Why Is Banning The Teaching Of Critical Race Theory In Schools Ethically Justifiable When Banning The Teaching Of Evolution Is Not?

Critical Race ban

On this, the 96th anniversary of the beginning of the Scopes Trial in 1925, let’s consider attorney Clarence Darrow’s opening statement. Here is the crux of it:

“…Along comes somebody who says ‘we have got to believe it as I believe it. It is a crime to know more than I know.’ And they publish a law to inhibit learning. This law says that it shall be a criminal offense to teach in the public schools any account of the origin of man that is in conflict with the divine account in the Bible. It makes the Bible the yardstick to measure every man’s intellect, to measure every man’s intelligence and to measure every man’s learning. Are your mathematics good? Turn to Elijah 1:2. Is your philosophy good? See II Samuel 3. Is your astronomy good? See Genesis 2:7. Is your chemistry good? See – well, chemistry, see Deuteronomy 3:6, or anything that tells about brimstone. Every bit of knowledge that the mind has must be submitted to a religious test. It is a travesty upon language, it is a travesty upon justice, it is a travesty upon the constitution to say that any citizen of Tennessee can be deprived of his rights by a legislative body in the face of the constitution.

Of course, I used to hear when I was a boy you could lead a horse to water, but you could not make him drink water. I could lead a man to water, but I could not make him drink, either. And you can close your eyes and you won’t see, cannot see, refuse to open your eyes – stick your fingers in your ears and you cannot hear – if you want to. But your life and my life and the life of every American citizen depends after all upon the tolerance and forbearance of his fellow man. If men are not tolerant, if men cannot respect each other’s opinions, if men cannot live and let live, then no man’s life is safe, no man’s life is safe.

Here is a country made up of Englishmen, Irishmen, Scotch, German, Europeans, Asiatics, Africans, men of every sort and men of every creed and men of every scientific belief. Who is going to begin this sorting out and say, “I shall measure you; I know you are a fool, or worse; I know and I have read a creed telling what I know and I will make people go to Heaven even if they don’t want to go with me. I will make them do it.” Where is the man that is wise enough to do this?

If today you can take a thing like evolution and make it a crime to teach it in the public school, tomorrow you can make it a crime to teach it in the private school, and the next year you can make it a crime to teach it from the hustings or in the church. At the next session you may ban books and the newspapers. Soon you may set Catholic against Protestant and Protestant against Protestant, and try to foist your own religion upon the minds of men. If you can do one you can do the other. Ignorance and fanaticism are ever busy and need feeding. Always they are feeding and gloating for more. Today it is the public school teachers, tomorrow the private. The next day the preachers and the lecturers, the magazines, the books, the newspapers. After a while, Your Honor, it is the setting of man against man and creed against creed until, with flying banners and beating drums, we are marching backward to the glorious ages of the sixteenth century when bigots lighted torches to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.

As mentioned in the post earlier today, the issue of whether a state could ban the teaching of evolution was never settled in Scopes, but many years later in the Supreme Court case of Epperson v. Arkansas (1968), which struck down a state law that criminalized the teaching of evolution in public schools. Epperson, however, was narrowly decided on the basis that the First Amendment to the United States Constitution prohibits a state from requiring, in the words of the majority opinion, “that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.” It was not based on freedom of speech, or as Darrow termed it, “freedom of thought.” The Theory of Evolution and “Critical Race Theory” are both theories, though one is based in scientific research and the other is a product of scholarly analysis. Though the latter seems to carry the heft of religious faith in some quarters, freedom of religion is not the issue where banning critical race theory is involved. Nor, realistically speaking, is freedom of speech as Darrow describes it.

School districts, which are agents of the government, have a recognized right to oversee the content of what is taught in the public schools, within reason, and when the purpose is defensible. Teachers are not free to teach whatever they choose, though their controversial choices cannot be made criminal, just grounds for dismissal. The 6th Circuit Court of Appeals made this clear in Evans-Marshall v. Bd of Ed of Tipp City Exempted Village Sch Dist. (6th Cir. 2010), a case involving a high school English teacher who was fired for using classroom assignments and materials without following the appropriate steps for approval. The court stated, “Even to the extent academic freedom, as a constitutional rule, could somehow apply to primary and secondary schools, that does not insulate a teacher’s curricular and pedagogical choices from the school board’s oversight.”

School districts still can’t define a curriculum so narrowly that it violates students’ constitutional rights. In Board of Island Trees v. Pico (U.S. 1982), the U.S. Supreme Court held that the school district could not remove books from the school library without a legitimate pedagogical reason, because doing so violated students’ free speech rights of access to information.  Districts and schools are also limited to what they can require children to study, though most cases in this realm again involve religion. However, once school districts and schools have defined a legally permissible curriculum, courts will give them broad discretion to implement it even over community and parental objections. For example:

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Saturday Morning Ethics Warm-Up, July 10, 2021: Remembering The Unethical And Bizarre”Monkey Trial”


Ooooh, it’s Clarence Darrow time again, and as I will show in another post shortly, this has serious, and underappreciated current day relevance.

