Kitzmiller v. Dover Area School District/6:Curriculum, Conclusion

From Wikisource
Jump to: navigation, search

Page 116 of 139[edit]

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

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

In September 2004, acting on instructions of the Board, Baksa prepared a change to the biology curriculum which stated: “Students will be made aware of gaps in Darwin’s theory and of other theories of evolution” and contained no reference text. (P-73; 35:122 (Baksa)). The Court has been presented with no evidence that the Board asked Baksa to initiate such changes to the biology curriculum to improve science education in the Dover school system, as will be elaborated upon below.

The Board Curriculum Committee met on October 7, 2004 to discuss changing the biology curriculum, without inviting the science teachers. (35:124 (Baksa)). As Casey Brown was absent, the Board members present with Baksa were Buckingham, Bonsell, and Harkins, and the meeting involved a discussion of various positions regarding the proposed curriculum change. (P-81; 35:125 (Baksa); 29:113 (Buckingham)). The Board Curriculum Committee ultimately adopted, within a matter of minutes, Bonsell’s alternative, which states: “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.” (P-82; 35:125 (Baksa)). The Board Curriculum Committee’s proposed change also called for Pandas to be cited as a reference text. (35:125 (Baksa)). The curriculum change proposed by

Page 117 of 139[edit]

the Board Curriculum Committee and the change proposed by the administration and accepted by the science faculty, were circulated to the full Board by memoranda dated October 13, 2004. (P-84A; P-84B).

n. October 18, 2004 – Curriculum Change Resolution Passed[edit]

On October 18, 2004, the Board passed by a 6-3 vote, a resolution that amended the biology curriculum as follows:

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.

In addition, the Board resolution stated that this subject is to be covered in lecture form with Pandas to be a reference book. (7:89-90 ©. Brown); P-88; P-209 at 1646; P-84C). Board members Bonsell, Buckingham, Harkins, Geesey, Cleaver, and Yingling voted for the resolution with Noel Wenrich and Casey and Jeff Brown voting against it. (7:89-90 ©. Brown); P-88).

Compelling evidence was presented at trial that in passing the resolution the Board deviated from its regular practice in important respects. “The normal procedures were not followed at all in making this change.” (7:79 ©. Brown)). First, the Board typically addressed curriculum changes an entire year in advance of implementation; however, the change to the biology curriculum was initiated

Page 118 of 139[edit]

during the 2004-05 school year to be effective that year. (7:78-79 ©. Brown)). Second, standard Board practice dictated two meetings to be held per month, a planning meeting in which items for consideration were listed on its agenda before they were listed for resolution on the agenda at the action meeting held later in the month. The change to the biology curriculum, however, was placed on the Board’s agenda for the first time during an action meeting, which several witnesses testified to be irregular. (7:24-25, 77-78 ©. Brown); 26:11 (Nilsen); 4:3-5 (B. Callahan); 29:118 (Buckingham)). Third, Board practice called for the District Curriculum Committee to meet and discuss the proposed curriculum change, which Nilsen suggested in this case; however, not surprisingly, the Board overruled that suggestion. (7:72-73 ©. Brown); 26:8-10 (Nilsen)). Although the administration did send the proposed change to the District Curriculum Committee and received feedback from two members, including an opposition and a request for the District Curriculum to meet, no evidence has been presented that either suggestion was acted upon by the Board. (P-151; D-67; 7:80-82 ©. Brown); 35:7-8 (Baksa)). Finally, the Board brazenly chose not to follow the advice of their only scienceeducation resources as the teachers were not included in the process of drafting the language adopted by the Board Curriculum Committee. (7:82-83 ©. Brown)). In addition to deviating from standard Board practice in multiple respects,

Page 119 of 139[edit]

defense witnesses testified that the rush to bring the curriculum change to a vote occurred because the issue had been debated for the previous six months and more importantly, the Board was about to lose two Board members, Wenrich and Cleaver, who had been a part of those discussions. (26:10-12 (Nilsen); 33:113-14 (Bonsell)). The record contains no evidence of any public Board meetings in which the Board discussed ID; however, the evidence does show that the Board discussed creationism within that six month period. In fact, the evidence reveals that Buckingham wanted the Board to vote on the resolution on October 18, 2004 because he thought he had sufficient votes to pass the resolution adopted at the October 7, 2004 Board Curriculum Committee meeting. (29:113-16 (Buckingham)).

