Kitzmiller v. Dover Area School District/5:Promoting Religion

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Page 90 of 139[edit]

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


F. Application of the Lemon Test to the ID Policy[edit]

Although we have found that Defendants’ conduct conveys a strong message of endorsement of the Board members’ particular religious view, pursuant to the endorsement test, the better practice in this Circuit is for this Court to also evaluate the challenged conduct separately under the Lemon test.18 See Child Evangelism, 386 F.3d at 530-35; Modrovich, 385 F.3d at 406; Freethought, 334 F.3d at 261. As articulated by the Supreme Court, under the Lemon test, a government sponsored message violates the Establishment Clause of the First Amendment if: (1) it does not have a secular purpose; (2) its principal or primary effect advances or inhibits religion; or (3) it creates an excessive entanglement of the government with religion. Lemon, 403 U.S. at 612-13. As the Lemon test is disjunctive, either an improper purpose or an improper effect renders the ID Policy invalid under the Establishment Clause.19

We will therefore consider whether (1) Defendants’ primary purpose was to advance religion or (2) the ID Policy has the primary effect of promoting religion.

1. Purpose Inquiry[edit]

18 As previously noted, both parties concede that the Lemon test is applicable to the case sub judice.
19 Plaintiffs are not claiming excessive entanglement. Accordingly, Plaintiffs argue that the ID Policy is violative of the first two prongs of the Lemon test, the purpose and effect prongs.

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Initially, we note that the central inquiry is whether the District has shown favoritism toward religion generally or any set of religious beliefs in particular:

The touchstone for our analysis is the principle that the
‘First Amendment mandates governmental neutrality
between religion and religion, and between religion and
nonreligion.’ When the government acts with the
ostensible and predominant purpose of advancing
religion, it violates the central Establishment Clause
value of official religious neutrality, there being no
neutrality when the government’s ostensible object is to
take sides.

McCreary, 125 S. Ct. at 2733 (quoting Epperson, 393 U.S. at 104). As the Supreme Court instructed in Edwards, Lemon’s purpose prong “asks whether government’s actual purpose is to endorse or disapprove of religion. A governmental intention to promote religion is clear when the State enacts a law to serve a religious purpose.” Edwards, 482 U.S. at 583 (quoting Lynch, 465 U.S. at 690) (O’Connor, J., concurring).

The purpose inquiry involves consideration of the ID Policy’s language, “enlightened by its context and contemporaneous legislative history[,]” including, in this case, the broader context of historical and ongoing religiously driven attempts to advance creationism while denigrating evolution.20 Selman, 390 F.

20 We disagree with Defendants’ assertions that the Court must first look for the Board’s purpose in the plain text of the challenged Policy and may consider other indicia of purpose only if the Policy is ambiguous as to purpose. Similarly, we do not find that individual Board members’ statements are irrelevant as a matter of law or that they cannot be considered as part of

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Supp. 2d at 1300; Edwards, 482 U.S. at 590-92, 594-95 (in addition to “[t]he plain meaning of the [enactment’s] words, enlightened by their context and the contemporaneous legislative history,” Supreme Court also looks for legislative purposes in “the historical context of the [enactment], and the specific sequence of events leading to [its] passage”); see also Epperson, 393 U.S. at 98-101; McLean, 529 F. Supp. at 1263 (looking to history of Christian Fundamentalism nationally and to Arkansas’ “long history of official opposition to evolution which is motivated by adherence to Fundamentalist beliefs,” and holding that, “[i]n determining the legislative purpose of a statute, courts may consider evidence of the historical context of the Act, the specific sequence of events leading up to passage of Act, departures from normal procedural sequences, substantive


the legislative history because they are not statements by the full Board in its collective, corporate capacity.
First, as Plaintiffs submit, at the most superficial level, Defendants’ “look at the text alone” approach is on its face inapposite because ID is not defined in the Policy. Accordingly, even if this Court was limited to the disclaimer’s language, which as stated we find that we are not, statutory interpretation canons would require consideration of the Policy’s legislative history and historical context to ascertain what is meant by the term ID. Second, with regard to Defendants’ contention that we should exclude individual Board members’ statements from the legislative history on the ground that they are not full pronouncements by the Board, the Supreme Court has consistently held not only that legislative history can and must be considered in ascertaining legislative purpose under Lemon, but also that statements by a measure’s sponsors and chief proponents are strong indicia of such purpose. McCreary, 125 S. Ct. at 2734 (although courts do not engage in “psychoanalysis of a drafter’s heart of hearts,” they routinely and properly look to individual legislators’ public statements to determine legislative purpose); Edwards, 482 U.S. at 586-88 (reliance upon a statute’s text and the detailed public comments of its sponsor when determining the purpose of a state law requiring creationism to be taught alongside evolution).

