Over for FTE in Dover

In a ruling issued on July 27, 2005, the judge presiding over Kitzmiller et al. v. Dover Area School Board ruled that the Foundation for Thought and Ethics (FTE) was not entitled to, and would not be allowed, to intervene in the case. In documents filed with the court in May and then in a hearing before the court in July, FTE -- the publisher of the "intelligent design" textbook Of Pandas and People -- argued that a ruling that "intelligent design" was religious would have severe financial consequences, citing possible losses in the neighborhood of half a million dollars. By intervening, FTE would have become a co-defendant with the Dover Area School Board, able to bring its own lawyers and expert witnesses to the case. Testifying in the July hearing, FTE's president Jon Buell implied that if allowed to intervene, FTE would bring William Dembski and Stephen C. Meyer as expert witnesses; both were originally slated to be expert witnesses for the defense, but subsequently withdrew. Both the plaintiffs -- represented by the ACLU, Americans United for Separation of Church and State, and Pepper Hamilton LLP -- and the defendants -- represented by the Thomas More Law Center -- opposed the motion to intervene.

In his decision, Judge John E. Jones III ruled that FTE was not entitled to intervene in the case because its motion to intervene was not timely, describing FTE's excuses for not trying to become involved earlier as "both unavailing and disingenuous." In a footnote, he remarked: "It is clear to the Court that FTE improperly assumed that its rights would be protected so long as Dembski remained an expert for the Defendants. As such, we believe that the real motivation or underlying reason that FTE filed the instant Motion was because Defendants terminated Dembski as an expert in this case, which led FTE to conclude that its rights were no longer being protected. Notably however, Dembski was involved in this litigation only as a disclosed witness, and never as an agent or representative of FTE. It was only after Dembski apparently subjected The Design of Life [the prospective third edition of Of Pandas and People] to a premature release by including it in his March 30, 2005 expert report, as previously noted, that the various machinations which led to his termination commenced."

Although FTE's failure to move to intervene in a timely fashion was sufficient to disqualify it, Judge Jones also held that FTE failed to demonstrate that it has "a significantly protectable interest in the litigation warranting intervention as a party" and that its interests will not be adequately represented by the defendants. Jones was apparently unimpressed with FTE's arguments on the latter score, writing, "despite repeated questioning in that regard by the Court during the July 14, 2005 hearing, FTE was unable to verbalize how its interests and the Defendants' interests diverge concerning the merits of the lawsuit," adding, "It is absurd to the Court that Buell has now testified on multiple occasions that he would go to jail prior to revealing the draft text of The Design of Life; however, if the Court allows FTE to intervene, Buell would place that issue squarely back into play by FTE's apparent intention to use Dembski as its expert witness." Plaintiff Cyndi Sneath was relieved by the ruling, telling the York Dispatch [Link broken]: "My concern about the Foundation for Thought and Ethics wanting to intervene is that it would actually end up costing more money and prolonging the trial." (A story [Link broken] on the ruling also appeared in the York Daily Record.)