Prior to the vote at the October 18, 2004 meeting, science teachers Spahr and Miller, as well as members of the public spoke outwardly against the curriculum change. (13:41-42 (J. Miller); 13:88-93 (Spahr)). Spahr made clear in her statement to the Board that the teachers’ agreement to point out “flaws/problems with Darwin’s theory,” not to teach origins of life, and to have Pandas available as a reference text, were all compromises with the Board Curriculum Committee, after what she described as “a long and tiresome process.” (13:91-92 (Spahr)). She additionally stated that the change was being railroaded through without input

Page 120 of 139[edit]

from the teachers or the District Curriculum Committee, and no member of the administration or Board disagreed. (13:91-93 (Spahr); 35:126 (Baksa)). Finally, Spahr warned the full Board that ID amounted to creationism and could not be taught legally. (24:102 (Nilsen); 35:14-15 (Baksa)).

Baksa provided highly pertinent information concerning the position of the teachers throughout this process. He testified that the teachers did not support Pandas in any way, but that they made compromises to insure the purchase of the biology book entitled Biology. (35:119-20 (Baksa)). Also, he testified that any suggestion the teachers supported any part of the curriculum change must be soundly rejected. (35:20-21 (Baksa)). The unrebuted evidence reveals that the teachers had to make unnecessary sacrifices and compromises advantageous toward Board members, who were steadfastly working to inject religion in the classroom, so that their students would have a biology textbook that should have been approved as a matter of course.

Remarkably, the 6-3 vote at the October 18, 2004 meeting to approve the curriculum change occurred with absolutely no discussion of the concept of ID, no discussion of how presenting it to students would improve science education, and no justification was offered by any Board member for the curriculum change. (26:21 (Nilsen); 35:127-38 (Baksa); 8:36 ©. Brown); 8:76 (J. Brown); 12:139-40

Page 121 of 139[edit]

(J. Miller); 13:102 (Spahr); 32:25-26, 40 (Cleaver); 30:23-25 (Buckingham); 31:182-83 (Geesey); 34:124-26 (Harkins); 6:105-06 (Eveland)). Furthermore, Board members somewhat candidly conceded that they lacked sufficient background in science to evaluate ID, and several of them testified with equal frankness that they failed to understand the substance of the curriculum change adopted on October 18, 2004. (31:175, 181-82 (Geesey); 32:49-50 (Cleaver); 34:117-18, 124-25 (Harkins)).

In fact, one unfortunate theme in this case is the striking ignorance concerning the concept of ID amongst Board members. Conspicuously, Board members who voted for the curriculum change testified at trial that they had utterly no grasp of ID. To illustrate, consider that Geesey testified she did not understand the substance of the curriculum change, yet she voted for it. (31:181-82 (Geesey); 29:11-12 (Buckingham); Buckingham Dep. 1:59-61, January 3, 2005; 34:48-49 (Harkins); 33:112-13 (Bonsell); 26:21 (Nilsen)). Moreover, as she indicated on multiple occasions, in voting for the curriculum change, Geesy deferred completely to Bonsell and Buckingham. (31:154-55, 161-62, 168, 184-87, 190 (Geesey)). Second, Buckingham, Chair of the Curriculum Committee at the time, admitted that he had no basis to know whether ID amounted to good science as of the time of his first deposition, which was two and a half months after the ID Policy was

Page 122 of 139[edit]

approved, yet he voted for the curriculum change. (30:32-33 (Buckingham)).

Third, Cleaver voted for the curriculum change despite the teachers’ objections, based upon assurances from Bonsell. (32:23-25 (Cleaver)). Cleaver admittedly knew nothing about ID, including the words comprising the phrase, as she consistently referred to ID as “intelligence design” throughout her testimony. In addition, Cleaver was bereft of any understanding of Pandas except that Spahr had said it was not a good science book which should not be used in high school. (32:45-46 (Cleaver)). In addition, Superintendent Nilsen’s entire understanding of ID was that “evolution has a design.” (26:49-50 (Nilsen)).

