Kitzmiller v. Dover Area School District

Kitzmiller v. Dover Area School District
MD pa seal.jpg

United States District Court for the Middle District of Pennsylvania
Date December 20, 2005
Case name Tammy Kitzmiller, et al. v. Dover Area School District, et al.
Citations 400 F. Supp. 2d 707 (M.D. Pa. 2005)
Holding Teaching intelligent design in public school biology classes violates the Establishment Clause of the First Amendment to the Constitution of the United States (and Article I, Section 3 of the Pennsylvania State Constitution) because intelligent design is not science and "cannot uncouple itself from its creationist, and thus religious, antecedents."
Judge John E. Jones III (appointed in 2002 by George W. Bush)
Laws applied U.S. Const. Amend. 1; Penn. Const. Art. I, § 3

Tammy Kitzmiller, et al. v. Dover Area School District, et al., Case No. 04cv2688, was the first direct challenge brought in the United States federal courts against a public school district that required the presentation of "intelligent design" as an alternative to evolution as an "explanation of the origin of life." The plaintiffs successfully argued that intelligent design is a form of creationism, and that the school board policy thus violated the Establishment Clause of the First Amendment to the United States Constitution. The judge's decision has sparked considerable response from both supporters and critics.

Eleven parents of students in Dover, York County, Pennsylvania, near the borough of York, sued the Dover Area School District over a statement that the school board required 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 a textbook advocating intelligent design titled Of Pandas and People, tried to join the lawsuit as a defendant but was denied.[1]

The suit was brought in the U.S. District Court for the Middle District of Pennsylvania seeking injunctive relief. Since it sought an equitable remedy 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. On December 20, 2005, Judge Jones issued his 139-page findings of fact and decision, ruling that the Dover mandate was unconstitutional, and barring intelligent design from being taught in Pennsylvania's Middle District public school science classrooms. The eight Dover school board members who voted for the intelligent design requirement were all defeated in a November 8, 2005, election by challengers who opposed the teaching of intelligent design in a science class, and the current school board president stated that the board does not intend to appeal the ruling.[2]

Contents

Background

Part of a series of articles on
Intelligent design
A savonette-type pocket watch
Concepts

Irreducible complexity
Specified complexity
Fine-tuned universe
Intelligent designer
Theistic realism
Creationism
Intelligent design
movement

Timeline
Discovery Institute
Center for Science and Culture
Wedge strategy
Critical Analysis of Evolution
Teach the Controversy
Intelligent design in politics
Kitzmiller v. Dover Area School District
Reactions

Jewish · Roman Catholic
Scientific organizations
Creationism Portal

Certain members of the Dover Board of Education expressed concern about the teaching of evolution. In the summer of 2004, they were given legal advice by the Discovery Institute, and around July, they accepted an offer by the Thomas More Law Center to represent them. On October 18, 2004, the school board voted 6–3 to add the following statement 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.

As is true with any theory, students are encouraged to keep an open mind. The school leaves the discussion of the origins of life to individual students and their families. As a standards-driven district, class instruction focuses upon preparing students to achieve proficiency on standards-based assessments.

(page 1 of conclusions)

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 code of education, which states that teachers cannot present information they believe to be false. Instead, the statement was read to students by a school administrator.

The school board claimed there are "gaps" in evolution, which it claimed is a theory rather than established fact, and that students have a right to consider other views on the origins of life. The school board claimed it does not teach intelligent design but simply makes students aware of its existence as an alternative to evolution. It denied intelligent design is "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, one of the partners of 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 pro bono 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, contend 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,[3] but Discovery Institute director Bruce Chapman later admitted to asking them not to testify (as well as Behe and Minnich, who testified anyway).[4]

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 William A. Dembski and Stephen C. Meyer as expert witnesses. In his decision on the motion, Judge John E. Jones III 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." Judge Jones also held that FTE failed to demonstrate that it has "a significantly protectable interest in the litigation warranting intervention as a party" and that its interests will 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.

Litigants

The litigants of this trial are as follows:

Plaintiffs

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

Defendants

Members who voted for the statement:
  • William Buckingham (resigned August 2005 due to health concerns)[5]
  • Alan Bonsell
  • Sheila Harkins
  • Heather Geesey
  • Jane Cleaver (resigned October 4 2004)
  • Angie Ziegler-Yingling (resigned December 6 2004)
Members who voted against it:
  • Noel Wenrich (announced his resignation October 4 2004 His last day of service October 31, 2004. Moved out of the district)
  • Carol Brown (resigned October 18 2004 in protest)
  • Jeff Brown (resigned October 18 2004 in protest)

Trial

The trial began on September 26, 2005.

See Kitzmiller v. Dover Area School District trial documents for links to official trial documents, transcripts and other materials.

