Kitzmiller v. Dover Area School District/2:Context

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

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.

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Santa Fe, 530 U.S. at 308. First, we will consider “the message conveyed by the disclaimer to the students who are its intended audience,” from the perspective of an objective Dover Area High School student. At a minimum, the pertinent inquiry is whether an “objective observer” in the position of a student of the relevant age would “perceive official school support” for the religious activity in question. Verbena United Methodist Church v. Chilton County Bd. of Educ., 765 F. Supp. 704, 711 (M.D. Ala. 1991) (quoting Bd. of Educ. of Westside Comm. Schools v. Mergens, 496 U.S. 226, 249 (1990)). We find it incumbent upon the Court to additionally judge Defendants’ conduct from the standpoint of a reasonable, objective adult observer. This conclusion is based, in part, upon the revelation at trial that a newsletter explaining the ID Policy in detail was mailed by the Board to every household in the District, as well as the Board members’ discussion and defense of the curriculum change in public school board meetings and in the media.

1. An Objective Observer Would Know that ID and Teaching About “Gaps” and “Problems” in Evolutionary Theory are Creationist, Religious Strategies that Evolved from Earlier Forms of Creationism[edit]

The history of the intelligent design movement (hereinafter “IDM”) and the development of the strategy to weaken education of evolution by focusing students on alleged gaps in the theory of evolution is the historical and cultural background

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against which the Dover School Board acted in adopting the challenged ID Policy. As a reasonable observer, whether adult or child, would be aware of this social context in which the ID Policy arose, and such context will help to reveal the meaning of Defendants’ actions, it is necessary to trace the history of the IDM.

It is essential to our analysis that we now provide a more expansive account of the extensive and complicated federal jurisprudential legal landscape concerning opposition to teaching evolution, and its historical origins. As noted, such opposition grew out of a religious tradition, Christian Fundamentalism that began as part of evangelical Protestantism’s response to, among other things, Charles Darwin’s exposition of the theory of evolution as a scientific explanation for the diversity of species. McLean, 529 F. Supp. at 1258; see also, e.g., Edwards, 482 U.S. at 590-92. Subsequently, as the United States Supreme Court explained in Epperson, in an “upsurge of fundamentalist religious fervor of the twenties,” 393 U.S. at 98 (citations omitted), state legislatures were pushed by religiously motivated groups to adopt laws prohibiting public schools from teaching evolution. McLean, 529 F. Supp. at 1259; see Scopes, 289 S.W. 363 (1927). Between the 1920's and early 1960's, anti-evolutionary sentiment based upon a religious social movement resulted in formal legal sanctions to remove evolution from the classroom. McLean, 529 F. Supp. at 1259 (discussing a subtle but pervasive

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influence that resulted from anti-evolutionary sentiment concerning teaching biology in public schools).

As we previously noted, the legal landscape radically changed in 1968 when the Supreme Court struck down Arkansas’s statutory prohibition against teaching evolution in Epperson. 393 U.S. 97. Although the Arkansas statute at issue did not include direct references to the Book of Genesis or to the fundamentalist view that religion should be protected from science, the Supreme Court concluded that “the motivation of the [Arkansas] law was the same . . . : to suppress the teaching of a theory which, it was thought, ‘denied’ the divine creation of man.” Edwards, 482 U.S. at 590 (quoting Epperson, 393 U.S. at 109) (Arkansas sought to prevent its teachers from discussing the theory of evolution as it is contrary to the belief of some regarding the Book of Genesis.).

Post-Epperson, evolution’s religious opponents implemented “balanced treatment” statutes requiring public school teachers who taught evolution to devote equal time to teaching the biblical view of creation; however, such statutes did not pass constitutional muster under the Establishment Clause. See, e.g., Daniel, 515 F.2d at 487, 489, 491. In Daniel, the Sixth Circuit Court of Appeals held that by assigning a “preferential position for the Biblical version of creation” over “any account of the development of man based on scientific research and reasoning,” the

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challenged statute officially promoted religion, in violation of the Establishment Clause. Id. at 489.


