Why Attacking John Scopes as Racist isn’t True

Two fellows of the Discovery Institute have been criticizing biologist and prominent critic of antievolutionism Jerry Coyne after he posted a picture of himself visiting the grave of John Scopes earlier this month.  The substance of both Michael Egnor’s and David Klinghoffer’s response was the same: Scopes was put on trial for teaching from a horribly racist textbook that promoted eugenics.  Therefore, it’s unconscionable that Coyne should embrace Scopes (or more specifically his tombstone,) or declare that he should like to shake Scopes’ hand, unless Coyne was also legitimating the horrible racism that Scopes taught to some poor innocent Tennessee school children.

Coyne responded to these posts which prompted an even longer response from Egnor which essentially doubled down on Scopes’s alleged racism, and demanded that Scopes ought to have “taught the controversy” rather than just teaching eugenics.

Egnor’s first post links to the Wikipedia page for the textbook Scopes used in 1925, George W. Hunter’s 1914 Civic Biology.  (Egnor also links to a page from the UMKC law project that shows some pages scanned from the textbook, but he quotes directly from the Wikipedia page.  The UMKC link doesn’t contain all of the material that’s cited.  It seems that Egnor went only by what he read on Wikipedia, even though the entire Civic Biology is available for free, at least in the US on google books.)  As I’ll discuss a bit later on, the quotes from Hunter’s text in the Wikipedia entry are somewhat out of context, running together passages from different parts of the book, which give the impression that evolution and eugenics were closely related.

I noticed that the Wikipedia page for the Civic Biology actually cites my book as a reference, but clearly Egnor didn’t bother with it.  Egnor (and Klinghoffer’s) posts are rife with patently false historical assertions about Scopes and about the Civic Biology.  Coyne’s has some error as well, but much less.

Did Scopes Teach the Eugenics Section of the Civic Biology?

Egnor states that “Coyne’s hero taught the schoolchildren of Dayton from a textbook with rancid eugenic racist hate.”  But (as Coyne correctly points out) Scopes wasn’t the regular biology teacher, he only filled in as a substitute briefly.  It’s almost certain that Scopes, personally, did not cover the eugenics passages.  For that matter, Scopes was unsure that he’d even taught evolution, relating in his memoir that he had to go back and look in the textbook to even be sure it was in there.

But Egnor’s subtle and precise in never actually stating that Scopes taught racism or eugenics.  In his second post he says: “Scopes’s legacy consists entirely of inviting prosecution by proudly teaching human evolution from a eugenic racist textbook.” Scopes taught the textbook.  The textbook taught eugenics.  Given that Scopes didn’t even remember whether he’d covered evolution, it’s probable that he didn’t even know (beforehand) that the textbook he was reviewing contained eugenics.  Nonetheless, Scopes is morally appalling to Egnor and Klinghoffer because of his association with the textbook.  By extension, Coyne is appalling because of his embrace of Scopes.

Interestingly, William Jennings Bryan tried the same thing during the Scopes trial.  In one of his speeches, he began to attack Hunter’s Civic Biology for other material that it contained rather than the part that ostensibly put Scopes afoul of the law.  (Note that even then, Bryan didn’t even think the Eugenics was worth mentioning.)  As I argue in my book, this backfired tremendously as it opened the door to the defense to discuss the broader relationship of evolution to religion.

Did Scopes’s Accusers Mind the Racism or Eugenics of the Civic Biology

In an earlier post, I argued that antievolutionists in the 1910s and 20s were not motivated by antagonism towards eugenics.  In fact, the same year that the antievolution law was passed, the state legislature also passed a General Education Bill that reinforced school segregation.  If anything John Scopes indicates in his memoir that his family was quite opposed to racism.  Historian Jeffrey Moran has noted that while some African-Americans were opposed to evolution at the time of the Scopes trial, their concerns were its incompatibility with scripture not the purported eugenic applications of evolution.  Moran also noted that

African-American intellectuals invoked Scopes and the respectability of science as part of their struggle against white supremacy in the South: they identified with John Scopes as a victim of southern repression and they claimed that antievolutionism derived much of its strength from racist assumptions that resonated with white southerners.

If people though that Scopes and what he taught was deeply racist, you’d think that would show up more among the racial minorities who were close audiences to the Scopes trial.  For the record, although Bryan was personally opposed to the KKK, he also opposed the Democratic Party’s consideration of a 1924 platform resolution condemning them.  At least for some African-Americans, Bryan’s accommodation of the KKK a year earlier certainly shaped their distrust of his agendas at the Scopes trial.

How Racist was Eugenics in the 1920s?

Eugenics was described by Hunter in the Civic Biology as the improvement of the human population, not as the basis of ensuring the superiority of those races.  It’s true that eugenic sterilizations in the United States (some of which stayed on the books until the 21st century) were deeply racially skewed: both in terms of racist assumptions built into intelligence testing and in selective enforcement of the eugenic laws.  However, the racial disparities became more pronounced in after the Second World War.  In the 1910s and 20s, eugenics seems to have been less about race and more about class: specifically the class of people who were perceived as non-contributors to society: criminals, the “feebleminded” and the immoral.

Eugenics was considered an application of a biological principle of heredity moreso than evolution (inasmuch as those could be seen as distinct principles.)  This included the presumption that at the cultural and developmental level, social improvements (or disimprovements) could be passed on.  The eugenic theories that were outlined in Hunter in 1914 were based on a combination of hard (genetic) inheritance principles as well as “soft inheritance.”  That is to say that (this era of eugenics) prescribed neither essentialist or hierarchical views of race.

The passages of Hunter’s textbook that talks about the hierarchy of races are part of the section that discusses human evolution.  But those are in a completely different chapter than the passages on eugenics.

Egnor states without citation: “Eugenic racism in 1925 was consensus science in the field of human evolution.”  This statement is wrong on several levels.  It’s wrong that eugenics was primarily about race (in 1925).  It’s wrong that eugenics was primarily considered an application of human evolution (as opposed to heredity.)  And it’s wrong to claim that it was a consensus.  But disagreeing only with the last of those three claims tacitly reinforces the first two.  This is an extremely subtle – and dishonest – rhetorical strategy.

None of this is to say that eugenic practices were morally justified or shouldn’t shock us, but they weren’t directly connected to evolution.  Scopes and other readers of Hunter’s textbook wouldn’t have seen it that way.

Do we Save Scopes By Condemning Civic Biology?

This is the one issue where I think Coyne has made a mistake.  His refutation to the Discovery Institute seems to be that Scopes, being both the substitute teacher and teaching the state mandated textbook had no choice but to use Hunter, which “did indeed contain some pretty dreadful racist and eugenicist statements.” A minor quibble is to point out that there was a second adopted biology textbook—which about 10% of Tennessee students used instead.  But in terms of its evolutionary and eugenic contents it was really no different.  (And it wasn’t left to Scopes’s personal discretion which to use anyway)  but Coyne’s claim that “it is ironic, by the way, that Tennessee, by requiring use of a book that covered human evolution, was requiring its biology teachers to break the law.”  This is really not accurate.  When Governor Peay signed the bill into law, he specifically stated that nothing in the books being taught in the state would place a teacher in jeopardy.  (In Chapter 5 of my book, I argue that if we presume that Scopes taught exactly what was in Hunter’s book, then he didn’t actually violate the Tennessee law.)

