On December 14, 2004, eleven parents from Dover, Pennsylvania, filed suit against the Dover Area School District in federal court. The matter at issue is a policy introducing "intelligent design" into the biology curriculum. Although such policies have been proposed several times around the country, none was passed until the decision by the Dover Area School Board (there are, of course, several cases where ID policies "evolved" into milder policies advocating that "alternative theories of origins" or the "strengths and weaknesses of evolution" be taught). The case — Kitzmiller et al v Dover Area School District — has attracted national and international media attention, and may help determine the fate of "intelligent design" in the public schools.
The plaintiffs are represented pro bono by a team of attorneys from the Pennsylvania American Civil Liberties Union, Americans United for Separation of Church and State, and the Philadelphia-based law firm Pepper Hamilton LLP. NCSE is formally consulting, also free of charge, for the plaintiffs' attorneys on the science and science education aspects of the case.
The Evolution of "Intelligent Design"
Creationism watchers know well that "intelligent design" has been primarily a legal strategy from the very beginning. It emerged shortly after the catastrophic defeats of "scientific creationism" in the courts during the 1980s, particularly the 1987 Supreme Court decision in Edwards v Aguillard. Even according to pro-ID histories of the ID movement (Woodward 2003), the 1989 book Of Pandas and People, intended as a supplementary biology textbook for usage in public schools, was the first publication advocating "intelligent design" in its modern form. Frank Sonleitner (a longtime NCSE member and board member) reports that he first heard of Pandas at a Bible Science Studies meeting on September 18, 1989, held at the Scopes Ministries in Oklahoma City. Creationist Don Patton was attempting to get Pandas adopted as a supplementary biology textbook in Texas, and stated that an advantage of Pandas was that it discussed "intelligent design" rather than creationism. Patton held up Pandas and said, "Now we're not going to get scientific creationism in the textbooks; that has been ruled religious. We must avoid that term like the plague!" (Sonleitner 1991).
Of Pandas and People is not read often enough by ID skeptics. Virtually all of the arguments later advanced by Discovery Institute Fellows (critique of methodological naturalism, "specified complexity", inadequacies of homology, gaps in the fossil record, "where does new information come from", and so on) are present in essentially modern form in the 1989 edition. Even Michael Behe's "irreducible complexity" argument (though not the signature phrase) appears in print for the first time in the second edition of Pandas (Davis and Kenyon 1993), in a new section devoted to blood-clotting. According to Woodward, "Michael Behe assisted in the rewriting of a chapter on biochemistry in a revised edition of Pandas. The book stands as one of the milestones in the infancy of Design." And indeed, pages 141–6 of the revised Pandas are about the blood clotting cascade, reaching the conclusion, "all of the proteins had to be present simultaneously for the blood clotting system to function" (Davis and Kenyon 1993: 146, emphasis in original). The Discovery Institute portrays ID as a vigorous young movement of scientific rebels, but the actual history is that Pandas, a textbook, came first, and the "scientific discoveries" (of Behe, Dembski, and the rest) followed in its wake. This situation is ludicrous from a scientific and educational point of view, but it makes a great deal of sense if Pandas and the ID movement generally are simply one extended reaction to the Edwards decision.
The problems with Pandas, and the history of attempts to sneak Pandas into public school classrooms, were documented in the pages of RNCSE during the early 1990s. All relevant articles and reviews of Pandas have been made available at a new Resources page on the NCSE website (http://www.ncseweb.org/article.asp?category=21). The second (and last) edition of Pandas came out in 1993, and most of the major Pandas battles occurred from 1989 through 1995. (In 1995, an effort to adopt Pandas in Plano, Texas, was defeated when a large number of citizens turned out in opposition wearing buttons containing a cute panda picture with red slash through it.)
Because of this inauspicious history, it was quite surprising when, in the summer of 2004, Pandas resurfaced in news stories from Dover, Pennsylvania. Dover is a small town (population 1800) on the outskirts of York, in south-central Pennsylvania. The Dover Area School District (DASD) is a rural district with about 40 000 residents. Dover Senior High School has about 1000 students.
