The right of the child to be heard in education litigation: an analysis of the ‘intelligent design’ Pennsylvania case on the separation of Church and State in the public schools

Abstract

This paper examines a seminal case in US education law regarding the separation of Church and State in the public schools. The issue decided was whether it is constitutional under American law for a school district to mandate reference to ‘intelligent design’ (ID) as an alternative to the theory of evolution whilst instructing students only in the latter. ID theory postulates an unspecified ‘master intelligence’ as being responsible for the origins of life. A Pennsylvania court found that ID was a religious theory and held the school district had officially endorsed ID contrary to constitutional requirements. The issue of children's participation rights was not raised by the parties or the Court and student views were not solicited. The reasons for this failure to allow students to be heard in the judicial proceedings are explored as are the implications for how the notion of children's rights is understood in North America.