But this strategy of acknowledging the offensiveness of Hunter’s textbook has been part of a rhetorical strategy against creationism for quite a while.  Stephen Jay Gould used it to essentially say that William Jennings Bryan was well-meaning in opposing the teaching of evolution, but wrong to claim that it was not true.  This strategy has had the effect of foisting egregious racism onto the character of George Hunter, unfairly I think.  It overlooks the fact that Hunter was drawing from some of the scientific theories of his day, and that he was not solely responsible for the content of his book.  Did he believe that the Caucasians were the “highest type?” Probably.  Did he believe in the politics of Jim Crow or the promotion of racist policies? Almost certainly not.

Egnor states: “Ironically, telling the truth about evolution — telling exactly what Scopes taught to his students — is precisely what David and I did.” This is wrong twice over.  It’s not true that Scopes taught the eugenics passages (or perhaps even the evolution passages) and it’s also not true that the passages about eugenics were “about evolution” in the way that Egnor implies.  Similar to the other rhetorical slight of hand mentioned earlier, Egnor seems to strategically invite us (and Coyne takes the bait here) to disagree that Scopes taught the eugenics section, or that Scopes had no choice but to teach it, but then hopes to slip by the other implication of his statement – that eugenics was part of the evolution coverage.

Overall Coyne does a good job refuting the most egregious historical falsehoods of Egnor and Klinghoffer, but he lets some of the more subtle ones go un(der)challenged, and this reinforces at least some of the false claims that have been made about the Scopes trial, the textbook at the heart of the conflict, and the personae of John Scopes and George Hunter.

One last note: In terms of the militant rhetoric against antievolutionism (and the open disdain for religious fundamentalism) Coyne seems more closely akin to George Hunter than he does to John Scopes.  By the way, Prof Coyne, Hunter’s grave is in Redlands, California, if you’re ever headed out that way.

Where’s the Economists’ Stephen Jay Gould?

The Apostolic Exhortation of Pope Francis: Evangelii Gaudium, is a remarkable document.  It’s by no means indicative of a radical shift in Church teachings, dogmas, or theology, but it displays an emphasis on those theological precepts to bear in a an imperfect world: “a Church which is bruised, hurting and dirty because it has been out on the streets, rather than a Church which is unhealthy from being confined and from clinging to its own security.” (parag. 49)

There has been a lot of reaction among the American political right wing over the Pope’s comments on economic justice in this speech.  Most famously: Rush Limbaugh called the Pope “Marxist” for “attack[ing] unfettered capitalism as ‘a new tyranny’.”  According to Limbaugh: “Unfettered capitalism?  That doesn’t exist anywhere.  Unfettered capitalism is a liberal socialist phrase to describe the United States.  Unfettered, unregulated.”  The Pope never actually used the phrase “unfettered capitalism” anywhere in his exhortation, so it’s not clear how Limbaugh’s effort to draw “Marxism” from that specific phrase has any merit.  The pope decried ideologies proclaiming the “absolute autonomy of the marketplace,” which “reject the right of states… to exercise any form of control.” But the Pope doesn’t say that unfettered capitalism does exist anywhere, only that there are those who are devoted to an idolatry of the marketplace that holds that as an ideal.

It’s possible that Limbaugh never read the Pope’s words directly, but only the account of them in other reports which did use the words “unfettered” and “unregulated.” There’s a history of papal statements being criticized for things they don’t actually say, but I’ll return to the history of misreading later on.

The Pope makes several statements about how the moral call of the church and its mission ought to focus on “the need to resolve the structural causes of poverty” (parag 202.) There’s is a quite substantial discourse about the way that social policies and political concern for the long term can bring about a greater expression of human dignity.  But in addition to making normative statements about how political economic and social change should be improved, the Pope also makes statements concerning the validity of economic theories.

…some people continue to defend trickle-down theories which assume that economic growth, encouraged by a free market, will inevitably succeed in bringing about greater justice and inclusiveness in the world. This opinion, which has never been confirmed by the facts, expresses a crude and naïve trust in the goodness of those wielding economic power and in the sacralized workings of the prevailing economic system (parag. 54)

Critics of the Pope, like Limbaugh, have effectively treated this statement as an incorrect ethical pronouncement, an assertion of moral order that they either find wrong or inconsistent with other moral teachings of the Church.  Some have found it hypocritical given the Church’s wealth.

But this isn’t actually an ethical claim, but a scientific one.  The statement of whether or not ‘trickle down theories’ are actually valid descriptions of economic cause and effect in the world is ostensibly a testable theory.  The Pope is not saying that trickle down economics must not be practiced because it is inherently unethical.  He is saying that those who would try to bring about justice and inclusiveness through the practice of trickle down economic policies should be aware that the theory has never been empirically confirmed, and may be scientifically (not morally) wrong.

In the past, people on the American political left, including many who welcomed this particular papal statement, have been particularly wary about Church pronouncements on science.  Perhaps the most famous example of this is Stephen Jay Gould who introduced the term “Non-Overlapping Magisteria” specifically to discuss the proper (as he saw it) demarcation between science and religion.  It is proper for religion to proclaim ethical judgements, to tell us what is good and evil, and to tell us what aims we might achieve; but wrong for religion to pass judgement on an empirical theory.

I think it’s fair to say that Gould’s NOMA has never been an accurate description of the way science and religion actually relate, but Gould’s essay ought to be seen as a prescription for a a resolution to science-religion conflict.  (It might not be a good one, but that’s a separate matter.)  Regardless, Gould’s framing of NOMA has been quite influential, with plenty of scientists, particularly, citing it as a way to keep religion and science apart, even when there are questions of bioethics or ethics of technology that might reasonably need to cross that boundary.  It has some similarities with older ideas of church-state separation.

Perhaps Gould has been too successful.  Readers of the Pope’s statement seem to have presumed that he was making an ethical statement, perhaps because of his identity as the head of the Catholic Church and because the Apostolic Exhortation is an ethical and religious document.  And perhaps because people believe that the Pope ought to be making religious statements, they interpret his statements on economics as normative.  It’s surprising to me that no one has made the criticism that the Pope has no business making statements about whether a scientific theory is true with respect to this claim about trickle down theory.

This has not been the case in the past: In 1951, Pope Pius XII, speaking to the Pontifical Academy of Sciences, addressed the question of how Aquinas’s “Five Ways” of demonstrating the existence of God from Nature fared in light of recent discoveries in 20th century science.  This statement was widely misinterpreted (partly though mistranslations, partly because of the selective republication of excerpts) as the Pope “endorsing” the Big Bang (This misinterpretation persists.)  In that event, Pius was criticized by cosmologists on both sides of the Steady-State/Big Bang debate, who effectively claimed that he had no business speaking on the issue.  Gould’s essay was directly prompted by Pope John Paul II’s effective acceptance of biological evolution as the scientifically accepted account for the origin of the human physical form (though not the human soul.)

It would seem like the Pope could be criticized for making a definitive pronouncement on the state of a scientific theory of economics.  One could raise a NOMA-like objection to the papal pronouncement that trickle down economics is a theory that is unconfirmed by facts.  But the question remains as to who would make such a complaint?  It’s a trap there for the American political right—people like Limbaugh, because they can’t embrace NOMA for economic sciences and then reject it for other science-religion issues like climate change and evolution.  But there have been plenty of anti-religious scientists who scoff at the thought that the church has any place acknowledging science, even when it’s a position they agree with.  Gould related that some of his evolutionist colleagues had that mindset in response to John Paul II in 1996.  Will any economists who agree with the Pope’s economic conclusions still object that it’s not his place to make them?

