Kitzmiller v. Dover Area School District

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."[9]

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.[10]

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

• 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

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

  Members who voted for the statement:

  • Bill Buckingham (resigned August 2005 due to health concerns)[16]
  • 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; last day of service was October 31, 2004; moved out of the district)
  • Carol Brown (resigned October 18, 2004, in protest)
  • Jeff Brown (resigned October 18, 2004, in protest)

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 earlier in a July 14 pre-trial hearing.[17]) 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."

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." He said that the idea of intelligent design was not subject to falsification, and demonstrated that many claims made by intelligent-design advocates against evolution were invalid. When asked what the harm was in reading the statement, Miller gave a two-fold response. 1) "[I]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, a Dover parent, was a plaintiff and was for ten years a board member of the Dover Area School District. She testified that Alan Bonsell, a board member, argued in a board retreat in Spring 2003 that if evolution were taught then creationism should also be taught.
• 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 were plaintiffs and taught Vacation Bible School. Rehm testified that Alan Bonsell, then-chairman of the board's curriculum committee, had 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

• 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, Katherine. She said her daughter 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

• Carol Brown testified.
• Jeffrey Brown testified.

September 30

• John Haught testified. He is a Roman Catholic theologian and the Landegger Distinguished Professor of Theology at Georgetown University, with teaching and research interests focused on issues in science and religion, cosmology and theology, and religion and ecology.[18]

October 5–6

• Barbara Forrest testified as an expert witness for the plaintiff[19] and also furnished the court with a written expert witness report[20] and a supplemental report.[21] Forrest is a professor in philosophy in the Department of History and Political Science at Southeastern Louisiana University. She and scientist Paul R. Gross co-authored the book Creationism's Trojan Horse: The Wedge of Intelligent Design (Oxford University Press 2004).

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."[22][23] 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.[24][25]

October 6

• Jennifer Miller testified.
• Bertha Spahr testified.

October 12

• Brian Alters testified.
• Cynthia Sneath testified.

October 14

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

October 17–19

• Michael Behe was the first witness for the defense. Behe is professor of biochemistry at Lehigh University in Pennsylvania, and a leading intelligent design proponent who coined the term irreducible complexity and set out the idea in his book Darwin's Black Box.[26]

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."[27]

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."[28]

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",[29] 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.[30][31]

October 20–21

• Richard Nilsen testified.

October 21, 28, November 3

• 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

• Steve Fuller is a professor of sociology at the University of Warwick in England, and author of books on social epistemology and science and technology studies.[32] His testimony essentially attempted a qualified defense of the scientific status of intelligent design, arguing 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 Jones in his final decision. Fuller's testimony was cited by lawyers for both the plaintiffs and the defense in their closing statements.

October 27

• William Buckingham testified and was ruled a hostile witness.

October 28

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

October 28

• Heather Geesey testified.

October 31

• 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, Jones elected to take over the examination of Bonsell himself, questioning him for about ten minutes.

November 3

• Robert Linker testified.
• Scott Minnich testified.

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." (40 days and nights was the length of the Biblical Great Flood.) Jones responded, "Mr. Gillen, that is an interesting coincidence, but it was not by design."[33] This humorous exchange provided the title for Matthew Chapman's book about the trial, 40 Days and 40 Nights.[34]

Wikisource has original text related to this article: Kitzmiller v. Dover Area School District et al.

On December 20, 2005, 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. ... an educator reading the disclaimer is engaged in teaching, even if it is colossally bad teaching. ... Defendants' argument is a red herring because the Establishment Clause forbids not just 'teaching' religion, but any governmental action that endorses or has the primary purpose or effect of advancing religion. (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 1980s; and (3) ID's negative attacks on evolution have been refuted by the scientific community. ... It is additionally important to note that ID has failed to gain acceptance in the scientific community, it has not generated peer-reviewed publications, nor has it been the subject of testing and research. Expert testimony reveals that since the scientific revolution of the 16th and 17th centuries, science has been limited to the search for natural causes to explain natural phenomena. (page 64) [for "contrived dualism", see false dilemma.]
• [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, he wrote:

