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United States District Court for the Middle District of Pennsylvania
Kitzmiller v. Dover Area School District
Date December 20, 2005
Case name Tammy Kitzmiller, et al. v. Dover Area School District, et al.
Citations 2005 WL 578974 (MD 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 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.

Eleven parents of students in Dover, Pennsylvania, near Harrisburg, sued the Dover Area School District over a statement that the school board required 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. 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. *

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 there was no right to a jury trial; the Seventh Amendment 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, Kitzmiller v. Dover Area School District et. al. the Dover mandate was unconstitutional, and barred intelligent design from being taught in public school science classrooms. The current Dover school board president stated that the board does not intend to appeal the ruling. *

The judge's decision has sparked considerable response. 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." Newspapers have noted with interest that the judge is "a Republican and a churchgoer."Dr. John 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.” [http://www.evolutionnews.org/2005/12/dover_intelligent_design_decis.html

Background

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 accepted an offer to represent the board made by the Thomas More Law Center. 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.
Kitzmiller v. Dover Area School District et. al.#Page 1 of 139

Three of the school board members in the minority of the vote 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 denies intelligent design is "religion in disguise", despite being represented in court by the Thomas More Law Center, a non-profit organization which uses litigation to promote "the religious freedom of Christians and time-honored family values".

The ACLU 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 NCSE 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: 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 their earlier involvement, the Discovery Institute was concerned that this would be a test case and the defendants had earlier displayed their religious motivations. This tension led to disagreements with the Thomas More Law Center and the withdrawal prior to their depositions of three Discovery Institute fellows as defense experts – William A. Dembski, Stephen C. Meyer and John Angus Campbell. This was apparently because the Thomas More Law Center refused to allow these witnesses to have their own attorney present during deposition.*

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 Litigant of this trial are as follows:

Plaintiffs

  • Tammy Kitzmiller
  • Bryan Rehm
  • Christy Rehm
  • Deborah Fenimore
  • Joel Lieb
  • Steven Stough
  • Beth Eveland
  • Cynthia Sneath
  • Julie Smith
  • Aralene ("Barrie") D. Callahan
  • Frederick B. Callahan

Defendants

  • Dover Area School District
  • Dover Area School District Board of Directors

Members who voted for the statement
  • William Buckingham (resigned August 2005 due to health concerns *)
  • Alan Bonsell
  • Sheila Harkins
  • Heather Geesey
  • Jane Cleaver (resigned October 4 2004)
  • Angie Ziegler-Yingling (resigned December 6 2004)

Members who voted against it

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 arguments 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.) 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 former board member William Buckingham which the plaintiffs argue show 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." He mentioned that board member Alan Bonsell had done his own reading and discovered flaws in evolution such as Piltdown Man.

Witnesses

Witnesses for the plaintiffs
September 27, 2005
  • Kenneth R. Miller, a biology professor from Brown University and noted author and commentator opposed to the intelligent design and creationist movements, was the first witness. He testified as an expert witness that "Intelligent design is not a testable theory and as such is not generally accepted by the scientific community." And that while the idea of intelligent design is not subject to falsification, many claims made by intelligent-design advocates have been falsified. Asked what the harm is in reading the statement, Miller gave a two-fold response. 1) "*t falsely undermines the scientific status of evolutionary theory and gives students a false understanding of what theory actually means." And 2) "as a person of faith who was blessed with two daughters, who raised both of my daughters in the church, and had they been given an education in which they were explicitly or implicitly forced to choose between God and science, I would have been furious, because I want my children to keep their religious faith."
  • Tammy Kitzmiller testified as a fact witness. She was the lead plaintiff and a parent of a child in the Dover school system.
  • Aralene "Barrie" D. Callahan was a plaintiff, a Dover parent, and was for ten years a board member of the Dover Area School District. She had previously resigned over the actions of the board in relation to this case. She testified that Alan Bonsell, a board member, argued in a board retreat in Spring, 2003 that if evolution is taught then creationism should also be taught: "fifty-fifty."
  • Bryan Rehm was the last witness of the day. He was a former physics teacher at Dover and a parent to children attending school at the Dover Area School District. Both he and his wife are plaintiffs and teach Vacation Bible School. Rehm testified that Alan Bonsell, then-chairman of the board's curriculum committee, asked teachers to watch a video on intelligent design titled Icons of Evolution. Teachers had expressed concern that Bonsell did not believe in evolution and wished to see classroom discussions of evolution balanced "fifty-fifty" with creationism.

September 28, 2005

  • Robert T. Pennock is a philosopher now working on the Avida digital organism project at Michigan State University where he is an associate professor. He is the author of many books and articles critical of intelligent design. He testified as an expert witness.
  • Julie Smith is a parent and plaintiff. She made only one point: that the policy created a hostile atmosphere for her daughter. Her daughter, she alleged, was harassed for her Catholic background, being told that she is an atheist since she accepted evolution.
  • Christy Rehm testified as a parent and plaintiff.
  • Beth Eveland testified.
  • Frederick Callahan testified.

September 29, 2005

  • Carol Brown testified.
  • Jeffrey Brown testified.