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departures from the normal, and contemporaneous statements of the legislative sponsor.”) (citations omitted).

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. 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, for the reasons that follow.

We will begin the Lemon purpose inquiry by providing a detailed chronology of the events that transpired in Dover leading up to the enactment of the ID Policy at issue.

We will initially supply background information on the composition of the Board, which consists of nine seats. The nine members of the Board in 2004 were Alan Bonsell, William Buckingham, Sheila Harkins, Jane Cleaver, Heather Geesey, Angie Yingling, Noel Wenrich, Jeff Brown, and Casey Brown. Wenrich and Cleaver resigned on October 4, 2004, Casey and Jeff Brown resigned on October 18, 2004, and Yingling resigned verbally in November 2004 and in

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writing February 2005. (Trial Tr. vol. 34, Harkins Test., 113, Nov. 2, 2005; Cleaver Dep. at 15, June 9, 2005). During 2004, Bonsell was President of the Board and as President, he appointed Buckingham to be Chair of the Board’s Curriculum Committee. (32:86-87 (Bonsell); 34:39 (Harkins)). As Board President, Bonsell also served as an ex officio member of the Curriculum Committee. (32:116 (Bonsell)).

a. Beginning in January 2002, Bonsell Made Repeated Expressions of Interest to Inject Religion into the Dover Schools[edit]

The Board held a retreat on January 9, 2002, several weeks after Bonsell joined the Board. Superintendent Nilsen’s contemporaneous notes reveal that Bonsell identified “creationism” as his number one issue and “school prayer” as his number two issue. (P-21). Although Bonsell claims he cannot recall raising such subjects but does not dispute that he did, in fact, raise them, the overwhelming evidence indicates that he raised the issues of creationism and school prayer during the January 2002 Board retreat.21 The Board held another retreat the following year, on March 26, 2003, in which Bonsell again raised the issue of “creationism” as an issue of interest as

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reflected in Dr. Nilsen’s contemporaneous notes. (35:50-53 (Baksa); P-25). For the second, consecutive time, Bonsell does not dispute that he raised the issue but his testimony indicates that he cannot recall doing so, despite the fact that Jeff Brown, Barrie Callahan, Bertha Spahr, and Assistant Superintendent Baksa testified otherwise. (32:75 (Bonsell); Trial Tr. vol. 8, J. Brown Test., 50-51, Sept. 29, 2005) (Recalled Bonsell say at the March 26, 2003 retreat that he felt creationism “belonged in biology class alongside evolution.”); 3:126-27 (B. Callahan) (Her testimony and notes took during the March 26, 2003 retreat reveal that Bonsell said he wanted creationism taught 50/50 with evolution in biology class.).

In fact, Trudy Peterman, then principal of Dover High School, sent a memo to Assistant Superintendent Baksa and Science Department Chair Bertha Spahr with a copy sent to Dr. Nilsen on April 1, 2003. This memo reports that Peterman learned from Spahr that Baksa said on March 31, 2003, that an unidentified Board member “wanted fifty percent of the topic of evolution to involve the teaching of Creationism.” (P-26). Although defense witnesses testified that Peterman was known to exaggerate situations, the weight of the evidence reveals that the essential content of the memo was indeed accurate. In that regard, Barrie Callahan’s testimony and handwritten notes from the


21 Consider, to illustrate, that Casey Brown testified she recalled that Bonsell “expressed a desire to look into bringing prayer and faith back into the schools,” that Bonsell mentioned the Bible and creationism, and felt “there should be a fair and balanced presentation within the curriculum.” (Trial Tr. vol. 7, C. Brown Test., 17-18, Sept. 29, 2005).

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March 26, 2003 retreat find corroboration in Superintendent Nilsen’s contemporaneous note that Bonsell raised the issue of “creationism,” as do they in the Peterman memo. Additionally, Spahr confirmed that she had a conversation with Baksa, as reported in the Peterman memo, and that Baksa told her Bonsell wanted to have creationism share equal time with evolution in the curriculum. (13:72-73 (Spahr)). Third, Baksa confirmed that he had a conversation with Spahr, as reported in the Peterman memo, in which he told her that Bonsell was looking “for a 50/50 split with Darwin and some alternative.” (35:53-56 (Baksa)).