Next, and as stated, religious opponents of evolution began cloaking religious beliefs in scientific sounding language and then mandating that schools teach the resulting “creation science” or “scientific creationism” as an alternative to evolution. However, this tactic was likewise unsuccessful under the First Amendment. “Fundamentalist organizations were formed to promote the idea that the Book of Genesis was supported by scientific data. The terms ‘creation science’ and ‘scientific creationism’ have been adopted by these Fundamentalists as descriptive of their study of creation and the origins of man.” McLean, 529 F. Supp. at 1259. In 1982, the district court in McLean reviewed Arkansas’s balanced-treatment law and evaluated creation science in light of Scopes, Epperson, and the long history of Fundamentalism’s attack on the scientific theory of evolution, as well as the statute’s legislative history and historical context. The court found that creation science organizations were fundamentalist religious entities that “consider[ed] the introduction of creation science into the public schools part of their ministry.” Id. at 1260. The court in McLean stated that creation science rested on a “contrived dualism” that recognized only two possible explanations for life, the scientific theory of evolution and biblical creationism,

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treated the two as mutually exclusive such that “one must either accept the literal interpretation of Genesis or else believe in the godless system of evolution,” and accordingly viewed any critiques of evolution as evidence that necessarily supported biblical creationism. Id. at 1266. The court concluded that creation science “is simply not science” because it depends upon “supernatural intervention,” which cannot be explained by natural causes, or be proven through empirical investigation, and is therefore neither testable nor falsifiable. Id. at 1267. Accordingly, the United States District Court for the Eastern District of Arkansas deemed creation science as merely biblical creationism in a new guise and held that Arkansas’ balanced-treatment statute could have no valid secular purpose or effect, served only to advance religion, and violated the First Amendment. Id. at 1264, 1272-74.

Five years after McLean was decided, in 1987, the Supreme Court struck down Louisiana’s balanced-treatment law in Edwards for similar reasons. After a thorough analysis of the history of fundamentalist attacks against evolution, as well as the applicable legislative history including statements made by the statute’s sponsor, and taking the character of organizations advocating for creation science into consideration, the Supreme Court held that the state violated the Establishment Clause by “restructur[ing] the science curriculum to conform with a particular

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religious viewpoint.” Edwards, 482 U.S. at 593.

Among other reasons, the Supreme Court in Edwards concluded that the challenged statute did not serve the legislature’s professed purposes of encouraging academic freedom and making the science curriculum more comprehensive by “teaching all of the evidence” regarding origins of life because: the state law already allowed schools to teach any scientific theory, which responded to the alleged purpose of academic freedom; and if the legislature really had intended to make science education more comprehensive, “it would have encouraged the teaching of all scientific theories about the origins of humankind” rather than permitting schools to forego teaching evolution, but mandating that schools that teach evolution must also teach creation science, an inherently religious view. Id. at 586, 588-89. The Supreme Court further held that the belief that a supernatural creator was responsible for the creation of human kind is a religious viewpoint and that the Act at issue “advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety.” Id. at 591, 596. Therefore, as noted, the import of Edwards is that the Supreme Court made national the prohibition against teaching creation science in the public school system.

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The concept of intelligent design (hereinafter “ID”), in its current form, came into existence after the Edwards case was decided in 1987. For the reasons that follow, we conclude that the religious nature of ID would be readily apparent to an objective observer, adult or child.

We initially note that John Haught, a theologian who testified as an expert witness for Plaintiffs and who has written extensively on the subject of evolution and religion, succinctly explained to the Court that the argument for ID is not a new scientific argument, but is rather an old religious argument for the existence of God. He traced this argument back to at least Thomas Aquinas in the 13th century, who framed the argument as a syllogism: Wherever complex design exists, there must have been a designer; nature is complex; therefore nature must have had an intelligent designer. (Trial Tr. vol. 9, Haught Test., 7-8, Sept. 30, 2005). Dr. Haught testified that Aquinas was explicit that this intelligent designer “everyone understands to be God.” Id. The syllogism described by Dr. Haught is essentially the same argument for ID as presented by defense expert witnesses Professors Behe and Minnich who employ the phrase “purposeful arrangement of parts.”

Dr. Haught testified that this argument for the existence of God was advanced early in the 19th century by Reverend Paley and defense expert witnesses Behe and Minnich admitted that their argument for ID based on the “purposeful

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arrangement of parts” is the same one that Paley made for design. (9:7-8 (Haught); Trial Tr. vol. 23, Behe Test., 55-57, Oct. 19, 2005; Trial Tr. vol. 38, Minnich Test., 44, Nov. 4, 2005). The only apparent difference between the argument made by Paley and the argument for ID, as expressed by defense expert witnesses Behe and Minnich, is that ID’s “official position” does not acknowledge that the designer is God. However, as Dr. Haught testified, anyone familiar with Western religious thought would immediately make the association that the tactically unnamed designer is God, as the description of the designer in Of Pandas and People (hereinafter “Pandas”) is a “master intellect,” strongly suggesting a supernatural deity as opposed to any intelligent actor known to exist in the natural world. (P-11 at 85). Moreover, it is notable that both Professors Behe and Minnich admitted their personal view is that the designer is God and Professor Minnich testified that he understands many leading advocates of ID to believe the designer to be God. (21:90 (Behe); 38:36-38 (Minnich)).