September 30, 2005 – John Haught testified.

2005-10-05—2005-10-06 – Barbara Forrest testified. Based on the history of the intelligent design movement, and 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), Forrest 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 also testified 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". Under cross examination, Forrest admitted that she did not know of any evidence at all that any member of the School board had seen the "Wedge Document" prior to the lawsuit, that she joined the ACLU because she supports the cause of civil liberties "especially as it concerns education and the separation of church and state", and that she was also a member of the Americans United for Separation of Church and State.

October 6, 2005

  • Jennifer Miller testified.
  • Bertha Spahr testified.

October 12, 2005

  • Brian Alters testified.
  • Cynthia Sneath testified.

October 14, 2005

  • Steven Stough testified.
  • Kevin Padian testified.
  • Joel Lieb testified.

Witnesses for the defense
2005-10-17—2005-10-19 – Michael Behe was the first witness for the defense.

2005-10-20—2005-10-21 – Richard Nilsen testified.

2005-10-21, 2005-10-28, & 2005-11-03 – Michael Richard Baksa testified. He was the Dover Area School District Assistant Superintendent. In an email response to a complaint by social studies teacher Brad Neal, Baksa referred to The Myth of Separation by David Barton, a book Baksa had received from Superintendent Richard Nilsen, who had received it from board member Alan Bonsell. The book calls separation of church and state "absurd." Baksa also discussed attempted changes to the statement. Teachers suggested adding "Darwin's theory of evolution continues to be the dominant scientific explanation of the origin of species," but this was eliminated by the board. The teachers also recommended altering it to read "Because Darwin's theory is a theory, there is a significant amount of evidence that supports the theory, although it is still being tested as new evidence is discovered." Citing his belief the board would reject this, Baksa eliminated the "significant amount of evidence."

October 24, 2005 – Steve Fuller testified. He provided a qualified defense of the scientific status of intelligent design, observing that its history can be traced back to Newton and should include such luminaries of modern biology as Linnaeus and Mendel. He also stressed a distinction from the philosophy of science between the "context of discovery" (what motivates a scientist) and the "context of justification" (how the scientist's theory is judged) in order to mitigate the undeniably religious origins of intelligent design. Fuller memorably called for an "affirmative action" program for intelligent design, which did not win much favor with Judge Jones in his final decision. Fuller enjoys the dubious honor of having had his testimony cited by lawyers for both the plaintiffs and the defense in their closing statements.

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

October 27, 2005 – William Buckingham testified and was ruled a hostile witness.

October 28, 2005

  • Heidi Bernhard-Bubb testified.
  • Joseph Maldonado testified.

Witnesses for the defense

October 28, 2005

  • Heather Geesey testified.

October 31, 2005

  • Jane Cleaver testified.
  • Alan Bonsell testified. His testimony initially included a claim that he did not know where the money had been raised to donate sixty copies of Of Pandas and People to the school's library. On hearing that the money had been raised in William Buckingham's church, and directed through Bonsell's father so that it might be donated anonymously, Judge Jones elected to take over the examination of Bonsell himself, questioning him for about ten minutes.

November 3, 2005

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," eliciting laughter and applause from those present.

Decision

On 20 December 2005, Judge Jones found for the plaintiff and issued Kitzmiller v. Dover Area School District et. al. in which he wrote:

"For the reasons that follow, we conclude that the religious nature of ID design would be readily apparent to an objective observer, adult or child" (Kitzmiller v. Dover Area School District 2: context#Page 24 of 139)

"A significant aspect of the IDM 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." (Kitzmiller v. Dover Area School District 2: context#Page 26 of 139)

"The evidence at trial demonstrates that ID is nothing less than the progeny of creationism" (Kitzmiller v. Dover Area School District 2: context#Page 31 of 139)

"The overwhelming evidence at trial established that ID is a religious view, a mere re-labeling of creationism, and not a scientific theory." (Kitzmiller v. Dover Area School District 3: disclaimer#Page 43 of 139)

"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." (Kitzmiller v. Dover Area School District 3: disclaimer#Page 46 of 139)

"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." (Kitzmiller v. Dover Area School District 4: whether ID is science#4. Whether ID is Science)

"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." (Kitzmiller v. Dover Area School District 4: whether ID is science#Page 86 of 139)

"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." (Kitzmiller v. Dover Area School District 4: whether ID is science#Page 89 of 139)

"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." (Kitzmiller v. Dover Area School District 6: curriculum, conclusion#Page 132 of 139)

In his Kitzmiller v. Dover Area School District 6: curriculum, conclusion#H. 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. *

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. *

Settlement of the legal fees

On February 21, 2006, the Dover Area School Board voted, unanimously with one abstention, to pay $1,000,011 in legal fees and damages resulting from the verdict in the case, a large sum of money for a small district. The 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. 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." [http://www.ncseweb.org/resources/news/2006/PA/162_intelligent_design_costs_dov_2_24_2006.asp

See also

Further reading

  • Mirsky, Steve, Teach the Science, Scientific American, February 2006, vol 294 #2, 36, 38.

Media files

External links

Resources

Kitzmiller v. Dover Area School

 

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