The Capistrano case: When can't we call nonsense "nonsense"?

Over at The Panda's Thumb there's a lively discussion of C. F. v. Capistrano Unified School District going on.

As I discussed a few days ago, the case involved a history teacher in an American public school who made a statement to the effect that Creationism is superstitious nonsense (along with various other seemingly anti-religious comments). He said, referring to a fellow teacher's espousal of Creationism in the school: "I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense." The claim that Creationism is superstitious nonsense was found by the court to contravene the freedom of religion clauses in the First Amendment to the US constitution.

There's been much discussion of the Capistrano case in the blogosphere, and it rightly continues to cause concern. Part of the trouble is that what the teacher said was true. Creationism is, in fact, superstitious nonsense. But that's just the problem - it's not just nonsense but superstitious nonsense, just as the Catholic doctrine of transubstantiation is superstitious nonsense, not to mention the more general Christian doctrine of sacrificial atonement, not to mention almost any distinctively religious doctrine that you care to name. However, while that's my opinion, it's not the sort of issue that we want the state to have an opinion about. On matters of religion, the state should be neutral. At the very least, it should not do anything that can be construed as imposing religious opinions on citizens.

It could be asked whether Creationism is really a religious doctrine, but the answer to that clearly seems to be "Yes" - or if it is not exactly a religious doctrine it is something so close that I don't see how it could make any difference in law: it is, at the least, a piece of pseudoscientific doctrine contrived for the purpose of defending more central religious doctrines. Indeed, it is a sham when more sophisticated forms of Creationism, such as Behe-style Intelligent Design, are passed off as not being religious in character and motivation. Because these ideas are religious doctrines, or something indistinguishable from them for relevant purposes, they cannot be taught in American public schools. But if classic forms of Creationism and contemporary forms of Intelligent Design are so closely connected to religion that they can't be taught in public schools, on pain of breaching the First Amendment, then it follows that they are so closely connected to religion that they also can't be taught to be untrue. On that basis, Capistrano seems to be correctly decided. Indeed, a criticism that might be made of the judge is that he bent over backwards to find that many of the teacher's other comments about religion were not First Amendment breaches.

Rightly or wrongly, American constitutional jurisprudence treats individual teachers in public schools as "the state", which means that they must exercise power over children in their charge as if they were an arm of the executive government. That includes neither imposing religion on students nor impeding a student's free exercise of religion.

However, this can be a fine line, and overly-officious application of the principle could and would chill valuable discussions in the classroom. As I mentioned last time, consider such subjects as English literature, where it may be necessary to explore the worldviews (religious or anti-religious) of authors, and to expect the students to explore their own intellectual and emotional responses. How could you teach the poetry of Shelley, for example, without discussing his anti-religious views? How could you teach that of Gerard Manley Hopkins without trying to enter into his religious mindset? It can't be done. Courts must allow teachers a considerable margin for discretion, or it will stifle teaching and learning.

In my previous discussion of the case, I said that teachers in public schools should just teach the science, or the history, or whatever subject it is that they are paid to teach. If some of the content is inconsistent with a student's religion, then it's up to the student to work out the reconciliation. The First Amendment does not give anyone the right to go through life without being exposed to scientific or other knowledge that might happen to be inconsistent with her particular religious beliefs. How could it? People have all kinds of strange beliefs that are inconsistent with research by scientists, historians, and others. A teacher does nothing wrong if simply teaching secular knowledge in a religion-blind way.

I still think that all this is essentially correct, but it has to be added that we live in a world that is very different from that of the US Founding Fathers or John Locke, a world in which many popular religious doctrines now seem to be plainly crazy when measured against robust findings from science. Even if students are left to connect the dots themselves, some are going to find that mainstream, robust scientific conclusions threaten their religious beliefs. This doesn't apply solely to fundamentalist beliefs, such as the belief that God created the world 6,000 to 10,000 years ago. Even the beliefs of relatively moderate or liberal Christians may be threatened for anyone who thinks deeply about such things as the course of evolution. Thus, even if science were taught in a completely religion-blind manner, with the teacher affecting not to know that there are religious doctrines plainly inconsistent with it (and others whose plausibility may be threatened by it), the religious faith of some students would be challenged. Some might take the scientific findings as fact, be unable to square them with religious teachings, and perhaps either lose their faith altogether or at least abandon certain doctrines that they were taught to them by parents and priests.

My point is not that we should therefore abandon the teaching of good, mainstream science. On the contrary, it is that teaching of good, mainstream science should go ahead, and we should accept that it is an inevitable by-product that the faith of some students will come under challenge in their own minds. But why is that a bad thing? No one has a right to go through life never being exposed to facts that might lead her to reconsider her beliefs on religious, moral, social issues, and so on. Attributing such a "right" to a child is just as nonsensical as attributing it to an adult.

