Angels Camp, CA…Summary: Bret Harte High School and its Board (BHUHSD) is being challenged by a student who objects to a school policy prohibiting the discussion of religious issues (e.g., “Creationism” and “intelligent design”) in natural science classes. The student and his attorney argue that this prohibition is an unconstitutional restriction of his right to free speech. The background to this case is set forth in Part I below. The current school policy is presented in Part II. For those unfamiliar with “intelligent design”, a brief summary is provided in Part III.

The following analysis summarizes the legal cases upon which this claim is based, as well as other case law relevant to this dispute. The Supreme Court has clearly established that the right to free speech extends to students at a public school, while acknowledging at the same time schools must maintain order and discipline in educational settings. These potentially conflicting interests are delineated in what is known as the Tinker test, which has been further qualified by subsequent decisions by Federal Appellate courts, as well as the Supreme Court. Consequently, the Tinker test establishes that the expression of free speech by a student cannot “materially or substantially” interfere or disrupt school functions, while speech which is explicitly passive and symbolic, is protected. Speech that “materially disrupts class work” is not protected under the First Amendment. The details of Tinker are presented in Part IV.

This gives rise to the question of what constitutes “disruption”. In Part V, it is argued that any student speech made during the course of a classroom discussion that cannot be shown to be directly relevant to the content of the course is inherently disruptive. As a result, we then have to ask whether the content that Mr. Mobley wishes to raise (i.e., “intelligent design”) is relevant to a biology course. This presents a problem for Mr. Mobley’s claim wherein the Federal Courts (cf. Kitzmiller) ruled that in at least three significant ways “intelligent design” cannot be considered science. It is concluded then that if “intelligent design” is not a science, it is irrelevant to any discussion in a science class, and is therefore, ipso facto, disruptive.

In addition to the Tinker test on disruption, the Federal courts have extended exceptions to Tinker by limiting the right of free speech when school resources are being utilized to further that speech. The Court has ruled in several cases that school administrators retain the full prerogative of limiting student’s exercise of free speech when the school is providing the resources for that speech (e.g., a school newspaper paid for by public monies). It is argued in Part VI infra that class time is a type of publicly funded resource for which the school is constitutionally authorized to exclude certain student behavior or speech.

Finally, even though the local school board policy relies on an old 1990 version of the State policy on the conflict of science education and religious belief, the current version of the State guidelines are even stronger and clearer about the distinction and responsibilities of local schools with respect to the separation of religious and scientific assertions in science classes. The latest guidelines are presented in Part VII.
In Part VIII, the paper concludes the local school board should not be obligated to permit the introduction or discussion of irrelevant topics, including religiously-based arguments in science classes, because it is inherently and materially disruptive to the purpose of public education in the sciences. Moreover, to permit such discussion, even if limited, may be unconstitutional in and of itself.

Part I: Background

In the Fall of 2017, Mr. Grayson Mobley, a sophomore at Bret Harte High School (a public school in the State of California), enrolled in a biology class. According to Mr. Mobley, the science teacher, Ms. Jerre Maurer, instructed students on the first day of school in August to, ‘Leave all ideas and notions about God outside my classroom’ and ‘Science is fact and religion is faith.’” . (Cited by Guy McCarthy, “Bret Harte Student’s Family Challenges School Science Policy” The Union Democrat December 4, 2017. Downloaded from: http://www.uniondemocrat.com/localnews/5811888-151/bret-harte-students-family-challenges-school-science-policy). In addition to his regular affiliation with a church, Mr. Mobley was enrolled in a local evangelical primary school before transferring to Bret Harte High School. Mr. Mobley’s father is quoted as saying that in church and in this evangelical school, his son learned that “Creationism is that God created the heavens and earth, and that’s what he was taught and that’s what we believe…”. (ibid). As a result of which, Mr. Mobley wants to be able to raise objections to the theory of evolution, thereby proposing an alternative narrative, namely creationism or a derivative known as “intelligent design”. He asserts the enforcement of Ms. Maurer’s restriction limits his ability to criticize evolution as having exclusive truth-value in a scientific sense.

Subsequently, an objection to Ms. Maurer’s proscription was raised with school administrators, presumably because it was believed the teacher had arbitrarily limited the scope of student investigations. The family was informed that the teacher was simply implementing a long-standing policy of the Bret Harte Union High School District (BHUHSD) Board.