Boris’s New Reasons for Contentment – Addressed to the Labouring Part of the British Public

Whilst I was back in America (marking a holiday ostensibly commemorating the success of some dissident English people who were quite happy to be quit of that country) I discover that the Mayor of London – Boris Johnson, has stirred up many of my colleagues with a speech remarkable as much for its rhetorical bluster as it is for its deification of the late Prime Minister Margaret Thatcher.  I don’t really pretend to understand current British politics at all, and my sense of Boris Johnson prior to this was that he was this bizarre advocate of bicycles who also blamed their riders for their inability to survive lorry strikes.  Perhaps giving people the means to kill themselves in the name of economic development is actually a Conservative thing in this era.  I don’t really know.

But it’s Johnson’s invocation of history, as well as science and religion, that has me more knowledgeably confused.  In particular I’m left wondering how he did on his own history A-levels (the exam which he so castigates) given his fond reminiscence for some gloried era of 1750-1865, when “we” as he puts it, “were by far the most politically and economically powerful country on earth.” While Johnson presumed to channel the dead and tell us what Thatcher would do if she were with us right now, I want to summon up a similar spirit from the vasty deep, taken from the midst of Johnson’s imagined golden age.

In 1792, William Paley (already well known for his book on Moral and Political Philosophy, and not yet the author of the Natural Theology) penned an essay whose very title is extraordinary: “Reasons for Contentment – Addressed to the Labouring Part of the British Public.”  This was published widely in pamphlet form by the Association for Preserving Liberty and Property against Republicans and Levellers, and Paley takes a rather conservative position (somewhat to the right of Burke’s reflections on the French Revolution)

The entire pamphlet is a rich feast for those whose preferences run to the shocking one-liner (perhaps we shall see the Mayor borrow from it in the future).  But I am personally partial to Paley’s affirmation:

 I (God knows) could not get my livelihood by labour, nor would the labourer find any solace or enjoyment in my studies.

Although Johnson seems to think that Britannia of this era was great economic power, that economic strength was certainly not felt by many people who lived in it.  At the very least, there was widespread discontentment.  The working classes who were drawing inspiration from the French Revolution, or from local movements against exploitive labour, or the nascent societies against British slavery (though Paley was also an outspoken abolitionist) give a pretty good indication that in imagining this to be an era of great economic success, a lot of people don’t count as part of Boris Johnson’s “we.”

Paley goes on to explain that there are great benefits to being of the labouring (or poor) class.  Benefits which the rich men of leisure can never understand:

Another article, which the poor are apt to envy in the rich, is their ease. Now here they mistake the matter totally. They call inaction ease, whereas nothing is farther from it. Rest is ease. That is true. But no man can rest who has not worked. Rest is the cessation of labour. It cannot therefore be enjoyed, or even tasted, except by those who have known fatigue.

There are a few presuppositions and arguments put forward in this, some of which find clearer expression in Paley’s other writings.  One is that people have natural inclinations towards certain types of labour pursuits, or to certain roles in society.  Those natural inclinations give each of us an indication of the type of occupation that we are suited to.  Paley, like many who understood the sciences of the human mind and of heredity of his day, presumed that there was an inherited component to this – that it made sense why those who had been artisans or farmers had offspring naturally suited towards those same occupations.  Johnson seems to echo this wholeheartedly in his claims about IQ and natural inequality.

The reason for this, and the reason that labourers should find contentment is Divine Providence (in particular that aspect of Divine Goodness which the Natural Theology also promises)

But Providence, which foresaw, which appointed, indeed, the necessity to which human affairs are subjected (and against which it were impious to complain), hath contrived that, whilst fortunes are only for a few, the rest of mankind may be happy without them.

People have natural inclinations towards different occupations.  These are largely hereditary, but they are also well-proportioned, so that society as a whole has the right ratio of artisans to famers to labourers to scholars to aristocrats.  Through a diverse society made up of people following their god-given inclinations, the society as a whole can best function and ensure the greatest amount of happiness for the people.

This is where the most controversial of Paley’s theological positions, his “utilitarianism” comes in.  A well functioning society produces the greatest joy and happiness for its consitutents.  It is for that reason that divine providence has made it possible for “the rest of mankind [to] be happy without” great fortunes.  One of the central arguments of the Natural Theology is to show that this principle of maximizing happiness occurs in nature.  (In fact it’s on exactly this point that Darwin draws from Paley in the Origin of the Species.)

But Paley’s notion of happiness or of utility is a religious one that marks him as a different kind of utilitarian than Bentham or those who use the doctrine to justify an unrestrained free market.  Ultimately, a divinely ordered society isn’t meant to bring about the most wealth or economic growth but the is supposed to bring about an ethical one, and one in which eternal happiness is also shared in greatest measure

It’s because of this religious vision of utility that Paley’s reasons for contentment don’t ring wholly disingenuous.  Although people might be suited to different social roles, Paley does not find any sense that wealth or leisure is an indication of moral value

…some of the necessities which poverty (if the condition of the labouring part of mankind must be so called) imposes, are not hardships but pleasures. Frugality itself is a pleasure. It is an exercise of attention and contrivance, which, whenever it is successful, produces satisfaction.

Here is where we begin to see a breakdown of the similarities between Paley and Johnson, and perhaps an interesting criticism of Johnson’s gospel of greed.  The idea that society functions better because of natural inequality is actually rooted in a overarching notion of divine providence (which is evidenced by both religion and by nature) and it is only able to work through the valorization of frugality and charity as means to an end.  This is summed up by Paley in his Moral and Political Philosophy in the claim 

that the condition most favourable to population is that of a laborious, frugal people ministering to the demands of an opulent, luxurious nation; because this situation, whilst it leaves them every advantage of luxury, exempts them from the evils which naturally accompany its admission into any country.

It is the role of other elements of society to give the labourers reasons for contentment, not just platitudes.  A society that treat natural differences as a basis for a non-egalitarian society can only function (and should only function) if it is done in a basis of strong personal ethics.  The strength of the British system for Paley, at the height of the period that Johnson seems to find most exemplary, is because of the cultivation of a personal virtue of frugality, not greed.

Whether or not Paley’s individually frugal but nationally luxurious society is sustainable (and divinely providential) is precisely what Thomas Malthus took issue with.  Malthus’s Essay on the Principle of Population states that it’s unrealistic for a society to function in a way in which mere frugality can stave off population distress inevitably.  However, in a footnote to the second edition of the essay (published after the Natural Theology) Malthus states that by 1802 Paley has come around to the idea that distress to some extent is inevitable.  And that this idea of divine providence leading to a fruitful and successful society can only work if the “spread of luxury” is minimized.  Even in the Moral and Political Philosophy, Paley had recognized that the society that the society that grows from the results of the laboring poor had an obligation to provide for their sustenance.  This is almost exactly the opposite of what Johnson advocates in his valorization of wage gaps.  Though Paley is by no means a revolutionary, his conservatism looks like a form of religious progressivism from the vantage of the 21st century.

Johnson’s present day claims of natural inequalities being good for society have their roots in the historical glorious era from 1750-1865 (leaving aside exactly from whom it was ever glorious) but the invocation of such a claim to valorize personal greed or advocate an abolition of the state’s responsibilities for the welfare of its people is a confusion of the highest order.

