February 2006 Church & State | Featured

Hours after a federal judge in Pennsylvania struck down a school board policy mandating instruction about “intelligent design” in a public school science class, parent Tammy Kitzmiller faced a bank of microphones to address the media.

As flashbulbs popped and reporters hoisted tape recorders, Kitzmiller re­mained poised and plain-spoken.

“We had no idea how this would end up, but I’m glad we’re here today in victory,” she said. “Eleven ordinary citizens stepped forward and made a difference.”

The court’s Dec. 20 decision in the closely watched case from Dover, Pa., wasn’t just a victory for the plaintiffs – it was a grand-slam. U.S. District Judge John E. Jones III declared the pro-intelligent design (ID) policy a violation of the First Amendment’s separation of church and state – but he didn’t stop there. In his 139-page ruling, Jones wrote that ID is not science but religion and blasted the Dover school board for adopting a divisive and contentious policy that sparked a powerful backlash in town.

Jones noted that the Dover board had voted to require that students listen to a pro-ID disclaimer and stocked the school library with copies of a creationist tome called Of Pandas and People. Tracing the board’s actions, Jones ruled its members were motivated by religious intent.

“The disclaimer’s plain language, the legislative history, and the historical context in which the ID Policy arose, all inevitably lead to the conclusion that Defendants consciously chose to change Dover’s biology curriculum to advance Religion,” wrote Jones in his Kitzmiller v. Dover Area School District decision. “We have been presented with a wealth of evidence which reveals that the District’s purpose was to advance creationism, an inherently religious view, both by introducing it directly under the label ID and by disparaging the scientific theory of evolution, so that creationism would gain credence by default as the only apparent alternative to evolution….”

Americans United Executive Director Barry W. Lynn hailed the ruling.

“This is a tremendous victory for public schools and religious freedom,” said Lynn. “It means that school board members have no right to impose their personal religious beliefs on students through the school curriculum.

“Public schools should teach science in science class, and let parents make their own decisions about religion,” continued Lynn. “It’s a simple idea that the Religious Right has never been able to grasp.”

The sweeping victory was especially sweet, since it came from a conservative, church-going judge appointed in 2002 by President George W. Bush. In his ruling, Jones carefully traced the development of the Dover policy and concluded it was implemented because the board majority harbored religiously based opposition to the theory of evolution.

Jones noted that board member Alan Bonsell told other board members he did not support evolution and wanted to find a way to bring creationism into Dover’s curriculum. When that proved unfeasible due to court rulings, Bonsell and his supporters latched onto intelligent design.

Jones noted that board members were so obsessed with ID that they even delayed buying new biology textbooks. The book that the science faculty requested, Biology by Kenneth Miller, was approved by the faculty and administration yet attacked by the board. Board member Bill Buckingham was quoted in a local newspaper asserting that the tome was “laced with Darwinism.”

Dover science teachers were later compelled to watch a pro-ID video produced by the Discovery Institute, a Seattle-based organization that promotes intelligent design. In the fall of 2004, the board majority approved a curriculum change asserting that “students will be made aware of gaps/problems in Dar­win’s theory and other theories of evolution including, but not limited to, intelligent design.”

To implement the new policy, the board voted to require Dover students to listen to a four-paragraph statement that read in part, “Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence.”

The statement also noted, “The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually in­volves.” Dover science teachers refused to read the statement, so administrators came into ninth-grade biology classrooms to do the deed.

Many Dover residents watched these developments unfold with great unease. Unable to persuade the board to reverse its position, a group of Dover parents decided to take action and asked Americans United and the American Civil Liberties Union of Pennsylvania for help.

AU and the ACLU tried to resolve the matter outside of court, but the Dover board was stubborn and began soliciting right-wing legal groups to come to its aid. Litigation became inevitable, and in December of 2004, AU and the ACLU filed suit on behalf of 11 Dover parents. The board announced it would receive representation from the Thomas More Law Center, a right-wing Catholic group founded by Domino’s Pizza magnate Thomas Monaghan.

The lawsuit attracted media attention from around the world. When the trial got under way in October, the court had to make special arrangements to deal with the crush of reporters who wanted to cover the opening days. Six weeks later, as the trial wrapped up, many of the national and international reporters who had drifted away returned to hear closing arguments.

In December, word began circulating that Jones would rule before Christmas. AU attorneys were cautiously optimistic, noting that the trial had not gone well for the Dover board and ID advocates. (At one point, a visibly agitated Jones, apparently angry because Bonsell’s story in court did not match what he said during depositions, began questioning him directly from the bench.)

Still, the scope of the Dec. 20 decision surprised AU and its allies. Jones did not merely declare the Dover policy a violation of church-state separation, he labeled ID unscientific and blasted the board for blindly embracing ID without even understanding its claims.

“In fact, one unfortunate theme in this case is the striking ignorance concerning the concept of ID amongst Board members,” Jones wrote. “Conspicuously, Board members who voted for the curriculum change testified at trial that they had utterly no grasp of ID.”

