Kitzmiller v. Dover Area School District/1:Introduction

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Case 4:04-cv-02688-JEJ Document 342 Filed 12/20/2005

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Case No. 04cv2688
Judge Jones
Plaintiffs :
TAMMY KITZMILLER, et al.
v. :
Defendants. :
DOVER AREA SCHOOL DISTRICT, et al.,:
MEMORANDUM OPINION
December 20, 2005

INTRODUCTION:

On October 18, 2004, the Defendant Dover Area School Board of Directors passed by a 6-3 vote the following resolution:

Students will be made aware of 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 Defendant Dover Area School District announced by press release 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

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eventually to take a standardized test of which evolution is a 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. 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 who might be interested in gaining an understanding of what Intelligent Design actually involves.
With respect to 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.

A. Background and Procedural History[edit]

On December 14, 2004, Plaintiffs filed the instant suit challenging the constitutional validity of the October 18, 2004 resolution and November 19, 2004 press release (collectively, “the ID Policy”). It is contended that the ID Policy constitutes an establishment of religion prohibited by the First Amendment to the United States Constitution, which is made applicable to the states by the Fourteenth Amendment, as well as the Constitution of the Commonwealth of Pennsylvania. Plaintiffs seek declaratory and injunctive relief, nominal damages,

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costs, and attorneys’ fees.

This Court’s jurisdiction arises under 28 U.S.C. §§ 1331, 1343, and 42 U.S.C. § 1983. In addition, the power to issue declaratory judgments is expressed in 28 U.S.C. §§ 2201 and 2202. This Court has supplemental jurisdiction over Plaintiffs’ cause of action arising under the Constitution of the Commonwealth of Pennsylvania pursuant to 28 U.S.C. § 1367. Venue is proper in this District under 28 U.S.C. § 1391(b) because one or more Defendants reside in this District, all Defendants reside in the Commonwealth of Pennsylvania, and the events or omissions giving rise to the claims at issue occurred in this District. For the reasons that follow, we hold that the ID Policy is unconstitutional pursuant to the Establishment Clause of the First Amendment of the United States Constitution and Art. I, § 3 of the Pennsylvania Constitution.

B. The Parties to the Action[edit]

We will now introduce the individual Plaintiffs and provide information regarding their acquaintance with the biology curriculum controversy.1 Tammy

1 Defendants again argue that certain Plaintiffs lack standing and their claims should therefore be dismissed. First, Defendants contend that Plaintiffs Eveland and Sneath lack standing because their claims are not ripe, based upon the age of their children. Defendants originally asserted this argument in submissions regarding their previously filed Motion to Dismiss. In our March 10, 2005 Order disposing of such Motion, we discussed that issue in detail and held that Plaintiffs Eveland and Sneath should not be dismissed based upon ripeness grounds. (Rec. Doc. 41 at 21-23). We have been presented with no reason to alter our prior ruling in this regard.

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Kitzmiller, resident of Dover, Pennsylvania is a parent of a child in the ninth grade and a child in the eleventh grade at Dover High School.2 She did not attend any Board meetings until November 2004 and first learned of the biology curriculum controversy from reading the local newspapers. Bryan and Christy Rehm, residents of Dover, Pennsylvania are parents of a child in the eighth grade, a child in the second grade, a child in kindergarten in the Dover Area School District, and a child of pre-school age. They intend for their children to attend Dover High School. Bryan Rehm learned of the biology curriculum controversy by virtue of being a member of the science faculty at Dover Area High School. Before and after his resignation, he regularly attended Board meetings. His wife, fellow Plaintiff Christy Rehm learned of the biology curriculum controversy by virtue of