A ‘Forgotten Evolutionist’ – Alfred Russel Wallace at the National Museum of Wales

I had the opportunity to go to the National Museum of Wales in Cardiff this week and to see the new exhibit “Alfred Russel Wallace: Forgotten Evolutionist?” which just opened this past week.  I’m not a Wallace scholar, but I am a historian of evolution and biology, so I came to this with a fair bit of knowledge about Wallace’s ideas and some of his discoveries. But I must admit I didn’t know much about his early life.  I was pleasantly surprised by some of the information the exhibit contained.  At the same time, there were a few frustrating errors in the presentation.  And in one instance, there was even material which I found offensive and racist.  The result was a better knowledge of Wallace than I’d previously had, but a conflicted view of the museum’s curatorial choices.

(note – the Museum expressly prohibits posting photographs of exhibits online, so I will not put any up on this blog.)

While I certainly understand that Wallace gets much less public attention than Darwin, this idea of the “forgotten” Wallace seems to be a bit of overstatement—yet it is the rhetoric that the Natural History Museum and the National Museum of Wales has been employing and which the press has picked up on in this 100th anniversary of his death.

The exhibit is laid out in a single room with several alcoves.  An anti-clockwise progression takes us through Wallace’s early life, to some of his voyages and discoveries, to his connection to Darwin and Darwinism and the fallout from their similar theories, and finally to his public persona by the end of his life.  In the center there are two video screens with headphones.  There are also a few cases of specimens that Wallace collected during his voyages.

There’s a bit of subtext that the collective Wallace-amnesia might be due both to the class differential between him and Darwin’s circle, and also perhaps the tendency of Wales (with only 5% of the UK population) to be ‘forgotten’ within the larger context of Britain.  At one point, the exhibit recounts his collecting voyages and publications with the pithy conclusion: “Not bad for a self-educated man from Usk in Wales!”

It’s not surprising to see the National Museum of Wales emphasising the Welshness of a famous son such as Wallace. But the exhibit does suggest that Wallace’s Welshness wasn’t mentioned just for the sake of patriotism; it actually mattered to his progression in science.  It was the economic and technological circumstances of Wales at the time of his upbringing that led Wallace to employment and background as a land surveyor (although the exhibit also hints at a social activism by claiming that Wallace recognised that much of the surveying was being done to take the land away from local control into national and private economic interest—land surveying as the vanguard of economic and cultural hegemony at the early stages of the Industrial Revolution.)  The point is made that Wallace’s experience and training as a land surveyor was critical to his ability to precisely map the locations and distributions species, and made possible his understanding of biogeography.

That was perhaps the best of the exhibit.  Although there was also some very useful discussion of the rather famous scene where Wallace sent his paper outlining an evolutionary theory to Darwin, leading to the joint presentation of the two’s theory at the Linnean society and the resultant publication of the Origin of Species.  The exhibit slyly suggests that there’s more to this story:

So ends a scientific fairy tale? Two men from very different backgrounds arrive at the same cutting edge idea separately? Maybe not.  Some scholars question these events, arguing that conspiracy robbed Wallace of his proper credit.

What do you think?

I find the – What do you think? –  rhetoric a bit disingenuous.  It’s not as though the exhibit gives its audience the evidence necessary to decide this and relegates historical interpretation (you know, using facts) to be reducible to gut opinion.  Moreover, contrasting Wallace receiving “proper credit” with a “conspiracy that propagated a “fairy tale” to “rob” Wallace certainly slants the story.  There was also the suggestion that his beginnings in a “lesser social class to the ‘eminent men’ of English [of course not Welsh…] natural history like Darwin.” This meant that “Wallace didn’t have a reputation to lose!” The implication is that this made Wallace a bolder naturalist than the overly-cautious, reluctant-to-publish Darwin.

But ultimately because “Wallace was prepared to champion unpopular causes without regard for his own reputation,” his legacy suffered.  The exhibit suggests that this very boldness and willingness to be unpopular was responsible for the quick fading of his fame after his death.  By contrast, “Darwin was remembered thanks to his popular book ‘On the Origin of Species’ whilst Wallace remained in the shadows.”

This has the feeling of trying much too hard.  The effect is one of creating a Darwin who was: cautious of publishing to the point of cowardice (pushed forward only because of Wallace); socially privileged and part of a good old boys club of Victorian scientific elite—and of course English; who usurps Wallace’s rightful legacy because he wrote a ‘popular’ book.

While the exhibit presents some of the important aspects of Wallace’s thought and does so in ways that are not too technical, it doesn’t always do a good job explaining how Wallace’s ideas fit into the broader conversations about evolution.  We are told that Wallace’s evolutionary idea “suddenly flashed before him” “while suffering from malarial fever.” This depiction of a disease-induced hallucinatory revelation doesn’t really fit with the earlier idea of Wallace as a hard-working “self-educated man from Usk.” So is it the case that scientific discovery is the result of a lifetime of hard work or a brief moment of insight?

Wallace is described as having reached “the same brilliant idea” as Darwin.  Elsewhere in the exhibit, points of difference between the two’s theories, such as the development of the human mind and human ancestry are mentioned.  There’s a brief and somewhat distorted presentation of previous evolutionary ideas, which seems to conflate aspects of Lamarck and Erasmus Darwin.  It also includes the unfortunate phrase: “Lamarck came up with an early theory for evolution called Lamarckism.”  There’s a very simplistic mention of the so-called eclipse period, which states simply that evolutionary ideas fell out of favour in the early 20th century, before experiencing a revival in the 1930s.  There’s been some good criticism of this idea (first put into print by Julian Huxley as a narrative to advance his own ‘modern synthesis’) of the Darwinian eclipse (such as this article by Mark Largent).  The exhibit doesn’t explain the causes for this apparent eclipse but seems to suggest that Wallace’s having died at the peak of it might have further led to his quick forgetting.  Unlike the beatification of Darwin that led to his entombment in Westminster Abbey.

The presentation of Wallace’s theory of biogeography is generally much better, and more directly tied to the claims that his experiences as a land surveyor (and his Welsh background) informed his scientific discoveries.  And there’s a good presentation of the discovery of different species on opposing sides of the “Wallace Line” through Indonesia.

Unfortunately, this wasn’t presented as clearly as it could be.  The line is illustrated against a map of the Malay archipelago.  The Wallace line is projected as a thick red line on a pane of glass mounted several centimetres in front of the actual map.  This makes it hard to tell exactly where the line runs through the map.  The actual Wallace line runs through the Lombok strait, between the islands of Bali and Lombok.  But depending on the angle, the line either covers Lombok (not a large island) entirely, or even appears to put Bali and Lombok on the same side, with the Wallace line appearing to wrongly traverse the Alas strait, dividing Lombok and Sumbawa.  (A map of the three islands here)

There’s a few other odd curatorial choices.  Towards the end of the exhibit there’s a cast of a Homo rudolfensis skull found in East Africa in 1972.  This is given as evidence of the human evolution that Wallace championed.  It’s perhaps unfortunate that the same week the exhibit opened, details of new skull finds in Georgia cast doubt of the existence of Homo rudolfensis as a distinct species from Homo erectus.  But moreover, this is a strange choice of skull.  It’s not one that Wallace would have been associated with in any way, having been discovered long after his death.  And it’s not even from a part of the world where Wallace explored.  Yet within Wallace’s lifetime, fossils of Homo erectus were found in Java, an island that Wallace himself explored.

But the most outlandish thing in the entire exhibit is a serious of biographical cartoons depicting stages in Wallace life.  These are done in a style that could have been from Wallace’s own era, however these are quite clearly not nineteenth century depictions of the naturalist, but present-day ones.  They’re all done by the same artist, and they include events (like young Wallace looking for insects whilst surveying land as a teenager) that certainly wouldn’t have attracted any attention for caricature.

