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Kitzmiller v. Dover Area School District

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Tammy Kitzmiller, et al. v. Dover Area School District, et al. (400 F. Supp. 2d 707, Docket No. 4cv2688) was the first direct challenge brought in the United States federal courts testing a public school district policy that required the teaching of intelligent design. In October 2004, the Dover Area School District of York County, Pennsylvania, changed its biology teaching curriculum to require that intelligent design be presented as an alternative to evolution theory, and that Of Pandas and People, a textbook advocating intelligent design, was to be used as a reference book. The prominence of this textbook during the trial was such that the case is sometimes referred to as the Dover Panda Trial, a name which deliberately recalls the infamous Scopes Monkey Trial in Tennessee, 80 years earlier. The plaintiffs successfully argued that intelligent design is a form of creationism, and that the school board policy violated the Establishment Clause of the First Amendment to the United States Constitution. The judge’s decision sparked considerable response from both supporters and critics.

Eleven parents of students in Dover, York County, Pennsylvania, near the city of York, sued the Dover Area School District over the school board requirement that a statement presenting intelligent design as „an explanation of the origin of life that differs from Darwin’s view“ was to be read aloud in ninth-grade science classes when evolution was taught. The plaintiffs were represented by the American Civil Liberties Union (ACLU), Americans United for Separation of Church and State (AU) and Pepper Hamilton LLP. The National Center for Science Education (NCSE) acted as consultants for the plaintiffs. The defendants were represented by the Thomas More Law Center (TMLC). The Foundation for Thought and Ethics, publisher of Of Pandas and People, tried to join the lawsuit late as a defendant but was denied for multiple reasons.

The suit was brought in the U.S. District Court for the Middle District of Pennsylvania seeking declaratory and injunctive relief. Since it sought an equitable remedy, by the Seventh Amendment, right to a jury trial did not apply. It was tried in a bench trial from September 26, 2005, to November 4, 2005, before Judge John E. Jones III, a Republican appointed in 2002 by George W. Bush.

On December 20, 2005, Jones issued his 139-page findings of fact and decision ruling that the Dover mandate requiring the statement to be read in class was unconstitutional. The ruling concluded that intelligent design is not science, and permanently barred the board from „maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID.“

All eight of the Dover school board members who were up for re-election on November 8, 2005, were defeated by a set of challengers who opposed the teaching of intelligent design in a science class. (The ninth member was not up for re-election.) The new school board president subsequently stated that the board did not intend to appeal the ruling.

From 2002, William (Bill) Buckingham and Alan Bonsell, members of the Dover Area School District Board of Education who were young earth creationists, had made various statements supporting teaching creationism alongside evolution. At a board meeting on June 7, 2004, Buckingham mentioned creationism and raised objections to the proposed use of the textbook Biology written by Kenneth R. Miller and Joseph S. Levine, describing it as „laced with Darwinism“ and saying it was „inexcusable to have a book that says man descended from apes with nothing to counterbalance it.“

This story made the York newspapers, and Buckingham was telephoned by Discovery Institute staff attorney Seth Cooper, whose tasks included „communicating with legislators, school board members, teachers, parents and students“ to „address the topic of ID in a scientifically and educationally responsible way“ in public schools. He later stated that he made the call to „steer the Dover Board away from trying to include intelligent design in the classroom or from trying to insert creationism into its cirriculum [sic]“, an account Buckingham has disputed. Cooper sent the book and DVD of Icons of Evolution to Buckingham, who required the Dover High School science teachers to watch the DVD. They did not take up the opportunity to use it in their classes.

Cooper advised that the Discovery Institute was not offering legal advice, and soon afterwards Buckingham contacted Richard Thompson of the Thomas More Law Center, who agreed to represent the Dover Board, and recommended the book Of Pandas and People. On October 18, 2004, the school board voted 6–3 resolving that there were to be lectures on the subject, with Pandas as a reference book, and that the following statement was to be added to their biology curriculum: „Students will be made aware of the gaps/problems in Darwin’s theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of life is not taught.“

On November 19, 2004, the Dover Area School District issued a press release stating that, commencing in January 2005, teachers would be required to read the following statement to students in the ninth-grade biology class at Dover High School:

The Pennsylvania Academic Standards require students to learn about Darwin’s theory of evolution and eventually to take a standardized test of which evolution is a part.