Despite this collective failure to understand the concept of ID, which six Board members nonetheless felt was appropriate to add to ninth grade biology class to improve science education, the Board never heard from any person or organization with scientific expertise about the curriculum change, save for consistent but unwelcome advices from the District’s science teachers who uniformly opposed the change. (29:109 (Buckingham)). In disregarding the teachers’ views, the Board ignored undeviating opposition to the curriculum change by the one resource with scientific expertise immediately at its disposal. The only outside organizations which the Board consulted prior to the vote were the Discovery Institute and TMLC, and it is clear that the purpose of these contacts

Page 123 of 139[edit]

was to obtain legal advice, as opposed to science education information. (33:111- 12 (Bonsell); 29:130, 137-43, 30:10-14 (Buckingham)). The Board received no materials, other than Pandas, to assist them in making their vote. Nor did anyone on the Board or in the administration ever contact the NAS, the AAAS, the National Science Teachers’ Association, the National Association of Biology Teachers, or any other organization for information about ID or science education before or after voting for the curriculum change. (33:113 (Bonsell); 30:24-27 (Buckingham)). While there is no requirement that a school board contact any of the afore-referenced organizations prior to enacting a curriculum change, in this case a simple glance at any one of their websites for additional information about ID and any potential it may have to improve science education would have provided helpful information to Board members who admittedly had no comprehension whatsoever of ID. As Dr. Alters’ expert testimony demonstrated, all of these organizations have information about teaching evolution readily available on the internet and they include statements opposing the teaching of ID. (14:74-99 (Alters)).

Although the resolution passed, it was not without opposition. Both the Superintendent and Assistant Superintendent, Nilsen and Baksa, opposed the curriculum change. (35:126 (Baksa)). Baksa testified that he still feels the

Page 124 of 139[edit]

curriculum change was wrong. (35:127 (Baksa)). Both Casey and Jeff Brown, who voted against the resolution, resigned at the conclusion of the October 18, 2004 Board meeting. The following excerpt from Casey Brown’s poignant resignation speech speaks volumes about what had occurred within the Board by that time:

There has been a slow but steady marginalization of some board members. Our opinions are no longer valued or listened to. Our contributions have been minimized or not acknowledged at all. A measure of that is the fact that I myself have been twice asked within the past year if I was ‘born again.’ No one has, nor should have the right, to ask that of a fellow board member. An individual’s religious beliefs should have no impact on his or her ability to serve as a school board director, nor should a person’s beliefs be used as a yardstick to measure the value of that service. However, it has become increasingly evident that it is the direction the board has now chosen to go, holding a certain religious belief is of paramount importance. 7:92-93 ©. Brown).

Additionally, at the following meeting, Board member Wenrich, who opposed the expedited vote on October 18, 2004 and engaged in parliamentary measures to have the vote delayed until the community could properly debate the issue while considering the science teachers’ position, resigned and stated the following:

Page 125 of 139[edit]

I was referred to as unpatriotic, and my religious beliefs were questioned. I served in the U.S. Army for 11 years and six years on the board. Seventeen years of my life have been devoted to public service, and my religion is personal. It’s between me, God, and my pastor. P-810; 30:126-30 (Bernhard-Bubb); 4:11-12 (B. Callahan).

The evidence clearly reveals that Board members who voted in favor of the curriculum change blindly adopted the recommendations of the architects of the ID Policy, Bonsell and Buckingham, with respect to their decision to incorporate it as part of the high school biology curriculum, while disregarding opposition by the science teachers and administration. (31:154-68 (Geesey)).

o. Development of Statement to be Read to Students[edit]

After the curriculum was changed, Baksa was given the task of preparing a statement to be read to students before the evolution unit in biology commenced. The persuasive evidence presented at trial demonstrates that the final version of the statement communicated a very different message about the theory of evolution than the language that Baksa and senior science teacher Jen Miller proposed. (36:27 (Baksa)).

First, Baksa’s initial draft of the statement described Darwin’s theory of evolution as the “dominant scientific theory;” however, the Board removed such language from the final version. (D-91; 36:22-24 (Baksa)). Second, Baksa’s draft

Page 126 of 139[edit]

stated that “there are gaps in Darwin’s theory for which there is yet no evidence;” however, the Board selectively edited out the word “yet” so that the statement is read in a considerably different light to be “there are gaps in Darwin’s theory for which there is no evidence.” (D-91; 36:26-28 (Baksa)). Third, after Jen Miller reviewed the statement at Baksa’s suggestion, she suggested that language be added that there is a “significant amount of evidence” supporting Darwin’s theory.

Although Baksa felt this was an accurate statement about the scientific theory of evolution, he removed such language because he understood that the Board would not approve it as written. (D-91; 36:24-26 (Baksa)).

As previously noted, the final version of the statement prepared by Defendants to be read to students in ninth grade biology class states, as follows:

The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and 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.

