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Federal Law Misused in Ohio Education Debate
David Applegate

This fall, the Ohio State Board of Education will finalize science education standards for the state’s public schools. These standards have become the latest battleground over the teaching of evolution. Ohio’s curriculum also has become the first major opportunity for evolution opponents to attempt to use a new federal education bill to bolster their efforts.

Opposition to teaching evolution in Ohio is nothing new. These standards will replace existing curriculum guidelines that, responding to earlier pressure, avoid mention of the term evolution. In his 2000 report for the Thomas B. Fordham Foundation, science educator Lawrence Lerner graded the treatment of evolution in state science standards. He gave Ohio an “F” (Geotimes, December 2000).

Lerner says that he would give the initial draft standards, developed by a 45-member writing team of scientists and educators, an “A.” And that explains why evolution opponents, led by a conservative Christian group called Science Excellence for All Ohioans, are working so hard to rewrite the draft. Their original proposal was to drop such controversial concepts as the age of Earth and to downplay the certainty of evolutionary principles. But their real push has been for inclusion of intelligent design creationism whenever evolution is discussed.

Several state board members are receptive to the intelligent design approach. When it was pointed out that no other state has adopted standards that incorporate teaching of intelligent design, board member Deborah Owens-Fink noted that Ohio had an opportunity to be “on the cutting edge.” The board has held several hearings on this matter, including a panel discussion in March. On one side were intelligent design supporters Stephen Meyer and Jonathan Wells from the Discovery Institute’s Center for Renewal of Science and Culture, and on the other side were Brown University biologist Ken Miller and Case Western Reserve University physicist Lawrence Krauss. The session drew over a thousand attendees and had to be moved to a nearby auditorium.

During the discussion period, a questioner asked whether a recently enacted federal education bill, known as the No Child Left Behind Act, required that alternative theories to evolution be taught in public schools. The reference was to language added to the Senate version of the bill by Sen. Rick Santorum (R-Penn.) singling out evolution as a controversial theory and emphasizing the need to teach the controversy.

The Discovery Institute’s Meyer answered that the act did require teaching alternative theories and urged the board to follow the federal law. Having anticipated the question, however, Miller had the text of the act on his computer. When he executed a search for any reference to the Santorum language, no reference appeared. The Santorum language was not in the law.

What’s in a statute?

Who’s right? Because the House and Senate had passed different versions of the bill for the No Child Left Behind Act, a bicameral conference committee — chaired by House Education and the Workforce Committee Chairman John Boehner (R-Ohio) — was appointed to work out differences. The resulting conference report described the changes made to the earlier bills in order to craft the final bill. One of those changes was to drop the Santorum language from the final bill, which was subsequently passed by both houses and signed by the president in January to become federal statute. Just as Miller demonstrated, the Santorum language was not in the law.

But the conference committee did not entirely discard the Santorum language. Even though they removed it from the bill, they added a substantially revised version to an explanatory statement appended to the conference report. That revision reads: “The Conferees recognize that a quality science education should prepare students to distinguish the data and testable theories of science from religious or philosophical claims that are made in the name of science. Where topics are taught that may generate controversy (such as biological evolution), the curriculum should help students to understand the full range of scientific views that exist, why such topics may generate controversy, and how scientific discoveries can profoundly affect society.’’

Such explanatory statements serve the same role as reports that committees prepare for bills that they are sending to the House or Senate floor. These reports are the principal tool for interpreting bills and establishing their legislative history. For example, appropriations bills contain little more than a string of program names and dollar figures, while their accompanying reports provide the detailed explanation of how the money should be spent. Report language may not have the force of law, but woe to the agency that ignores those spending instructions as they face the appropriators’ ire (and budget cuts) the following year.

That is not the situation for the No Child Left Behind Act. As pointed out by law school professor Dennis Hirsch from Capital University in Columbus, Ohio, the Santorum language does not accompany or interpret any bill language. It stands alone as a non-statutory opinion of the conferees, its primary purpose being to appease a vocal constituency (and an aggravated Santorum).

Muddying the waters

By now it may seem that the confusion over report language as opposed to bill language is a fairly understandable one for the layperson. And it is, particularly when the lawmakers themselves are blurring the issue. In a letter dated March 15, Boehner and House Subcommittee on the Constitution Chairman Steve Chabot (R-Ohio) wrote to the school board asserting that “the Santorum language is now part of the law.” On March 14, Santorum wrote in a Washington Times editorial (titled “Illiberal Education in Ohio”) that “the new law includes a science education provision,” then quoted the explanatory statement language. Wrong and wrong.

In the same editorial, Santorum went a step further. Having convinced all but eight of his colleagues to support his “innocuous” resolution amidst a last-minute flurry of voting that followed six weeks of floor debate, Santorum now portrayed their votes as support for the teaching of intelligent design. He specifically cited Sen. Ted Kennedy (D-Mass.) as a supporter. In a responding letter to the editor, however, Kennedy asserted that the implication of the vote was “simply not true,” then went on to state: “Unlike biological evolution, ‘intelligent design’ is not a genuine scientific theory and, therefore, has no place in the curriculum of our nation’s public school science classes.” In a letter to the National Center for Science Education, the House Education and the Workforce Committee’s ranking Democrat, Rep. George Miller (Calif.), wrote that “the report language should not be construed to promote specific topics within the subject areas … [S]uch decisions are best left to the scientific community, rather than legislators.”

The eventual outcome of this debate in Ohio is far from certain. According to an analysis by the Cleveland Plain-Dealer, a majority of the school board remains undecided. Adding to the uncertainty, the legislature is considering a bill that would strip the school board of its authority to grant final approval for state science standards, handing that responsibility over to the legislature. Regardless of how the standards come out, the real test comes with the decisions of individual school districts on what should be taught. One district has already declared its intention to teach intelligent design, and others are likely to follow. Perhaps the only certainty arising from the Ohio experience is that the Santorum language will become a staple of anti-evolution efforts in the guise of “federal law requires thou shalt
teach … .” As that occurs, the scientific community must be there to explain the distinctions and straighten out the facts.


Applegate directs the American Geological Institute’s Government Affairs Program and is editor of Geotimes. E-mail

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