Jones noted that board member Jane Cleaver consistently called ID “intelligence design” in her testimony and that another, Heather Geesey “testified she did not understand the substance of the curriculum change, yet she voted for it.”

Observed Jones, “Despite this collective failure to understand the concept of ID, which six Board members nonetheless felt was appropriate to add to ninth grade biology class to improve science education, the Board never heard from any person or organization with scientific expertise about the curriculum change, save for consistent but unwelcome advices from the District’s science teachers who uniformly opposed the change. In disregarding the teachers’ views, the Board ignored undeviating opposition to the curriculum change by the one resource with scientific expertise immediately at its disposal.”

Jones scored the board for adopting a policy that “caused conflict within the family unit,” noting that in some cases children had to “confront challenges to their religious beliefs at school because of the Board’s actions.” He also blasted the board for not being honest about its goals and for trying to cover up the fact that the copies of Pandas were paid for by a church offering.

“[T]he inescapable truth is that both Bonsell and Buckingham lied at their January 3, 2005 depositions about their knowledge of the source of the donation for Pandas…,” Jones wrote. “This mendacity was a clear and deliberate attempt to hide the source of the donations by the Board President and the Chair of the Curriculum Committee to further ensure that Dover students received a creationist alternative to Darwin’s theory of evolution. We are accordingly presented with further compelling evidence that Bonsell and Buckingham sought to conceal the blatantly religious purpose behind the ID Policy.”

Jones was clearly bothered by this dishonesty.

“The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy,” wrote Jones. “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.”

Jones, perhaps sensing that his decision would be unpopular in some circles, tried to head off claims that he was engaging in “judicial activism.”

Wrote Jones, “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.”

Continued Jones, “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.”

Apparently many people in Dover, a small town of about 2,000 just northwest of York, agreed with Jones about the inanity of the board’s actions. On Nov. 8, voters kicked out the pro-ID board and replaced it with a slate that favors teaching evolution.

Once seated, the new board promptly voted to reverse the policy. The Jan. 3 vote occurred with little fanfare while about 100 Dover residents looked on. After the vote, Dover biology teacher Jennifer Miller told the Associated Press she was relieved to see the policy gone.

“I will feel comfortable again teaching what I’d always felt comfortable teaching,” Miller said.

(In another post-decision footnote, former Dover science teacher Bryan Rehm won an open seat on the board during a Jan. 3 special election. Rehm thought he was elected Nov. 8, but a malfunction in certain voting machines led a local judge to order a re-vote. Rehm, a plaintiff in the Dover case, edged out ID advocate James Cashman by 68 votes.)

Reaction to the Dover ruling was swift and pointed. Newspapers all over America commented on the decision. (See “The Intelligent Design Decision,” page 8.) Across the Atlantic, the BBC was so interested in the outcome that it aired interviews with AU staffers on four separate programs.

Religious Right leaders and ID advocates were quick to chime in as well. 

Far-right warhorse Phyllis Schlafly was incensed that a Bush appointee had dared to hand down such a ruling. In an e-mail to supporters, Schlafly accused Jones of letting the prominence he gained during the case go to his head. Referring to Jones’ previous position in state government, she wrote, “Judge John E. Jones III could still be chairman of the Pennsylvania Liquor Control Board if millions of evangelical Christians had not pulled the lever for George W. Bush in 2000. Yet this federal judge, who owes his position entirely to those voters and the president who appointed him, stuck the knife in the backs of those who brought him to the dance in Kitzmiller v. Dover Area School District.”

In Colorado Springs, Tom Minnery, senior vice president of government and public policy at James Dobson’s Focus on the Family Action, reacted to the ruling with dismay.

“Judge John Jones has become party to the charade presented by the American Civil Liberties Union in the Kitzmiller case by deciding that local school boards cannot inform students that the Darwin­ian theory is just that – a theory,” Min­nery told Focus’ news service. “Most unfortunately, this case underscores what was obvious from the beginning – that any theory challenging Darwinism is hysterically opposed by the left as an unconstitutional establishment of religion. Intelligent de­sign is not a religious theory. The First Amend­ment is the true loser today.”

John West, associate director of the Discovery Institute, followed Schlafly’s lead and launched a personal attack on Jones. West accused Jones of getting “on his soapbox to offer his own views of science, religion, and evolution. He makes it clear that he wants his place in history as the judge who issued a definitive decision about intelligent design. This is an activist judge who has delusions of grandeur.”

In a desperate attempt to make lemonade out of lemons, West asserted that the ruling would actually make people more interested in intelligent design, since the court was censoring the topic.

But perhaps the most unusual reaction from the ID community came from Michael Behe, a Lehigh University biochemist who testified in the case on behalf of the Dover board as an expert witness. Appearing on Fox News Channel’s “Hannity & Colmes” program Dec. 23, Behe was challenged by cohost Alan Colmes to explain why ID is not a religious concept. Colmes demanded to know who or what the “designer” could be other than God.