Although Baksa claims he does not recall Bonsell identifying “creationism” as the subject with which he wanted to share equal time with evolution, nor that Bonsell mentioned “creationism” at any time up until April 1, 2003, we do not find his testimony on this point to be credible. We accordingly find that Bonsell is clearly the unnamed Board member referred to in Peterman’s memo who wanted fifty percent of the topic of evolution to involve the teaching of creationism. Apart from two consecutive Board retreats, Bonsell raised the issue of creationism on numerous other occasions as well. When he ran for the Board in 2001, Bonsell told Jeff Brown he did not believe in evolution, that he wanted creationism taught side-by-side with evolution in biology class, and that taking prayer and Bible reading out of school was a mistake which he wanted reinstated in

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the Dover public schools. (8:48-49 (J. Brown)). Subsequently, Bonsell told Jeff Brown he wanted to be on the Board Curriculum Committee because he had concerns about teaching evolution and he wanted to see some changes in that area. (8:55 (J. Brown)). Additionally, Nilsen complained to Jeff Brown that each Board President had a new set of priorities and Bonsell’s priority was that of creationism. (8:53 (J. Brown)). It is notable, and in fact incredible that Bonsell disclaimed any interest in creationism during his testimony, despite the admission by his counsel in Defendants’ opening statement that Bonsell had such an interest. (1:19).

Simply put, Bonsell repeatedly failed to testify in a truthful manner about this and other subjects. Finally, Bonsell not only wanted prayer in schools and creationism taught in science class, he also wanted to inject religion into the social studies curriculum, as evidenced by his statement to Baksa that he wanted students to learn more about the Founding Fathers and providing Baksa with a book entitled Myth of Separation by David Barton.22 (36:14-15, 17 (Baksa), P-179).

b. Fall 2003 – Bonsell Confronted Teachers About Evolution[edit]

Shortly after Baksa took a position with the DASD in the fall of 2002, he

22 Moreover, in an email to one of the social studies teachers on October 19, 2004, the day after the Board passed the resolution at issue, Baksa said: “all kidding aside, be careful what you ask for. I’ve been given a copy of the Myth of Separation by David Barton to review from Board members. Social Studies curriculum is next year. Feel free to borrow my copy to get an idea where the board is coming from.” (36:14 (Baksa); P-91).

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and Bonsell, then Chair of the Board Curriculum Committee, had discussions in which Bonsell expressed concern about the teaching of evolution, the presentation of Darwin in a biology textbook used at Dover, and felt that Darwin was presented as a fact, not a theory. (26:62-64 (Baksa); 35:55 (Baksa)). Prior to the fall of 2003, Baksa discussed Bonsell’s evolutionary concerns with the teachers, including Bonsell’s problem with the teaching of the origin of life, by which Bonsell meant how species change into other species, aspects of the theory of evolution also known as macroevolution and speciation. (35:66-68 (Baksa)). Baksa then arranged for a meeting between Bonsell and science teachers in the fall of 2003 in which Jennifer Miller, the senior biology teacher, acted as spokesperson for the teachers. (Trial Tr. vol. 12, J. Miller, 107-09, Oct. 6, 2005; 35:68 (Baksa)). Miller testified that Bonsell was specifically concerned that the teachers conveyed information to students in opposition to what parents presented at home leaving students with the impression that “somebody is lying.” (12:111 (J. Miller)). Miller explained that evolution is taught as change over time with emphasis upon origin of species, not origin of life. Bonsell left the meeting with the understanding that the “origins of life” is not taught, which pleased him because the concept of common ancestry offends his personal religious belief that God created man and other species in the forms they now exist and that the earth is

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only thousands of years old. (33:54-58, 115 (Bonsell)). Prior to the fall of 2003, no Dover administrator or Board member had ever met with the biology teachers and questioned them as to how they taught evolution, or any other aspect of biology. (Trial Tr. vol. 36, Linker Test., 75, Nov. 3, 2005). The result of the unprecedented fall 2003 meeting was that it had an impact upon how biology teachers subsequently taught evolution in Dover. First, before the meeting with Bonsell, biology teacher Robert Linker had a practice of explaining that creationism was based on “Bibles, religion, [and] Biblical writings,” noting that it was illegal to discuss creation in public school. (36:83 (Linker)). After the meeting, however, Linker changed his prior practice by ceasing any mention of creationism at the beginning of the evolution section, as did he stop using helpful Discovery Channel evolution videos as teaching aides. (36:82-85 (Linker)).