In general the use of cartoons to depict biography is accessible, and easily digested.  It’s also child-friendly and humorous.  I have nothing against the medium.  But it’s precisely because the medium is so accessible, and might be the only part that some children really look at, that the cartoons need to be careful about what messages they reinforce.  Unlike some of the other visuals, (like the biogeography map) this doesn’t really require reading the further text to take away a message, and unlike the video, this doesn’t require wearing headphones or waiting a while for a point to be made.  For many people this is the quickest explanation of Wallace the man.  And that’s why I found them so troubling.

A few are harmless attempts at tongue in check irreverence (Wallace on a sinking ship on return from the Amazon, crying out “Women, children, and rare beetle specimens first!”).  The final one, showing the ghost of a deceased spiritualist Wallace hovering over his grave exclaiming “I was right!” seems a bit disrespectful to Wallace’s religious beliefs.

Two of these cartoons, however are quite blatantly racist and inappropriate.  I can’t post photos of them here, so I’ll just describe them.

One shows a bespectacled and kitted up (backpack, butterfly net, etc) Wallace greeting a person in the Malay Archipelago.  Wallace says: “I’m a collector!” In reply, a dark-skinned man wearing nothing but a loincloth, with a hut behind him filled with skulls, replies “Me too!”

The next one shows Wallace reclining under a lean-to, writing in his journals.  Next to him a well-muscled (topless, also in a loincloth) dark skinned man states: “I tell you what – only the fittest survive out here!” and Wallace replying “Waaaait a minute…”

If these were actual Victorian-era cartoons, the depiction of natives of these lands as naked primitives might be expected.  If these were themselves historical artifacts that showed how Wallace was perceived at the time then they might have a place in the exhibit.  But to newly create and reinforce these stereotypes and to present them as humorous depictions of Wallace’s travels is appalling and inappropriate.  In an otherwise clever, if not flawless, exhibit, what in the world are they doing there?

FERPA does not apply to Deceased Students

I find that University transcripts are an underappreciated resource for historians.  If you’re looking to make claims of influence from one thinker to the next, or to identify the point in someone’s life when s/he first started thinking seriously about some idea, then it should come as no surprise that one of the most useful places to start might be with that person’s schooling.  And especially in the history of ideas, there are plenty of accounts of a person studying under a particular teacher, either building upon their mentor’s ideas or violently reacting against it.  There are accounts of people deciding to change their career path because of their experiences (good and bad) at University.  It would seem like knowing what classes someone took while they were at University might be helpful.  But a lot of historians I’m mentioned this to presume that they’re not permitted to be used.

In my own dissertation research (a part of which that is included in Trying Biology) the graduate school transcript of one of the most important people who I look at  gives me a vital piece of evidence to understanding the development of the high school biology curriculum.  Previous scholars had argued that George Hunter (as well as other pioneers in this curriculum) developed a biology curriculum that did away with the botany/zoology dichotomy once they began teaching in New York City schools.  By looking at the courses that Hunter took at the University of Chicago (before he moved to New York) I was able to show that something like this synthesis was already evident in the courses he chose to take (and by comparing those with the transcripts of other students in the Department at the same time.)  The transcript itself was not the only piece of evidence, but it was important.  I’ve found that it’s also been useful in some of my current research projects as well.

But there’s also some difficulties involved in the use of University transcripts.  In 1974, the US enacted the Family Educational Rights and Privacy Act (FERPA).  One of its primary effects is to guarantee a right to the privacy of one’s educational and other academic records to university students.  This applies to all students during and after the time of their university enrollment.

However, there’s some uncertainty as to when or whether those rights expire.  A couple of years ago, while I was doing some research on a side project, I emailed the registrar’s office at ‘X’ University.  I wanted to look at the transcript of a long deceased alumnus who had written a dissertation making passing references to the history of science and religion, and I wanted to see if he had taken anything in his graduate education at XU that might have informed those remarks (or whether they were based on a received view from elsewhere.)  The assistant registrar at XU told me then:

  In order to view or obtain [this student’s] academic transcript you would have to be executor of his estate or possess power of attorney on his behalf because of the Family Education Rights and Privacy Act (FERPA) (20 U.S.C.  1232g; CFR Part 99) is a Federal law that protects the privacy of student education records.

– (Assistant Registrar at XU, 2011.)

This struck me as odd, because I had received access to other transcripts at other universities for the purpose of historical research, and had been told in more than one instance that FERPA did not apply to deceased individuals.  I was told that I could apply to XU’s legal department if I wanted to however, I decided against following this up at the time.

This summer, while on the Great Summer Research Road Trip, I wanted to examine another transcript of a different deceased student who also attended XU.  Before contacting the registrar’s office again, I decided to ask their legal office.  The first person in that office who I spoke to initially told me that, under FERPA, the direct descendants of the deceased individual would have to authorize my access to these documents.  (They did not tell me what I should do if the student in question had no direct descendants, or if those people could not be located.)  They promised to research the question and get back to me.

I the meantime, I contacted the Family Policy Compliance Office of the US Department of Education, hoping that they could clarify FERPA.  Only a few days later, I received a reply by email:

July 23, 2013

Dear Mr. Shapiro,

This responds to your email sent on July 19th, 2013 in which you asked for written clarification of the Family Education Rights and Privacy Act (FERPA) in its applicability to people who are deceased and whose student records may be of interest for historical research.

Your email states that you are currently engaged in a research project for which you hope to examine the academic transcripts of several individuals who attended American universities in the 1890s-1920s (all of whom are presumably deceased.) You indicated that some universities have been willing to comply with your request whereas others have told you that to do so would be a violation of FERPA. You asked for confirmation that FERPA does not apply to long-deceased individuals and that FERPA in no way prohibits or restricts the availability of records of deceased individuals for historical research.

The FERPA rights of eligible students (students attending or having attended a postsecondary institution) lapse or expire upon the death of the student. This interpretation is based on the common law principle that a cause of action based upon invasion of privacy is personal, and the right to bring such an action lapses with the death of the person who held it. Therefore, FERPA would not protect the education records of a deceased eligible student and an educational agency or institution may disclose such records at its discretion.

Additionally, attached you will find an official letter that was issued from this Office in 2008 to a State Archivist that also addresses your question. You may also find this useful.

Please let me know if you have any follow up questions or are in need of additional information.


Dominica Donovan

Family Policy Compliance Office


Included in this email was a scanned copy of a 2008 letter to the Connecticut State archivist outlining some of the limitations of FERPA.  The relevant passage for my inquiry was at the very end.

There is no exception to the consent requirement that would allow you to disclose this information to historical researchers in personally identifiable form unless the information comes from the records of deceased eligible students or students who may be presumed deceased, as explained above. [Emphasis added]


I’m posting this up because nowhere on the Department of Education’s FERPA site does it ever say this explicitly, and because searching the internet reveals a variety of uncertain or inconclusive information.  Much like the legal counsel at XU, it appears that many University registrars and legal departments don’t particularly know this limitation on FERPA.

Shortly after receiving this email from the Family Policy Compliance Office, I received an email from the XU Registrar.  The reply was much better informed than what I’d been told by other XU staff, though it was all the more frustrating for it:

I can say without hesitation that you are correct that the Family Educational Rights and Privacy Act of 1974 does not afford protection to deceased students or alumni/ae. FERPA protects the records of living students, and so it would be legally permissible for us to release the records of deceased students and alumni/ae to those making requests for them. It is important to note, however, that [XU] chooses to be more conservative than FERPA permits, and we do not release any educational records without either the written consent of students and/or alumni/ae.