Defendants also argue that the Callahan Plaintiffs and Plaintiff Smith lack standing based upon mootness grounds as their children have already passed the ninth grade. In our March 10, 2005 Order, we addressed this issue and found it premature to dismiss Plaintiff Smith and the Callahan Plaintiffs. We explained that we would entertain a renewed motion at a point at which the record is more fully developed. Id. at 23-25. In Defendants’ Motion for Summary Judgment they raised the issue of standing by way of footnote and subsequently raised it in their post-trial submissions. We find the cases cited by Defendants to be factually distinguishable and conclude that Defendants frame the Establishment Clause claim far too narrowly. Although students subjected to the ID Policy in the classroom are affected most directly, courts have never defined Establishment Clause violations in public schools so narrowly as to limit standing to only those students immediately subjected to the offensive content. See Santa Fe Independent Sch. Dist. v. Doe, 530 U.S. 290, 313-14 (2000) (very adoption or passage of a policy that violates the Establishment Clause represents a constitutional injury). We therefore find that all Plaintiffs have standing to bring their claims in this action.
2 We note that the ages of Plaintiffs’ children are expressed as of the time this lawsuit was filed in December 2004.

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discussions she had with her husband and also regularly attended Board meetings in 2004. Deborah F. Fenimore and Joel A. Leib, residents of Dover, Pennsylvania are the parents of a child in the twelfth grade at Dover High School and a child in the seventh grade in the Dover Area School District. They intend for their seventh grade child to attend Dover High School. Leib first learned of a change in the biology curriculum by reading local newspapers. Steven Stough, resident of Dover, Pennsylvania is a parent of a child in the eighth grade in the Dover Area School District and intends for his child to attend Dover High School. Stough did not attend any Board meetings until December 2004 and prior to that, he had learned of the biology curriculum change by reading the local newspapers. Beth A. Eveland, resident of Dover, Pennsylvania is a parent of a child in the first grade in the Dover Area School District and a child of pre-school age who intends for her children to attend Dover High School. Eveland attended her first Board meeting on June 14, 2004, and all subsequent meetings up to trial. Prior to that, she had learned of the issues relating to the purchase of the biology books from reading the York Daily Record newspaper. Cynthia Sneath, resident of Dover, Pennsylvania is a parent of a child in the first grade in the Dover Area School District and a child of pre-school age who intends for her children to attend Dover High School. Sneath attended her first Board meeting on October 18, 2004 and prior to that, she had learned of the biology

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curriculum controversy from reading the local newspapers. Julie Smith, resident of York, Pennsylvania is a parent of a child in the tenth grade at Dover High School. Smith did not attend a Board meeting in 2004; she learned of and followed the biology curriculum controversy by reading the local newspapers. Aralene (hereinafter “Barrie”) Callahan and Frederick B. Callahan, residents of Dover, Pennsylvania are parents of a child in the tenth grade at Dover High School. Barrie Callahan learned of the biology curriculum controversy by virtue of her status of a former Board member and from attending Board meetings. Fred Callahan learned of the biology curriculum controversy based upon discussions with his wife Barrie and from attending Board meetings.

The Defendants include the Dover Area School District (hereinafter “DASD”) and Dover Area School District Board of Directors (hereinafter “the Board”) (collectively “Defendants”). Defendant DASD is a municipal corporation governed by a board of directors, which is the Board. The DASD comprises Dover Township, Washington Township, and Dover Borough, all of which are located in York County, Pennsylvania. There are approximately 3,700 students in the DASD, with approximately 1,000 attending Dover High School. (Joint Stip. of Fact ¶ 3).

The trial commenced September 26, 2005 and continued through November

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4, 2005. This Memorandum Opinion constitutes the Court’s findings of fact and conclusions of law which are based upon the Court’s review of the evidence presented at trial, the testimony of the witnesses at trial, the parties’ proposed findings of fact and conclusions of law with supporting briefs, other documents and evidence in the record, and applicable law.3 Further orders and judgments will be in conformity with this opinion.

C. Federal Jurisprudential Legal Landscape[edit]

As we will review the federal jurisprudential legal landscape in detail below, we will accordingly render only an abbreviated summary of that terrain by way of an introduction at this juncture. The religious movement known as Fundamentalism began in nineteenth century America as a response to social changes, new religious thought and Darwinism. McLean v. Ark. Bd. of Educ., 529