Behe noted that he’s a Catholic and added, “I think a good candidate for the designer is God.” But he insisted that’s not the only possibility.

 Asked Colmes, “What would be the other options if it’s not God?”

Replied Behe, “Well, you know, other things that would strike us as, you know, pretty exotic, you know – space aliens or time travelers or something strange.”

In his ruling, Jones touched on these outrageous claims – only to quickly dismiss them. He wrote, “Although proponents of [intelligent design] occasionally suggest that the designer could be a space alien or a time-traveling cell biologist, no serious alternative to God as the designer has been proposed by members of the [intelligent design movement], including Defendants’ expert witnesses.”

Jones went on to cite the work of Barbara Forrest, a Louisiana university professor and expert witness for the plaintiffs who authored the recent book Creationism’s Trojan Horse. (Forrest is also a member of AU’s National Advi­sory Council.) Forrest, Jones noted, “has thoroughly and exhaustively chronicled the history of ID in her book and other writings for her testimony in this case. Her testimony, and the exhibits which were admitted with it, provide a wealth of statements by ID leaders that reveal ID’s religious, philosophical, and cultural content.”

From there, Jones quoted a number of ID proponents, including Behe, William Dembski and former University of Cali­for­nia-Berkeley law professor Phillip Johnson. Jones noted that Johnson has stated that the “Darwinian theory of evolution contradicts not just the Book of Genesis, but every word in the Bible from beginning to end. It contradicts the idea that we are here because a creator brought about our existence for a purpose” and that Dembski once wrote that ID is a “ground clearing operation” to allow Christianity to receive serious consideration, and “Christ is never an addendum to a scientific theory but always a completion.”

Jones also cited “The Wedge Docu­ment,” a five-year plan issued by the Discovery Institute to replace Darwinian biology with “theistic and Christian science.” The document is a central rallying point for the ID movement, and Jones noted it is replete with religious references. Jones called the Wedge paper “dramatic evidence of ID’s religious nature and aspirations.”

Wrote Jones, “A careful review of the Wedge Document’s goals and language throughout the document reveals cultural and religious goals, as opposed to scientific ones. ID aspires to change the ground rules of science to make room for religion, specifically, beliefs consonant with a particular version of Christianity.”

Having established the religious nature of ID and exposed the religious motivations of the Dover board, Jones had no trouble concluding, “To preserve the separation of church and state mandated by the Estab­lishment Clause of the First Amend­ment to the United States Constitu­tion…we will enter an order permanently enjoining Defendants 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.”

The change in the Dover board means Jones’ decision won’t be appealed. But that doesn’t mean the nationwide controversy over ID is finished – far from it. A month prior to the ruling, the Kansas Board of Education adopted science standards that critics say promote religious ideas in class and denigrate science.

The Chicago Tribune said Kansas’ standards contain “the harshest criticism of evolution in the nation. The standards pointedly cast doubt on Darwin’s theory that all life on Earth shares common ancestry and developed through the mechanisms of random mutation and natural selection…. In an even bolder step that drew international derision, the board redefined science as a discipline not limited to observations in the natural world and opened the door to supernatural explanations.”

After the Dover ruling, the creationist majority on the Kansas board remained unfazed and insisted that the Penn­sylvania decision has in no way persuaded them to change course.

“Liberals don’t like what we did, so they’re going to try to paint us with whatever brush they can,” Steve Abrams, board chairman, said. “It’s apples and oranges. We do not have intelligent de­sign in the standards.”

Similarly, Ohio’s Board of Education has adopted standards that downplay the importance of evolution and on Jan. 10 voted 9-8 to affirm them. The issue has also flared up recently in Minnesota, New Mexico, Georgia, South Carolina and other states. The National Center for Science Education, a pro-evolution org­anization in California, has tracked ID controversies in 24 states.

Getting a national picture of ID activity is difficult because its advocates often approach local public schools and pressure elected boards to add their ideas to the curriculum. There are about 15,000 public schools districts in the United States, and monitoring them all can be a daunting task.

Nevertheless, Americans United and other groups intend to keep a watchful eye on the situation and press ahead in other states. In Ohio, AU attorneys have used freedom-of-information laws to request documents related to the Board of Education’s decision to downplay evolution.

“We hope Ohio takes notice and cleans house,” Richard Katskee, Ameri­cans United’s assistant legal director, told the Cleveland Plain Dealer after the Dover ruling. “Whether there is a legal challenge really depends on what the Ohio Board of Education does.”

Reflecting on the Dover ruling, Katskee, who drafted several important legal briefs in the case, told Church & State that Jones’ opinion will provide a strong platform if legal challenges are necessary in other states.

“Judge Jones’ opinion is everything we could have hoped for,” Katskee said. “It’s an in-depth examination of the issue that thoroughly debunks claims that ID is not a religious concept. This powerful ruling will be extremely useful as Americans United tackles the ID threat in other parts of the country.”