Nor do parents have the right that their children not be exposed to ideas that may challenge the parents' teachings. Children are not playdough for parents; we do entrust parents with the care and nurturing of children, within broad limits, but society as a whole has a stake in children growing to adulthood with a sound knowledge of the world, including a basic understanding of science, and good critical skills. We have legitimate secular reasons to teach these to children, even if doing so runs counter to the wish of parents that their children go through life believing in certain religious doctrines. That wish is not something that parents have a right to bring to fruition by all means possible. If the parents are somehow able to teach their children to reject what they are taught are school, the state should not interfere, but nor must it require that parents have unlimited opportunities to brainwash their children.

All that being so, it seems apparent that teachers may teach science in a religion-blind way, leaving it to students to resolve any contradictions or tensions between the findings of science and the religious doctrines that they are taught outside of school. Schools cannot require sincere belief in, say, evolutionary theory, but they can certainly require accurate understanding of it, and that students bracket off any private reservations for the purpose of class discussion and assessment.

But none of this resolves the fact that teachers cannot be expected to be living, breathing law books, constantly worrying about whether something they might say as individuals will be held to breach the constitution. The problem is not so much for science teachers as for teachers of the humanities, who may need to provoke discussion of such issues as the social role of religion. Here, I worry about the triviality of the remark that Creationism is superstitious nonsense. Are we really going to make a court case of it every time an individual teacher expresses an opinion that contradicts a religious belief of one of her students? Should teachers become, not walking law books, but robots without opinions of their own? That could make teaching impossible.

I continue to think, though with a bit less confidence, that Capistrano was correctly decided on its facts and the existing law. A reading of the entire judgment shows that the judge was very alert to the issues that I've raised in this post, and which many others are raising at the moment. Furthermore, the teacher's remark was pretty much gratuitous in the context in which it was uttered, and was sufficiently emotive that it could have been intimidating, especially against a background where he had made many other remarks that were, at best close to the line.

Although the case was not analysed in this way, we could think about it by going back to the First Amendment itself (or even to Locke), rather than to tests in the governing case law. We could then ask whether the remark, in the context in which it was uttered and the larger context of the teacher's pattern of other remarks about religion, would have foreseeably intimidated an ordinary, reasonable individual of the student's age, bearing in mind the power differential between teacher and student. If the answer is "Yes," we can then ask whether that foreseeable intimidation would have amounted to an impediment to the free exercise of the student's religion. It should be clear as a matter of law that merely teaching good, mainstream science, or other mainstream findings of the discipline concerned, cannot amount to intimidation - though extra hurdles to test the sincerity of belief might, in some cases.

If this test, which looks to the Free Exercise clause rather than the Establishment clause, were adopted, with the elements of foreseeability, intimidation, and the effect of the intimidation on an ordinary, reasonable student in the circumstances, Capistrano might still be sustained on its facts. However, a test like this would make it far less likely that school teachers could be caught out for non-gratuitous, non-intimidating remarks, even if they did express (possibly unguarded) opinions on matters of religion.

At the same time, a test such as I'm proposing would make it virtually impossible for university-level teachers to face court proceedings for clearly legitimate expressions of opinion, one way or the other, on, say, the relative strength of arguments for or against the existence of God. Someone teaching philosophy of religion unavoidably ends up expressing personal views on such subjects; they should, however, make clear that no student will be assessed on the basis of her agreement or disagreement with the teacher on such ultimate questions as the existence of God. Assessment will be based on understanding of the material, ability to argue a cogent case, ability to take account of contrary arguments, and so on. (Come to think of it, there's no reason why school students could not be taught such subjects and assessed in such a way - increasingly so as they mature as young adults in the senior years of high school.)

Whether a test such as the one I'm proposing has any prospect of being accepted by the American courts requires a technical knowledge of the existing First Amendment jurisprudence that is beyond my expertise. I'm not a working First Amendment lawyer based in the US; I'm an Australian philosopher with legal qualifications, some experience in Australian legal practice, and research interests in philosophy of law. There's quite a difference. Doubtless some of my American readers will want to comment on the detail of the case law. Still, a test such as I've proposed above seems to me to reflect good teaching practices ... as well as the philosophical basis for religious toleration and a separation church and state in the first place.

I'd like to see the case appealed, not on the point that Creationism is not (something like) a religious doctrine, but on the point that an ordinary, reasonable student would not have been intimidated to the extent that he was, in substance, having a view about religion imposed on him by the state. Let's see what a higher court makes of that argument. Not all disparagement of religion by teachers would meet the standard that it implies, and teachers adopting good practice could meet such a standard without acting like robots. I may be wrong, but that seems to me what's really at stake here.

It might be valuable if Capistrano were pursued on appeal to higher levels of the court system, even if the judgment at first instance were eventually sustained on its facts (including the gratuitous and emotive nature of the "superstitious nonsense" remark). Assuming the money can be found by an organisation such as the ACLU or the relevant trade union, there might be an opportunity for a more fundamental reconsideration of what can reasonably be expected of individual teachers in public schools to ensure conformity with the constitution. Even if it's confirmed that the case has been decided correctly on its facts, there might be an opportunity here for the courts to develop standards that make more sense of the twenty-first-century reality in which many religious doctrines cannot be reconciled with secular knowledge that we want to teach to our young people.