3 The Court has received numerous letters, amicus briefs, and other forms of correspondence pertaining to this case. The only documents submitted by third parties the Court has considered, however, are those that have become an official part of the record. Consistent with the foregoing, the Court has taken under consideration the following: (1) Brief of Amici Curiae Biologists and Other Scientists in Support of Defendants (doc. 245); (2) Revised Brief of Amicus Curiae, the Discovery Institute (doc. 301); (3) Brief of Amicus Curiae the Foundation for Thought and Ethics (doc. 309); and (4) Brief for Amicus Curiae Scipolicy Journal of Science and Health Policy (doc. 312).
The Court accordingly grants the outstanding Motions for Leave to File Amicus Briefs, namely the Motion for Leave to File a Revised Amicus Brief by The Discovery Institute (doc. 301), the Motion for Leave to File Amicus Brief by The Foundation for Thought and Ethics (doc. 309), and the Petition for Leave to File Amicus Curiae Brief by Scipolicy Journal of Science and Health Policy (doc. 312).

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F. Supp. 1255, 1258 (E.D. Ark. 1982). Religiously motivated groups pushed state legislatures to adopt laws prohibiting public schools from teaching evolution, culminating in the Scopes “monkey trial” of 1925. McLean, 529 F.Supp. at 1259; see Scopes v. State, 154 Tenn. 105 (1927) (criminal prosecution of public-school teacher for teaching about evolution).

In 1968, a radical change occurred in the legal landscape when in Epperson v. Arkansas, 393 U.S. 97 (1968), the Supreme Court struck down Arkansas’s statutory prohibition against teaching evolution. Religious proponents [semble opponents] of evolution thereafter championed “balanced treatment” statutes requiring public-school teachers who taught evolution to devote equal time to teaching the biblical view of creation; however, courts realized this tactic to be another attempt to establish the Biblical version of the creation of man. Daniel v. Waters, 515 F.2d 485 (6th Cir. 1975).

Fundamentalist opponents of evolution responded with a new tactic suggested by Daniel’s reasoning which was ultimately found to be unconstitutional under the First Amendment, namely, to utilize scientific-sounding language to describe religious beliefs and then to require that schools teach the resulting “creation science” or “scientific creationism” as an alternative to evolution. In Edwards v. Arkansas [semble Aguillard], 482 U.S. 578 (1987), five years after McLean, the

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Supreme Court held that a requirement that public schools teach “creation science” along with evolution violated the Establishment Clause. The import of Edwards is that the Supreme Court turned the proscription against teaching creation science in the public school system into a national prohibition.

D. Consideration of the Applicability of the Endorsement and Lemon Tests to Assess the Constitutionality of the ID Policy[edit]

Having briefly touched upon the salient legal framework, it is evident that as the cases and controversies have evolved over time, so too has the methodology that courts employ in evaluating Establishment Clause claims. We initially observe that the Establishment Clause of the First Amendment of the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. The prohibition against the establishment of religion applies to the states through the Fourteenth Amendment. Modrovich v. Allegheny County, 385 F.3d 397, 400 (3d Cir. 2004); see also Wallace v. Jaffree, 472 U.S. 38, 49-50 (1985). The parties are in agreement that an applicable test in the case sub judice to ascertain whether the challenged ID Policy is unconstitutional under the First Amendment is that of Lemon v. Kurtzman, 403 U.S. 602 (1971), (hereinafter “the Lemon test”). See Edwards, 482 U.S. 578 (applying Lemon test to strike down Louisiana’s “Creationism Act”); see also Epperson, 393 U.S. 97 (considering the

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purpose and the primary effect of an Arkansas statute forbidding the teaching of evolution in public schools). Defendants, however, object to using the endorsement test, first arguing that it applies only to religious-display cases and most recently asserting that it applies to limited Establishment Clause cases, including a policy or practice in question that involves: a facially religious display, an overtly religious group or organization using government facilities, the provision of public funding or government resources to overly [sic] religious groups engaged in religious activity, or the permission of an overtly religious practice. After a searching review of Supreme Court and Third Circuit Court of Appeals precedent, it is apparent to this Court that both the endorsement test and the Lemon test should be employed in this case to analyze the constitutionality of the ID Policy under the Establishment Clause, for the reasons that follow. Since a majority of the Supreme Court first implemented the endorsement test in County of Allegheny v. ACLU, 492 U.S. 573 (1989), the Supreme Court and the Third Circuit have consistently applied the test to all types of Establishment Clause cases, notably cases involving religion in public-school settings. In Santa Fe Independent Sch. Dist. v. Doe, 530 U.S. 290 (2000), the Supreme Court applied the endorsement test to school-sponsored prayer at high school football games. In Santa Fe, the Supreme Court clearly defined the