– X University Registrar, 2013

This is perfectly reasonable.  FERPA protects student privacy, but there’s no reason why an organization couldn’t supplement FERPA with privacy policies of its own.  (If I had been initially told that this was an XU policy and not a FERPA requirement, I wouldn’t have pursued this.)  I certainly can’t fault any university for wanting to protect student privacy, even above and beyond what is legally required, even though I find it personally frustrating.

XU’s registrar also added:

I might also mention that all of the Registrars of the research universities in the United States confer with each other quite frequently, and [XU] is not at all alone in its policies regarding the release of educational records. Virtually all of our peer universities have policies that are at least as conservative as ours, and I know many that maintain even more restrictive approaches to access.

Given my own experiences with other universities, I’m not sure how widespread this is.  I also don’t know whether there’s a difference between public and private universities on this issue.  If FERPA does not apply, is it the case that StateU’s records of deceased students could be subject to a FOIA/Open Records type request (in states that have such laws?)

The American Association of Collegiate Registrars and Admissions Officers, provides advice to university registrar offices about FERPA, and presents it under the rubric of “Protecting Your Students—And Your Reputation.”  From this perspective it make sense to take, what the XU Registrar called a “conservative” approach.  A university can’t really be sued for failing to release records to someone like me, but they could be sued if they release something they’re not supposed to.  The AACRAO presents its FERPA compliance training as a concern with “Minimizing Your Risks” and successfully managing compliance audits.  The 2012 AACRAO FERPA Guide does explicitly state that FERPA does not apply to deceased students, but this exemption is couched in the language that suggests that the release or records might be permitted, but is far from suggesting that it ought to be.  Surrounded by the specter of risk, why would you do anything that isn’t utterly required?

But registrars aren’t the only parties at research universities with an interest in university records policy.  Research universities have history departments! Research universities are supposed to have a mission to promote scholarship.  One could even make the case that historical scholarship on university alumni could enhance a university’s reputation.  Why haven’t history departments sought to make sure that other parts of their own university is not impeding historical scholarship.  Why hasn’t the AHA tried to encourage universities to adopt records policies that protect the rights of living students, but which also make historical research possible without unreasonable barriers?

While I think I’d be happy to see my fellow historians take up this lobby, I’m more concerned right now by the fact that this provision of FERPA doesn’t seem to be very well-known by historians, administrators, or legal teams.  So hopefully my experience will help others.

The Great Summer Research Road Trip

I’ve thought it churlish to complain about living in London – particularly as a historian.  But I have discovered that one of the main challenges of being a historian of America based in London is the difficulty of sources.  Of course my university and other library affiliations here give me access to a lot of the major journals in American history – but we’re understandably not a place of high demand for the publications of state and county historical societies.

More importantly, living an ocean away really changes the way that I need to plan for research at archives.  It is obvious that my work in the US requires more time and money than my colleagues whose source materials reside here in London or elsewhere in Britain – or even in Europe.  But whilst a research trip to a major American city or a single other location might not be too onerous even from here, the archives that I need to work with are not only scattered, but often in locations that aren’t so easily accessible.  The only solution — the efficient solution it seemed, was to put as much as possible into a single summer-long road trip.  Fly out.  Drive.  Research. And on.

The result (after a month in New York) was a two month, 18 archive, 6 state (plus DC and one Canadian province) trip that put us (me, my partner and our baby) on the road from the east coast as far west as Denver, and from there a flight to Vancouver.

There were some strange moments and some fun ones.  I might have been the only person doing research in Gettysburg, PA who wasn’t working on the Civil War at all.  I had a few frustrating moments when I discovered that most of the books that were donated to a university archive had likely been discarded (the archive kept the papers and correspondence.)  In New York and Nebraska I had got to see several fossils and other artifacts, although I’m not quite sure I knew how to make any sense of what I was seeing.  There was also a few moments of reminding myself that I’m not supposed to dance for joy in the archives when I find something super useful that I didn’t think even existed.  We went to the Nebraska State Fair on our way from Lincoln to the Panhandle.  In David City, Nebraska, a local historian/journalist helped orient me with the archives, and also wrote about our trip in the local paper. We even had time to meet a bunch of interesting people while we were staying in Lincoln for a week, or Laramie for a few days.  When we got to Denver, it was the first time we’d hit traffic in thousands of miles.

In the continued theme of efficiency, I had planned on doing the research for two projects while I was in the US.  Many of the sources for my work on the 1924 Nebraska evolution trial and the history of the Hesperopithecus discovery were in the same place—or at least nearby.  On paper, this seemed like  great idea, especially when I was applying for grants to help fund this summer trip.  Funding bodies like efficiency right? They like knowing that the money they’re awarding will not be wasted, and that they’re giving it to people who know how to put it to use.  I’ll show them! I’m not just going to write one book set in Nebraska, I’m going to write two!

In practice, this initially proved more difficult than I anticipated.  Mentally, it was hard to go from thinking about how one project was going, and finding a lot of brand new material that I had to make sense of, and by the afternoon, trying to keep in mind all the things that were important for the other project.  The Nebraska trial and Hesperopithecus are only tangentially related— I think the discovery of Hesperopithecus may have triggered one of the events that was then brought up in the trial, but I don’t think it figured directly into the trial itself.  But I figured that if I was looking at material from Nebraska in the 1920s anyway, I could do them.

Then came the big discovery.  I had spent several days in Lincoln looking at the archives of the Paleontology department at the University of Nebraska, particularly the papers of Erwin Barbour, founder of the state museum, and father-in-law of the discoverer of the Hesperopithecus fossil.  I found quite a lot of useful material, but with about half an hour to go before the end of the day that Friday (my last day in Lincoln, I decided that I ought to see if any of the people from the trial happened to write to Barbour (the correspondence was partly indexed and arranged alphabetically within each year, and the archivist had permitted me to go through the files as I liked.)  Suddenly I discovered that D.S. Domer, the teacher from the Nebraska trial and Barbour had a correspondence going back almost ten years.  Moreover, Barbour knew about the trial, and Domer write to him about it after the fact.  This last letter is an incredible piece of evidence, the first thing I’ve seen that directly gives me Domer’s reaction to the trial.  And yet I never would have found i if I hadn’t been looking in Barbour’s files because I was also looking at Hesperopithecus.

So — grant justified! (And a small amount of dancing in the archive.)

Of course, we also got to spend some time in the US seeing friends and family and bringing the baby to meet everyone.  The only way this research trip worked was because he’s been much much better tempered than we have any right to expect.  And my wife also did a lot of driving, and spent several days in places where there was little to do while I was digging in old papers.  When the baby let her, she also helped go through papers. (She recommends the museum of Agrarian Art if you’re in David City.)

And now I get to spend the next nine months in London writing this up.  Hopefully, I’ll get this manuscript mostly done without needed to go back on the road, or that by the time I do need to go back, it’s all for final tweaks.

And of course, now that I’m back in London, it’s also time to teach again.  And I’m going to spend most of this year learning about the other great challenge of being a US historian in London – teaching American history to students who have had almost no prior exposure to it in high school.  (But that’s a subject for another time.)

Antievolution and Statewide Textbook Adoption: Louisiana comes full circle.

Prompted by Zack Kopplin’s excellent column in the Guardian last week, I became aware of Louisiana’s House Bill 116.   If enacted, the bill would devolve the authority to adopt and select textbooks from state-level control to the authority of local schools and school boards.  In effect this would end statewide textbook adoption in Louisiana.

