science theory, or who refuse to teach creation science." Page 588. The language in the Alabama bill is eerily similar to the Louisiana Act struck down already.
In another Creationism case, the Court held that the Establishment Clause "forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma," Epperson v. Arkansas, 393 U.S. 97 (1968), at 106-107 (emphasis added). The Alabama bill may not prohibit the teaching of valid scientific theory, but by singling out creation science teachers for protection it creates a preference for a religious doctrine and thus violates the establishment clause.
4. The bill could subject counties and municipalities to civil rights lawsuits that they would be powerless to stop
Even assuming that the bill is Constitutional, teaching creationism in a classroom is no different from praying in a classroom for purposes of the establishing a religion in violation of the First Amendment. When a state, county or municipality establishes a religion in violation of the First Amendment to the Constitution, citizens who are aggrieved by such an establishment have a right to bring suit in federal court to redress those rights. Under 42 U.S.C. §1983, a citizen bringing such a suit can win damages for emotional distress and most importantly, attorney fees. Attorney fees in civil rights cases can quickly run into the tens of thousands of dollars in one case I am involved in, the bill for plaintiff’s attorney alone at this point is over $15,000 and the defendants have not even answered the complaint. Thus teachers who teach creationism are establishing a religion, as per the Aguillard decision, just as a teacher who leads a class in prayer is doing. Such a teaching could subject the county or municipality to a lawsuit under 42 U.S.C. §1983. Unfortunately for the county or municipality, they would be, under this bill, powerless to prevent such lawsuits by instituting appropriate standards for teachers. A teacher thus could create liability for a local board of education by teaching a religious based orientation to the creation of the earth and life and thus cost the board an enormous legal bill with no recourse to stop the teacher. One could imagine all sorts of scenarios whereby a teacher angry over being denied a promotion or tenure, starts teaching a religious orientation merely to bring liability onto the board, and then continuing to do so despite repeated lawsuits.
5. The bill usurps the powers of the State and local Boards of Education to decide curriculums
While the legislature can create required curriculums for the Board of Education to follow (within Constitutional limits), as a practical matter this bill goes too far as it takes away the control over the curricula and gives it to the teachers to the detriment of the school boards all over the state. School boards could no longer mandate the teaching of evolution and science teaching would consequently suffer. This may be the real purpose behind the bill to intimidate school boards into not allowing the teaching of evolution, but ensuring that creationism is enshrined. In any event, evolution teaching would be entirely up to the teacher and no further body could control the curriculum or how it is taught. As an unintended consequence, a Hindu teacher could teach his/her particular origins view to a biology class and completely bypass clearly mandated science standards and not be subject to the slightest discipline. Science can only suffer if this bill is passed.
This also raises a potential conflict within the bill itself. The bills state that a student cannot be penalized for subscribing to any particular position on origins so long as the student demonstrates understanding of course materials. This language, in my opinion, is legal. However, it seems to me that the bill allows for course materials to teach alternative origins and thus are religious in nature and thus can be used to require a student to study religious materials. In other words, it could require a student to subscribe to a religious course of study with which he disagrees. That could create legal problems.
There may be other legal issues that I have not found yet. Nor may my analysis of the legal issues identified be very complete so please take this as a starting point for further discussion as we get along this road. I would be particularly interested in finding if there has ever been litigated a bill or legislative act that protects teachers or other state employees from using their office to further their religious beliefs. I do not believe that the exact issue here has ever been litigated, but it would not surprise me to discover that this Act has been tried on the school prayer issue at least in some state at some time in the last 40 years since school prayer was declared unconstitutional.
Last updated: 4/11/04