Page 127 of 139[edit]

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.

P-124.

Subsequently, on January 6, 2005, the teachers sent a memo to the Board requesting that they be released from any obligation to read the statement. (36:97 (Linker)). The memo provides, in relevant part, as follows:

You have indicated that students may ‘opt-out’ of this portion [the statement read to students at the beginning of the biology evolution unit] of the class and that they will be excused and monitored by an administrator. We respectfully exercise our right to ‘opt-out’ of the statement portion of the class. We will relinquish the classroom to an administrator and we will monitor our own students. This request is based upon our considered opinion that reading the statement violates our responsibilities as professional educators as set forth in the Code of Professional Practice and Conduct for Educators[.]
INTELLIGENT DESIGN IS NOT SCIENCE.
INTELLIGENT DESIGN IS NOT BIOLOGY.
INTELLIGENT DESIGN IS NOT AN ACCEPTED SCIENTIFIC THEORY.
I believe that if I as the classroom teacher read the required statement, my students will inevitably (and understandably) believe that Intelligent Design is a valid scientific theory, perhaps on par with the theory of evolution. That is not true. To refer the students to ‘Of

Page 128 of 139[edit]

Pandas and People’ as if it is a scientific resource breaches my ethical obligation to provide them with scientific knowledge that is supported by recognized scientific proof or theory.
P-121 (emphasis in original).

Administrators were thus compelled to read the statement to ninth graders at Dover High School in January 2005 because of the refusal by the teachers to do so. (25:56-57 (Nilsen); 35:38 (Baksa)). The administrators read the statement again in June 2005. By that time, Defendants had modified the statement to refer to other, unnamed books in the library that relate to ID; however Pandas remains the only book identified by name in the statement. Defendants offered no evidence concerning whether the other books can be found in the library, including whether they are placed near Pandas. (P-131; 35:40, 42-43 (Baksa)).

p. Newsletter Published by the Board[edit]

As we previously explained in detail, the Board mailed a newsletter to the entire Dover community in February 2005, which was prepared in conjunction with the TMLC. (P-127). Additionally, on April 23, 2005, lead defense expert Professor Behe made a presentation on ID to Dover citizens at the Board’s request. (Joint Stip. of Fact ¶ 11).

q. Effect of Board’s Actions on Plaintiffs[edit]

Plaintiffs provided compelling testimony as to the harm caused by the

Page 129 of 139[edit]

Board’s ID Policy on their children, families, and themselves in consistent, but personal ways. Plaintiffs believe that ID is an inherently religious concept and that its inclusion in the District’s science curriculum interferes with their rights to teach their children about religion. (3:118-19 (Kitzmiller); 4:13-15 (B. Callahan); 6:77- 78 ©. Rehm); 6:106 (Eveland); 16:26, 30 (Stough); 17:147-48 (Leib)). Plaintiffs additionally testified that their children confront challenges to their religious beliefs at school because of the Board’s actions, that the Board’s actions have caused conflict within the family unit, and that there is discord in the community. (6:77-78 (Rehm); 6:38-39 (Smith); 17:146-47 (Leib)). The testimony of Joel Leib, whose family has lived in Dover for generations, is representative of the Plaintiffs’ harm caused by the Board’s actions in enacting the ID Policy.

Well, it’s driven a wedge where there hasn’t been a wedge before. People are afraid to talk to people for fear, and that’s happened to me. They’re afraid to talk to me because I’m on the wrong side of the fence.
17:146-47 (Leib).

Moreover, Board members and teachers opposing the curriculum change and its implementation have been confronted directly. First, Casey Brown testified that following her opposition to the curriculum change on October 18, 2004, Buckingham called her an atheist and Bonsell told her that she would go to hell.

Page 130 of 139[edit]

(7:94-95; 8:32 ©. Brown)). Second, Angie Yingling was coerced into voting for the curriculum change by Board members accusing her of being an atheist and un- Christian. (15:95-97 (Sneath)). In addition, both Bryan Rehm and Fred Callahan have been confronted in similarly hostile ways, as have teachers in the DASD. (4:93-96 (B. Rehm); 8:115-16 (F. Callahan); 14:34-35 (Spahr)).

r. Defendants Presented No Convincing Evidence that They were Motived by Any Valid Secular Purpose[edit]

Although Defendants attempt to persuade this Court that each Board member who voted for the biology curriculum change did so for the secular purposed of improving science education and to exercise critical thinking skills, their contentions are simply irreconcilable with the record evidence. Their asserted purposes are a sham, and they are accordingly unavailing, for the reasons that follow.

