Suppressing Diversity

It was a controversial idea of human origins--one that offended many people because of its implications for their religious beliefs. The idea had some worrisome baggage far beyond the area of biology. It scared the people in charge of the society, enough so that they felt a need to prohibit it from being taught in public schools.

But no, I'm not talking about the decision Kitzmiller v. Dover Area School District (M.D. Penn. 2005), which just prohibited Dover schools from teaching an alternative perspective about evolution. I'm talking about the Scopes trial. The parallels are really quite startling--but where these cases diverge is also quite amazing.

1. In both cases, legislative bodies, presumably acting on behalf of the voters, decreed what would or would not be taught in public schools. In the Scopes case, the Tennessee legislature prohibited the teaching of a new theory of human origins that contradicted a well-established and widely believe theory. In the current case, the Dover Area School Board required the teaching of what I would call a critique of Darwinian evolution. (It doesn't quite rise to a theory because it is intrinsically incapable of experimental verification; evolution, with enough time, might be capable of it.)

2. In both cases, there is baggage associated with the theory that offends people. As Professor Lindgren pointed out last year, the biology text from which Scopes was teaching evolution carried a lot of the Social Darwinist racism that led to the Holocaust, and such offensive examples of early twentieth century liberalism as Buck v. Bell (1927), which upheld mandatory sterilization of the feeble-minded. From the text that Scopes was prohibited from using:

At the present time there exist upon the earth five races or varieties of man, each very different from the other in instincts, social customs, and, to an extent, in structure. These are the Ethiopian or negro type, originating in Africa; the Malay or brown race, from the islands of the Pacific; The American Indian; the Mongolian or yellow race, including the natives of China, Japan, and the Eskimos; and finally, the highest type of all, the caucasians, represented by the civilized white inhabitants of Europe and America.

What offends opponents of Intelligent Design is that it has largely Christian proponents, and some have not been afraid to say that it is part of an effort by Christians to influence the teaching of science. (Oh, the horror! Soon they'll want to vote, too!)

3. Where these situations differ is quite dramatic. The ACLU was on the side of allowing multiple viewpoints in the classroom in 1925; now they are in opposition, because they believe that the establishment clause of the First Amendment trumps freedom of speech. The difficulty, of course, is that the ACLU's view of the establishment clause as requiring neutrality between religion and irreligion is ahistorical. The same Congress that passed the First Amendment took actions that suggest it saw no such requirement, and the federal government allowed the use of government buildings for church services until after the Civil War, and used federal money to support churches in Ohio.

The judge in the current case makes one of those claims that shows a pretty fundamental ignorance of the term "activism":

Those who disagree with our holding will likely mark it as the product of an
activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board....

The criticism of judicial activism is that a judge's job is not to make laws, but only to strike down those laws that are clearly contrary to the Constitution or contrary to laws passed by a higher authority (the state, for example). The job of a legislative body, at any level, is to write laws. Those laws may be good or bad, but to call a legislative body "activist" for writing laws is like criticizing a judge for presiding over a trial; that's their job.