Linker testified that he changed his practices in the classroom because the unusual meeting with Bonsell alerted him to a controversy surrounding how he taught evolution. (36:84-85 (Linker)). Linker additionally testified that Jen Miller, a senior biology teacher, changed her practice of having the students create an evolution time-line in the hallway, which addressed how various species developed over millions of years. (36:86-87 (Linker)).

Therefore, although Defendants have asserted that the ID Policy has the

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secular purposes of promoting critical thinking and improving science education, the opposite of such purposes occurred in fact as biology teachers had already began to omit teaching material regarding the theory of evolution in the months preceding the adoption of the ID Policy.

c. Early 2004 – Buckingham’s Contacts with the Discovery Institute[edit]

At some point before June 2004, Seth Cooper, an attorney with the Discovery Institute contacted Buckingham and two subsequent calls occurred between the Discovery Institute and Buckingham. Although Buckingham testified that he only sought legal advice which was provided in the phone calls, for which Defendants asserted the attorney-client privilege, Buckingham and Cooper discussed the legality of teaching ID and gaps in Darwin’s theory. (29:133-143 (Buckingham); 30:9 (Buckingham)). The Discovery Institute forwarded Buckingham a DVD, videotape, and book which he provided to Nilsen to give the science teachers. (29:130-131 (Buckingham); 25:100-01 (Nilsen); 26:114-15 (Baksa)). Late in the 2003-04 school year, Baksa arranged for the science teachers to watch a video from the Discovery Institute entitled “Icons of Evolution” and at a subsequent point, two lawyers from the Discovery Institute made a legal presentation to the Board in executive session. (Trial Tr. vol. 4, B. Rehm Test., 48- 49, Sept. 27, 2005; 33:111-12 (Bonsell)).

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d. June 2003 to June 2004 – Board Delayed Purchasing the Biology Textbook[edit]

In June 2003, the Board approved funds for new science textbooks, including a biology textbook, the 2002 edition of Biology written by Plaintiffs’ lead expert Kenneth Miller; however, the Board did not approve the purchase of such biology textbook despite its recommendation by the faculty and administration. (3:130-31 (B. Callahan); 29:33 (Buckingham)). In fact, Buckingham testified that as of June 2004, the Board was delaying approval of Biology because of the book’s treatment of evolution and the fact that it did not cover any alternatives to the theory of evolution. (29:33-34 (Buckingham)).

e. June 2004 Board Meetings – Buckingham and Other Board Members Spoke in Favor of Teaching Creationism[edit]

Plaintiffs introduced evidence that at public school board meetings held on June 7, 2004 and June 14, 2004, members of the Board spoke openly in favor of teaching creationism and disparaged the theory of evolution on religious grounds. On these important points, Plaintiffs introduced the testimony of Plaintiffs Fred and Barrie Callahan, Bryan and Christy Rehm, Beth Eveland, former school Board members Casey and Jeff Brown and William Buckingham, teachers Bertha Spahr and Jennifer Miller, and newspaper reporters Heidi Bernhard-Bubb and Joseph Maldonado. We are in agreement with Plaintiffs that with the exception of

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Buckingham, the testimony of these witnesses was both credible and convincing, as will be discussed below.

We will now provide our findings regarding the June 7, 2004 Board meeting. First, the approval of several science textbooks appeared on the agenda for the meeting, but not approval for the biology textbook. (P-42 at 8-9). After Barrie Callahan asked whether the Board would approve the purchase of the 2002 edition of the textbook entitled Biology, Buckingham told Callahan that the book was “laced with Darwinism” and spoke in favor of purchasing a textbook that included a balance of creationism and evolution. (P-46/P-790; 35:76-78 (Baksa); 24:45-46 (Nilsen); 3:135-36 (B. Callahan); 4:51-52 (B. Rehm); 6:62-63 ©. Rehm); 7:25-26 ©. Brown)). With surprising candor considering his otherwise largely inconsistent and non-credible testimony, Buckingham did admit that he made this statement. Second, Buckingham said that the Board Curriculum Committee would look for a book that presented a balance between creationism and evolution. (P- 45/P-805; Trial Tr. vol. 30, Bernhard-Bubb Test., 96, Oct. 27, 2005; P-46/P-790; Trial Tr. vol. 31, Maldonado Test., 59-60, Oct. 28, 2005). Third, Bonsell said that there were only two theories that could possibly be taught, creationism and evolution, and as long as both were taught as theories there would be no problems for the District. (P-46/P-790; 6:65 ©. Rehm)). Fourth, Buckingham spoke in favor