Unsatisfied, Mr. Mobley’s family retained an attorney, Greg Glaser. On December 4, 2017, the BHUHSD Board held a regularly scheduled business meeting. As part of the public comment portion of the agenda, BHUHSD Board consented to a special presentation by Grayson Mobley, accompanied by his parents, his attorney, Greg Glaser, and a substantial number of supporters. The purpose of this special presentation was to protest the BHUHSD policy restricting discussion of non-scientific theories during class sessions of science courses. Mr. Mobley’s attorney asserts that the restriction imposes an unconstitutional burden on Mr. Mobley’s rights. Mr. Glaser’s claim, as articulated at the Board meeting, specifically relies on a Supreme Court case known as Tinker (discussed infra). Mr. Mobley and his attorney seek to have the BHUHSD Board amend their policy on discussing religious-based ideas during the course of science classes.

Part II: Existing BHUHSD Policy

The policy that gives rise to Mr. Mobley’s complaint is BP 6192.43 (Downloaded from http://www.gamutonline.net/district/bretharte/DisplayPolicy/243218/6 on December 4, 2017) which refers to guidelines issued by the California School Board Association (CSBA) from the year 1990. However, it appears that the CSBA guidelines are derived from the California Department of Education “Science Framework for California Public Schools” published in 1989.

The entirety of BP 6192.43 states as follows:
The Board of Trustees believes that science education should focus on giving students an understanding of key scientific concepts and a capacity for scientific ways of thinking. Students should become familiar with the natural world and the interrelation of science, mathematics and technology. As part of their science instruction, students should learn how to apply scientific knowledge and ways of thinking for individual and social purposes.
As a matter of principle, science teachers are professionally bound to limit their teaching to content that meets the criteria of scientific fact, hypothesis and theory as these terms are used in natural sciences. A scientific fact is an understanding based on confirmable observations and is subject to test and rejection. A scientific hypothesis is an attempt to frame a question as a testable proposition. A scientific theory organizes and explains a range of natural phenomena on the basis of facts and hypotheses. Scientific theories are constantly subject to testing, modification and refutation as new evidence and new ideas emerge.

Philosophical and religious theories are based, at least in part, on faith, and are not subject to scientific test and refutation. Such beliefs shall not be discussed in science classes, but may be addressed in the social science and language arts curricula.

The Bret Harte High School policy is clear and unambiguous — discussions which entail religious principles or themes “shall not” be made in classes involving natural science. However, it explicitly permits such discussions in other courses at the high school. Thus, it must be emphasized that this policy narrowly defines the prohibition of specific kinds of speech in specific kinds of classes. The same speech may be acceptable in many other class forums.

Part III: “Intelligent Design”

Proponents of “intelligent design” argue that all forms of life, and in particular, human beings, are evidence of an “irreducible complexity” (William Behe) or “specified complexity” (William Dembski) which could only have been created ab initio by a maker employing an “intelligent design”. This thesis that presumes there is some “purpose” or teleology to life forms originating with a maker, i.e., a godhead. Though some variant of this argument is found in texts going back to the Middle Ages, its current iteration was first articulated by Percival Davis and John Kenyon in a textbook they wrote entitled Of Pandas and People (1989) published by a Christian organization in Richardson, Texas called the Foundation for Thought and Ethics. It is now in its third edition and re-titled, The Design of Life: Discovering Signs of Intelligence in Biological Systems (2007), authored by William Dembski and Jonathan Wells. Both Dembski (an evangelical Christian) and Wells (a leading voice of the Unification Church cult) are ardent critics of evolution and promote a God-centric explanation for human origins. All editions of these texts have been widely discredited by scientists and science organization referring to it as a “distortion” and “worthless”.

Following the Supreme Court’s Edwards decision in 1987, proponents of “intelligent design” sought an institutional means of promoting “intelligent design”. In 1990, the Discovery Institute was established under the umbrella of the Hudson Institute, a political think-tank. In 1996, Howard Ahmanson, who is known for supporting conservative Christian causes provided a grant of $750,000 to the Discovery Institute, permitting it to become an independent organization.

Since its founding, the Discovery Institute has been the principal proponent for the promotion of “intelligent design”. In multiple states and jurisdictions, the Discovery Institute has sought to inject “intelligent design” into school curriculums, resulting most notably in a case that went to the Federal Court, known as Kitzmiller. In its decision, the District Court banned the use of “intelligent design” in public school science curricula. (Kitzmiller is discussed infra.)

Part IV: The Tinker Case

Mr. Mobley asserts that his right to free expression is being restricted when he is prohibited from raising religious-based questions about human origins in a science class. Specifically, this assertion relies on a claim that his rights are derived from the First Amendment to the U.S. Constitution protecting the right of “free speech”. The question of whether such rights extend to minors in a public school setting was established in a landmark decision by the United States Supreme Court in Tinker v. Des Moines Independent Community School District (393 U.S. 503, 89 S. Ct. 733) decided in 1969.