• 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.
• 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 defendants claimed that they were presenting an alternative scientific theory, not promoting religion. The Creationist intentions of the Dover School Board are detailed on the site for Lauri Lebo's book, The Devil in Dover. But during the trial, Bill Buckingham claimed, "... we would say 'intelligent design' and they would print 'creationism'. It happened all the time,"[45] although the plaintiffs presented video of him advocating creationism.[46]
• Of Pandas and People

1. The Dover School District Superintendent had announced an anonymous donation of books (60 copies of Of Pandas and People). The Board responded that the donors wanted to remain anonymous when pressed by the public.[47]
2. In his January 2005 deposition, Buckingham denied knowing where the book donations came from.
3. During the trial, plaintiff attorney Steve Harvey produced a 2004-10-04 check from board member Buckingham for $850 with the memo "for Pandas and People" written out to Donald Bonsell, father of school board president Alan Bonsell. Buckingham had given the check to Alan Bonsell, who gave it to his father, who would "take it off the table" (according to Alan Bonsell) and buy the books.[48] The money had come from donations from parishioners of Buckingham's church after he stood up and said the board needed it. Bonsell also denied in deposition knowing where the books came from.[49]

• Board member Buckingham had been a lively person before the trial. During trial he appeared feeble. Then after the trial he was vibrant again.[50][51] If this assessment is accurate, it could be construed as deceit, but not perjury.
• Michael Behe testified on the morning of 2005-10-17, day 10 of the trial, that "... Intelligent Design is a scientific theory."[52] But in his 2005-10-18 afternoon testimony, during cross-examination, Behe said that his definition of a scientific theory differs from the accepted definition and would allow both the long-disproved ether theory of light (idea of luminiferous aether) and astrology to be classified as scientific theories.[53] Since the standard definition of a scientific theory includes "... a well-substantiated explanation ...", Behe's personal definition would allow for disproved ideas to be considered scientific theories, whereas the standard definition does not. Behe defended his version of the definition of scientific theory as being one that is commonly used among scientists. Who these scientists are and where they use the Behe definition was not clarified. But Behe's employer, Lehigh University, in an undated proclamation, stated the department faculty's unequivocal support for evolution and "... It is our collective position that intelligent design has no basis in science ..."[54]
• Bacterial Flagellum claims

1. Behe engaged in quote-mining, at best, regarding the bacterial flagellum. During his 2005-10-17 (Day 10) morning testimony, when asked "Have other scientists acknowledged these design features of the flagellum?", Behe cited a 1998 article in the journal Cell by Brandeis University professor David J. DeRosier, The Turn of the Screw, The Bacterial Flagellar Motor, and Derosier's statement that the bacterial flagellum looked designed. Behe left it at that.[55]
2. He omitted, as Derosier pointed out in the Nova documentary, that Derosier wrote that bacterial flagellum looked like it was designed by a human. Derosier went on to add that in fact, the evidence pointed to evolution.[56] That is not explicit in the article, but Derosier is known as an evolution proponent,[57] so Behe should have known, since he quotes Derosier seemingly as in agreement, that Derosier disagreed with him regarding whether the bacterial flagellum points to evolution or Intelligent Design.

• Science Wars: Should Schools Teach Intelligent Design? Video of American Enterprise Institute forum that took place during the Kitzmiller case, originally broadcast on C-SPAN. Featuring Richard Thompson of the Thomas More Law Center, Paul Nelson and Mark Ryland of the Discovery Institute and Barbara Forrest. October 2005. (Windows Media file)
• A presentation given by Kenneth Miller covering the Intelligent Design movement, with considerable detail to the Kitzmiller trial, at Case Western Reserve University. January 2006. (Flash FLV File)
• Intelligent Design: Should It Be Taught in Public Schools? Post-trial meeting of the Commonwealth Club of California featuring Casey Luskin and Cornelius Hunter of the Discovery Institute and Eugenie Scott of the National Center for Science Education and Eric Rothschild of Pepper Hamilton LLP. May 2006. (RAM media file)
• The Intelligent Design of a High-Stakes Trial Win: A Webinar on Successful Litigation Strategies Online review of the trial by Pepper Hamilton LLP. Participants include Eric Rothschild, Steve Harvey, and Kenneth Miller. July 2006. (Windows Media file).
• Dub fi Dover: a reggae track and video created by the Genomic Dub Collective to celebrate the trial verdict (features Nick Matzke of the NCSE as Thomas Jefferson).