INTELLIGENT DESIGN IN THE PUBLIC SCHOOLS
By Kenneth F Mott
Madeline Shepherd
Gettysburg College
SYLLABUS
Teaching Creationism/Intelligent Design in the public schools is an issue which has nine
lives, only a few of which have been extinguished. In spite of the U.S. Supreme Court’s
pronouncements in Epperson v. Arkansas (1968), and later in Edwards v. Aguillard
(1987), regarding Creationism, its more recent ID iteration continues to be embraced by
selected school boards. In Kitzmiller v. Dover Area School District (2005), decided at
the federal district court level, Judge John E. Jones, III attempted in an exhaustive 139
page opinion to provide abundant substantive evidence regarding the nature of ID, and
to faithfully apply the high Court’s “Lemon/endorsement” standard so that future courts
could rely upon his ruling. Did he accomplish that aim? Time will tell. This paper
provides a full description of the setting in which the Dover case arose, the arguments
presented in it, and then provides three helpful guideposts: 1) relevant background
rulings on establishment clause cases; 2) an analysis of Kitzmiller’s factual findings and
subsequent challenges to them; 3) an examination of Kitzmiller’s application of the
Supreme Court’s constitutional tests.
Table of Contents:
Introduction p. 1
Part I Intelligent Design and the Battle of Dover p. 2
I The Evolution of Intelligent Design p. 2
II Pressure Builds in Dover p. 7
III A Case to be Made p. 17
IV Intelligent Design Stands Trial p. 20
V A Small Town Responds p. 29
Part II Constitutional Considerations p.33
VI Evolving Establishment Clause Tests p. 33
VII Into the Constitutional Thicket: Epperson and Edwards p. 45
VIII On to Dover: Kitzmiller, The Supreme Court, and the Constitution p. 48
IX Assessing Kitzmiller p. 53
X The Struggle Ahead p. 54
Introduction
The U.S. Constitution’s First Amendment religion clauses have provided the
backdrop for some of the most contentious legal issues in American public education.
1
Within that venue, such matters as prayer, nativity displays, and use of space for
meetings by religious groups have faced scrutiny in court, often failing to survive under
the auspices of the Lemon test and the endorsement test. Within science education a
debate is currently brewing that concerns the history of the Earth and the origins of its
inhabitants: Darwin’s theory of evolution, a concept which continues to be supported by
evidence from the scientific community and is hailed worldwide as the bedrock model of
biological systems, is currently challenged by Intelligent Design (ID), which claims that
the complexity of life necessitates an intelligent exterior force.
By presenting ID as legitimate science, supporters are able to sway political
support in the direction of academic freedom; but it is a concept rejected by most
scientists. The latter group see ID as detracting not only from the integrity of science
education, but also from the principle of separation of government and religion which has
itself proven important to academic freedom.
Part I Intelligent Design and the Battle of Dover
I The Evolution of Intelligent Design
John Washington Butler of Macon County, Tennessee was a farmer, a father, and
a devout Baptist. In 1922 he ran for state representative as a Democrat, emphasizing his
commitment to sheltering schoolchildren from evolution, and won. Three years later he
drafted the law that would bring high school teacher John Scopes to trial and pit three
time presidential nominee William Jennings Bryan against defense attorney Clarence
Darrow in what Jeffrey Moran describes as a case that “erupted out of tectonic shifts in
American culture.”1 In the tiny courtroom of Dayton, the ideological repercussions of
Darwin and natural selection would be tested by the moral and religious standards of the
nineteenth century.
2
Butler’s bill, as it became known, was brief and to the point. Teachers in public,
state-supported schools were forbidden “to teach any theory that denies the story of the
Divine creation of man as taught in the Bible, and to teach that man has descended from a
lower order of animals.” Those who violated the law would be charged with a
misdemeanor and fined no more than $500. Although the state legislature was prompt in
voting its approval, the Tennessee State Senate was not as hasty and an internal
committee voted down Butler’s bill. Supporters of the bill rallied throughout the state,
and anti-evolution fundamentalist evangelicals were some of the loudest among them.
Under public scrutiny, the Senate passed the bill, and Governor Austin Peay signed it
into law on March 21, 1925.