The Tinker case entailed a small group of students who wanted to protest the Vietnam War by wearing black armbands imprinted with a peace symbol during school. The school, learning of the protest, preemptively intervened by suspending the students until they agreed not to wear the armbands. The students and their parents with the assistance of the ACLU filed a law suit against the Des Moines School District. The District Court dismissed the suit and the Appellate Court was evenly split leaving the District Court’s dismissal to stand. The Supreme Court took the case in 1968 and decided in favor of the students seven to two in 1969.

The Court noted that the District Court “referred to, but expressly declined to follow the Fifth Circuit’s holding in a similar case” that a prohibition of passive protest such as wearing armbands could not be prohibited unless it ‘materially and substantially interferes with the requirements of appropriate discipline in the operation of the school'”. (393 U.S. 505, Burnside v. Byers 363 F. 2d 744, 749 (1966)).

On its face, the contention Mr. Mobley is making is analogous to the Tinker decision, wherein the Court wrote,
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. ” (393 U.S. 506).

But crucially the Court qualified the kind of speech it had in mind when it wrote,
…the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to ‘pure speech’ which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. (393 U.S. 506).

The Court’s reference to ‘pure speech’ is to a distinctive form of speech, that is, speech that is silent, passive, and symbolic. The Court does not specifically extend the protection of First Amendment rights to students when that speech entails oral speech or physical movement in a classroom.

At the same time, the Court acknowledged that it
…has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. See Epperson v. Arkansas, supra, at 104; Meyer v. Nebraska, supra, at 402. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities. (393 U.S. 507)
In weighing the competing interests of student’s free speech rights and the obligation of the school to maintain order and discipline, the Court asks where is the boundary for a school in maintaining control of the classroom. In the Tinker case, students sought to exercise their protest silently (without oral speech), symbolically (using a black armband with a printed peace symbol), and passively (without interference with or disturbance of other students). As the Court wrote,

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students. (393 U.S. 508).
The Court concluded

…the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression. (393 U.S. 514)

The Court declared,

In order for the State in the person of school officials to justify the prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and now showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school”, the prohibition cannot be sustained. (393 U.S. 509)

The Tinker case is quite clear that the rights a student has in school are subject to a limited set of qualifications, most importantly, where they believe such speech is “materially disruptive”. The question at hand is what might those conditions of disruption be and how should they be defined.

Part V: The Issue of Disruption

The first consideration is that Tinker is about political speech. Arguing that Tinker extends to religious speech is an important distinguishing issue. As “intelligent design” is a religiously-inspired topic, can it be raised in natural science classes? The question arises, because the First Amendment not only protects free speech, but also protects individual citizens from State establishment of religion or religious ideas in State affairs. The Courts have clearly applied the Establishment restriction to school authorities and institutions as representatives of the State. But, the Courts have ruled that students are free to retain their religious views at school, discuss these views in homework assignments (if relevant to the assignment), and promote and discuss their religious views in non-instructional time periods. Within a classroom, the test is whether the speech and conduct is relevant, and if it is not relevant, is it disruptive.

The issue that bears examination is whether a religiously-based idea can ever be relevant in a science class. To be clear, “intelligent design” is a theistically-inspired and religiously promoted ideology. The Courts have explicitly declared “intelligent design” to be of no scientific merit. In Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (W.D. Pa. 2005) the District Court wrote:

ID [intelligent design] is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980’s; and (3) ID’s negative attacks on evolution have been refuted by the scientific community. As we will discuss in more detail below, it is additionally important to note that ID has failed to gain acceptance in the scientific community, it has not generated peer-reviewed publications, nor has it been the subject of testing and research. Expert testimony reveals that since the scientific revolution of the 16th and 17th centuries, science has been limited to the search for natural causes to explain natural phenomena.

In other words, when “intelligent design” is introduced in science classes does it offer any more scientific value than that which might be put forth by proponents of the Flying Spaghetti Monster (FSM) who argued to the Kansas Board of Education that if “intelligent design” is allowed in science classes then so should the intelligent design principles of Pastafarianism (cf. Sarah Boxer, “But is There Intelligent Spaghetti Out There” The New York Times August 29, 2005). I doubt that few would argue that if the FSM were introduced in a science class, most would find the content irrelevant to the problems of science and thus disruptive to the progress of learning. By contrast, if the FSM was raised in a contemporary history class, particularly a class covering twenty-first century cultural oddities, it might very well be relevant and thus, not disruptive.

