Analysis of the "Santorum language"

In 2001, the United States Senate adopted a "Sense of the Senate" amendment proposed by Senator Rick Santorum (R-Pennsylvania) as part of an education bill. As reported here, the resolution included the phrase, "where biological evolution is taught, the curriculum should help students to understand why the subject generates so much continuing controversy..." There was little doubt that Santorum's language could be used to undercut the teaching of evolution. (See, for example, this posting by the American Geological Institute.)

Soon after adoption, the "Santorum language" began to appear in anti-evolution publications and proposals across the country. Some creationists claimed that the language constituted a federal mandate to teach "intelligent design". In fact, the Santorum amendment was removed from the bill in question by a conference committee made up of legislators from the Senate and House of Representatives. It is not part of the final bill or the resulting No Child Left Behind law.

In 2002, NCSE released a document, consisting of previously published material from a variety of sources, that provides background information on the Santorum language and the attempts to use it to promote intelligent design creationism.

Selections from NCSE's analysis of the Santorum language are available online via the links below.

(Senator Santorum lost his Senate seat in the November 2006 election.)

Science vs. Intelligent Design: The Law

(from NCSE's analysis of the "Santorum" language, originally published in 2002)

Professor Dennis D. Hirsch, Capital University Law School

Intelligent Design advocates claim that federal law supports teaching their views as an alternative to evolution in the public schools. As evidence, they cite to an amendment that Senator Rick Santorum offered to the Elementary and Secondary Education Authorization Act of 2001 (HB 1). The Santorum Amendment would have expressed a "sense of the Senate" that school curricula should include discussion of the "controversy" surrounding biological evolution. The Senate included this amendment in its version of the legislation, but the House did not. Importantly, the Conference Committee (a House/Senate group that resolved the differences between the competing versions and put together the final bill) deleted the amendment from the final Act. It was not part of the legislation that Congress passed and that President Bush signed into law.

The decision to remove an amendment from the text of a bill has a very specific legal meaning. It suggests that the legislature considered the language in question and rejected it. Sutherland on Statutory Construction, the leading treatise on statutory interpretation, has this to say on the subject: "The rejection of an amendment indicates that the legislature does not intend the bill to include the provisions embodied in the rejected amendment." N. Singer, Sutherland on Statutory Construction 48:18 (2000). Congress deleted the Santorum Amendment from the legislation. This provides strong evidence that Congress considered the views expressed in this amendment, and did not support them.

The Conference Committee did include a watered-down version of the amendment in a separate "explanatory statement" that it issued with respect to the final legislation. To understand the legal significance of this statement it is important to distinguish between a statute and legislative history. A statute passed by Congress and signed by the President constitutes federal law. Legislative history is merely a record of events leading up to the passage of a law. It is not part of the statute itself, is not voted on by Congress, and is not law, as such. Here, the Santorum Amendment was deleted from the statute. It did not become law. At most, the explanatory statement is an expression of the views of a few members of the House and Senate about the law. It forms a part of the legislative history. It does not constitute federal law on the subject.

On occasion, legislative history such as committee reports can be a helpful tool for interpreting the language of a statute. The statement here provides little help in that regard since there is no corresponding statutory language to interpret, Congress having deleted the Santorum Amendment. Moreover, legislative history only serves this interpretative function where it sheds light on the intentions of Congress as a whole. Here, Congress did not support the Santorum Amendment, as evidenced by the fact that it took it out of the final legislation. This suggests that the watered-down version that appeared in the explanatory statement was added at the behest of a special interest group and did not receive the endorsement of Congress as a whole. In such situations, courts give legislative history little weight even as an interpretative tool. They in no way treat it as the considered "federal law" on the subject.

A governmental requirement that intelligent design be taught with evolution would violate the Constitution. Intelligent design advocates in Ohio have sought, on a number of fronts, to require that intelligent design be taught with evolution in public school biology classes. Some have proposed legislation to this effect. Others have sought to have the State Board of Education require it. Recently, some have proposed that local boards of education should mandate it. In any of these forms, a government requirement of this nature would violate the Establishment Clause and would be unconstitutional under the Supreme Court's decision in Edwards v. Aguillard, 393 U.S. 97 (1987).

The Edwards case concerned a Louisiana statute that prevented the state's public schools from teaching the theory of evolution unless they also included instruction on "creation science." Creation science, as described by the legislation's defenders, included a belief in "origin through abrupt appearance in complex form" and in the creation of life by an "intelligent mind." Like the current intelligent design advocates in Ohio, the creation scientists in Louisiana asserted that their ideas constituted a valid scientific theory and that they were seeking only to bring balance to the curriculum.