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of having a biology book that included creationism. (P-47/P-791; 8:60-61 (J. Brown); 7:33 ©. Brown); 3:137-38 (B. Callahan); 30:89-90, 105-06, 110-11 (Bernhard-Bubb); 31:60, 66 (Maldonado)). Fifth, both Wenrich and Bonsell spoke in favor of having a biology book that included creationism. (P-47/P-791; 8:60 (J. Brown); 7:33 ©. Brown); 30:89-90, 105-06, 110-11 (Bernhard-Bubb); 31:66 (Maldonado); 3:137-38 (B. Callahan)). Sixth, Superintendent Nilsen said that the District was looking for a textbook that presented “all options and theories” and never challenged the accuracy of that quotation. (25:119-20 (Nilsen)). Seventh, Buckingham testified that he had previously said the separation of church and state is a myth and not something that he supports. (P-44/P-804; P-47/P-791; 3:141-42 (B. Callahan); 7:32-33 ©. Brown); 31:66-67 (Maldonado)). Buckingham also said: “It is inexcusable to have a book that says man descended from apes with nothing to counterbalance it.” (P-44/P-804; 30:77-78 (Bernhard-Bubb)). Finally, after the meeting, Buckingham stated: “This country wasn’t founded on Muslim beliefs or evolution. This country was founded on Christianity and our students should be taught as such.” (P-46/P-790; 31:63 (Maldonado)).

We will now provide our findings regarding the June 14, 2004 Board meeting. Initially, we note that the subject of the biology textbook did not appear on the agenda of the meeting but members of the public made comments, and the

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Board continued to debate the subject of the biology textbook. Second, Buckingham’s wife, Charlotte, gave a speech that exceeded the normal time protocols during the public comment section in which she explained that “evolution teaches nothing but lies,” quoted from Genesis, asked “how can we allow anything else to be taught in our schools,” recited gospel verses telling people to become born again Christians, and stated that evolution violated the teachings of the Bible. (P-53/P-793; 4:55-56 (B. Rehm); 6:71 ©. Rehm); 7:34-35 ©. Brown); 8:104-05 (F. Callahan); 8:63 (J. Brown); 30:107-08 (Bernhard-Bubb); 31:76-77 (Maldonado); 33:37-43 (Bonsell); 29:82-83 (Buckingham); 12:125 (J. Miller); 13:84 (Spahr)). In her deposition, Charlotte Buckingham admitted that she made a speech at the June 14, 2004 Board meeting in which she argued that creationism as set forth in Genesis should be taught at Dover High School and that she read quotations from scripture as part of her speech. ©. Buckingham Dep. at 19-22, April 15, 2005). During this religious speech at a public Board meeting, Board members Buckingham and Geesey said “amen.” (7:35 ©. Brown)). Third, Buckingham stood by his opposition to the 2002 edition of the textbook entitled Biology. Fourth, Bonsell and Wenrich said they agreed with Buckingham that creationism should be taught to balance evolution. (P-806/P-54). Fifth, Buckingham made several outwardly religious statements, which include the

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following remarks. “Nowhere in the Constitution does it call for a separation of church and state.” He explained that this country was founded on Christianity. Buckingham concedes that he said “I challenge you (the audience) to trace your roots to the monkey you came from.” He said that while growing up, his generation read from the Bible and prayed during school. He further said “liberals in black robes” were “taking away the rights of Christians” and he said words to the effect of “2,000 years ago someone died on a cross. Can’t someone take a stand for him?” (P-806/P-54; 12:126 (J. Miller); 13:85 (Spahr); 30:105-07 (Bernhard-Bubb); P-793/P-53; 31:75-76, 78-79 (Maldonado); 29:71 (Buckingham); 35:81-82 (Baksa); 6:73 ©. Rehm); 4:54-55 (B. Rehm); 6:96 (Eveland); 7:26-27 ©. Brown); 8:63 (J. Brown); 8:105-06 (F. Callahan)).