Opening statements

Plaintiffs

Eric Rothschild gave the opening statement for the plaintiffs. 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.[6]) He also argued that intelligent design was not science in its infancy but rather was not science at all.

Defense

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 made by then board member William Buckingham which 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."

Witnesses

Witnesses for the plaintiffs

September 27 2005

September 28

September 29

September 30

October 5-6

Prior to 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."[11][12] 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" prior to the lawsuit. During her testimony the TMLC requested Judge Jones exclude her as an expert witness. Their request was denied by Jones.

Several days prior to her scheduled testimony, the Discovery Institute publicly ridiculed her on their website.[13][14] Many of her supporters and critics have written they believe her testimony had a significant influence on the outcome of the trial.

October 6

October 12

October 14

Witnesses for the defense

October 17-19

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",[16] and that the definition of 'theory' as he applied it to intelligent design was so loose that astrology would qualify as a theory by definition as well.[17] His simulation modelling of evolution with 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",[18] 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.[19][20]

For more details on this topic, see Michael Behe#Dover testimony.

October 20-21

October 21, 28, November 3

October 24

Witnesses for the plaintiffs (called out-of-turn)

October 27

October 28

Witnesses for the defense

October 28

October 31

November 3

Closing arguments

Closing arguments were made on 4 November 2005. Upon completion of the closing arguments, Mr. Gillen asked Judge 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." To which the judge responded, "Mr. Gillen, that is an interesting coincidence, but it was not by design."[22] This humorous exchange provided the title for Matthew Chapman's book about the trial, 40 Days and 40 Nights.[23]

Decision

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

"For the reasons that follow, we conclude that the religious nature of ID [intelligent design] would be readily apparent to an objective observer, adult or child" (page 24)
"A significant aspect of the IDM [intelligent design movement] is that despite Defendants’ protestations to the contrary, it describes ID as a religious argument. In that vein, the writings of leading ID proponents reveal that the designer postulated by their argument is the God of Christianity." (page 26)
"The evidence at trial demonstrates that ID is nothing less than the progeny of creationism" (page 31)
"The overwhelming evidence at trial established that ID is a religious view, a mere re-labeling of creationism, and not a scientific theory." (page 43)
"Throughout the trial and in various submissions to the Court, Defendants vigorously argue that the reading of the statement is not “teaching” ID but instead is merely “making students aware of it.” In fact, one consistency among the Dover School Board members’ testimony, which was marked by selective memories and outright lies under oath, as will be discussed in more detail below, is that they did not think they needed to be knowledgeable about ID because it was not being taught to the students. We disagree." (footnote 7 on page 46)
"After a searching review of the record and applicable caselaw, we find that while ID arguments may be true, a proposition on which the Court takes no position, ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980's; and (3) ID's negative attacks on evolution have been refuted by the scientific community." (page 64)
"[T]he one textbook [Pandas] to which the Dover ID Policy directs students contains outdated concepts and flawed science, as recognized by even the defense experts in this case." (pages 86–87)
"ID’s backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID." (page 89)
"Accordingly, we find that the secular purposes claimed by the Board amount to a pretext for the Board’s real purpose, which was to promote religion in the public school classroom, in violation of the Establishment Clause." (page 132)
Judge John E. Jones III issued the decision in the case

In his Conclusion on pages 136–138 of 139 of this decision he writes:

The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board’s ID Policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents. [...]
The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy. With that said, we do not question that many of the leading advocates of ID have bona fide and deeply held beliefs which drive their scholarly endeavors. Nor do we controvert that ID should continue to be studied, debated, and discussed. As stated, our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom.

Responses

Judge Jones himself 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.

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."[24] Additionally, Repent America, a conservative religious organization, went door-to-door and hired creationist Kent Hovind to speak at Dover high school arguing against evolution.[25][26][27][28][29][30]

Newspapers have noted with interest that the judge is "a Republican and a churchgoer."[31][32][33][34]

Settlement of the legal fees

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.[35] 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."[36]

Allegations of perjury

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 behaviour as both ironic and sinful, saying that the "unintelligent designers of this fiasco should not walk away unscathed". Other discussions concluded that for various reasons it was unlikely that prosecutions would proceed.[37]

Analysis and criticism

The University of Montana Law review published three articles addressing this topic in its winter 2007 issue.[38] 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.[39] Peter Irons responded to the DeWolf et al. article, arguing that the decision was extremely well reasoned, and that it marks the end to legal efforts by the intelligent design movement to introduce creationism in public schools.[40] DeWolf et al responded to the Irons article in the same issue.[41]

Documentary

Judgement Day: Intelligent Design on Trial, a NOVA documentary aired on PBS in November 2007. It features interviews with the Judge, witnesses, and lawyers as well as re-enacted scenes from the proceedings (no cameras were allowed in court).[42]

