New Mexico 2009 SB433

State: New Mexico Date introduced: February 02, 2009 Main sponsor: Kent L. Cravens Bill Number: SB433 Current Status: Committee took no action before legislative session ended


AN ACT
RELATING TO PUBLIC EDUCATION; REQUIRING PUBLIC SCHOOLS TO ALLOW
TEACHERS TO TEACH ALL RELEVANT SCIENTIFIC INFORMATION WHEN
TEACHING THEORIES OF BIOLOGICAL ORIGINS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the Public School Code is
enacted to read:
"[
NEW MATERIAL
] TEACHING OF BIOLOGICAL ORIGINS.--
A. The department, school district governing
authorities and school administrators shall not prohibit any
teacher, when biological evolution or chemical evolution is
being taught in accordance with adopted standards and
curricula, from informing students about relevant scientific
information regarding either the scientific strengths or
scientific weaknesses pertaining to biological evolution or
chemical evolution. A teacher who chooses to provide such
information shall be protected from reassignment, termination,
discipline or other discrimination for doing so.
B. This section pertains solely to the teaching of
scientific information and specifically does not protect the
promotion of any religion, religious doctrine or religious
belief.
C. Public school teachers may hold students
accountable for knowing and understanding material taught in
accordance with adopted standards and curricula about
biological evolution or chemical evolution, but they shall not
penalize a student in any way because that student subscribes
to a particular position on biological evolution or chemical
evolution.
D. For purposes of this section, "scientific
information" means information derived from observation,
experimentation and analyses regarding various aspects of the
natural world conducted to determine the nature of or
principles behind the aspects being studied. "Scientific
information" does not include information derived from
religious or philosophical writings, beliefs or doctrines;
provided, however, that "scientific information" may have
religious or philosophical implications and still be scientific
in nature."

 

SUMMARY
Synopsis of Bill
Senate Bill 433 creates a new section of the P
ublic School Code to disallow the prevention of
any teacher from informing studen
ts about relevant “scientific in
formation” regard
ing scientific
strengths or weaknesses pertaini
ng to biological or chemical
evolution and would protect
teachers from adverse consequences for doing so.
This bill would also prevent teachers from
penalizing students for holding a position
on chemical or bi
ological evolution.


SIGNIFICANT ISSUES
The PED reports a number of significant
issues related to Senate Bill 433.
The definition of “scientific information” in the
bill indicates that it does not include information
derived from religious or philosoph
ical writings, beliefs or doctrine
s. However, it goes on to say
that it may have religious or ph
ilosophical implications
and still be scientif
ic in nature. This
would allow the teaching of theories of biol
ogical origins such as intelligent design or
creationism.
According to the National Academ
y of Sciences and Institute
of Medicine of the National
Academies, “There is no scien
tific controversy about
the basic facts of
evolution. ...arguments
that attempt to confuse students by suggesting
that there are fundamental weaknesses in the
science of evolution are unwarranted based
on the overwhelming evidence that supports the
theory. Creationist ideas lie outside the realm of
science, and introducing them in science courses
has been ruled unconstitutional by the U.S. Supr
eme Court and other federal courts” (National
Academies, 2008. Science, Evol
ution, and Creationism, p. 52).
Senate Bill 433 implicates the First Ame
ndment “Establishment Clause” to the U.S.
Constitution, as well as Art. 2, § 11 of the New
Mexico Constitution. It also raises the question
of whether it constitutes the teaching of sectar
ian doctrine in public school, which is prohibited
by Section 22-13-15, NMSA 1978.
In Edwards v. Aguillard, 482 U.S. 578 (1987), the
U.S. Supreme Court held that a requirement
that public schools teach “creati
on science” along with evoluti
on violated the Establishment
Clause and turned the proscription against te
aching “creation science” in
public schools into a
national prohibition. More recently, the United
States District Court in Pennsylvania in
Kitzmiller v. Dover Area School District, 400
F.Supp.2d 707 (M.D. Pa. 2005) considered a case
in which parents of school-aged children and
a member of the high school science faculty
brought an action against a school
district and school board, challe
nging the constitutionality of
the district's policy on the teach
ing of “intelligent
design” in high school
biology class, which
required students to hear a statement mentioni
ng “intelligent design” as an alternative to
Darwin's theory of evolution. The court held
that the policy amounted to an endorsement of
religion in violation of the Esta
blishment Clause, that it violated
the Establishment Clause under
the test established in Lemon v. Kurtzman, 403 U.
S. 602 (1971), and that it
violated the freedom
of worship provision of the
Pennsylvania Constitution.
The endorsement test recognizes that when govern
ment transgresses the limits of neutrality and
acts in ways that show religious favoritism or
sponsorship, it violates th
e Establishment Clause.
The court in Kitzmiller went into an extensive
discussion of the history of the “intelligent
design” movement and the development of the stra
tegy to challenge the teaching of evolution by
focusing students on alleged gaps in the theory
of evolution. The cour
t noted that the term
“intelligent design” came into use after the Su
preme Court’s decision in Edwards and called it
“creationism re-labeled.” Based on the evidence
submitted and an intensive analysis of the case
law, the court concluded that the language of
the policy, while attemp
ting to sound neutral,
amounted to an endorsement of religion. The langua
ge in Senate Bill 433 has the same problem
because by stating that “scientific information”
may have religious or philosophical implications;
it essentially compels the state to require the
teaching of theories that amount to religious
doctrine. That would not only viol
ate the Constitution but also i
nvolve the teaching of sectarian
doctrine which is prohibited by Section 22-13-15.