Kopplin has been one of the main advocates for the repeal of the 2008 Louisiana Science Education Act, which was intended to open the door to the teaching of creation science objections to evolution.  And he rightly points out that although the bill mentions neither science nor biology explicitly, the purpose of the bill is pretty clearly to enable local educators to chose antievolutionary texts when the state’s school board has not adopted anything suitable.  In effect, this law (in conduction with the LSEA) would allow small school district antievolutionists the ability to use the texts of their own choosing without running afoul of the state law.  (This is still presuming that a school district is able to afford the risk of a lawsuit, which I wrote about in a previous post)

What I find fascinating about this legal tactic introduced by State Representative Frank Hoffman is how much it almost exactly reverses what happened in the 1920s school antievolution  movement.  And just like the 1920s era textbook-related legislation had some very unintended consequences, it seems likely that this bill will do the same if it becomes law.

What many people tend to forget is that state-level regulation of textbooks largely came about for reasons having little or nothing to do with interference with school content.  The reason why many states especially in the South took control over textbook adoption away from local school districts was a concern that local boards were subject to corruption.  There are a variety of stories of textbook salesmen arranging kickback schemes with local school board members, salesmen threatening to support an opposing candidate in an upcoming election, and even instances of outright bribery.  The rationale was that a single 5-year adoption before a state board would be less susceptible to corruption, and would prevent the costs of schoolbooks from escalating.

What’s most interesting is the way that textbook publishers reacted.  At last initially, most of them lobbied hard against state-level regulation.  Partly that was because the people doing the lobbying were the salesmen working for the textbook companies, who thought that their own jobs could be at risk if there were fewer adoptions.  Even though a statewide adoption (and the expansion of compulsory schools) potentially meant more textbooks sold by a publisher, the way that many of the companies were set up encouraged resistance to state level adoption.  (If you’re interested in more of this story, read Chapter two of Trying Biology.)

But it was the fact that schoolbooks were adopted at a statewide level that gave more voice to antievolutionism as a school movement.  When, for example, Tennessee adopted George Hunter’s Civic Biology in 1919, the book was seen as more appropriate for urban centers like Memphis, Nashville, and Chattanooga, but its emphasis on the urban applications of biology were not so suitable for more rural and agricultural areas of the state.  The 1925 Scopes trial was in part made possible by the fact that Tennessee operated under statewide control of textbooks.

So in the 1920s, an unintended effect of state-level adoption was the creation of greater support for a school antievolution movement.  In the 2010s, an effort to give more power to antievolutionists by undermining state-level adoption could also have some unforeseen effects.

I don’t think it’s likely that we’re going to go back to the day of the corrupt textbook salesman that pervaded from the 1870s-1920s.  The textbook industry doesn’t have the same clout that it did a century ago, textbooks themselves aren’t as central to classroom practice as they once were.  But it was never only the textbook salesmen who were corrupt; it was also the members of local school boards who took bribes, arranged cozy kickback relationships, and in general abused their position for self gain.  It’s not hard to imagine this coming back with a vengeance if the proposed law passes.  This bill opens the door for a school board to use public funds to purchase textbooks that have not been vetted by experts, but may be written or published by someone with a connection to members of the school board.  Perhaps a school district wants to adopt a supplemental history book written by a brother of a school board member, or a creation science text that was self published by a local church.

It doesn’t seem like Representative Hoffman’s bill has made any provision to replace the anticorruption protections that statewide adoption ensures.  Perhaps one of the most interesting clauses in this bill is the one that changes the way texts are discarded.  Existing law requires that the state board approve of which books a school discards and sells to private individuals and that the board must approve of how those funds are used.  The proposed law would allow local schools to seem any books that they want to as “no longer in use” sell them at whatever price they want to whomever they want, and to sue the funds in any way that they see fit.  The new law would also allow public school boards to allocate funds, books, and other instructional materialist non public school students without any documentation.  This seems like a textbook case (so to speak) of enabling corruption.

Kopplin’s column is excellent, and he explains the real impact of this pending bill on the ongoing fight over the teaching of evolution in Louisiana.  But looking back to the longer history of textbook regulation and its relation to antievolutionism suggests that there’s an even bigger concern.  And perhaps there’s an even bigger reason to be wary of House Bill 116 then the fact that it further enables antievolutionists.

Muldrow and the costs of religion in schools

Last Monday the school district of Muldrow, Oklahoma voted to remove plaques with the ten commandments inscribed on them from the walls of its schools. This happened in response to a letter the Muldrow Superintendent received from the Freedom from Religion Foundation which threatened to sue the school district on behalf of a student who had contacted them.  Legally speaking this is not that interesting a case, but it seems to be part of a larger trend where the fear of lawsuits is determining the way that small school districts behave.  And that trend is itself an interesting development in the way religion-education issues are negotiated in the United States.

Despite the fact that locally the decision in Muldrow was met with protest, this was a pretty clear cut case of the school district running afoul of the laws and court precedents regarding an establishment of religion.  But this is the kind of breach that seems to happen frequently unless there’s an effort to enforce constitutional rulings.  It’s similar when the religion-in-schools issue involves the teaching of evolution.  Recent studies that have shown that despite various court rulings on the teaching of creationism, creation science, or intelligent design, many biology teachers do teach antievolutionary positions either either exclusively or in “balance” with evolution.  Legally speaking, it was never constitutional for Muldrow to have these plaques up, but it’s only when they were noticed by people willing to take them to court that the issue came up.  What’s interesting is that some of people the people protesting their removal pointed to the fact that they’d been up for so long as evidence of their acceptability.

But the Muldrow school board did not vote to remove the ten commandment plaques because they were legally required to do so, or even because they thought that they were wrong to have them.  Rather, they did it because they could not risk losing a lawsuit.  It wasn’t the lawsuit itself, but the potential expense, and the risk of losing liability insurance, that determined the outcome.

This was perhaps the real legacy of the 2005 Pennsylvania “Intelligent Design” trial Kitzmiller et al v Dover Area School District.  In that case, the Dover school board had instituted a policy requiring the reading of a statement about intelligent design.  Parents of some students sued and the court ruled that the board had acted in violation of the establishment clause and that intelligent design could not be taught in a science class.

But perhaps more importantly, as the losing party in a civil lawsuit, the school district was responsible for the plaintiffs’ legal expenses.  Even though the school district’s own legal defense was provided pro boon by the Thomas More Law Center, the Dover School Board  (whose membership had been replaced in a November 2005 election with people who opposed the teaching of ID) was responsible for over one million dollars in the plaintiffs’ legal expenses (a bill that could have been much higher.)

From the point of view of small town school districts, this was a more important consequence of the Dover trial than the fact that they couldn’t teach intelligent design.  Go to court and risk potential bankruptcy.  More importantly: adopt legally questionable policies and risk losing liability insurance.

That’s just what happened just a few months after Dover.  In the El Tejon school district in California, a schoolteacher proposed to teach a philosophy elective about intelligent design, and a parent of a student at the school sued that teaching the course would amount to advocating religion.  Rather than the case (Hurst v Newman) going to trial, the case was settled out of court with the school district agreeing not to run the course.

In Hurst v Newman, there were a lot of specific circumstances (such as the proposed syllabus for the “philosophy of design” class) that made that specific case an almost certain loss for the school district.  But the general legal question as to whether discussion of intelligent design could be taught in a philosophy or social studies class (and if so, how) was not answered by Kitzmiller, and is still widely contested in law journals and in public debate.