References

  1. ↑ Memeorandum and Order, Kitzmiller v. Dover Area School District, July 27, 2005
  2. ↑ Judge Rules Against 'Intelligent Design', Michael Powell, The Washington Post, December 21, 2005
  3. ↑ Discovery Institute and Thomas More Law Center Squabble in AEI Forum, National Center for Science Education
  4. ↑ Seattle's Discovery Institute scrambling to rebound after intelligent-design ruling, David Postman, The Seattle Times, April 26 2006
  5. ↑ The York Daily Record - News - YDR
  6. ↑ Oral Argument at the Internet Archive, Kitzmiller v. Dover Area School District, July 14, 2005
  7. ↑ John F. Haught, Georgetown University Theology Department
  8. ↑ Trial transcript, day 6 (October 5), AM Session, Part 1 Kitzmiller v. Dover Area School District
  9. ↑ Forrest supplemental report
  10. ↑ Forrest expert report
  11. ↑ Motion in limine to exclude Forrest
  12. ↑ Brief supporting motion in limine to exclude Forrest
  13. ↑ The “Vise Strategy” Undone, Barbara Forrest
  14. ↑ Dover Trial Preview to Witness Testimony, Center for Science and Culture, Discovery Institute
  15. ↑ Lehigh University Department of Biological Sciences
  16. ↑ Kitzmiller v. Dover Area School District Trial transcript: Day 12 (October 19), AM Session, Part 1
  17. ↑ Astrology is scientific theory, courtroom told
  18. ↑ Peer-Reviewed & Peer-Edited Scientific Publications Supporting the Theory of Intelligent Design (Annotated), Discovery Institute
  19. ↑ s:Kitzmiller v. Dover Area School District/4:Whether ID Is Science#Page 88 of 139
  20. ↑ Kitzmiller v. Dover Area School District Testimony
  21. ↑ STEVE WILLIAM FULLER Curriculum Vitae
  22. ↑ Transcript Day 21 PM
  23. ↑ Reviews: Darwin in Court, Richard Milner, Natural History Magazine, June 2007
  24. ↑ Dover Intelligent Design Decision Criticized as a Futile Attempt to Censor Science Education, Robert Crowther, Evolution News & Views, Discovery Institute
  25. ↑ "Door- to-door religion in Dover," York Dispatch, Feb 28, 2006
  26. ↑ "Creationist to bring story to Dover," York Daily Record, Mar 17, 2006
  27. ↑ "Group spreads info before debate Evangelical group plans to distribute," York Daily Record Mar 1, 2006
  28. ↑ "Creationist speaker 'loose about the facts'," York Dispatch Mar 13, 2006
  29. ↑ "Creationist draws a crowd," York Dispatch, Mar 20, 2006
  30. ↑ "It's pointless to debate creationists," York Daily Record Feb 25, 2006
  31. ↑ Judge rules against ‘intelligent design’, MSNBC
  32. ↑ Godless: The Church of Liberalism a book review, Matthew Provonsha, eSkeptic
  33. ↑ Discovery Institute tries to "swift-boat" Judge Jones, Kevin Padian and Nick Matzke, National Center for Science Education
  34. ↑ Dallas Morning News | News for Dallas, Texas | Latest News
  35. ↑ Kauffman, Christina (February 22, 2006). "Dover gets a million-dollar bill", York Dispatch. Retrieved on 2007-08-12. 
  36. ↑ ""Intelligent design" costs Dover over $1,000,000". NCSE Resource (February 24, 2006). Retrieved on 2007-08-12.
  37. ↑ "Weblog: Dover Board Lied! Intelligent Design Died!" (December 2005).
  38. ↑ Articles - Editor's Note: Intelligent Design Articles, University of Montana Law Review, Volume 68, Number 1, April 10, 2007.
  39. ↑ DeWolf, David K.; West, John G.; Luskin, Casey (2007). "Intelligent Design will survive Kitzmiller v. Dover". University of Montana Law Review 68 (1). http://www.umt.edu/mlr/Discovery%20Institute%20Article.pdf. 
  40. ↑ Irons, Peter (2007). "Disaster in Dover: The Trials (and Tribulations) of Intelligent Design". University of Montana Law Review 68 (1). http://www.umt.edu/mlr/Irons%20Response.pdf. 
  41. ↑ DeWolf, David; West, John G.; Luskin, Casey (2007). "Rebuttal to Irons". University of Montana Law Review 68 (1). http://www.umt.edu/mlr/DI%20Rebuttal.pdf. 
  42. ↑ "Battlefield Report From the Evolution War", New York Times (11 November 2007). Retrieved on 2007-11-17. 

See also

Further reading

0787987867. 

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