As articulated by the Supreme Court, under the
Lemon test at page
612, a government-sponsored
message violates the Establishment Clause of
the First Amendment if: (1) it does not have a
secular purpose; (2) its principal or
primary effect advances or inhi
bits religion; or (3) it creates
an excessive entanglement of the government
with religion. Lemon's purpose prong “asks
whether government's actual purpose is to endo
rse or disapprove of religion. A governmental
intention to promote religion is clear when the State enacts a law to serve a religious purpose.”
The implication of Senate Bill 433
is that its purpose is to allo
w the teaching of theories like
“intelligent design” wit
hout penalty. In considering the effect
s prong, the effect of promulgating
a rule that would allow a curriculum change regard
ing theories of biological
origins would be to
impose a religious view of biological origin
s into the curriculum, in violation of the
Establishment Clause. Senate Bill 433, if passed,
would be subject to a court challenge based on
the First Amendment’s Establishment Clause.
The New Mexico Higher Education Department repor
ts that it stands in opposition to this bill
along with the vast majority of New Mexico's scientific community.

 


3
¾
Pursuing this legal point, the PED analysis
cites several court cases in which efforts
“to impose a religious view of biological
origins into the curriculum,” as SB 433
seems to do, have been found to violate the Establishment Clause of the US
Constitution. This analysis also says that SB 433 implicates Article 2, Section 11 of
the state constitution, which guarantees fr
eedom of religion, and Section 22-13-15
NMSA 1978, which prohibits the teaching of
sectarian doctrine in public schools.
¾
Finally, the PED analysis suggests that
enacting SB 433 would invite litigation.

The OEA analysis questions some
of the premises
behind the bill:
¾
that the theory of evolution lacks scientific validity; and
¾
that teachers and students need protecti
on when addressing “relevant scientific
strengths or scientific we
akness pertaining to biological
evolution or chemical
evolution.”
Background
:
The issues raised by SB 433 have also been raised
in previous legislative contexts. Two bills
similar to SB 433 and two related memorials we
re introduced during th
e 2007 legislative session,
but did not pass.
 

BILL SUMMARY

 

Synopsis:  SB 433 creates a new section of the Public School Code to disallow the prevention of any teacher from informing students about relevant scientific information regarding scientific strengths or weaknesses pertaining to biological or chemical evolution and would protect teachers from adverse consequences for doing so.  This bill would also prevent teachers from penalizing students for holding a position on chemical or biological evolution.

 

FISCAL IMPLICATIONS (Note:  major assumptions underlying fiscal impact should be documented.  If additional operating budget impact is estimated, assumptions and calculations should be reported in this section.)

None for the Public Education Department (PED).  Costs related to potential litigation could be high but are difficult to estimate.

 

SIGNIFICANT ISSUES

The definition of “scientific information” in the bill indicates that it does not include information derived from religious or philosophical writings, beliefs or doctrines. However, it goes on to say that it may have religious or philosophical implications and still be scientific in nature. This would allow the teaching of theories of biological origins such as intelligent design or creationism.

 

According to the National Academy of Sciences and Institute of Medicine of the National Academies, “There is no scientific controversy about the basic facts of evolution. …arguments that attempt to confuse students by suggesting that there are fundamental weaknesses in the science of evolution are unwarranted based on the overwhelming evidence that supports the theory. Creationist ideas lie outside the realm of science, and introducing them in science courses has been ruled unconstitutional by the U.S. Supreme Court and other federal courts” (National Academies, 2008. Science, Evolution, and Creationism, p. 52).

 

SB 433 implicates the First Amendment “Establishment Clause” to the U.S. Constitution, as well as Art. 2, § 11 of the New Mexico Constitution. It also raises the question of whether it constitutes the teaching of sectarian doctrine in public school, which is prohibited by Section 22-13-15, NMSA 1978.