California high school students have limited classroom time and are expected to have sufficient knowledge and understanding of scientific theories, methodologies, and findings to pass competency exams. Diverting from that precious time with material or discussions that will never be on those examinations and is not of scientific merit is as disruptive as students with less overt distractive behavior.

Mr. Mobley’s attorney has raised the opinion of the Court in Edwards v. Aguillard (482 U.S. 578 (1987)) which originated in the State of Louisiana. But counsel fails to note that the Court found that discussion of Creationism can only take place for secular reasons and never for the purposes of promoting a religious viewpoint.

teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction. But because the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act furthers religion in violation of the Establishment Clause. (482 U.S. 594)

Indeed, the Court went further and labeled the claim of secular interest in “intelligent design” by the State of Louisiana as a “sham”.

Finally, there is the question of whether the underlying purpose of scientific method and religious propositions are equivalent or of a different type. It is an important question because most proponents of “intelligent design” argue that ID is a substitutable or alternative approach to the theory of evolution. An exhaustive examination of this question is beyond the scope of this paper but it is noted here that philosophically, scientific endeavors operate with very few metaphysical presumptions (e.g., questions about how many angels can be on the head of a pin) and are primarily concerned with epistemological questions of reason (i.e., how can I know something). By contrast religion is primarily concerned with metaphysical problems (e.g., who is God and what is his nature) with little corresponding concern for understanding how we know something apart from faith. Compare the epistemological concerns of science:
1. the observation of data in experiments,
2. the verifiability of the experiment itself including its replicability,
3. the hypothesis being tested in the experiment is falsifiable (meaning that is possible to have a null outcome), and
4. that the truth-value corresponds to what is observed in the real world (the realist argument) or that it is coherent with most other hypotheses (the anti-realist argument);
with the metaphysical interests of, for example, Christianity:

1. the godhead (Christology),
2. the end of time (eschatology),
3. salvation (soteriology),
4. purpose of life (teleology),
5. the nature of the Holy Spirit (pneumatology).

To draw an equivalence between these types of epistemological and metaphysical problems by assuming that one set of answers is fungible with another is illogical. A debate of these differences in a high school classroom is nothing short of being “materially disruptive”.

Part VI: Related Case Law

The Tinker case has been followed by a number of other questions that have sought to narrow or expand the Tinker test. Most importantly, in Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988), students serving as editor/authors of the school newspaper were prohibited from publishing two articles. They filed suit to overturn this decision by arguing that Tinker protected their right to free speech. The Court ultimately denied relief to petitioners when they sought to force the school to publish two articles in a school newspaper that was underwritten and financially supported by the school. For Tinker to apply the Court reasoned, the act of free speech had to occur independent of school sponsored or funded activities. As the time for classroom instruction is undoubtedly the paramount mission and cost of public education, it is argued that Hazelwood is an important limitation to the rights granted under Tinker.

Part VII: State Law and Guidelines

The fundamental provision that is applicable to Mr. Mobley’s petition references BHUHSD Policy BP 6192.43 (cited supra). As noted previously, the specific reference is to a policy published by the State of California in 1990. These guidelines are routinely updated by the State Board of Education and the State Department of Education. The BHUHSD does not appear to have made any updates to the relevant policy cited above since 1990.
However, Mr. Mobley is unlikely to find relief in the current version of the same State Board of Education (SBE) Policy on the Teaching of Natural Science. (Downloaded from https://www.cde.ca.gov/ci/sc/cf/sbepolteachnaturalsci.asp on December 5, 2017). This document is even more explicit about the different roles of science and religion and was adopted on November 3, 2016. This updated version reads:
The domain of the natural sciences is the natural world. Science is limited by its tools—observable facts and testable hypotheses.

Discussions of any scientific fact, hypothesis, or theory related to the origins of the universe, the earth, and life (the how) are appropriate to the science curriculum. Discussions of divine creation, ultimate purposes, or ultimate causes (the why) are appropriate to the history–social science and English–language arts curricula…..
Philosophical and religious beliefs are based, at least in part, on faith and are not subject to scientific test and refutation. Such beliefs should be discussed in the social science and language arts curricula. The Board’s position has been stated in the History–Social Science Framework…..
From time to time natural science teachers are asked to teach content that does not meet the criteria of scientific fact, hypothesis, and theory as these terms are used in natural science and as defined in this policy. As a matter of principle, science teachers are professionally bound to limit their teaching to science and should resist pressure to do otherwise. Administrators should support teachers in this regard…..
If a student should raise a question in a natural science class that the teacher determines is outside the domain of science, the teacher should treat the question with respect. The teacher should explain why the question is outside the domain of natural science and encourage the student to discuss the question further with his or her family and clergy.