Because Darwin’s Theory is a theory, it is still being tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

Intelligent design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students to see if they would like to explore this view in an effort to gain an understanding of what intelligent design actually involves.

The three school board members who voted against it resigned in protest, and science teachers in the district refused to read the statement to their ninth-grade students, citing the Pennsylvania state code 235.10(2), which requires that „The professional educator may not … Knowingly and intentionally misrepresent subject matter or curriculum.“ Instead, the statement was read to students by a school administrator.

The school board’s statement asserting that there are „gaps“ in evolution and that it specifically is a theory „not a fact“ singled out evolution, implying it is just a hunch, even though this is not the actual meaning of the term „scientific theory“. The reference to Of Pandas and People and presentation of intelligent design as an alternative „explanation of the origins of life“ presented it as though it were a scientific explanation, in contrast to the way that evolution was described. Encouraging students to „keep an open mind“ about alternatives without offering an alternative scientific explanation implied an invitation to meditate on a religious view, endorsing the religious view in a way similar to the disclaimer found to be unconstitutional in the Freiler v. Tangipahoa Parish Board of Education case. The school board claimed the statement does not teach intelligent design and simply makes students aware of its existence as an alternative to evolution, but no such statements were made about other subjects. As part of the presentation, the administrators stated that „there will be no other discussion of the issue and your teachers will not answer questions on the issue“, giving intelligent design a position not applied to scientific topics. The board denied that intelligent design was „religion in disguise,“ despite being represented in court by the Thomas More Law Center, a conservative Christian not-for-profit law center that uses litigation to promote „the religious freedom of Christians and time-honored family values“. Its stated purpose is „…to be the sword and shield for people of faith“.

The American Civil Liberties Union filed suit on December 14, 2004, on behalf of eleven parents from the Dover school district, and sought a law firm willing to take on the case at the risk of not being paid if the case was lost. Eric Rothschild, a partner at Pepper Hamilton LLP and a member of the National Center for Science Education legal advisory council, was quick to agree to take the case on such a contingency basis.

The Discovery Institute’s John West said the case displayed the ACLU’s „Orwellian“ effort to stifle scientific discourse and objected to the issue being decided in court. „It’s a disturbing prospect that the outcome of this lawsuit could be that the court will try to tell scientists what is legitimate scientific inquiry and what is not,“ West said. „That is a flagrant assault on free speech.“ Opponents, represented by the American Association for the Advancement of Science and the National Association of Biology Teachers, contended that his statement is not just ironic, but hypocritical, as the Discovery Institute opposes methodological naturalism, the basic principle that limits science to natural phenomena and natural causes without assuming the existence or non-existence of the supernatural, which by definition is beyond natural explanation.

Despite its earlier involvement, the Discovery Institute was concerned that this would be a test case and that the defendants had earlier displayed their religious motivations. This tension led to disagreements with the Thomas More Law Center and the withdrawal of three Discovery Institute fellows as defense experts prior to their depositions – William A. Dembski, Stephen C. Meyer and John Angus Campbell. This was purportedly because the Thomas More Law Center refused to allow these witnesses to have their own attorneys present during deposition, but Discovery Institute director Bruce Chapman later said that he had asked them not to testify (as well as Behe and Minnich, who testified anyway).

In May 2005, the publisher of Of Pandas and People, the Foundation for Thought and Ethics (FTE), filed a motion seeking to intervene in the case. FTE argued that a ruling that intelligent design was religious would have severe financial consequences, citing possible losses of approximately half a million dollars. By intervening, FTE would have become a co-defendant with the Dover Area School Board, and able to bring its own lawyers and expert witnesses to the case. FTE’s president Jon Buell implied that if allowed to intervene, FTE would bring Dembski and Meyer as expert witnesses. In his decision on the motion, Jones ruled that FTE was not entitled to intervene in the case because its motion to intervene was not timely, describing FTE’s reasons for not trying to become involved earlier as „both unavailing and disingenuous.“ Jones also held that FTE had failed to demonstrate that it has „a significantly protectable interest in the litigation warranting intervention as a party“ and that its interests would not be adequately represented by the defendants.