The United States Supreme Court rejected this claim and found the creation science legislation to be unconstitutional. Applying the Lemon test (a legal test derived from the foundational case of Lemon v. Kurtzman), the Court focused on whether the challenged government action serves a secular purpose, or a religious one. The legislation's proponents had maintained that its purpose was to promote academic freedom. The Court did not accept this view. It found that the statute's true purpose was to use the coercive powers of the state to promote religious ends. As such, it was unconstitutional. The Court based its conclusion on the fact that the legislation had chosen to focus on the one scientific theory - evolution - that certain religious groups find most disturbing. It also looked to the religious motivations expressed by the statute's sponsors.

Were an intelligent design requirement challenged on constitutional grounds, a court would likely follow a very similar analysis and reach the same conclusion. Intelligent design theory is in many respects similar to creation science; including the shared belief in complex life forms at origin and the intervention of some type of intelligent actor. Moreover, just like the Louisiana statute at issue in Edwards, the intelligent design movement focuses its challenge on the one scientific theory that most conflicts with the views of certain religious groups, while ignoring far more significant scientific controversies. If the movement's real intent were to improve the teaching of scientific controversies, then evolution, one of the most settled of scientific theories, would be an odd place to begin. In Edwards, the Supreme Court found such a limited focus to be highly suggestive of the proponents' religious purposes and, therefore, of the requirement's unconstitutionality.

In the years following Edwards, those advocating the teaching of creation science/intelligent design have become far more careful about public expressions of their religious motivations. That said, one need not look far to find them. In an autobiographical essay posted on the True Parents website (a site dedicated to the Rev. Sun Myung Moon) Dr. Jonathan Wells, who testified before the Ohio State Board of Education in favor of intelligent design, explains that he is motivated by religious ends. He writes that Reverend Moon "frequently criticized Darwin's theory that living things originated without God's purposeful, creative activity. "Father's words, my studies and my prayers convinced me that I should devote my life to destroying Darwinism." Similarly, the Center for the Renewal of Science and Culture (CRSC), a leading intelligent design advocacy group, states as a principal goal the "replac[ing of] materialistic explanations with the theistic understanding that nature and human beings are created by God" (see The Wedge Strategy). These and other express statements should make it possible to demonstrate the religious purpose behind the intelligent design movement's effort to revise the curriculum in Ohio schools. In Edwards, the Supreme Court made clear that an educational requirement's secular purpose must be "sincere and not a sham." An intelligent design requirement in the State of Ohio would not stand muster under this test. Like the creation science requirement in the Edwards case, a court would likely strike it down as an unconstitutional use of government power to serve religious ends.

The Truth about the “Santorum Language” on Evolution

(from NCSE's analysis of the Santorum language)

Kenneth R. Miller, Professor of Biology, Brown University

The "No Child Left Behind" Education Act does not call for the teaching of "Intelligent Design."

One of the remarkable ironies of the battle over evolution's place in the Ohio State Science Education Standards is that the opponents of Darwin, in the name of "truth," are spreading falsehoods about the law of the land. Their point of contention is the "No Child Left Behind Education Act," which was signed into law by President Bush on January 8, 2002.

During the March 11, 2002 panel discussion on evolution in front of the Ohio Board of Education, the Discovery Institute's Stephen Meyer claimed that two purportedly anti-evolution sentences known as the "Santorum Amendment" were part of the recently signed Education Bill, and therefore that the State of Ohio was obligated to teach alternative theories to evolution as part of its biology curriculum. I answered Meyer's contention by showing, using my own computer, that the Santorum language was not in the Bill, a copy of which I had downloaded from the Congressional web site. The effect on the crowd in attendance was devastating. The proponents of "intelligent design" had been caught in a lie.

Ever since that day, they have been trying to pretend otherwise.

The Santorum Language does not Appear in the Final Version of the Education Bill

Pennsylvania Senator Rick Santorum, writing in the March 14, 2002 issue of the Washington Times, claimed that his language was a "provision" of the bill:

At the beginning of the year, President Bush signed into law the "No Child Left Behind" bill. The new law includes a science education provision where Congress states that "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." If the Education Board of Ohio does not include intelligent design in the new teaching standards, many students will be denied a first-rate science education.