We initially note that the Supreme Court has instructed that while courts are “normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.” Edwards, 482 U.S. at 586-87 (citing Wallace, 472 U.S. at 64)(Powell, J., concurring); id. at 75 (O’Connor, J., concurring in judgment). Although as noted Defendants have consistently asserted that the ID Policy was enacted for the secular purposes of improving science education and encouraging students to exercise critical thinking

Page 131 of 139[edit]

skills, the Board took none of the steps that school officials would take if these stated goals had truly been their objective. The Board consulted no scientific materials. The Board contacted no scientists or scientific organizations. The Board failed to consider the views of the District’s science teachers. The Board relied solely on legal advice from two organizations with demonstrably religious, cultural, and legal missions, the Discovery Institute and the TMLC. Moreover, Defendants’ asserted secular purpose of improving science education is belied by the fact that most if not all of the Board members who voted in favor of the biology curriculum change conceded that they still do not know, nor have they ever known, precisely what ID is. To assert a secular purpose against this backdrop is ludicrous.

Finally, although Defendants have unceasingly attempted in vain to distance themselves from their own actions and statements, which culminated in repetitious, untruthful testimony, such a strategy constitutes additional strong evidence of improper purpose under the first prong of the Lemon test. As exhaustively detailed herein, the thought leaders on the Board made it their considered purpose to inject some form of creationism into the science classrooms, and by the dint of their personalities and persistence they were able to pull the majority of the Board along in their collective wake.

Page 132 of 139[edit]

Any asserted secular purposes by the Board are a sham and are merely secondary to a religious objective. McCreary, 125 S. Ct. at 2735; accord, e.g., Santa Fe, 530 U.S. at 308 (“it is . . . the duty of the courts to ‘distinguish a sham secular purpose from a sincere one.’” (citation omitted)); Edwards, 482 U.S. at 586-87 (“While the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.”). Defendants’ previously referenced flagrant and insulting falsehoods to the Court provide sufficient and compelling evidence for us to deduce that any allegedly secular purposes that have been offered in support of the ID Policy are equally insincere.

Accordingly, we find that the secular purposes claimed by the Board amount to a pretext for the Board’s real purpose, which was to promote religion in the public school classroom, in violation of the Establishment Clause.

2. Effect Inquiry[edit]

Although Defendants’ actions have failed to pass constitutional muster under the endorsement test and pursuant to the purpose prong of Lemon, thus making further inquiry unnecessary, we will briefly address the final Lemon prong relevant to our inquiry, which is effect, in the interest of completeness. The Supreme Court has instructed the following with regard to the Lemon effect prong:

Page 133 of 139[edit]

The core notion animating the requirement that . . . [an official act’s] ‘principal or primary effect . . . be one that neither advances nor inhibits religion,’ is not only that government may not be overtly hostile to religion but also that it may not place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general, compelling nonadherents to support the practices or proselytizing of favored religious organizations and conveying the message that those who do not contribute gladly are less than full members of the community. Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 9 (1989)(plurality op.)(internal citations omitted).

While the Third Circuit formally treats the endorsement test and the Lemon test as distinct inquiries to be treated in succession, it has continued to recognize the relationship between the two. Moreover, because the Lemon effect test largely covers the same ground as the endorsement test, we will incorporate our extensive factual findings and legal conclusions made under the endorsement analysis by reference here, in accordance with Third Circuit practice. Freethought, 334 F.3d at 269 (The court noted that “effect under the Lemon test is cognate to endorsement,” and hence the court did not hesitate simply to “incorporate [its] discussion of endorsement” into the effect analysis.). To briefly reiterate, we first note that since ID is not science, the conclusion is inescapable that the only real effect of the ID Policy is the advancement of

Page 134 of 139[edit]

religion. See McLean, 529 F. Supp. at 1272. Second, the disclaimer read to students “has the effect of implicitly bolstering alternative religious theories of origin by suggesting that evolution is a problematic theory even in the field of science.” Selman, 390 F. Supp. 2d at 1308-09. Third, reading the disclaimer not only disavows endorsement of educational materials but also “juxtaposes that disavowal with an urging to contemplate alternative religious concepts implies School Board approval of religious principles.” Freiler, 185 F.3d at 348. The effect of Defendants’ actions in adopting the curriculum change was to impose a religious view of biological origins into the biology course, in violation of the Establishment Clause.