The SBE Framework document acknowledges that “students do not have to accept everything that is taught in the natural science curriculum, but they do have to understand the major strands of scientific thought, including its methods, facts, hypotheses, theories, and laws.” The SBE Framework (and I emphasize) states unequivocally,
Neither the California nor the United States Constitution requires that time be given in the curriculum to religious views in order to accommodate those who object to certain material presented or activities conducted in science classes. It may be unconstitutional to grant time for that reason….However, the United States Constitution guarantees the free exercise of religion, and local governing boards and school districts are encouraged to develop statements, such as this one on policy, that recognize and respect that freedom in the teaching of science. Ultimately, students should be made aware of the difference between understanding, which is the goal of education, and subscribing to ideas.

Part VIII: Conclusion

The Tinker case establishes a broad principle extending the constitutional protection of free speech to students. It does so, however, with some important caveats, of which the most important is that such speech must not be disruptive. The Court specifically refers to “pure speech” which employs symbolic representation, is passive, and non-disruptive. It should be noted that although the Court did not define “disruptive”, it borrowed from a decision of the Fifth Circuit (Burnside) that it must be “materially disruptive”.

The issue of religious speech was not material to Tinker and therefore does not address this question. Here we must look at Kitzmiller which enjoined the Dover School District from referring to “intelligent design” as an alternative to a theory of evolution, even in brief mention. Kitzmiller (and the preceding Edwards case) are specific admonitions to the State or its representatives that they may not teach “intelligent design”. They say nothing about restricting student’s from raising questions about “intelligent design”.

But if the Court has indicated that “intelligent design” is in no form or manner a type of science, the question arises what are the limits a student must adhere to when participating in a science class? The Courts have ruled that student’s may express religious views in homework assignments and examinations, if the responses are germane to the issues raised in the assignments. With respect to speech in a classroom, there is no specific Court ruling EXCEPT the speech must be relevant.

The question then rests with what is meant by “relevancy”. Fortunately in the case of science studies, there are four hundred years of cumulative knowledge about scientific theories, methods, and evidence to demonstrate the boundaries of relevance. The Courts have clearly adjudicated that religious concepts have no place in a science class, whether introduced by a teacher or a student, for the simple reason that it is not relevant. Moreover, it is argued that for a teacher to spend instructional time refuting or debating an irrelevant comment is, on its face, disruptive. If the purpose of a biology class is to teach the theories, methodologies, and findings of biological science, then discussions about non-scientific propositions are materially distracting, and if confusing to other students in the class, “materially disruptive.”

Further substantiation of this “material disruption” can be elicited from the motivations of those that propose “intelligent design” as an alternative to science. As noted above, the primary advocate for “intelligent design” is an organization in Seattle WA known as the Discovery Institute. In an earlier organizational form, the Discovery Institute was referred to as the Center for the Renewal of Science and Culture. In 1999, this Center distributed a fundraising document entitled “The Wedge” outlining the Discovery Institute’s goals and objectives for the next few decades.

In their own words, the purpose of the program is to:
• defeat scientific materialism and its destructive moral, cultural, and political legacies
• to replace materialistic explanations with the theistic understanding that nature and human beings are created by God
• to see intelligent design theory as an accepted alternative in the sciences and scientific research being done from the perspective of design theory

The overall mission of the Center is described in the preface of its booklet:
The Center seeks nothing less than the overthrow of materialism and its cultural legacies…
The motivation of the Discovery Institute and its proponents is to replace modern science with theistic faith. Four hundred years of modern science has demonstrated its success in applying iterative skepticism to material problems through experimentation, replication, verification, and falsifiable hypotheses. No scientist worth his or her salt asserts that their research results in absolute, universal truths. That is the objective of theologians who seek their certainties, not in the natural world, but in the supernatural, the domain of metaphysics.

This paper concludes that any claim a student possesses a Constitutional right to proffer “intelligent design” as a reasonable alternative to neo-classical evolutionary theory fails both an understanding of the Constitutional separation of Church and State, as well an understanding of modern science and its principles. There simply is no existing case law that would support that claim, nor would the overwhelming majority of scientists disagree.
The policies of the BHUHSD are well within the existing boundaries of U.S. and California case law on this issue and are entirely consistent with the State Department of Education guidelines on what may and may not be taught in science classes. The BHUHSD is urged to reject Mr. Mobley’s claim.