The controversy started when the Dover Area School Board (DASB) began consideration of a new biology textbook. The teachers recommended Biology: The Living Science, by Kenneth Miller and Joseph Levine (coincidentally, this is the same text that was challenged in Cobb County, Georgia; see RNCSE 2002 May/Jun; 22 : 9–12). According to local newspapers, at a June 7, 2004, board meeting, the chair of the DASB Curriculum Committee, William Buckingham, objected to the textbook on the grounds that the textbook was "laced with Darwinism," and stated that he was looking for a textbook that gave a balanced view between creationism and evolution. He added, "This country wasn't founded on Muslim beliefs or evolution. ...This country was founded on Christianity, and our students should be taught as such." At the next meeting, on June 14, 2004, Buckingham is reported to have stated, "Two thousand years ago, someone died on a cross. Can't someone take a stand for him?" (York Daily Record 2005 Jan 16).
Although criticized by some on the board, the compromise was that the board majority would not approve the Miller and Levine textbook until it was "balanced" with an alternative view. Buckingham soon settled on Of Pandas and People as the desired alternative book and argued that both books be adopted, or none at all. He said, "If we don't get our book, you don't get yours." Motions to approve just the mainstream textbook failed on 4–4 votes. However, on August 2, after acrimonious debate and public comment, one board member, Angie Yingling, changed her vote, saying to Buckingham, "I feel you were blackmailing them. I just want the kids to have their books." The mainstream book passed, without Pandas (York Daily Record 2004 Aug 4).
If previous Pandas battles were any guide, this would have been the end of the controversy in Dover, and everyone could happily move on with their lives. However, Buckingham and his supporters did not give up. They arranged for 50 copies of Pandas to donated, anonymously, to the school district. The superintendent, Richard Nilsen, accepted the donations on the understanding that these would be optional reference materials. Buckingham announced at an October 4 school board meeting that, since no school district funds were used to buy the books, the decision to accept them was administrative and required no vote. This situation was disagreeable from an educator's point of view — chaos would result if anyone with a fringe scientific view were allowed to stuff the shelves of the public school classrooms — but in Dover, the donation of Pandas books seemed to be perceived as a reasonable compromise that brought a merciful end to the controversy. The York Daily Record even awarded "roses" to the DASB for reaching this " reasonable compromise" (2004 Oct 9).
All this time, the science teachers at Dover Senior High School had mostly stayed out of the public fray. The primary public voices of the opposition at school board meetings were retired school teachers and former school board members, and only members of this latter group replied to NCSE inquiries about the situation. However, from speaking with several Dover residents, I got the impression that the science teachers, once they took a look at Pandas, did not like it one bit and had no intention of using it in class.
"Intelligent Design" voted in
The anti-Pandas sentiment of Dover teachers seems to be the most likely explanation of why, on October 18, 2004, the Dover Area School Board surprised everyone by passing the following addition to the official curriculum:
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 will not be taught.
Of Pandas and People was listed in the curriculum as a reference text. At the October 18 meeting, the reference to "intelligent design" was opposed by the school administration, the head of the science department at Dover Senior High, and 11 of the 12 citizens testifying at the meeting. For months, representatives from Americans United for Separation of Church and State (AU) had been quoted in the press stating that the DASB was moving in an unconstitutional direction, so the possibility of a lawsuit was a major topic of discussion at the meeting. However, Buckingham stated that a law firm, later revealed to be the Thomas More Law Center of Ann Arbor, Michigan, would represent the district pro bono in any lawsuit. After the 6–3 vote approving the ID policy, Jeff and Carol "Casey" Brown, a husband-and-wife pair that had been on the school board for five and ten years, respectively, resigned in protest. The same month, two other school board members, including Noel Wenrich, the third vote opposing the ID policy, also resigned because of impending moves outside of the school district. (Several weeks later, the DASB appointed four new members to the school board to fill the vacancies, and ensured that all four supported the ID policy.)