G. Challenge under Pennsylvania Constitution[edit]

In addition to the Establishment Clause challenge, Plaintiffs assert that Defendants’ actions in enacting the ID Policy violate their rights under the Pennsylvania Constitution, specifically Art. I, § 3.23 Article I, § 3 of the Pennsylvania Constitution states the following:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend,


23 Although Plaintiffs’ complaint asserts violations of their constitutional rights under Art. I, § 3, as well as Art. III, §§ 15 and 29, Plaintiffs’ post-trial submissions only reference Art. I, § 3. We will accordingly consider whether Plaintiffs’ rights were violated pursuant to Art. I, § 3 of the Pennsylvania Constitution.

Page 135 of 139[edit]

erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship. Pa. Const. Art. I, § 3 (2005).

As we explained in our March 10, 2005 Order, the Pennsylvania Supreme Court has opined in Springfield Sch. Dist. v. Commonwealth of Pa., 397 A.2d 1154, 1170 (Pa. 1979), that the provisions of Art. I, § 3 do not exceed the limitations in the First Amendment’s Establishment Clause. See also Wiest v. Mt. Lebanon Sch. Dist., 320 A.2d 362, 366 (Pa. 1974), cert. denied, 419 U.S. 967 (1974). In discussing the provisions of Art. I, § 3, the Pennsylvania Supreme Court explained:

The principles enunciated in this part of our Constitution reflected a concern for the protection of the religious freedoms of Pennsylvanians long before the first

amendment to the United States Constitution was made applicable to the states through the fourteenth amendment . . . The protection of rights and freedoms secured by this section of our Constitution, however, does not transcend the protection of the first amendment of the United States Constitution.

Wiest, 320 A.2d at 366.

Consequently, our discussion of the issues raised under the federal constitution applies with equal vigor to the issues raised by Plaintiffs that are

Page 136 of 139[edit]

grounded in our state constitution. In light of this Court’s prior ruling that the ID Policy violates the Establishment Clause of the First Amendment, the Court likewise concludes that the ID Policy is violative of Plaintiffs’ rights under the Pennsylvania Constitution.

H. Conclusion[edit]

The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board’s ID Policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents.

Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs’ scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator.

To be sure, Darwin’s theory of evolution is imperfect. However, the fact

Page 137 of 139[edit]

that a scientific theory cannot yet render an explanation on every point should not be used as a pretext to thrust an untestable alternative hypothesis grounded in religion into the science classroom or to misrepresent well-established scientific propositions.

The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy.

With that said, we do not question that many of the leading advocates of ID have bona fide and deeply held beliefs which drive their scholarly endeavors. Nor do we controvert that ID should continue to be studied, debated, and discussed. As stated, our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom. Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court.

Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an

Page 138 of 139[edit]

imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources. To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment to the United States Constitution, and Art. I, § 3 of the Pennsylvania Constitution, we will enter an order permanently enjoining Defendants from maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID. We will also issue a declaratory judgment that Plaintiffs’ rights under the Constitutions of the United States and the Commonwealth of Pennsylvania have been violated by Defendants’ actions. Defendants’ actions in violation of Plaintiffs’ civil rights as guaranteed to them by the Constitution of the United States and 42 U.S.C. § 1983 subject Defendants to liability with respect to injunctive and declaratory relief, but also for nominal damages and the reasonable value of Plaintiffs’ attorneys’ services and costs incurred in vindicating Plaintiffs’ constitutional rights.

Page 139 of 139[edit]

NOW, THEREFORE, IT IS ORDERED THAT:

1. A declaratory judgment is hereby issued in favor of Plaintiffs pursuant to 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 1983 such that Defendants’ ID Policy violates the Establishment Clause of the First Amendment of the Constitution of the United States and Art. I, § 3 of the Constitution of the Commonwealth of Pennsylvania.

2. Pursuant to Fed.R.Civ.P. 65, Defendants are permanently enjoined from maintaining the ID Policy in any school within the Dover Area School District.

3. Because Plaintiffs seek nominal damages, Plaintiffs shall file with the Court and serve on Defendants, their claim for damages and a verified statement of any fees and/or costs to which they claim entitlement. Defendants shall have the right to object to any such fees and costs to the extent provided in the applicable statutes and court rules.

s/John E. Jones III

John E. Jones III

United States District Judge