For on this date in Dayton, Tennessee, the so-called Scopes Monkey Trial began in 1925, not only one of the most famous trials in U.S. history, but also one of the most misrepresented, misunderstood and, frankly, silly trials as well. John Thomas Scopes, a young high school science teacher, was accused of teaching evolution in violation of a new Tennessee state law which made it a misdemeanor punishable by fine to “teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” Town officials persuaded Scopes to volunteer to get arrested for the offense, not so much to challenge the law but because alocal businessman figured out that it would put Dayton on the map. His plot succeeded beyond his wildest dreams. The American Civil Liberties Unio—-yes, they once cared about the First Amendment—announced it would defend Scopes, and hired an aging but famous Clarence Darrow to do the job, which included making sure his client was convicted, so they could appeal the verdict to the U.S. Supreme Court, where even a monkey judge would know that the Tennessee anti-evolution law was a blatant First Amendment violation.

William Jennings Bryan, the three-time Democratic presidential candidate who was seeking his fourth shot at the White House, volunteered to assist the prosecution in his guise as a fundamentalist Everyman. The Monkey Trial got underway with in-person coverage by renowned cynic H.L. Mencken and hoards of other reporters. Parts of the trial were broadcast nationally over the radio, an all-time first. Preachers set up revival tents along the city’s main street; venders sold Bibles, hot dogs and souvenirs like monkey dolls and fans to tourists. A carnival “exhibit” featuring two chimpanzees and a “missing link” opened in town: the alleged “Monkey Man” was 51-year-old Jo Viens, who was short, had a receding forehead, and whose jaw protruded like an ape. One of the chimpanzees wore a plaid suit, a brown fedora, and white spats, and periodically was allowed to run around on the courthouse lawn.

To recap, the “trial” was based on a contrived “crime” committed with the cooperation of authorities, and the defense was to make sure Scopes was convicted, not acquitted. But things got even more Bizarro World-like. At one point, Scopes told Darrow that a substitute teacher, not him, had actually taught the Darwin class, and Darrow told the teacher to shut the hell up about that rather crucial detail. When Judge John Raulston ruled that expert scientific testimony on evolution would be inadmissible, Darrow decided that his sole expert witness would be Bryan, one of the prosecutors. (No, this had never happened before and has never happened since.). Raulston ordered the trial moved to the courthouse lawn for this spectacle, fearing that the weight of the spectators and reporters inside would cause the courthouse floor to collapse.

Darrow treated Bryan as a hostile witness, though they knew each other, were both political progressives, and were both doing what they loved best, performing in front of a crowd. Popular legend holds that Darrow made a monkey out of Bryan, which was how the famous play (“Inherit the Wind”) based on the trial and its many TV and movie versions portrayed the showdown, but reading the transcript tells a different story. Bryan’s answers were cagey and clever, but he had a big problem: he knew his answers were being broadcast to potential voters who were not fundamentalists, yet he couldn’t afford to alienate the Bible-Beating jury. Darrow had no such dilemma: remember, he wanted to alienate the jury, and knew that if Bryan insisted that the Bible was literally true, “The Great Commoner” would end his political career (though it was almost certainly over anyway.) . Thus Bryan argued, for example, that God explained things in the Bible in ways that could be understood by the people of the time. For example, God obviously knew that the Earth moved around the sun, and not the other way around, but HE just said, in the Bible, that the sun “stopped,” so as not to confuse the faithful.

The weirdness got worse: in his closing speech, Darrow asked the jury to return a verdict of guilty in order that the case might be appealed. I’m pretty sure this is an abuse of process and wildly unethical: isn’t a request to be found guilty indistinguishable from a guilty plea? This tactic did have a mean consequence for poor Bryan: under Tennessee law, the admission of guilt meant Bryan couldn’t deliver the grand closing speech he had been preparing for weeks. It took eight minutes for the jury to return with a guilty verdict—why did Darrow feel he had to ask for a verdict that was pre-ordained, other than to deny Bryan his big finale?— and Raulston ordered Scopes to pay a fine of $100, the minimum the law allowed.

After all of this, the ACLU’s scheme still failed: the Tennessee Supreme Court overturned the Scopes verdict, but on a procedural technicality, so the case never got to the U.S. Supreme Court at all. The constitutional issue was officially unresolved until SCOTUS overturned a similar Arkansas law.

Can you guess why this fiasco has special relevance in 2021?

Watch this space!

The Starbucks Stupid Red Cups Uproar Is Trivial, But The Growing Cultural Insanity That Caused It Is Not


On one level, the angry protests by some evangelicals and others regarding Starbucks’ eschewing the placement of snowmen, Christmas tree ornaments, reindeer and whatever other holiday kitsch they have festooned their coffee cups with in past years is too stupid to waste time discussing. Here, read all about it if you have a strong stomach. It appears to be yet another of those issues that deserves the George S. Kaufman rebuke. [ “Mr. Fisher, on Mount Wilson there is a telescope that can magnify the most distant stars to twenty-four times the magnification of any previous telescope. This remarkable instrument was unsurpassed in the world of astronomy until the development and construction of the Mount Palomar telescope. The Mount Palomar telescope is an even more remarkable instrument of magnification. Owing to advances and improvements in optical technology, it is capable of magnifying the stars to four times the magnification and resolution of the Mount Wilson telescope.Mr. Fisher, if you could somehow put the Mount Wilson telescope inside the Mount Palomar telescope, you still wouldn’t be able to see my interest in your problem.”]

Yet the fact that not just a few recently escaped inmates of a mental institution would make an issue of the design of Starbucks coffee cups, but lots of people, is significant. Continue reading