Reports of the National Center for Science Education
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Volume
40
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No.
4
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The legal basis of Kitzmiller v. Dover

Reporters waiting outside the federal courthouse in Harrisburg, PA.

Journalists outside the federal courthouse in Harrisburg, PA. Photo by Wesley Elsberry.

After the Dover Area School Board adopted a policy in 2004 requiring that “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,” and subsequently attempted to require its ninth-grade biology teachers to read a statement commending “intelligent design” and the “intelligent design” textbook Of Pandas and People to their students, eleven local parents filed suit in federal court, in what would become known as Kitzmiller v. Dover.

What was primarily at issue in the case was whether the board’s actions violated the Establishment Clause of the First Amendment to the United States Constitution. The plaintiffs argued, and the court agreed, that the relevant tests of whether the board’s actions were constitutional or not were the endorsement test, articulated in the Supreme Court’s 1984 decision in Lynch v. Donnelly, and the earlier three-prong Lemon test, articulated in the Supreme Court’s 1971 decision in Lemon v. Kurtzman.

In the endorsement test, the question is whether a reasonable objective observer familiar with the relevant facts would consider the challenged actions to have conveyed a message of approval or disapproval of religion. Examining both the board’s claims about “intelligent design” and about “gaps” and “problems” in evolutionary theory, the court concluded that the answer was yes: both members of the community and students in Dover’s public schools would have understood—and did understand—the board to have been endorsing a religious view.

In the Lemon test, there are three questions, relating to purpose, effect, and entanglement, but entanglement was not relevant to the case. So the questions were, first, whether the board’s actions lacked a secular purpose, and, second, whether the principal or primary effect of the board’s action was to promote or obstruct religion. In a lengthy discussion, the court found that the board’s actions were clearly motivated by a desire to promote a particular religious view and described “[a]ny asserted secular purposes by the Board” as a “sham.”

The court’s discussion of the effect test was substantially briefer, because the relevant issues were basically the same as for the endorsement test: the court wrote, “we will incorporate our extensive factual findings and legal conclusions made under the endorsement analysis by reference here.” The result was the same: “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.”

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.

The decision famously devoted a section to addressing whether “intelligent design” is science, finding that it is not. (The headline in the Harrisburg Patriot-News announcing the decision featured “NOT SCIENCE” in letters six centimeters high.) Despite the fulminations of the proponents of “intelligent design” to the contrary, the court was obligated to address the question, because the board sought to defend itself by contending “intelligent design” is science and thus that the purpose and the effect of its actions was to improve science education.

Accordingly, the plaintiffs tried to convince the court to adopt their views on whether “intelligent design” was science. A parade of expert witnesses (recruited by NCSE) offered, in the words of The New Yorker, “the biology class you wish you could have taken,” with tutorials on the philosophy of science, the practicalities of science education, and the history of Western religion on the side. The defendants tried to mount a countereffort but were hampered by the withdrawal of a few of their expert witnesses as well as the implausibility of their position.

The board’s actions were also challenged as violating the Pennsylvania Constitution, which states in relevant part that “no preference shall ever be given by law to any religious establishments or modes of worship.” The court was brief here as well, writing, “our discussion of the issues raised under the federal constitution applies with equal vigor to the issues raised by Plaintiffs that are grounded in our state constitution ... the Court likewise concludes that the [“intelligent design”] Policy is violative of Plaintiffs’ rights under the Pennsylvania Constitution.”

There was no appeal of the decision, issued on December 20, 2005, since in the election conducted six weeks before, all eight members of the Dover Area School Board who were running for re-election were defeated, and the newly constituted board voted not to pursue the case further. Although direct precedential only in the Middle District of Pennsylvania, the cogency and thoroughness of the decision guarantees that it was, and will continue to be, a discouragement to creationist activists in general.

Glenn Branch
Short Bio

Glenn Branch is Deputy Director of NCSE.

branch@ncse.ngo

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