In the November 2005 elections, none of the members of the Dover School Board who voted for the intelligent design policy were re-elected, and a new school board, which rejected the policy, took office. This effectively precluded the possibility of an appeal to a higher court.

The litigants of this trial were as follows:

The plaintiffs were all parents of students enrolled in the Dover Area School district.

The trial began on September 26, 2005.

Eric Rothschild gave the opening statement for the plaintiffs

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. He said that the plaintiffs would be able to provide many examples of school board members wishing to balance the teaching of evolution with creationism. He attacked prior defense claims that it was a minor affair by saying that there is no such thing as a „little“ constitutional violation. He also provided the definition of creationism given by an early draft of Pandas: „Creation is the theory that various forms of life began abruptly, with their distinctive features already intact: Fish with fins and scales, birds with feathers and wings, mammals with fur and mammary glands.“ He compared this with what was eventually published: „Intelligent design means that various forms of life began abruptly through an intelligent agency, with their distinctive features already intact: Fish with fins and scales, birds with feathers, beaks and wings, et cetera.“ (The definitions had come up in an earlier hearing in a July 14 pre-trial hearing.) He also argued that intelligent design was not science in its infancy, but rather was not science at all.

Patrick Gillen gave the opening arguments for the defense. He started by saying that the goal of the board and its supporters was to enhance science education. He argued that the policy was a „modest change.“ He distanced the policy from alleged statements by then board member William Buckingham that the plaintiffs argued showed clear religious intent: „The board listened to the science faculty more than it listened to Bill Buckingham.“ He argued that the policy did not have a „religious agenda.“ Gillen mentioned that board member Alan Bonsell had done his own reading. He said Bonsell was „aware of intelligent design theory, and that 300 or so scientists had signed a statement indicating that biologists were exaggerating claims for the theory. He had read about the famous Piltdown man hoax. He had an interest in creationism.“

Before her testimony, the TMLC filed a motion to have her excluded as an expert witness. In that motion they characterized her as „little more than a conspiracy theorist and a web-surfing, ‚cyber-stalker‘ of the Discovery Institute.“ Jones denied the motion.

Forrest gave testimony on the history of the intelligent design movement, citing writings of prominent figures (such as Discovery Institute’s „Wedge Document“, Phillip Johnson’s „How the Evolution Debate Can be Won“, and of William Dembski). She also testified that ID was merely another name for the creationism movement, attempting to present a religious proposition as a scientific viewpoint. She stated that Johnson „regards evolution as a threat to the Bible in its entirety and as a threat to the moral fabric of American culture,“ and that one of the goals of his movement is to unify the religious world. She added that there is „no way to reconcile […] at all“ the Dover school board newsletter statement that intelligent design is a scientific theory with Paul Nelson’s statements in the interview „The Measure of Design“.

Forrest noted that she was unaware of any evidence that the members of the School board had seen the „Wedge Document“ before the lawsuit.

Several days before her scheduled testimony, the Discovery Institute publicly ridiculed her on their website.

As a primary witness for the defense, Behe was asked to support the idea that intelligent design was legitimate science. Behe’s critics have pointed to a number of key exchanges under cross examination, where he conceded that, „There are no peer reviewed articles by anyone advocating for intelligent design supported by pertinent experiments or calculations which provide detailed rigorous accounts of how intelligent design of any biological system occurred.“ In response to a question about astrology he explained: „Under my definition, a scientific theory is a proposed explanation which focuses or points to physical, observable data and logical inferences. There are many things throughout the history of science which we now think to be incorrect which nonetheless… would fit that definition. Yes, astrology is in fact one, and so is the ether theory of the propagation of light, and… many other theories as well.“

His simulation modelling of evolution with David Snoke described in a 2004 paper had been listed by the Discovery Institute amongst claimed „Peer-Reviewed & Peer-Edited Scientific Publications Supporting the Theory of Intelligent Design“, but under oath he accepted that it showed that the biochemical systems it described could evolve within 20,000 years, even if the parameters of the simulation were rigged to make that outcome as unlikely as possible.

