Today I want to mention an article in the 2008 William & Mary Bill of Rights Journal (my undergrad alma mater!) about the constitutionality and legality of teaching intelligent design in university science classes (reference and free download below).
The author is Frank S. Ravitch, Professor of Law & Walter H. Stowers Chair of Law and Religion at Michigan State University, so he certainly has the professional credentials to weigh in on this debate. Of course that doesn’t mean that you will agree with him; apparently there are those who think that the First Amendment strictures against government sponsorship of religion do not apply—or at least don’t trump “academic freedom”—in public universities.
This is the only article I know of that deals with this issue, and so is relevant to the case of Eric Hedin, who proselytizes Christianity in an undergraduate science class at Ball State University.
Ravitch reaches three conclusions.
1. Intelligent design (ID) is not science and therefore “universities may. . . preclude professors from teaching it in university science departments”.
Ravitch goes through the Lemon test and the Kitzmiller case in Dover to conclude, as did Judge Jones in the latter case, that intelligent design is not science, but a religiously motivated theory with no credible evidence behind it. Ravitch then concludes, after reviewing relevant case law, that:
There is a significant amount of case law holding that public university officials may insist that professors teach within the stated curriculum. It is equally clear that within the curriculum, professors are accorded a great deal of academic freedom; although there are some limitations.”° Some of these cases involve professors inserting their religious views into courses unrelated to religion. In the end, courts have held that courses at public universities are so connected with the educational function of these institutions that university officials have a right to enforce “legitimate pedagogical interests” as to the general substance of courses. These interests either outweigh any claims of academic freedom asserted by professors °9 or are said to be invalid when it comes to teaching (at least in the core curriculum).
As for those who assert that this violates “academic freedom,” Ravitch responds:
At one level this is a bit disturbing to academics like myself. I had thought that academic freedom was quite broad in the classroom both as a matter of law and policy, but reading the cases, it seemed more and more like this is true as a matter of policy, but not necessarily as a matter of law. Yet, the ascendance of ID theory suggests there are reasons why the courts have ruled as they have. Most of the cases do not involve garden variety teaching disputes.” They more frequently involve either overt sexualized or profane statements in courses that do not touch on sex or profanity in any way, or they involve the insertion of material that may run contrary to the focus of the courses involved.’
Ravitch discusses the Bishop v. Aronov case decided by a federal court: the U.S. Court of Appeals for the Eleventh Circuit. Bishop was a professor at the University of Alabama who taught exercise physiology, and constantly proselytized about Jesus in his classes. He also organized an after-class event, “Evidences of God in Human Physiology,” which was optional.
Bishop was told to knock it off, but sued the university. He lost. As Ravitch notes,
The court held that a university classroom is not a public forum for speech. Thus, the university has the right to determine what substance is appropriate in the curricular context, so long as it has legitimate pedagogical interests for doing so. This must be done through case-by-case analysis. In Bishop, the university had valid concerns regarding the relevance of the professor’s religious statements to a course in exercise physiology. Bishop had the freedom to hold events on his views of G-d’s role [JAC: the truncated spelling suggests that Ravitch is an orthodox or conservative Jew] in human physiology on campus so long as those events were not connected to his courses. Thus, Bishop was not denied the freedom to discuss his religious convictions, he was only denied the ability to outwardly do so in the manner that he had in his exercise physiology course. The key issue was the department, college, and university’s right to control curriculum based on legitimate pedagogical interests.’ In this case, those interests included concerns about the pedagogical effects of students feeling religiously coerced in a basic physiology course.’ The notion of legitimate pedagogical interests was taken from a line of cases involving secondary schools.’
Ravitch also discusses legal cases supporting the idea that a university “may control a private individual’s speech where it is done in a manner which makes it, in reality, university speech. . .” As one judge ruled in a university case:
“While a student’s expression can be more readily identified as a thing independent of the school, a teacher’s speech can be taken as directly and deliberately representative of the school. Hence, where the in-class speech of a teacher is concerned, the school has an interest not only in preventing interference with the day-to-day operation of its classrooms as in Tinker, but also in scrutinizing expressions that ‘the public might reasonably perceive to bear [its] imprimatur'”.
2. Teaching ID in public universities and colleges is a likely violation of the Establishment Clause. That is, it can be prohibited an an unwarranted incursion of religion into public schools. This is directly relevant to the Hedin case:
The primary Establishment Clause concern regarding ID in science departments at public universities involves teaching ID. Support for research may also be an issue, but as will be seen, the teaching of ID poses a far more significant problem under the Establishment Clause. The Bishop court relied, in part, on the university’s justified fear of religious endorsement and coercion when it upheld the university’s right to preclude Professor Bishop from teaching a religious approach in his exercise physiology class. An important implication was that this was a general science class and not an upper level seminar and that it was a science class, as opposed to a class in religion or philosophy.