 

In Edwards v. Aguillard, 482 U.S. 578 (1987), the U.S. Supreme Court held that a requirement that public schools teach “creation science” along with evolution violated the Establishment Clause and turned the proscription against teaching “creation science” in public schools into a national prohibition. More recently, the United States District Court in Pennsylvania in Kitzmiller v. Dover Area School District, 400 F.Supp.2d 707 (M.D. Pa. 2005) considered a case in which parents of school-aged children and a member of the high school science faculty brought an action against a school district and school board, challenging the constitutionality of the district's policy on the teaching of intelligent design in high school biology class, which required students to hear a statement mentioning intelligent design as an alternative to Darwin's theory of evolution. The court held that the policy amounted to an endorsement of religion in violation of the Establishment Clause, that it violated the Establishment Clause under the test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), and that it violated the freedom of worship provision of the Pennsylvania Constitution.

 

The endorsement test recognizes that when government transgresses the limits of neutrality and acts in ways that show religious favoritism or sponsorship, it violates the Establishment Clause. The court in Kitzmiller went into an extensive discussion of the history of the intelligent design movement and the development of the strategy to challenge the teaching of evolution by focusing students on alleged gaps in the theory of evolution. The court noted that the term “intelligent design” came into use after the Supreme Court’s decision in Edwards and called it “creationism re-labeled.” Based on the evidence submitted and an intensive analysis of the case law, the court concluded that the language of the policy, while attempting to sound neutral, amounted to an endorsement of religion. The language in SB 433 has the same problem because by stating that “scientific information” may have religious or philosophical implications; it essentially compels the state to require the teaching of theories that amount to religious doctrine. That would not only violate the Constitution but also involve the teaching of sectarian doctrine which is prohibited by Section 22-13-15.

 

As articulated by the Supreme Court, under the Lemon test at page 612, a government-sponsored message violates the Establishment Clause of the First Amendment if: (1) it does not have a secular purpose; (2) its principal or primary effect advances or inhibits religion; or (3) it creates an excessive entanglement of the government with religion.  Lemon's purpose prong “asks whether government's actual purpose is to endorse or disapprove of religion. A governmental intention to promote religion is clear when the State enacts a law to serve a religious purpose.” Edwards, at page 583.  The implication of SB 433 is that its purpose is to allow the teaching of theories like intelligent design without penalty. In considering the effects prong, the effect of promulgating a rule that would allow a curriculum change regarding theories of biological origins would be to impose a religious view of biological origins into the curriculum, in violation of the Establishment Clause. SB 433, if passed, would be subject to a court challenge based on the First Amendment’s Establishment Clause.

 

PERFORMANCE IMPLICATIONS

This bill does not implement or support the PED’s core performance measures and benchmarks.

 

ADMINISTRATIVE IMPLICATIONS

NM Standards for Science already expect teachers to review current scientific knowledge supporting scientific explanations, making this change to statute unnecessary.

 

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

None as of 2/3/09.

 

TECHNICAL ISSUES

None as of 2/3/09.

 

OTHER SUBSTANTIVE ISSUES

The NM Content Standards and Benchmarks for Science provide the expectations for instruction in high schools including those related to Biological Evolution which focus on understanding and analyzing the scientific data and observations which lead to scientists’ high level of confidence about the occurrence of evolution. Also in the NM Content Standards and Benchmarks for science, grades 9-12, is the Strand I, Benchmark II, Performance Standard #4 “Critically analyze an accepted explanation by reviewing current scientific knowledge.”  Thus, the NM Standards include the expectation that students will review current scientific knowledge in all areas, including biology and chemistry.  Furthermore, Performance standard #16 of Strand III, Standard I which states “Understand that reasonable people may disagree about some issues that are of interest to both science and religion” sets a basis for allowing students to form and maintain opinions as “reasonable people.” In 2006, the existing PED Science Standards received an “A” from both Quality Counts (Education Week) and the Fordham Foundation. The PED’s standards ranked seventh in the nation.

 

Dr. Kenneth R. Miller, Professor of Biology at Brown University and co-author of a widely-used series of high school biology textbooks, points out that “biological origins” is not a widely accepted scientific term, but rather a way of saying evolution without using that word. The definition of “scientific information” in SB 433 does not include some of the most important scientific defining properties, such as mainstream peer reviewing.

 

ALTERNATIVES

None as of 2/3/09

 

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL?

The state will avoid likely litigation about enacting this bill and students will continue to learn the fundamental scientific concepts of biology and chemistry.

 

AMENDMENTS

None at this time.

Library Resource Type: 
States: