Louis J. Virelli III (Stetson University College of Law) has posted Administrative Evolution on SSRN. Here is the abstract:
The debate over teaching evolution in public school science classes is rapidly evolving. Opponents of evolution instruction have recently introduced new policy measures that represent a significant departure from previous efforts to curtail the teaching of evolution. These new measures employ what I describe as an “adjudicative model” for addressing evolution education. The adjudicative model shuns legislative or regulatory prescriptions in favor of higher-order policy statements encouraging educators to promote critical thinking about scientific questions, including evolution. These policy statements empower individual educators to “adjudge” for themselves how best to engage in a critical review of evolution on a case-by-case basis. The emergence of the adjudicative model is critical to the future of evolution instruction because it requires a paradigmatic shift in the way that evolution education policy is evaluated. This Article identifies the adjudicative model and argues for a brand new way of looking at evolution instruction policy through the lens of administrative, rather than purely constitutional, law. This new perspective is important because it offers a more holistic view of the adjudicative model’s highly dynamic policy environment than that provided by a purely constitutional analysis. More specifically, treating the adjudicative model as an artifact of administrative law reveals a number of significant political and legal issues independent from, and potentially preclusive of, the traditional mode of analysis in the evolution instruction context, the Establishment Clause.