The American Civil Liberties Union, formed less than a decade before in order to
protect the rights of war opponents in World War I, took note of the Butler bill. The
organization had previously focused on protecting labor unions and free speech, but had
suffered several setbacks in legal cases and needed a victory to legitimize its progressive
cause. By advertising in Chattanooga newspapers the ACLU scouted out an individual
willing to test the law in court, catching the eye of those looking to bring fame to Dayton,
Tennessee. Mine owner George Rappleyea convinced John Scopes, a substitute teacher
and football coach at the local high school, to stand trial. As historian Jeffrey Moran
writes in The Scopes Trial, there were “pleasant feelings all around—a sense that the trial
was going to be more a public debate than a criminal proceeding,” as Scopes turned
himself in on May 25 for teaching evolution from the state-mandated biology textbook.2
The trial concluded after eight days on July 21, 1925 with a nine-minute
deliberation by the jury. John Scopes was found guilty, and the judge ordered him to pay
a $100 fine. However, the Scopes trial left an indelible mark in American legal history
3
by challenging the validity of the teaching of religious doctrine in public education. At a
time when the American psyche was awkwardly shifting between two distinct dogmas—
that of nineteenth century Victorian propriety versus the new urbanity of the twentieth
century—the role of religion in determining moral values was challenged by the scientific
theory that life was unguided by forces beyond instinct and survival.
Three years after the Scopes trial, Arkansas approved a referendum by popular
vote that prohibited public schools and universities from teaching evolution or using any
textbook that included its instruction. As Guy Lancaster wrote in the Encyclopedia on
Arkansas History and Culture, the antievolution movement in his state was on the rise
even as it declined nationwide, and the Scopes trial had succeeded in making
“fundamentalist groups objects of ridicule and thus sent them retreating from the cultural
and political mainstream.”3 The referendum was sponsored primarily by State
Representative Astor Rotenberry, Ben Bogard of the Missionary Baptist Church of Little
Rock, and president of the Arkansas Antievolution League, Dr. John F. Hammett.
Despite being challenged in the legislature three times after its approval in 1928, none of
these attempts came to a vote and the law stood.
In 1965 the Arkansas Education Association sought to challenge Initiated Act
Number 1, as it was known, after nearly forty years without application and its secretary,
Forrest Rozzell, went looking for a relevant party to take the issue to court. Whereas
John Scopes was charged with breaking the Tennessee law against evolution, the lawyers
for the AEA planned to request a declaratory judgment on what they deemed a violation
of the establishment clause of the First Amendment of the Constitution. Susan Epperson,
a teacher from Little Rock, stepped forward.
4
Despite efforts by the AEA to prevent a trial and the media attention that would
follow, Arkansas Attorney General Bruce Bennett refused and the challenge to state law
became public. Bennett was open with his wish to disprove evolutionary theory, but
Judge Murray O. Reed kept focus on the constitutionality of the law rather than the
validity of a scientific theory. The trial took less than three hours before Murray declared
the law to be a violation of free speech. The Arkansas Supreme Court disagreed,
reversing Murray’s decision the following year and ruling that the law constituted “a
valid exercise of the state’s power to specify the curriculum in its public schools.”
Epperson and her lawyers appealed to the Supreme Court in Washington, D.C.
Justice Fortas wrote the majority opinion, which struck down the Initiated Act
Number 1 on the basis that it violated the establishment clause because it tried “to blot
out a particular theory because of its supposed conflict with the Biblical account, literally
read,”4 thereby promoting religion in the public schools.
In 1975 with Daniel v. Waters, the legal playing field of evolution and
creationism was moved back to Tennessee, where the United States Court of Appeals in
the 6th Circuit struck down a state law that mandated “equal time” for the teaching of
both doctrines in public schools. Upon determining that the law constituted “a clearly
defined preferential position for the Biblical version of creation as opposed to any
account of the development of man based on scientific research and reasoning,”5 a shift
occurred within the movement to promote creationism. It was at this point that the first
effort at masking the religious principles inherent in creationism in scientific language.
The result was the emergence of “creation science.”
Six years later, Arkansas was at the forefront of attempts to include creation
science in its public school curricula. The new doctrine included principles that still echo
5
in today’s ID, including a young earth, the limited capacity of natural selection in
creating the diversity of life known today, and the sudden creation of life and energy,
among other points. Introduced as the “Balanced Treatment for Creation-Science and
Evolution-Science Act," Act 590 was akin to Daniel v. Waters in its “equal time”
premise. In McClean v. Arkansas Board of Education 529 F. Supp. 1255, Judge William
Overton made a clear distinction that creation science is religion, not science; because of
this specification, the case had far-reaching influence despite being directly applicable
only in its district.
However, it was not until 1987 that teaching creationism in public schools was
ruled unconstitutional by the Supreme Court. Edwards v. Aguillard produced the
landmark decision by which the courts still function, invalidating Louisiana’s “Balanced
Treatment for Creation-Science and Evolution-Science in Public School Instruction” Act.
