Nearly seven years after it was signed into law and despite overwhelming evidence to the contrary, David Klinghoffer, a blogger for the Discovery Institute, a con-profit organization based in Washington state, continues to insist that the Louisiana Science Education Act (the LSEA) has absolutely nothing to do with promoting the teaching of creationism and its fraternal twin, intelligent design (which he calls a “scientific theory”), in the public school science classroom.
And Hoffmann never said anything explicitly about creationism, at least to the media, but it wasn’t difficult to determine his angle: As Zack Kopplin noted in a recent article on Slate, Hoffmann was a close friend of the retired judge Darrell White, who served as an employee of the LFF and believed that evolution caused the massacre at Columbine High School. A small, merry band of scientifically illiterate, radical religious zealots who had been led to worry their religious beliefs were under attack by the state, particularly in the science classroom.
Context is important here: In 1986, the United States Supreme Court struck down as unconstitutional a Louisiana state statute — the Balanced Treatment Act — that had mandated the teaching of creationism alongside evolution. In simple terms, the court recognized that creationism, which typically refers to the myth in the book of Genesis, was a definitively religious belief and therefore improper to teach as science. During the intervening two decades, the Discovery Institute redoubled its efforts in order to craft cleverly and cynically broad language to work around this prohibition. Now, instead of talking about “creationism,” they rebranded their mission to be about “intelligent design,” a more palatable and sophisticated term that actually was nothing more than a rhetorical guise. But in 2004, a Middle District Court in Pennsylvania, in a case called Kitzmiller v. Dover Area School District, ruled that intelligent design is a form of creationism and would therefore violate the Establishment Clause if taught as science in public school.
Still, the Discovery Institute didn’t relent, and with a young governor who wanted to ingratiate himself with the evangelical right, they found a perfect opportunity to get one of their bills filed. This time, they wouldn’t use the terms “creationism” or “intelligent design.” Instead, they would be as broad as possible, arguing, rather cynically, that this was about introducing supplementary materials on evolution, origins of life, and global warming and then affixing a little bit of “magic language” at the end concerning how the law could not be used to promote religious beliefs.
So, for the law to work, at least according to the strictest (and stupidest) reading possible, the only supplementary materials a teacher could use on these subjects would have to be peer-reviewed scientific journals, text books, and experiments. Of course, that was never what the law was intended to do, and when Bobby Jindal was asked about the LSEA on NBC News, he proclaimed his support, saying “Let them (the public schools) teach creationism.” Jindal called the Discovery Institute’s bluff, and they went apoplectic. Ever since their defeat in the Pennsylvania court, they’d been really focused on sticking to their talking points: This law, they insisted, was about critical thinking, not religion. It was communications and brand management crisis. At one point, they argued that Bobby Jindal himself, the Ivy League-educated Biology major, didn’t really know what the law was about. None of the legislators who voted for the law understood it, and neither did the governor. You see, it was that sophisticated.
Or maybe, just maybe, both the governor, the legislature, and people like Gene Mills and Darrell White of the Louisiana Family Forum, knew what they were doing: They were writing, passing, and enacting a law that — hypothetically — may be able to withstand some sort of textual analysis by Justices Scalia and Thomas, but would likely be destroyed by the other seven justices, who also likely would have very little patience for an out-of-state, third-party “think tank” suggesting that the governor’s and the legislators’ opinions and intentions in passing and enacting the law are completely inconsequential in determining whether the LSEA is unconstitutional — both facially and as applied.
I get it, though. David Klinghoffer is mad because the jig is up. Zack Kopplin, a 21-year-old student, has done more than anyone else to expose the sad and cynical truth about this law, which probably explains why Klinghoffer recently published a ridiculous and pathetic open letter to Zack’s father and mother.
But that’s not even what bothers me the most. For all Klinghoffer has written about this law, he still doesn’t seem to understand the first thing about statutory interpretation. He suggests that the only supplementary materials that can be used by teachers are already a part of the curriculum. Not true. Here’s the relevant portion (bold mine):
C. A teacher shall teach the material presented in the standard text supplied by the school system and thereafter may use supplemental textbooks and other instructional materials to help students understand, analyze, critique, and review scientific theories in an objective manner, as permitted by the city, parish, or other local public school board unless otherwise prohibited by the State Board of Elementary and Secondary Education.
This should seem like a truism, but supplemental materials introduced by a teacher are not, by definition, a part of an already prescribed curriculum. The law creates no affirmative duty for a teacher to seek permission from a school board for supplementary materials, only that they teach in “an objective manner.”
Klinghoffer also pays an inordinate amount of attention to paragraph D, which reads:
D. This Section shall not be construed to promote any religious doctrine, promote discrimination for or against a particular set of religious beliefs, or promote discrimination for or against religion or nonreligion.
I really hate to burst his bubble here, but the same exact language was contained in the Balanced Treatment Act, which the U.S. Supreme Court struck down as unconstitutional and a violation of the Establishment Clause. Boilerplate language like this is exceedingly common in statutes; it’s just a recapitulation of existing law. But its mere presence in a law does not inoculate the law against Establishment Clause challenges, particularly if the law is cynically designed to introduce religious beliefs in the science classroom. A teacher who promotes creationism in the classroom could easily argue that he was not promoting any religious doctrine or discriminating against anyone. He was merely introducing students to alternate opinions, which is exactly what the law is designed to do.
Klinghoffer would have us all believe that because the statute does not mention creationism or intelligent design, it therefore expressly prohibits them from being taught. This is often referred to as expressio unius est exclusio alterius, a canon of statutory construction that suggests when a term is not named in a list, then it is presumed to be excluded. The LSEA mentions the origins of life, global warming, and human cloning, but it says nothing about creationism and intelligent design. However, there is another canon of statutory construction that is more instructive, noscitur a sociis, which means that a thing can be inferred from its associates. In this case, particularly considering that Klinghoffer believes “intelligent design” is a scientific theory, it is not unreasonable to assume that a discussion of “the origins of life,” which is really a metaphysical discourse, may include religious beliefs.
There is a damn good reason people like David Klinghoffer cannot be publicly honest about the nature and intent of the Louisiana Science Education Act, even in the same way Bobby Jindal once was. If they were, they’d blow up three decades of carefully crafted rhetoric and expose the whole effort as a cynical, unconstitutional charade.