. . . When one registers for a course in the science curriculum, one does not expect to have religious positions on creation thrust upon oneself. Once one is registered for the course, it may be hard to withdraw for any number of reasons. If the professor imposes his or her religious views on the scientific subject matter of the course or, for religious reasons, skews his or her teaching so as to create a false impression that a generally scientific approach is invalid, there are clear problems of endorsement and coercion.
So much for the fact that Hedin’s course wasn’t required, and is therefore exempt from religious speech prohibitions. (It came close to being required, though, since there are very few Honors classes that meet the science requirement, and the Jesus proselytizing apparently didn’t begin until well after the class started).
When one registers for a course in the science curriculum, one does not expect to have religious positions on creation thrust upon oneself. Once one is registered for the course, it may be hard to withdraw for any number of reasons. If the professor imposes his or her religious views on the scientific subject matter of the course or, for religious reasons, skews his or her teaching so as to create a false impression that a generally scientific approach is invalid, there are clear problems of endorsement and coercion.
What about university professors not being subject to the Constitution because they’re not “agents of the state”? I disagree with that, and so does Ravitch. They are state employees performing state-specified duties, and if they promote Christianity, like Hedin did, they’re violating several prongs of the Lemon Test.
As the Edwards, Bishop, and Kitzmiller courts all note, the effect of teaching religious theories of creation in a secular science classroom is to promote or endorse religion. Using the podium of a state university science department to promote a religious theory of origins that has been rejected by the broader scientific community is an endorsement of religion. As the Bishop court explained, it could make students feel that they must “take it” or have their grades affected, and as the Kitzmiller court explained, it can create a false sense of scientific views on central issues in students who do not have a strong grounding in biology, chemistry, etc.
Ravitch concludes that “the Establishment Clause makes the public university’s role in limiting the teaching of ID in science courses mandatory. . there are no free speech or free exercise rights involved because there is no unlimited right to teach whatever one wants regardless of curricular needs or merit.”
3. Denying tenure to someone who engages in ID research is justified, since ID is not valid science. On the other hand, revoking someone’s tenure if he/she decides to engage in post-tenure ID research is more problematic.
I agree with this: the utmost caution must be exercised when considering revoking tenure since, after all, many professors engage in either no research or off-the-wall research after getting tenure, and they don’t get fired. So long as one doesn’t teach ID in class, there would be little justification for removing tenure from somebody who starts dabbling in creationism. And, indeed, Lehigh University has not revoked the tenure of Michael Behe, one of ID’s prime exponents.
The onus, then, is on those who claim that Hedin can teach what he wants, including proselytizing for Christianity, to show that Ravitch’s legal analysis is dead wrong. Banging on about “academic freedom” is not sufficient.
I have reviewed the guidelines of the American Association of University Professors (AAUP) on “academic freedom”, and it says precious little about whether a professor has freedom in a university classroom to either teach creationism or engage in religious proselytizing. The issue apparently hasn’t been adjudicated. The original AAUP guidelines (the famous “1940 statement”) say this:
- Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.
- Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.
- College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.
Note the difference in “full freedom” for research and publication and “freedom” for discussing things in classroom, which is circumscribed by “teaching controversial matter which has no relation to their subject” (read, “Jesus”).
Finally, a more recent analysis of academic freedom prepared in 2002 by Donna R. Euben, the AAUP’s legal counsel, notes this:
D. Some Future Challenges
More clearly defining the relationship and tensions between individual and institutional academic freedom under the First Amendment will be a challenge for AAUP, colleges and universities, and courts. Future cases may provide opportunities to refine that relationship through exploration of:
The difference in protections under the First Amendment right of academic freedom between K-12 and postsecondary schools [colleges and universities]; and
The scope of institutional academic freedom as between private and public sector institutions
Both of these challenges involve the Hedin case, which makes it ripe for adjudication. I hope it doesn’t come to that, but it is time for the courts to clarify whether state employees who teach at U.S. universities must still abide by the Constitution. I still can’t see a good argument to the contrary.
Frank S. Ravitch, 2008 Intelligent Design in Public University Science Departments: Academic Freedom or Establishment of Religion, 16 Wm. & Mary Bill Rts. J. 1061 (2008), http://scholarship.law.wm.edu/wmborj/vol16/iss4/6
Thought you might want to see it