This claim was repeated by Ohio Representatives John A. Boehner and Steve Chabot in a March 20, 2002 story also in the Washington Times, quoting the Congressmen as writing: "The Santorum language is now part of the law." The fact is that the Santorum language does not have the force of law, despite the Congressmen's claims.

Anti-evolution activists are now circulating rumors charging me with lying about the Santorum language. One email that has been sent to me made the following claim:

Dr. Kenneth Miller tried to convince the audience at the 3/11 debate that the word "evolution" does not appear in the bill. He stated that he preferred to use "empirical evidence." He scanned the first 600 pages and came up empty. This was due to the fact that the Santorum language is on p. 703. Congress approved the conference report with the same vote as the statutory text. It seems that Dr. Miller retrofitted the empirical evidence to make an inaccurate point.

I cannot know if this statement is merely a mistake, or an outright, intentional lie, but here are the facts: I did not scan just the "first 600 pages" of the bill at the March 11 debate. I scanned the whole thing, and the Santorum language was not it in. Why?

Because it had been struck from the bill, and it is NOT part of the law. What's remarkable about this little squabble is just how easy it is to find out the truth. Congressional and Department of Education web sites contain the full text of the Education bill, all six versions of it, as it moved through Congress, including the final version signed by President Bush, which is now Public Law 107-110. Check it out yourself, and you will see that the Law makes no mention of "evolution" or any of the other language that Senator Santorum attempted to insert in the bill.

Here’s how you can check for yourself

First, go to the Congressional Web site, which includes legislative histories of all bills introduced in Congress. Then, type in the legislative name of the bill, which was HR-1, and search for the bill's legislative record. You will bring up this page, which lists the 6 different versions of the bill as it moved through Congress:

If you have the patience (and a speedy Internet connection), you can download each version and do a search for the word "evolution" or any of the distinctive phrases that appear in the Santorum language. You will find that the language appears only in "Version 1" of the bill, on page 1196. This is the version that was "engrossed" (first passed) by the Senate. It does not appear in any of the other versions, including the only one that really matters, the final version passed by both houses and presented to the President, which is the "enrolled bill," Version 3. This was the version I used for my search in Ohio on March 11, and it is exactly 670 pages in length. So the claim that I manipulated the search is false. I searched every page of the bill. The Santorum language is not there because it was struck from the bill.

The same web page noted above has a link to the new Education Law itself. I invite you to examine Public Law 107-110, and look for the Santorum reference to evolution. Guess what? It's not there! The Congressmen, the Senator, and the "intelligent design" people have been telling the public that the Education Bill contains language that Congress actually removed from the Bill.

How do these folks justify making fraudulent claims? By a little bit of mental gymnastics that shows exactly how willing the anti-evolution crowd is to misrepresent the truth. Go to the web page of the House Committee on Education and the Workforce. As you scroll down the page you will first see a link to the Law itself. Then you will see a link for the Bill as presented to the President, then links to help implement the bill, then remarks by the First Lady, and only then a link to the "Conference Committee Report."

After Santorum's language was deleted from the bill, he was able to insert a watered down version of his language in the explanatory report of the conference committee. Here is where the language about evolution is located, right on page 703. However, a committee report, even when it is accepted by the Congress, is not a bill. It was not sent to the President's desk for signature, and it is not part of Public Law 107-110. Case closed. Committee reports simply do not have the force of law. The new Education Act simply does not require the teaching of "Intelligent Design."

The fact that the anti-evolutionists eagerly misrepresent both the content of the Education Bill and the language in the new Education Act is at once distressing and instructive. It is indeed sad to see how people who claim only to be interested in the truth are willing to mislead the public, but it also sets a standard of inaccuracy by which the people of Ohio may judge the reliability of their scientific claims as well.

These folks are wrong about the law, and wrong about science.

Senator Edward Kennedy on Intelligent Design

In a Washington Times editorial, March 14, 2002, Senator Santorum implied that Senator Edward Kennedy supported the teaching of intelligent design in public schools. Senator Kennedy responded in a letter to the editor on March 21.

Evolution is designed for science classes

The March 14 Commentary piece, "Illiberal education in Ohio schools," written by my colleague Sen. Rick Santorum, Pennsylvania Republican, erroneously suggested that I support the teaching of "intelligent design" as an alternative to biological evolution. That simply is not true.

Rather, I believe that public school science classes should focus on teaching students how to understand and critically analyze genuine scientific theories. 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.