Reports of the National Center for Science Education

Kitzmiller v. Dover: The last gasp of "balancing" evolution

Dover was on our radar early, right after Pennsylvania developed new science education standards in 2001 that required the teaching of evolution. (NCSE board member Andrew J. Petto was instrumental in helping to organize citizens to make that happen, by the way. NCSE on the job again!)

We opened the Dover file in 2002 when the high school custodian, objecting both to nudity and the theme of evolution, burned a student-painted mural of early hominids. (You were perhaps expecting Australopithecines to wear khakis?) A creationist member of the school board gloated that he “gleefully watched it burn.”

And then in 2003 biology textbooks were up for selection, beginning a confrontation between teachers and the school board over what would be taught about evolution and what instructional materials would be used to teach it. The teachers wanted to use the standard textbook Biology, authored by Kenneth R. Miller and Joseph S. Levine. But creationists on the school board delayed its adoption for a year, objecting to the fact that the book was “laced with Darwinism,” in the words of one school board member.

In June 2004, creationists on the school board sought instructional materials that would include both evolution and creationism, and proposed the “intelligent design” textbook Of Pandas and People and an intelligent design videotape, Icons of Evolution. The teachers dutifully reviewed both the book and the video, and recommended against them: their science was bad, and neither was in alignment with the state science education standards for content or pedagogy.

Viewing the teachers as uncooperative, the school board subsequently adopted an antievolution policy in mid-October 2004 which read in part: “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.” The explicit mention of “intelligent design” in the policy generated much public controversy.

Local citizens independently began contacting Americans United for Separation of Church and State (AU), the Pennsylvania branch of the American Civil Liberties Union (ACLU), and NCSE. A team of these three organizations plus the Philadelphia law firm Pepper Hamilton ended up representing eleven plaintiffs, parents with children in the Dover school system.

I go into such detail about the origin of Kitzmiller v. Dover to emphasize the fact that it was not a necessary conflict. Dover’s teachers tried for years to resolve the disagreement with the school board over the teaching of evolution, and AU, ACLU, and NCSE were not itching for a fight. Unfortunately, a dogmatic creationist faction on the school board insisted upon compromising the teaching of science, rather than compromising with teachers and parents who simply wanted their students and children to get a good education. The plaintiffs felt they had no choice but to sue.

The judge’s decision in Kitzmiller significantly shifted the emphasis of the antievolutionist movement.

The lawsuit was filed in federal court in December 2004; the trial began in October 2005; and the judge filed his opinion on December 20, 2005. In-house at NCSE, we like to refer to December 20 as Kitzmas. Do I need a spoiler alert? Probably not. The plaintiffs won. Glenn Branch explains more about the legal basis, but let me just explain why Kitzmiller v. Dover was so important.

The judge’s decision in Kitzmiller significantly shifted the emphasis of the antievolutionist movement. How? The history of the creationism/evolution controversy involves a series of sequential (and sometimes overlapping) waves of activity, taking the form of efforts to ban, balance, and belittle evolution. The first wave lasted from 1921, which saw the first proposed legislative ban on the teaching of evolution in the public schools, until 1968, when the Supreme Court declared such bans to be unconstitutional in Epperson v. Arkansas.

The second wave, in which the teaching of evolution was supposed to be balanced with the teaching of a form of creationism, commenced soon thereafter. But it hit a roadblock after legal decisions, especially the Supreme Court’s 1987 decision in Edwards v. Aguillard, proclaimed the teaching of creation science in the public schools to be unconstitutional advocacy of religion.

It was not long thereafter that “intelligent design” emerged as a supposedly secular alternative with which to “balance” the teaching of evolution. But, as we showed in Kitzmiller, “intelligent design” was a direct descendent of creation science, with various traits lost in its evolution but the indelible stamp (to coin a phrase) of its sectarian origin visible nevertheless.

In the early 1990s, a series of bills emerged in state legislatures to encourage the teaching of creation science and/ or “intelligent design” without mentioning them by name. They purported to provide “academic freedom” to teachers and students to learn “the full range of scientific views.” But after Kitzmiller, the writing on the wall was even clearer: the First Amendment requires that schools be religiously neutral, and teaching any form of creationism is going to be judged to be religious advocacy—even if done with a wink and a nudge.

In his analysis (below) of antievolution bills introduced between 1994 and 2015, published in Science in 2016, Nick Matzke used phylogenetic techniques to trace “ancestral” and “descendant” wording. The shift from bills calling for the “full range of scientific views” to be taught to bills calling for the “strengths and weaknesses” to be taught—from balancing to belittling—is very clear. It occurs right after Kitzmiller. There’s a reason for that. The Kitzmiller trial record clearly showed in great detail that “intelligent design” was a descendent of creation science and its claims were a subset of creation science’s, so it would be extremely unlikely that it or any similar (claimed) “scientific view” in the future would escape being declared unconstitutional for the public school classroom.

Nick Matzke’s phylogeny of antievolution bills shows the post-Kitzmiller shift away from bills calling for “the full range of scientific views”.

“The teaching of strengths and weaknesses” of evolution (or similar language found in other belittling approaches) has never been definitively tried in the courts. The history of antievolutionism shows that it is merely the latest iteration of the effort to get evolution out of, and creationism into, the public school science classroom. By now, none of the justices who signed the majority decision in Edwards v. Aguillard is still on the Supreme Court. Would a yet more disguised effort like “strengths and weaknesses” survive scrutiny by today’s more conservative court? NCSE and its allies are not itching for that fight, either.

But we can take pride in and be glad of the Kitzmiller decision, which at least laid to rest the balancing strategy of undermining the teaching of evolution, even if we still need to be vigilant in opposing the belittling of this important principle of science.

This article has been modified slightly from its original print format.

NCSE Former Executive Director Eugenie Scott
Short Bio

Eugenie Scott is the former Executive Director of NCSE

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