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endorsement test by noting that “[i]n cases involving state participation in a religious activity, one of the relevant questions is ‘whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools.’” Id. at 308. The Supreme Court then provided a more concrete explanation of how the test functions in the public-school context, explaining that:

School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’

Id. at 309-10 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)). In Zelman v. Simmons-Harris, 536 U.S. 639, 652-53 (2002), the Supreme Court applied the endorsement test to a school-voucher program. In Good News Club v. Milford Cent. Sch., 533 U.S. 98, 118-19 (2001), the Supreme Court applied the test to a school district’s policy regarding a religious student club meeting on school property. In Mitchell v. Helms, 530 U.S. 793 (2000), and Agostini v. Felton, 521 U.S. 203 (1997), the Supreme Court applied the test to programs providing governmental aid to parochial schools. In Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 841-42 (1995), the

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Supreme Court applied the endorsement test to a public university’s policy regarding funding a religious student newspaper.

Defendants maintain that this Court should not apply the endorsement test to the challenged ID Policy because the Supreme Court did not apply the test to the creationism statutes at issue in Epperson and Edwards. As Plaintiffs aptly state however, Epperson was decided in 1968, five years before Lemon, and accordingly nearly two decades before Justice O’Connor first began to articulate the endorsement test as a way to conceptualize Lemon. In addition, not only did Edwards likewise pre-date the test’s adoption in Allegheny, but contrary to Defendants’ assertion, the Supreme Court did invoke at least the endorsement concept in that case. See Edwards, 482 U.S. at 585 (“If the law was enacted for the purpose of endorsing religion, ‘no consideration of the second or third criteria [of Lemon] is necessary.’”) (quoting Wallace, 472 U.S. at 56). Moreover, it is notable that Edwards was a “purpose” case, so it would have been unnecessary for the Supreme Court to delve into a full-scale endorsement analysis even had the test existed at the time, as the test is most closely associated with Lemon’s “effect” prong, rather than its “purpose” prong.

A review of the above cited Supreme Court cases reveals that none of them involve a challenge to a religious display, yet in each such case, the Supreme Court

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reviewed the challenged governmental conduct to ascertain whether it constituted religious endorsement. Additionally, in each cited case, the Supreme Court reviewed a public school district’s, or public university’s, policy touching on religion. It is readily apparent to this Court that based upon Supreme Court precedent, the endorsement test must be utilized by us in our resolution of this case.

Applicable Third Circuit Court of Appeals precedent regarding application of the endorsement test to cases involving public school policies confirms our conclusion regarding its applicability to the instant dispute. In Child Evangelism Fellowship v. Stafford Township Sch. Dist., 386 F.3d 514 (3d Cir. 2004), the Third Circuit employed the endorsement test in considering whether a public school district would violate the Establishment Clause if it permitted religious groups to access students through a take-home-flyer system or a back-to-school night event. Also, in ACLU v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996), the Third Circuit applied the endorsement test in considering a challenge to a school board policy concerning whether prayer would be included in high school graduation ceremonies. In Black Horse Pike, the Third Circuit clearly stated that its duty was to “determine whether, under the totality of the circumstances, the challenged practice conveys a message favoring or disfavoring religion.” Id. at

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1486.

Our next task is to determine how to apply both the endorsement test and the Lemon test to the ID Policy. We are in agreement with Plaintiffs that the better practice is to treat the endorsement inquiry as a distinct test to be applied separately from, and prior to, the Lemon test. In recent Third Circuit cases, specifically, Freethought Society v. Chester County, 334 F.3d 247, 261 (3d Cir. 2003), Modrovich, 385 F.3d at 401-04, 406-13, and Child Evangelism, 386 F.3d at 530- 35, the court adopted the practice of applying both tests. The Third Circuit conducted the endorsement inquiry first and subsequently measured the challenged conduct against Lemon’s “purpose” and “effect” standards.4 We will therefore initially analyze the constitutionality of the ID Policy under the endorsement test and will then proceed to the Lemon test as it applies to this case.