The next day, the headline across the front page of the York Daily Record was "'Intelligent design' voted in" (2004 Oct 19). A photocopy of the front page was faxed to NCSE's office, and the national media started calling NCSE about Dover. Another wave of letters flooded the paper, and the York Daily Record editors asked, "Why couldn't they just leave well enough alone?" (2004 Oct 27).
For the following month, talk of lawsuits was continuous, with AU and the Pennsylvania ACLU putting out word that they were interviewing potential plaintiffs. On November 19, the school district administration issued a press release on the Dover Area School District website describing how the policy was going to be implemented (DASD 2004). Parts of the press release were clearly aimed at avoiding a lawsuit, but the statement also included the following four-paragraph verbal disclaimer that biology teachers would be required to read at the beginning of the evolution unit in January:
The state standards require students to learn about Darwin's Theory of Evolution and to eventually take a standardized test of which evolution is a part.
Because Darwin's Theory is a theory, it is still being 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 to see if they would like to explore this view in an effort to gain an understanding of what Intelligent Design actually involves. As is true with any theory, students are encouraged to keep an open mind.
The school leaves the discussion of the Origins of Life up to individual students and their families. As a standards-driven district, class instruction focuses on the standards and preparing students to be successful on standards-based assessments.
In one of several puzzling inconsistencies in the school district press release, the school district also stated, "The Superintendent, Dr Richard Nilsen, is on record stating that no teacher will teach 'Intelligent design', Creationism, or present his/her or the board's religious beliefs." This seemed to contradict the DASB's curriculum change and the verbal disclaimer. Regardless, civil rights groups were unimpressed by the school district's press release. Vic Walczak, the legal director for the Pennsylvania ACLU, told the press, "The school board's clarification confirms that the district will be presenting a religious view as an alternative to the scientifically accepted theory of evolution. ... This is not going to make us go away" (Associated Press 2004 Nov 19).
In early December, the press reported that the Pennsylvania ACLU, Americans United, and Pepper Hamilton LLP had signed up plaintiffs and were preparing a lawsuit. On December 7, DASB member Angie Yingling stated that, in light of the lawsuit, she now disagreed with the ID policy and that she would resign unless the DASB reconsidered. The York Daily Record editors stated, "Everyone who might help stop the 'Intelligent design' express is jumping off ...Watching what's going on in the Dover Area School District is like watching a train wreck in slow motion" (2004 Dec 9). Many in the community asked Yingling to remain on the board as a voice of opposition, and confusion about whether or not Yingling would actually resign remained a continuing subplot throughout December. Yingling finally resigned on February 7, 2005, telling the DASB, "your appearances in court are an embarrassment to Dover. You people appear to be ... religious zealots preaching from the shadows" (York Dispatch 2005 Feb 8).
Ratcheting up the pressure, on December 6, most of the faculty at York College's biology department sent an open letter to the Dover Area School Board, stating in part, "The inclusion of intelligent design in its curriculum as an 'alternative' evolutionary theory reflects a genuine lack of knowledge about the data supporting evolution by natural selection. It also reflects a profound misunderstanding of the scientific process and an equally profound disregard for the science educators and students in the Dover Area School District" (York Daily Record 2004 Dec 8). In the following weeks this act drew both compliments and criticism from the community, including suggestions like, "Love God or leave America, professors" (York Daily Record 2004 Dec 12).
On December 12, Phillip Johnson was interviewed by the San Francisco Chronicle. Commenting on the Dover situation, he said, "What the Dover board did is not what I'd recommend. [...] Just teach evolution with a recognition that it's controversial. A huge percentage of the American public is skeptical of it. This is a problem that education ought to address." This echoed public statements from others associated with the Discovery Institute (such as those expressed in the York Daily Record, 2004 Dec 19).