The majority opinion, written by Justice Brennan, employed the three prongs of the
Lemon test to determine the ruling. While noting that alternative scientific theories could
be taught, Brennan noted that “the preeminent purpose of the Louisiana Legislature was
clearly to advance the religious viewpoint that a supernatural being created humankind.”6
Fundamentalist Christians were hindered without being halted, and evidence of
that continues to emerge in state legislation that seems to open loopholes that allows
descendents of creationism into public schools. ID and Christian doctrine thrive in the
struggle for “academic freedom” pushed by non-scientists and those attempting to turn
public education away from the supposed dangers of evolution. Kitzmiller v. Dover Area
School District is an important instance in which the nation took notice of the ideological
battle being fought in science classrooms across the country.
6
II Pressure Builds in Dover
Alan Bonsell was elected to the Dover Board of Education in 2001 after a
campaign that focused on his commitment to education and also to the tax payers of the
area, promising to fight anticipated construction that would expand the high school,
which had been nicknamed the Taj Mahal by opponents. Soon after securing his seat on
the board, however, it became apparent that Bonsell might have other priorities as well.
At a welcoming meeting, board members and administrators shared their ideas and
suggested goals for changes in school policy; Bonsell discussed creationism and bringing
religion back into the schools.
Also on the board with Bonsell was Bill Buckingham, a conservative Christian
who spoke out against what he viewed as the deteriorating morality of students and the
need to combat what Gordy Slack describes as “the threats posed by secular liberalism,
and the arrogance of science—particularly evolutionary biology.”7
Although science teachers in the high school had briefed Bonsell on the portion of
the curriculum that addressed evolution, the board did not appear satisfied. “Privately,
Bonsell and Buckingham spoke of plans to require the teaching of creationism alongside
evolution,” Lauri Lebo writes. “They used taxpayer dollars to send Mike Baksa, the
assistant superintendent, to a Christian college-sponsored conference on teaching
creationism.” Education reporter for the local York Daily Record, Lebo sat in on the
Dover board meetings and watched as the first signs of controversy emerged, later
penning a highly-praised encompassing account of the trial in The Devil in Dover.
During the summer of 2002, a suspicious event took place that appeared to signify
the aggressiveness of new efforts to bring God back into Dover Area High School. A
mural had sat in one of the science classrooms, a student’s senior art project depicting the
7
transition of an ape running and slowly becoming an upright being. The message of
human evolution irritated janitor Larry Reeser, who also shared his feelings with Bonsell
during a tour of the facilities prior to the start of the school year. Soon thereafter, Reeser
removed the mural and set it aflame; Bonsell has been quoted as saying he, too,
“gleefully watched it burn.”
There were also instances when Buckingham drew attention to his personal
beliefs regarding such topics as faith in school and his ardent patriotic streak. In 2003 he
advocated the adoption of a resolution of support by the school board for including the
words “under God” in the pledge of allegiance when the United States Supreme Court
was reviewing its constitutionality. His argument was that the country was founded on
Christianity and that, although others could come and worship as they wished, those who
tried to impose a different direction should be thwarted.
Former board member Barrie Callahan remembered the shift in direction of the
group under the influence of these two men. She had supported the expansion of the high
school in 2002, and lost the seat she had held on the school board for ten years.
Nevertheless, she remained an outspoken member in the audience who was known to
push for answers and make her perspective on various issues known.
At the June 7 meeting of 2004, pushed hard on the issue of why new science
textbooks had not yet been purchased for the ninth graders, Buckingham uttered the first
of many fiery public responses. He said that as the head of the curriculum committee he
had not yet approved the book being considered because it was “laced with Darwinism”
and that he wanted a text that gave balanced attention to creationism. “‘It’s inexcusable
to teach from a book that says man descended from apes and monkeys,” he’s quoted as
saying in the June 9 issue of the York Daily Record. “‘We want a book that gives balance
8
to education.’” Despite former Dover student Max Pell speaking out about the separation
between church and state, Bonsell insisted that “there were only two theories
(creationism and evolution) that could possibly be taught” and that “as long as both were
taught as theories, there would be no problems for the district.”8
Richard Cherry, another member of the audience that night, suggested that parents
seeking a religious education for their children should look to private schools rather than
using the public system. “‘Muslims pay taxes, too,’” another resident, Robert Bowman,
pointed out. “‘To shoot down their faith and beliefs by saying it’s not as important as
Christianity isn’t fair.’” However, as Joseph Maldonado wrote in his June 10 article
about the board meeting, “Tom Jackon, who said he was a Christian, said he saw no
problem with offending others with different beliefs. ‘There really are no other religions,’
he said. ‘There’s atheism and Christianity. That’s it.’”9
The following day brought notice from the ACLU that legal action would be
pursued should creationism be added to the science curriculum.