Finally, although Buckingham, Bonsell, and other defense witnesses denied the reports in the news media and contradicted the great weight of the evidence about what transpired at the June 2004 Board meetings, the record reflects that these witnesses either testified inconsistently, or lied outright under oath on several occasions, and are accordingly not credible on these points.

f. June 2004 – Board Curriculum Committee Meeting[edit]

Near the end of the school year in June 2004, the Board Curriculum Committee met with the teachers to discuss a list of Buckingham’s concerns about

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the textbook Biology. (12:114-15 (J. Miller); 35:82 (Baksa); P-132). All of Buckingham’s concerns related to the theory of evolution and included such objections as the reference to a species of finch known as Darwin’s finch simply because it referred to Darwin and his viewpoint that the textbook did not give “balanced presentation,” by which he meant that it did not include the “theory of creationism with God as creator of all life.” (7:45-48 ©. Brown)).

A large part of the meeting addressed Buckingham’s concern that the teachers were teaching what he referred to as “origins of life,” apparently including the origin of species and common ancestry. Jen Miller reiterated that the teachers do not address origins of life, only origin of species. (12:118-120 (J. Miller)).

Also at the meeting Baksa provided those in attendance with several documents including a survey of biology books used in private religious schools in York County, a product profile of a biology textbook used at Bob Jones University, and a document entitled “Beyond the Evolution vs. Creation Debate.” The second page of the “Beyond the Evolution vs. Creation Debate” document reads “Views on the Origin of the Universe and Life” and it explains the difference between “Young Earth Creationism (Creation Science),” “Progressive Creationism (Old Earth Creation),” “Evolutionary Creation (Theistic Creation),” “Deistic Evolution (Theistic Evolution),” and “Dysteleological Evolution (Atheistic Evolution).”

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Interestingly and notably, the example provided under the Progressive Creation (Old Earth Creation) is that of the “Intelligent Design Movement, Phillip Johnson, Michael Behe.” (P-149).

Accordingly, as accurately submitted by Plaintiffs, we find that the Board Curriculum Committee knew as early as June 2004 that ID was widely considered by numerous observers to be a form of creationism. We do not find it coincidental that based upon the previously recited statements and history, some form of creationism was precisely what the Committee wanted to inject into Dover’s science classrooms.

Moreover, at the meeting, although the teachers had already watched the video “Icons of Evolution” from the Discovery Institute, at Buckingham’s insistence they agreed to review it again and consider using in class any portions that aligned with their curriculum. (26:122 (Baksa)). Although Baksa believed that the teachers had already determined there were no parts in the video that would be appropriate for use in class, the teachers capitulated in order to secure Buckingham’s approval to purchase the much needed biology textbook. (35:93-94 (Baksa)).

In the midst of this panoply, there arose the astonishing story of an evolution mural that was taken from a classroom and destroyed in 2002 by Larry Reeser, the

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head of buildings and grounds for the DASD. At the June 2004 meeting, Spahr asked Buckingham where he had received a picture of the evolution mural that had been torn down and incinerated. Jen Miller testified that Buckingham responded: “I gleefully watched it burn.” (12:118 (J. Miller)). Buckingham disliked the mural because he thought it advocated the theory of evolution, particularly common ancestry. (26:120 (Baksa)). Burning the evolutionary mural apparently was insufficient for Buckingham, however. Instead, he demanded that the teachers agree that there would never again be a mural depicting evolution in any of the classrooms and in exchange, Buckingham would agree to support the purchase of the biology textbook in need by the students. (36:56-57 (Baksa) (emphasis added)).