To the surprise of no one, on December 14, 11 Dover parents, the Pennsylvania ACLU, Americans United, and Pepper Hamilton LLP filed suit in Federal District Court against the ID policy of the Dover Area School District (ACLU 2004). A press conference was held at the courthouse in Harrisburg (the Pennsylvania capital, about 20 miles north of Dover). Tammy Kitzmiller, the mother of a ninth grader in the biology class and the lead plaintiff in the case, spoke to the press, as did Vic Walczak of the Pennsylvania ACLU, the Reverend Barry Lynn of Americans United, and Robert Eckhardt, a prominent paleoanthropologist at Penn State. Two protesters with yellow signs reading "ACLU CENSORS TRUTH" were also present. The text of the complaint filed on behalf of the parents, a press release, and a "FAQ" sheet on "intelligent design" were distributed at the press conference and online at the websites of the ACLU, AU, and Pepper Hamilton.
On December 20, the Dover Area School Board voted 7–0 to retain the services of the Thomas More Law Center, which offered to represent the school district pro bono. On its website, the TMLC states,
Our purpose is to be the sword and shield for people of faith, providing legal representation without charge to defend and protect Christians and their religious beliefs in the public square. [...] Our ministry was inspired by the recognition that the issues of the cultural war being waged across America, issues such as abortion, pornography, school prayer, and the removal of the Ten Commandments from municipal and school buildings, are not being decided by elected legislatures, but by the courts (TMLC nd, emphasis in original)
United States Senator Rick Santorum (R–PA), who has spoken out in support of the Dover Area School Board on several occasions, is on the TMLC Advisory Board. The President and Chief Counsel of the TMLC is Richard Thompson, who has vigorously assumed the role of spokesperson for the DASB's ID policy and ID in general.
The Seattle-based Discovery Institute, the chief institution promoting ID from the mid-1990s to the present, has apparently been observing the goings-on in Dover with dread, despite numerous articles and books by its fellows promoting ID as good science and legal to teach in public schools. For example, in 1999, DI CSC Senior Fellow David DeWolf, DI CSC Program Director Stephen Meyer, and Mark DeForrest coauthored Intelligent Design in Public School Science Curricula: A Legal Guidebook, a 40-page booklet published by the Foundation for Thought and Ethics. Therein they wrote,
In 1987, the US Supreme Court ruled in Edwards v Aguillard that "teaching a variety of scientific theories about the origins of humankind to school children might be validly done with the clear secular intent of enhancing the effectiveness of science instruction." As this guidebook will show, teachers and school boards who choose to tell students about the evidence and arguments for intelligent design actually fulfill this Supreme Court mandate. (DeWolf and others 1999)
Nevertheless, on the day the lawsuit was announced, the DI disregarded its past rhetoric and issued a press release, "Discovery calls Dover evolution policy misguided, calls for its withdrawal," which quoted DI CSC Associate Director John West as saying:
While the Dover board is to be commended for trying to teach Darwinian theory in a more open-minded manner, this is the wrong way to go about it. [...] Dover's current policy has a number of problems, not the least of which is its lack of clarity. At one point, it appears to prohibit Dover schools from teaching anything about "the origins of life." At another point, it appears to both mandate as well as prohibit the teaching of the scientific theory of intelligent design. The policy's incoherence raises serious problems from the standpoint of constitutional law. Thus, the policy should be withdrawn and rewritten. (DI 2004)
Interestingly, during depositions in early January, it was revealed that two DI representatives, attorney Seth Cooper and an unnamed companion, flew to Pennsylvania in December and spoke with Superintendent Nilsen and the DASB, offering Discovery Institute representation to the school board. The depositions do not reveal anything about the substance of the conversations. However, given the DI's public statements and the fact that the DASB did not retain the DI, I speculate that the DI offered to represent the school board, but only on the condition that the board drop its current policy and adopt a DI-written "teach the controversy" policy.