But part of the reason that Hurst v Newman did not go to trial was the fact that the El Tejon school district could have faced “projected legal costs of $100,000” (according to a 2006 article in Science)  El Tejon’s professional liability insurance is part of their insurance through a policy held with a group of several California school districts, called SISC.  According to the SISC description of coverage: While SISC affords coverage considered broad and inclusive of exposures typically faced by our member districts, SISC cannot afford coverage for damages resulting from willful or intentional acts or intentional acts or omissions for which insurance coverage would be precluded under [California] Insurance Code Section 533.

Note, I’m not sure if El Tejon’s professional liability insurance was the same in 2006 as it is now, but even if it is somewhat different, the issue is that it’s not just the possibility of a legal bill of $100K (which, given the costs in Dover, seems low anyway) that was a motivation to settle the lawsuit.  It’s the possibility that the school district could have its liability insurance policy dropped, or that its premiums would increase, or even the fact that the other school districts and country officials responsible for the group insurance don’t want to see their insurance costs increased because a single school district made a decision that was more likely to risk lawsuits.

El Tejon might have had a case that a “philosophy of design” course was constitutional (although the specific version of the course proposed was highly problematic.)  But the arguments could’t even be given a legal hearing because of the issues of expense, risk, and insurance.

For the past several years, I’ve taught a history of religion and science summer class.  In it I have had students stage a mock trial of Hurst v Newman, based on some of the affidavits and materials that were filed in the case. (Some of these documents are on the NCSE’s website).  In class, I judge the outcome of the mock trial based on which of the legal arguments the students make (given our previous study of the Dover trial, Scopes, McLean v Arkansas and other foundational cases) and it has been quite a successful classroom project.  Most interestingly, both sides of the case have won the trial at least twice, not because either side was ultimately right, but because one side made better arguments or better responded to the arguments made by their opponents.

It seems like some of the same financial/legal/insurability pressures motivated the decision in Muldrow.  And while I agree that the ten commandments posting in public schools was clearly unconstitutional, it worries me that these kinds of decisions are not being debated by school districts or citizens in terms of what’s right or wrong, nor are they being settled by courts guided by law and precedent.  Effectively these decisions are being made by the structure of liability insurance, and fear of bankruptcy.

People who might applaud the fact that intelligent design lost in California for this reason might reflect that this tactic can cut both ways.  School districts have a pretty strong incentive not to risk back up a teacher whose decisions might be perceived as risky or controversial, even if the law is on the teacher’s side.  Even going to court could be seen as risking a school’s insurance policy.

One of the most important differences between education in the US and in many other countries is the extent of local autonomy a single small district can have.  But that’s being changed by the push towards common standards on one hand, and a structure of legal expense that prevents major action by a district who has to worry about money and insurance.

Part of what that means is that if there’s going to be another major trial over the establishment clause in schools (like Kitzmiller, El Tejon, or what could have been in Muldrow) it’s more likely to be launched by a state body, not a small town school district.  If a state’s attorney general is politically motivated to challenge a law, they may not be impeded by concern over legal expenses.  It’s the financial precedent from Dover, not the legal one, that’s had the bigger consequences.

On Eugenie Scott and Historical Memory

Eugenie Scott, the director of the National Center for Science Education, is retiring.  That announcement on Monday has had me thinking about the role that the NCSE has played in the past few decades of the history of antievolutionism.  Like many people, my first thought was to wonder about who might be hired to replace her.

But a very close second thought was that someone had better make sure that her papers are saved for historians! Dr. Scott’s retirement announcement came as I was working on an article criticizing her portrayal of a “creation/evolution continuum.”  While I find the goals of the NCSE to generally be admirable; sometimes its portrayals of the groups, people, and ideas that they are opposed to are not always accurate.  That’s not a historical objection per se, but there’s a lesson to be learned from the history of the school evolution controversies: the distorted views that you popularize can become real nemeses, and in doing so, debates become more polarized.

There’s no shortage of historical questions that could be asked about the NCSE and Scott.   There’ve been few individuals and organizations more influential in the public conflict over the teaching of evolution in the past quarter century.  Of course the line between historical questions and contemporary political and policy questions becomes blurry when working on recent history.  There’s a tendency, or at least a temptation, on the part of some organizations and individuals when preparing some materials for archives, to preserve the materials that are seen to best serve the policy aims of the organization.  In fact, a 2008 article on the NCSE’s website suggests that the aim of the NCSE’s archives is to serve the aims of the NCSE—that is to debunk and to legally and politically fight creationism.  Where the archive’s utility to historians is mentioned, it’s with the understanding that by exploring the history of creationism, that present-day antievolutionism can be unmasked a recycling of old ideas.  It’s an archive on the history of creationism, not the history of the NCSE.

I would hope that Dr. Scott’s retirement is going to be an opportunity for the NCSE archives to expand their mission.  While hiring a new director is a huge task and the organization ought to be thinking about its future, it also needs to devote some attention to its past.  Of course a non-profit organization with finite resources can’t spend a huge amount of its budget to preserving its own history.  I’d hope that if the NCSE does not intend to save the bulk of Scott’s papers, that it will arrange for a library to do so.  Even though embargoing financially or legally sensitive material may be reasonable, I would hope that the archive is neither culled of its human element, nor restricted only to highlights of the NCSE’s victories.

One advantage that I had in working on materials in the 1920s is that the fear of legal action prompting a shred-it-all mentality, seems not to have been so pervasive 100 years ago.  And the notes scribbled in margins of letters, or the way a letter was copied and attached to someone else’s note forwarding it on, were preserved in archives.  It’s often if these unintentional details that a picture of the human actors involved in organizations really emerges.  For that matter, I was also fortunate that most of the materials that I wanted to work with were letters written on paper, which has a much better shelf life than the 5 1/4-inch floppy disks of the 1980s, or even more recent forms of data storage.  This is why the question of historical preservation is more urgent.  Even materials that were not well-preserved from the pre-digital era are often accessible.  For example, there is a wonderful article from last week in American Libraries about the discovery, acquisition, and preservation of John Scopes’s suitcase full of papers and memorabilia by the Special Collections at Western Kentucky University.

There’s no question that the history of the NCSE will be an excellent project and an archive of its actors and actions will be invaluable to anyone understanding the history of the evolution battles from the 1980s to the present.  But the ability of that history to be written depends on what sources remain available.  (By the way, if anyone wants to come work on a PhD on this topic, get in touch with me.)

In an interview about her retirement, Dr. Scott stated that “all nonprofits hope someday to put themselves out of business,” but the mission of the NCSE has not yet ended.  It may be too soon to write the conclusion to the history of an organization that has played such a crucial role in science and religion issues in America in the past 30 years.  But it is not too soon (and hopefully not too late) to begin working on the beginnings of that history.  And that starts with the collection of materials.

Congratulations on your retirement, Dr. Scott.

UPDATE (9 May): I heard from Josh Rosenau, who’s the program and policy director for the NCSE.  From what he says, it sounds like 1) the NCSE archives do contain a lot of resources on the administrative history of the center, and 2) there are plans to maintain and preserve Dr. Scott’s papers and make them available to researchers.

This is very good news and certainly not what all organizations and people do, so the NCSE is to be applauded for this.  It also means that there’s the opportunity for some really interesting and important historical work.  Some historians have already worked wit the archives, but there’s a lot more to be said about history of the evolution wars of the past few decades.  A history that’s still unfolding…