Finally, Baksa’s testimony revealed that there was some mention of the words “intelligent design” at the meeting but he cannot recall who raised the subject. In fact, to the best of his knowledge at the time, ID amounted to nothing more than two words replacing one word, creationism, used by Buckingham at a Board meeting earlier that month. (35:96-98 (Baksa)). Baksa’s testimony supports Plaintiffs’ argument that at a point in June 2004, creationism began to morph into ID in the minds of the Board’s thought leaders.

g. July 2004 – Buckingham Contacted Richard Thompson and Learned about Pandas[edit]

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At some point before late July 2004, Buckingham contacted the Thomas More Law Center (hereinafter “TMLC”) for the purpose of seeking legal advice and spoke with Richard Thompson, President and Chief Counsel for the TMLC. (30:10-12 (Buckingham)). The TMLC proposed to represent the Board, and Buckingham accepted the offer on the Board’s behalf. Buckingham and the Board first learned of the creationist textbook Pandas from Richard Thompson at some point before late July 2004. (29:107-08 (Buckingham); 30:10-12, 15-16 (Buckingham)).

h. July 2004 – New Edition of Biology Textbook Discovered[edit]

In July 2004, after the teachers discovered that there was a 2004 edition of the textbook Biology available, the Board agreed to defer consideration of purchasing a new textbook at its July 12, 2004 meeting until it could review the 2004 edition. (12:127 (J. Miller); 13:30 (Spahr)). In July 2004, Spahr, Miller, and Baksa met to review the 2004 edition and compared the sections on evolution with those found in the 2002 edition. They then created a document delineating the differences. (12:127-29 (J. Miller)).

i. August 2004 – Buckingham and Other Board Members Tried to Prevent Purchase of Standard Biology Textbook[edit]

On August 2, 2004 the Board met and one of the agenda items was the

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approval of the 2004 edition of Biology. A few days prior to this meeting, Casey Brown received a telephone call from Baksa who told her that Buckingham recommended that the District purchase Pandas as a supplemental textbook. (7:52- 53 ©. Brown); 8:64 (J. Brown)). Jeff Brown then went to Harkins’ home to pick up a copy of Pandas at which point she told him that she wanted the school District to purchase the book. (8:65 (J. Brown)).

Subsequently, at the August 2, 2004 meeting, Buckingham opposed the purchase of Biology, which was recommended by the faculty and administration, unless the Board also approved the purchase of Pandas as a companion text. Only eight members of the Board were present on August 2, 2004 and the initial vote to approve the purchase of Pandas failed on a four to four vote with Buckingham, Harkins, Geesey, and Yingling voting for it. (8:68 (J. Brown); 29:105-06 (Buckingham); P-67). After Buckingham stated that he had five votes in favor of purchasing Pandas and if the Board approved the purchase of Pandas, he would release his votes to also approve the purchase of Biology, Yingling changed her vote and the motion to approve the purchase of Biology passed. (P-67; 8:68-69 (J. Brown)). At trial, Buckingham testified that at the meeting he specifically said “if he didn’t get his book, the district would not get the biology book.” (29:106 (Buckingham)).

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j. August 26, 2004 – Solicitor’s Warning to Board[edit]

On August 26, 2004, Board Solicitor Stephen S. Russell sent an email to Nilsen which indicated he spoke with Richard Thompson of the TMLC and that “[t]hey refer to the creationism issue as ‘intelligent design.’” (P-70). The email proceeded to explain the following:

They [TMLC] have background knowledge and have talked to school boards in West Virginia and Michigan about possible litigation. However, nothing has come about in either state. This suggests to me that no one is adopting the textbook because, if they were, one can safely assume there would have been a legal challenge by someone somewhere . . . I guess my main concern at the moment, is that even if use of the text is purely voluntary, this may still make it very difficult to win a case. I say this because one of the common themes in some of the US Supreme Court decisions, especially dealing with silent meditation, is that even though something is voluntary, it still causes a problem because the practice, whatever it may be, was initiated for religious reasons.
One of the best examples comes out of the silent meditation cases in Alabama which the court struck down because the record showed that the statute in question was enacted for religious reasons. My concern for Dover is that in the last several years there has been a lot of discussion, news print, etc. for putting religion back in the schools. In my mind this would add weight to a lawsuit seeking to enjoin whatever the practice might be.

Id. (emphasis added). Nilsen subsequently shared this email with everyone present at the Board Curriculum Committee meeting on August 30, 2004, including Buckingham, Bonsell, and Harkins. (25:135-36 (Nilsen)). Additionally, both

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Nilsen and Baksa admitted that they knew the email referred to the news reports of the June 2004 meetings. (25:135-36, 138-39 (Nilsen); 35:105-06, 111-12 (Baksa)).