After the complaint was filed and the TMLC had been retained to represent the district, the first issue before the plaintiffs' attorneys was whether or not to apply for a restraining order to delay the DASB's implementation of the ID policy. According to the curriculum schedule, the ID disclaimer would be read on January 13, at the beginning of the unit on evolution. The plaintiffs' team therefore sought permission from the judge to depose key witnesses in an attempt to clarify the purpose and effect of the policy. On January 3, depositions were taken for Superintendent Nilsen, Curriculum Chair William Buckingham, School Board Chair Alan Bonsell, and board member Sheila Harkins. During the deposition, the witnesses either denied or professed not to remember making various remarks, such as Buckingham's statement, "This country wasn't founded on Muslim beliefs or evolution," reported independently in the York Daily Record and the York Dispatch back in June. Strangely, none of the board members seemed to have much familiarity at all with ID, and none gave anything resembling a direct, coherent answer about what they thought ID meant. For example, Buckingham was asked:
Q: I'm just trying to understand so we can have a working understanding here of what intelligent design is if we can. Do you have an understanding in very simple terms of what "Intelligent design" stands for? What does it teach? A: Other than what I expressed, that's — Scientists, a lot of scientists — Don't ask me the names. I can't tell you where it came from. A lot of scientists believe that back through time, something, molecules, amoeba, whatever, evolved into the complexities of life we have now. Q: That's the theory of "intelligent design"? A: You asked me my understanding of it. I'm not a scientist. I can't go into detail and debate you on it. (Buckingham deposition, January 3, 2005)
When asked about the "master intellect" suggested on pages 58 and 85 of Pandas (the "master intellect" passage is essentially identical on these two pages, in a strange case of internal text duplication in Pandas), Superintendent Nilsen was somewhat more clear:
Q: Do you have any explanation for what a master intellect could be referring to in terms of the creation or development of species other than to God?
Q: Can you think of anything else?
Q: Using master intellect in that context, it must mean God or aliens?
A: In this context, yes. (Nilsen deposition, January 3, 2005)
Statements such as these made a splash in the media (for example, ABC's Nightline 2005 Jan 19). However, the school board members denied religious motivations and claimed not to remember the various statements about religion and creationism that had been quoted in The York Dispatch and the York Daily Record. The York media took special notice of the DASB's "memory woes" and stood by their reporting from June. But because the depositions contradicted the press accounts, the plaintiffs' legal team decided that it would take more research, witnesses, and time to document what actually occurred during the decision-making process that led to Dover's ID policy. They therefore declined to file a preliminary injunction. The Thomas More Law Center saw this as a victory, trumpeting, "ACLU abandons early effort to stop school district from making students aware of controversy surrounding evolution" in a press release (TMLC 2005a). One Christian news service even took the TMLC's declaration of victory seriously and wrote an entire news story based on the inaccurate notion that "the ACLU" had given up the case completely (Christian Post 2005 Jan 12).
In another twist, as soon as the news got out that the < Kitzmiller legal team was not going to file for a preliminary injunction, the Pennsylvania State Educators Association, in consultation with the science teachers at Dover Senior High School, declared that the teachers would refuse to read the ID disclaimer, on the grounds that ID was not science, and therefore their reading the disclaimer would abrogate their professional responsibilities and violate the state professional standards for teachers. Seven science teachers from Dover Senior High School wrote a powerful letter to Superintendent Nilsen, declaring in part:
"INTELLIGENT DESIGN" IS NOT SCIENCE. INTELLIGENT DESIGN IS NOT BIOLOGY. "INTELLIGENT" DESIGN IS NOT AN ACCEPTED SCIENTIFIC THEORY. (emphasis in original)
The letter demanded that the teachers be allowed to "opt-out" of reading the disclaimer, just as the students were allowed to "opt-out" of hearing it. If the request was denied by the Dover School District administration, the teachers' union was prepared to appeal the decision to Pennsylvania's Professional Standards and Practices Commission, and then to the Pennsylvania Supreme Court. Surprisingly, however, the school district blinked, and the administration agreed to read the disclaimer instead of requiring the teachers to do so (York Dispatch, 2005 Jan 10). On January 7, the TMLC's Richard Thompson, speaking for the school district, said, "The Dover faculty have no right to opt out of a legal directive. ... Having said that, because there is pending litigation ... we are going to accommodate their request" (Associated Press 2005 Jan 7). The Dover teachers' successful defiance of the ID policy was widely noticed, including in the pages of Science (Mervis 2005).