Although proponents of the IDM 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 IDM, including Defendants’ expert witnesses. (20:102-03 (Behe)). In fact, an explicit concession that the intelligent designer works outside the laws of nature and science and a

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direct reference to religion is Pandas’ rhetorical statement, “what kind of intelligent agent was it [the designer]” and answer: “On its own science cannot answer this question. It must leave it to religion and philosophy.” (P-11 at 7; 9:13-14 (Haught)). A significant aspect of the IDM 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. Dr. Barbara Forrest, one of Plaintiffs’ expert witnesses, is the author of the book Creationism’s Trojan Horse. She 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. The following is a representative grouping of such statements made by prominent ID proponents.5

5 Defendants contend that the Court should ignore all evidence of ID’s lineage and religious character because the Board members do not personally know Jon Buell, President of the Foundation for Thought and Ethics (hereinafter “FTE”), the publisher of Pandas, or Phillip Johnson, nor are they familiar with the Wedge Document or the drafting history of Pandas.
Defendants’ argument lacks merit legally and logically. The evidence that Defendants are asking this Court to ignore is exactly the sort that the court in McLean considered and found dispositive concerning the question of whether creation science was a scientific view that could be taught in public schools, or a religious one that could not. The McLean court considered writings and statements by creation science advocates like Henry Morris and Duane Gish, as well as the activities and mission statements of creationist

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Phillip Johnson, considered to be the father of the IDM, developer of ID’s “Wedge Strategy,” which will be discussed below, and author of the 1991 book entitled Darwin on Trial, has written that “theistic realism” or “mere creation” are defining concepts of the IDM. This means “that God is objectively real as Creator and recorded in the biological evidence . . .” (Trial Tr. vol. 10, Forrest Test., 80- 81, Oct. 5, 2005; P-328). In addition, Phillip Johnson states 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.” (11:16-17 (Forrest); P-524 at 1). ID proponents Johnson, William Dembski, and Charles Thaxton, one of the editors of Pandas, situate ID in the Book of John in the New Testament of the Bible, which begins, “In the Beginning was the Word, and the Word was God.” (11:18-20, 54-55 (Forrest); P-524; P-355; P-357). Dembski has written 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.”

think-tanks like the Biblic Science Association, the Institution for Creation Research, and the Creation Science Research Center. McLean, 529 F. Supp. at 1259-60. The court did not make the relevance of such evidence conditional on whether the Arkansas Board of Education knew the information. Instead, the court treated the evidence as speaking directly to the threshold question of what creation science was. Moreover, in Edwards, the Supreme Court adopted McLean’s analysis of such evidence without reservation, and without any discussion of which details about creation science the defendant school board actually knew. Edwards, 482 U.S. at 590 n.9.

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(11:50-53 (Forrest); P-386; P-390). Moreover, in turning to Defendants’ lead expert, Professor Behe, his testimony at trial indicated that ID is only a scientific, as opposed to a religious, project for him; however, considerable evidence was introduced to refute this claim. Consider, to illustrate, that Professor Behe remarkably and unmistakably claims that the plausibility of the argument for ID depends upon the extent to which one believes in the existence of God. (P-718 at 705) (emphasis added). As no evidence in the record indicates that any other scientific proposition’s validity rests on belief in God, nor is the Court aware of any such scientific propositions, Professor Behe’s assertion constitutes substantial evidence that in his view, as is commensurate with other prominent ID leaders, ID is a religious and not a scientific proposition.