There is no evidence that the Board heeded even one iota of the Solicitor’s detailed and prudent warning. We also find the email to be persuasive, additional evidence that the Board knew that ID is considered a form of creationism.

k. August 30, 2004 – Board Curriculum Committee Forced Pandas on the Teachers as Reference Text[edit]

On August 30, 2004, the Board Curriculum Committee met with Spahr, Miller, Nilsen, Baksa, Bonsell, Buckingham, Harkins, and Casey Brown with the principal subject of discussion being Pandas and how it would be used in the classroom. (12:134 (J. Miller)). Although Spahr expressed concern that the textbook taught ID, which she equated with creationism, Buckingham wanted Pandas to be used in the classroom as a comparison text side-by-side the standard biology textbook. (12:135 (J. Miller); 29:104-05 (Buckingham)). Despite the fact that the teachers strongly opposed using Pandas as a companion text, they agreed that Pandas could be placed in the classroom as a reference text as a compromise with the Board. (29:111 (Buckingham); 12:136 (J. Miller); 13:88 (Spahr)). Baksa testified that no one could construe the teachers as having supported Pandas in any way, reference text or otherwise, which is evidenced by Jen Miller’s statement that

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if the teachers compromised with the Board, “maybe this will go away again.” (35:120 (Baksa); 12:136 (J. Miller)). It is patently evident that by this point, the teachers were both weary from the extended contention concerning the teaching of evolution, and wary of retribution in the event they persisted in opposing Buckingham and his cohorts on the Board.

Baksa testified that during this time period he researched Pandas and ID, which included directing his secretary to go to the webpage for the Institute for Creation Research. (35:113-14 (Baksa); D-35). The afore-referenced webpage states that Pandas “contains interpretations of classic evidences in harmony with the creation model” and he testified on cross-examination that he was aware of such information when he researched Pandas. (35:114-15 (Baksa)). The fact that Baksa contradicted this testimony on re-direct and stated that he had never read the webpage has an unfortunate and negative impact on his credibility in this case.

l. October 2004 – Arrangement for Donation of Sixty Copies of Pandas[edit]

The October 4, 2004 Board meeting agenda indicated that Nilsen had accepted a donation of 60 copies of the text Pandas. (P-78 at 9). There is no evidence that Bonsell, Buckingham or any other individual disclosed the source of the donation until it was finally admitted at trial, despite the fact that Larry Snook, a former Board member, inquired as to the source of the donation at a November

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2004 Board meeting. (30:47 (Buckingham); 33:30 (Bonsell)). The testimony at trial stunningly revealed that Buckingham and Bonsell tried to hide the source of the donations because it showed, at the very least, the extraordinary measures taken to ensure that students received a creationist alternative to Darwin’s theory of evolution. To illustrate, we note that at January 3, 2005 depositions taken pursuant to an order of this Court so Plaintiffs could decide whether to seek a temporary restraining order, upon repeated questioning by Plaintiffs’ counsel on this point, neither Buckingham nor Bonsell provided any information about Buckingham’s involvement in the donation or about a collection he took at his church. (30:50-56 (Buckingham); 33:31-35 (Bonsell) (emphasis added)). Buckingham actually made a plea for donations to purchase Pandas at his church, the Harmony Grove Community Church, on a Sunday before services and a total of $850 was collected as a result. (30:38-40 (Buckingham)). As proof of such donation amount, Plaintiffs introduced into evidence a check in the amount of $850 indorsed to Donald Bonsell, Alan Bonsell’s father, drawn on Buckingham’s account jointly held with his wife, with the notation “Of Pandas and People” appearing on the check. (P-80; 30:46-47 (Buckingham)). Alan Bonsell gave the money to his father who purchased the books. (33:131-32 (Bonsell)). When Spahr received the shipment of books and began to unpack them, she discovered a

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catalogue from the company that sold the books listing Pandas under “Creation Science.” (13:94-5 (Spahr); P-144 at 29).

When we were moved to question Bonsell regarding this sequence of events at trial, he testified that his father served as the conduit for the funds from Buckingham’s church because: “He agreed to – he said that he would take it, I guess, off the table or whatever, because of seeing what was going on, and with Mrs. Callahan complaining at the Board meetings not using funds or whatever.” (33:129 (Bonsell)).

As we will discuss in more detail below, the 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, which likely contributed to Plaintiffs’ election not to seek a temporary restraining order at that time based upon a conflicting and incomplete factual record. 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.

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m. October 7, 2004 – Board Curriculum Committee Drafted Curriculum Change[edit]

This article continues at Kitzmiller v. Dover Area School District/6:Curriculum, Conclusion