E. Application of the Endorsement Test to the ID Policy[edit]

The endorsement test recognizes that when government transgresses the limits of neutrality and acts in ways that show religious favoritism or sponsorship, it violates the Establishment Clause. As Justice O’Connor first elaborated on this

4 We do note that because of the evolving caselaw regarding which tests to apply, the “belt and suspenders” approach of utilizing both tests makes good sense. That said, it regrettably tasks us to make this narrative far longer than we would have preferred.

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issue, the endorsement test was a gloss on Lemon that encompassed both the purpose and effect prongs:

The central issue in this case is whether [the government] has endorsed [religion] by its [actions].
To answer that question, we must examine both what [the government] intended to communicate . . . and what message [its conduct] actually conveyed. The purpose and effect prongs of the Lemon test represent these two aspects of the meaning of the [government’s] action. Lynch, 465 U.S. at 690 (O’Connor, J., concurring).

As the endorsement test developed through application, it is now primarily a lens through which to view “effect,” with purpose evidence being relevant to the inquiry derivatively. In Allegheny, the Supreme Court instructed that the word “endorsement is not self-defining” and further elaborated that it derives its meaning from other words that the Court has found useful over the years in interpreting the Establishment Clause. 492 U.S. at 593. The endorsement test emanates from the “prohibition against government endorsement of religion” and it “preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.” Id. (citations omitted) (emphasis in original). The test consists of the reviewing court determining what message a challenged governmental policy or enactment conveys to a reasonable, objective observer who knows the policy’s language, origins, and

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legislative history, as well as the history of the community and the broader social and historical context in which the policy arose. McCreary County, Ky. v. ACLU, 125 S. Ct. 2722, 2736-37, 2005 U.S. LEXIS 5211 at *41 (2005) (objective observer “presumed to be familiar with the history of the government’s actions and competent to learn what history has to show”); Santa Fe, 530 U.S. at 308 (objective observer familiar with “implementation of” governmental action); Selman, 390 F. Supp. 2d at 1306 (objective observer “familiar with the origins and context of the government-sponsored message at issue and the history of the community where the message is displayed”).

In elaborating upon this “reasonable observer,” the Third Circuit explained in Modrovich, 385 F.3d at 407, that “the reasonable observer is an informed citizen who is more knowledgeable than the average passerby.” Moreover, in addition to knowing the challenged conduct’s history, the observer is deemed able to “glean other relevant facts” from the face of the policy in light of its context. Id. at 407; accord Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 779-781 (1995) (O’Connor, J., concurring). Knowing the challenged policy’s legislative history, the community’s history, and the broader social and historical context in which the policy arose, the objective observer thus considers the publicly available evidence relevant to the purpose inquiry, but notably does not do so to ascertain,

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strictly speaking, what the governmental purpose actually was. See, e.g., Selman, 390 F. Supp. 2d at 1306-07. Instead, the observer looks to that evidence to ascertain whether the policy “in fact conveys a message of endorsement or disapproval” of religion, irrespective of what the government might have intended by it. Lynch, 465 U.S. at 690 (O’Connor, J., concurring) (“The central issue in this case is whether [government] has endorsed Christianity by its [actions]. To answer that question, we must examine both what [the government] intended to communicate . . . and what message [its conduct] actually conveyed. The purpose and effect prongs of the Lemon test represent these two aspects of the meaning of the [government’s] action.”); Freiler v. Tangipahoa Parish Bd. of Educ., 975 F. Supp. 819 (E.D. La. 1997), aff’d, 185 F.3d 337 (5th Cir. 1999); Selman, 390 F. Supp. 2d at 1305-06.

We must now ascertain whether the ID Policy “in fact conveys a message of endorsement or disapproval” of religion, with the reasonable, objective observer being the hypothetical construct to consider this issue. Lynch, 465 U.S. at 690 (O’Connor, J., concurring). As the endorsement test is designed to ascertain the objective meaning of the statement that the District’s conduct communicated in the community by focusing on how “the members of the listening audience” perceived the conduct, two inquiries must be made based upon the circumstances of this case.

This article continues at Kitzmiller v. Dover Area School District/2:Context