Dramatic evidence of ID’s religious nature and aspirations is found in what is referred to as the “Wedge Document.” The Wedge Document, developed by the Discovery Institute’s Center for Renewal of Science and Culture (hereinafter “CRSC”), represents from an institutional standpoint, the IDM’s goals and objectives, much as writings from the Institute for Creation Research did for the earlier creation-science movement, as discussed in McLean. (11:26-28 (Forrest)); McLean, 529 F. Supp. at 1255. The Wedge Document states in its “Five Year Strategic Plan Summary” that the IDM’s goal is to replace science as currently

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practiced with “theistic and Christian science.” (P-140 at 6). As posited in the Wedge Document, the IDM’s “Governing Goals” are to “defeat scientific materialism and its destructive moral, cultural, and political legacies” and “to replace materialistic explanations with the theistic understanding that nature and human beings are created by God.” Id. at 4. The CSRC expressly announces, in the Wedge Document, a program of Christian apologetics to promote ID. A careful review of the Wedge Document’s goals and language throughout the document reveals cultural and religious goals, as opposed to scientific ones. (11:26-48 (Forrest); P-140). ID aspires to change the ground rules of science to make room for religion, specifically, beliefs consonant with a particular version of Christianity. In addition to the IDM itself describing ID as a religious argument, ID’s religious nature is evident because it involves a supernatural designer. The courts in Edwards and McLean expressly found that this characteristic removed creationism from the realm of science and made it a religious proposition. Edwards, 482 U.S. at 591-92; McLean, 529 F. Supp. at 1265-66. Prominent ID proponents have made abundantly clear that the designer is supernatural. Defendants’ expert witness ID proponents confirmed that the existence of a supernatural designer is a hallmark of ID. First, Professor Behe has written that by

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ID he means “not designed by the laws of nature,” and that it is “implausible that the designer is a natural entity.” (P-647 at 193; P-718 at 696, 700). Second, Professor Minnich testified that for ID to be considered science, the ground rules of science have to be broadened so that supernatural forces can be considered. (38:97 (Minnich)). Third, Professor Steven William Fuller testified that it is ID’s project to change the ground rules of science to include the supernatural. (Trial Tr. vol. 28, Fuller Test., 20-24, Oct. 24, 2005). Turning from defense expert witnesses to leading ID proponents, Johnson has concluded that science must be redefined to include the supernatural if religious challenges to evolution are to get a hearing. (11:8-15 (Forrest); P-429). Additionally, Dembski agrees that science is ruled by methodological naturalism and argues that this rule must be overturned if ID is to prosper. (Trial Tr. vol. 5, Pennock Test., 32-34, Sept. 28, 2005).

Further support for the proposition that ID requires supernatural creation is found in the book Pandas, to which students in Dover’s ninth grade biology class are directed. Pandas indicates that there are two kinds of causes, natural and intelligent, which demonstrate that intelligent causes are beyond nature. (P-11 at 6). Professor Haught, who as noted was the only theologian to testify in this case, explained that in Western intellectual tradition, non-natural causes occupy a space reserved for ultimate religious explanations. (9:13-14 (Haught)). Robert Pennock,

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Plaintiffs’ expert in the philosophy of science, concurred with Professor Haught and concluded that because its basic proposition is that the features of the natural world are produced by a transcendent, immaterial, non-natural being, ID is a religious proposition regardless of whether that religious proposition is given a recognized religious label. (5:55-56 (Pennock)). It is notable that not one defense expert was able to explain how the supernatural action suggested by ID could be anything other than an inherently religious proposition. Accordingly, we find that ID’s religious nature would be further evident to our objective observer because it directly involves a supernatural designer.

A “hypothetical reasonable observer,” adult or child, who is “aware of the history and context of the community and forum” is also presumed to know that ID is a form of creationism. Child Evangelism, 386 F.3d at 531 (citations omitted); Allegheny, 492 U.S. at 624-25. The evidence at trial demonstrates that ID is nothing less than the progeny of creationism. What is likely the strongest evidence supporting the finding of ID’s creationist nature is the history and historical pedigree of the book to which students in Dover’s ninth grade biology class are referred, Pandas. Pandas is published by an organization called FTE, as noted, whose articles of incorporation and filings with the Internal Revenue Service describe it as a religious, Christian organization. (P-461; P-28; P-566; P-633;

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Buell Dep. 1:13, July 8, 2005). Pandas was written by Dean Kenyon and Percival Davis, both acknowledged creationists, and Nancy Pearcey, a Young Earth Creationist, contributed to the work. (10:102-08 (Forrest)).