Closing arguments were made on November 4, 2005. Upon completion of the closing arguments, Gillen asked Jones, „By my reckoning, this is the 40th day since the trial began and tonight will be the 40th night, and I would like to know if you did that on purpose.“ Jones responded, „Mr. Gillen, that is an interesting coincidence, but it was not by design.“ This humorous exchange provided the title for Matthew Chapman’s book about the trial, 40 Days and 40 Nights.

On December 20, 2005, Jones found for the plaintiffs and issued a 139 page decision, in which he wrote:

In his Conclusion, he wrote:

Jones anticipated that his ruling would be criticized, saying in his decision that:

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

Fulfilling Jones’s prediction, John G. West, Associate Director of the Center for Science and Culture at Discovery Institute, said:

The Dover decision is an attempt by an activist federal judge to stop the spread of a scientific idea and even to prevent criticism of Darwinian evolution through government-imposed censorship rather than open debate, and it won’t work. He has conflated Discovery Institute’s position with that of the Dover school board, and he totally misrepresents intelligent design and the motivations of the scientists who research it.

Newspapers have noted that the judge is „a Republican and a churchgoer.“ In the months following the decision, Jones received death threats and he and his family were given around-the-clock federal protection.

On February 21, 2006, the newly elected Dover Area School Board voted, unanimously with one abstention, to pay $1,000,011 in legal fees and damages due to the parents and their lawyers as a result of the verdict in the case, a large sum of money for a small district. The previous school board had been offered the opportunity to rescind its policy, and avoid paying legal fees, immediately after the lawsuit was filed in 2004, but it declined. The parents‘ attorneys Pepper Hamilton stated that court records would show that they were entitled to more than $2 million, but were going to accept less than half that amount in recognition of the small size of the school district, and because the school board that voted for the policy had been voted out of office, leaving the new school board „having the bill placed in their laps.“ The previous school board had been defended without charge by the Thomas More Law Center. Richard Katskee, assistant legal director for Americans United, said of the trial’s cost, „Any board thinking of trying to do what the Dover board did is going to have to look for a bill in excess of $2 million,“ and „I think $2 million is a lot to explain to taxpayers for a lawsuit that should never be fought.“

After the trial, there were calls for the defendants, accused of not presenting their case honestly, to be put on trial for committing perjury. „Witnesses either testified inconsistently, or lied outright under oath on several occasions,“ Jones wrote. „The inescapable truth is that both [Alan] Bonsell and [William] Buckingham lied at their January 3, 2005 depositions. … Bonsell repeatedly failed to testify in a truthful manner. … Defendants have unceasingly attempted in vain to distance themselves from their own actions and statements, which culminated in repetitious, untruthful testimony.“ An editorial in the York Daily Record described their behavior as both ironic and sinful, saying that the „unintelligent designers of this fiasco should not walk away unscathed.“ Judge Jones recommended to the US Attorney’s office that the school board members be investigated for perjury.

The University of Montana Law Review published three articles addressing this topic in its winter 2007 issue. David K. DeWolf, John G. West and Casey Luskin, senior fellows or officers of the Discovery Institute, argued that intelligent design is a valid scientific theory, that the Jones court should not have addressed the question of whether it was a scientific theory, and that the decision will have no effect on the development and adoption of intelligent design as an alternative to standard evolutionary theory. Peter Irons responded to the DeWolf et al. article, arguing that the decision was extremely well reasoned how to tenderize tough steak, and that it marks the end to legal efforts by the intelligent design movement to introduce creationism in public schools. It had been an essential part of the ruling to consider whether ID was a legitimate scientific theory as claimed by its proponents, and DeWolf, et al. had implicitly recognised this by citing the Lemon test, which would have been irrelevant if ID were legitimate science. DeWolf et al. responded to the Irons article in the same issue.

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