At the same time, on January 6, over 30 members of the faculty of the biology and philosophy departments at the University of Pennsylvania issued an open letter to the DASB expressing opinions similar to those of the biology department at York College. Richard Thompson responded with alacrity, replying on January 7, "If the level of inquiry supporting your letter is an example of the type of inquiry you make before arriving at scientific conclusions, I suggest that at the very least, your students should get their tuition money back, and more appropriately, the University should fire you as a scientist." Thompson chided the Penn faculty for complaining about ID's appearance in the DASB policy by selectively citing the part indicating that "Origins of life will not be taught." Thompson also criticized the signatories for including philosophers, writing:
What does philosophy have to do with this issue? This issue is not about science versus philosophy; it is about two different interpretations of the same scientific data by scientists. I assume you would agree that the metaphysical implication of Darwin's theory of evolution has no place in the science classroom. Or perhaps it is for this very reason that you so staunchly and dogmatically defend Darwin and place his theory above all criticism. (York Daily Record 2005 Jan 9)
Thompson concluded by citing the so-called Santorum Amendment, present in modified form in the report language of the No Child Left Behind Act but not in the law itself. The Santorum Amendment is a running theme throughout all the TMLC's press releases on Dover and ID (see Branch and Scott 2003 for a discussion of its status).
Finally, it appeared that all short-term barriers to the implementation of the ID policy had been breached. However, one more question remained: the classroom schedule. Teachers reported that their classes had not quite reached the evolution unit yet, and so the disclaimer was delayed from Thursday, January 13, to the following week. Because there were no classes on Monday, January 17, due to Martin Luther King Day, the disclaimer was finally read on Tuesday, January 18. The assistant superintendent entered each biology class and read the disclaimer. About 15 students and all of the teachers walked out. The Thomas More Law Center declared in a press release, "A revolution in evolution is underway." In the press release, Richard Thompson stated:
Biology students in this small town received perhaps the most balanced science education regarding Darwin's theory of evolution than any other public school student in the nation. This is not a case of science versus religion, but science versus science, with credible scientists now determining that based upon scientific data, the theory of evolution cannot explain the complexity of living cells. (TMLC 2005b)
See you in court
Richard Thompson sounds confident at the moment, but he seems not to realize the legal jeopardy that "intelligent design" is in. Comments from across the community of creationism watchers indicate a virtually unanimous opinion that Kitzmiller represents about the best imaginable court case on which to challenge the constitutionality of ID. Even if the early comments of the DASB remain in dispute, the district's recommendation of Pandas provides ample material for the expert examination of ID in its original, unabashed form (rather than the rather sly versions of ID that the Discovery Institute has been promoting the last few years).
Despite the Discovery Institute's qualms about the Dover policy, the TMLC's Richard Thompson has definitely been using the DI's game plan — ID is legitimate science, 300 scientists doubt Darwin, it's only fair to give the alternate view, and so on. If Thompson wants to base his defense on "the science of ID," so much the better. It will be time for ID advocates to "put up or shut up" about the "scientific theory" of ID. We know that there is no science of ID, and we suspect this will become readily apparent to the court if expert witnesses testify.
In addition to the history and motivations of the Discovery Institute — as evidenced in the infamous "Wedge Document" and elsewhere — the roots of ID and Pandas in 1980s creationism may also become relevant in the case. Of Pandas and People was the first book to collect a wide range of creationist material and put it under the "intelligent design" label, and via Pandas, it was the Foundation for Thought and Ethics, not the Discovery Institute, that was the original architect of "intelligent design." NCSE has a small, but very interesting, collection of documents on FTE and Pandas and on the development of ID in the 1980s. However, any veteran creationism watchers reading this piece should take a look through their old files, and contact NCSE if they find something that might be relevant.
Even though Kitzmiller is only at the trial court stage, the implications could be widespread. Buckingham has already stated that he wants to take ID to the Supreme Court, and it seems as though the TMLC will have the temerity to back him. One school district, in Blount County, Tennessee, appears to have already followed in the footsteps of Dover and passed its own ID policy.
NCSE has just learned that the trial will commence in September 2005. As consultants for the plaintiffs' team, NCSE will leave the legal decisions to the legal experts, but will give advice to help them get the science right. That is, after all, what this is all about.