As Plaintiffs meticulously and effectively presented to the Court, Pandas went through many drafts, several of which were completed prior to and some after the Supreme Court’s decision in Edwards, which held that the Constitution forbids teaching creationism as science. By comparing the pre and post Edwards drafts of Pandas, three astonishing points emerge: (1) the definition for creation science in early drafts is identical to the definition of ID; (2) cognates of the word creation (creationism and creationist), which appeared approximately 150 times were deliberately and systematically replaced with the phrase ID; and (3) the changes occurred shortly after the Supreme Court held that creation science is religious and cannot be taught in public school science classes in Edwards. This word substitution is telling, significant, and reveals that a purposeful change of words was effected without any corresponding change in content, which directly refutes FTE’s argument that by merely disregarding the words “creation” and “creationism,” FTE expressly rejected creationism in Pandas. In early pre- Edwards drafts of Pandas, the term “creation” was defined as “various forms of life that began abruptly through an intelligent agency with their distinctive features

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intact – fish with fins and scales, birds with feathers, beaks, and wings, etc,” the very same way in which ID is defined in the subsequent published versions. (P- 560 at 210; P-1 at 2-13; P-562 at 2-14, P-652 at 2-15; P-6 at 99-100; P-11 at 99- 100; P-856.2.). This definition was described by many witnesses for both parties, notably including defense experts Minnich and Fuller, as “special creation” of kinds of animals, an inherently religious and creationist concept. (28:85-86 (Fuller); Minnich Dep. at 34, May 26, 2005; Trial Tr. vol. 1, Miller Test., 141-42, Sept. 26, 2005; 9:10 (Haught); Trial Tr. vol. 33, Bonsell Test., 54-56, Oct. 31, 2005). Professor Behe’s assertion that this passage was merely a description of appearances in the fossil record is illogical and defies the weight of the evidence that the passage is a conclusion about how life began based upon an interpretation of the fossil record, which is reinforced by the content of drafts of Pandas. The weight of the evidence clearly demonstrates, as noted, that the systemic change from “creation” to “intelligent design” occurred sometime in 1987, after the Supreme Court’s important Edwards decision. This compelling evidence strongly supports Plaintiffs’ assertion that ID is creationism re-labeled. Importantly, the objective observer, whether adult or child, would conclude from the fact that Pandas posits a master intellect that the intelligent designer is God.

Further evidence in support of the conclusion that a reasonable observer,

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adult or child, who is “aware of the history and context of the community and forum” is presumed to know that ID is a form of creationism concerns the fact that ID uses the same, or exceedingly similar arguments as were posited in support of creationism. One significant difference is that the words “God,” “creationism,” and “Genesis” have been systematically purged from ID explanations, and replaced by an unnamed “designer.” Dr. Forrest testified and sponsored exhibits showing six arguments common to creationists. (10:140-48 (Forrest); P-856.5-856.10). Demonstrative charts introduced through Dr. Forrest show parallel arguments relating to the rejection of naturalism, evolution’s threat to culture and society, “abrupt appearance” implying divine creation, the exploitation of the same alleged gaps in the fossil record, the alleged inability of science to explain complex biological information like DNA, as well as the theme that proponents of each version of creationism merely aim to teach a scientific alternative to evolution to show its “strengths and weaknesses,” and to alert students to a supposed “controversy” in the scientific community. (10:140-48 (Forrest)). In addition, creationists made the same argument that the complexity of the bacterial flagellum supported creationism as Professors Behe and Minnich now make for ID. (P-853; P-845; 37:155-56 (Minnich)). The IDM openly welcomes adherents to creationism into its “Big Tent,” urging them to postpone biblical disputes like the age of the

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earth. (11:3-15 (Forrest); P-429). Moreover and as previously stated, there is hardly better evidence of ID’s relationship with creationism than an explicit statement by defense expert Fuller that ID is a form of creationism. (Fuller Dep. at 67, June 21, 2005) (indicated that ID is a modern view of creationism).

Although contrary to Fuller, defense experts Professors Behe and Minnich testified that ID is not creationism, their testimony was primarily by way of bare assertion and it failed to directly rebut the creationist history of Pandas or other evidence presented by Plaintiffs showing the commonality between creationism and ID. The sole argument Defendants made to distinguish creationism from ID was their assertion that the term “creationism” applies only to arguments based on the Book of Genesis, a young earth, and a catastrophic Noaich flood; however, substantial evidence established that this is only one form of creationism, including the chart that was distributed to the Board Curriculum Committee, as will be described below. (P-149 at 2; 10:129-32 (Forrest); P-555 at 22-24).

Having thus provided the social and historical context in which the ID Policy arose of which a reasonable observer, either adult or child would be aware, we will now focus on what the objective student alone would know. We will accordingly determine whether an objective student would view the disclaimer read to the ninth grade biology class as an official endorsement of religion.

This article continues at Kitzmiller v. Dover Area School District/3:Disclaimer