Tennessee’s ‘Monkey Bill’ constitutional?

In Tennessee, home of the infamous Scopes Monkey Trial, the legislature has overwhelmingly passed a controversial law that will permit teachers to include creationism in their science curriculum. The official bill summary states:

This bill prohibits the state board of education and any public elementary or secondary school governing authority, director of schools, school system administrator, or principal or administrator from prohibiting any teacher in a public school system of this state from helping students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught, such as evolution and global warming. This bill also requires such persons and entities to endeavor to:

(1) Create an environment within public elementary and secondary schools that encourages students to explore scientific questions, learn about scientific evidence, develop critical thinking skills, and respond appropriately and respectfully to differences of opinion about controversial issues; and

(2) Assist teachers to find effective ways to present the science curriculum as it addresses scientific controversies.

The “Monkey Bill,” as it was known, became law last week without Gov. Bill Haslam’s signature; though he disapproved of the law, he saw no point in vetoing it because the legislature had the votes to override. Tennessee now joins Louisiana, which passed a similar law in 2008 for the purpose of promoting “academic freedom.” Others, including Oklahoma, also are considering such a law.

Of course, laws permitting the teaching of creationism in public schools is nothing new, and there is plenty of debate about whether it is even about academic freedom. (Is anyone teaching evolution-based creationism?) The ACLU and state teachers union opposed the Tennessee bill, and I expect constitutional challenges to follow.

But this law is not clearly unconstitutional—in fact, it probably passes muster.

I’ve yet to see in the reporting on this story comments from legal thinkers—in news reports, even the ACLU and Americans United for Separation of Church and State have been quieter than usual about the law’s constitutionality. So I’m going to give a little seat-of-my-pants legal analysis, which is, admittedly, a lot more lacking then when I actually research the law. Here goes.

On it’s Website, Americans United claims:

A school district somewhere in the state is going to implement these reckless policies and get sued. The courts have been clear on this. Public schools cannot teach creationism, which is a religious concept favored by some fundamentalist Christians, in science class.

But that is not entirely accurate.

In the past, the U.S. Supreme Court, under the Establishment Clause, has struck down laws banning the teaching of evolution or requiring that creation be taught alongside evolution. But this law arguably, lacks a primary purpose of promoting religion—and it’s possible that the law was designed to promote belief in creation or to urge students to think critically about evolution or to acknowledge parents, voters and taxpayers who think evolution is just a theory. That doesn’t mean that some legislators didn’t vote yes because they believed the law had a primary religious purpose; it just means that the legislature didn’t vote yes for that reason, or that it can’t be proven to have voted yes for that reason. Further, the bill doesn’t refer to religion or beliefs or the Bible, so it’s unlikely that a court would find the law to be an endorsement of religion.

However, some lower courts have ruled against the constitutionality of laws that directly attack evolution. The Dover school board case—“intelligent design’s Waterloo”—is the most notable from the past decade, but there have been others.