The June 14 meeting was packed with community members who had heard about
the controversy. Buckingham fulfilled the anticipation for more drama by calling the
separation between church and state a “myth” and stating that “‘Two thousand years ago,
someone died on a cross; can’t someone take a stand for him?’” With these concerns
about the book being considered, Prentice Hall’s Biology by Miller and Levine,
Buckingham challenged the audience “‘to trace your roots to the monkey you came
from.’”10
Debate continued as discussion was opened to the audience, including biology
chair of Dover high school Bertha Spahr, who pointed out that the textbook in question
contains only seven pages about Darwinism out of over 1,000. Maldonado reported that
9
Also during public comments, Buckingham's wife, Charlotte Buckingham,
argued that evolution teaches nothing but lies. After quoting several verses
from the book of Genesis in the Bible, she asked, “How can we allow
anything else to be taught in our schools?” During her time, she repeated
gospel verses telling people how to become born-again Christians and said
evolution was in direct violation of the teachings of the Bible.11
It was clear at this meeting that Dover residents were falling into two camps, which
Reverend Warren Eschbach articulated when he said that “the book of Genesis was not
written as a science book, but rather as a statement of faith. ‘It's the place of the church to
teach on matters of faith. Not public schools.’”12 The potential for a lawsuit was
mentioned, as well as the costs that would befall the district should one arise.
At the August 2 meeting of the school board, the initial vote was a 4-4 deadlock.
In his August 4 article in the York Daily Record, Maldonado recounted Buckingham’s
statement that he would approve of Biology if a companion book that promoted the
theory of ID, Of Pandas and People, was also included in the passage. Buckingham also
started using “intelligent design” in the place of “creationism” based on the suggestion of
Richard Thompson of the Thomas More Law Center. The Law Center also offered free
representation for legal repercussions that might follow the inclusion of Of Pandas in the
curriculum. At that point, however, board member Jeff Brown “accused the four board
members voting no of blackmailing the board and holding the students hostage”
according to Maldonado. Buckingham shot back that “‘If we don't get our book, you
don't get yours.’”13 However, board member Angie Yingling changed her vote amid the
emotionally charged debate that ensued, giving the Prentice Hall text the majority it
needed. Buckingham was later heard condemning her action because it diminished the
chances that Of Pandas and People would ever make it into the school.
10
The direction that private board meetings took can never be known for certain, but
Jeff and Casey Brown “remembered [pro-intelligent design board members] speaking in
executive sessions of leading a Christian revolution.”
Buckingham’s prayers were answered, however, when Superintendent Richard
Nilsen approved the donation of 50 copies of Of Pandas to be used as reference books in
early October. Because of their categorization as reference books, the board did not need
to approve of making it available to students in the library.
As Lebo recounts, the atmosphere in the town settled down as the school year got
underway and it was assumed that the issue was resolved with the availability of ID texts
in the library. In an article published on September 5, the notion of ID was explained in
more detail than the Dover community had ever before been exposed to; Buckingham’s
own perspective was also printed, when Lebo wrote that, “While Buckingham considers
the Bible’s Books of Genesis to be life’s blueprint, he says the issue of intelligent design
is a pragmatic compromise between his beliefs and what the law will allow.”
Newspaper articles by both writers were even-handed, but particularly with regard
to Of Pandas and People, they could not help but to point out that “many scientists and
critics say the book and the ID concept are merely vehicles to get religion in the back
door since the U.S. Supreme Court’s 1987 ruling prohibiting equal time for the teaching
of creationism in public school science class.”14 However, in a community of people
who often define themselves by their faith, where students carry Bibles and parents are
concerned with the moral health of their families in the face of sex education and
terrorism, putting Christianity back into the classroom was laudable rather than
lamentable. “Science has never proven the Bible wrong,” wrote Ginny Stough of Red
Lion in her response to the York Daily Record forum. “Eventually, science always
11
catches up with the Bible. The Bible isn’t strictly a science book, but it contains science.
To bring in the idea that all other religions should be given equal attention is just
ludicrous.”15
But on October 18, Bonsell moved to make a change to the curriculum for ninthgrade biology students that would rock the district and catalyze the elements leading to
the court case. Dover became the first school district in the nation to mandate the
inclusion of ID in its science classrooms. Maldonado wrote on October 20 that despite
evolution-creationism controversy arising elsewhere in the country, “with Dover's 6-to-3
vote in favor of teaching alternative theories to evolution, ‘including, but not limited to,
intelligent design,’ the battle lines might have shifted to include York County.”16 The
amendment that was approved in a 6-3 vote stated 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. Note: Origins of Life is not taught.” The Seattle-based
Discovery Institute, which helped spawn the ID movement, was also advising
Buckingham, but realized the board was beyond their reach. Maldonado wrote on
October 20 that
[…]those at the Discovery Institute, who have also advised Buckingham
on the issue, said the board member might have overstepped his bounds.
John West, Discovery's associate director for science and culture, said
intelligent design is still a fairly new concept. Consequently, he said, his
organization prefers that school districts require the full, fair teaching of
evolution, including the flaws.
"We don't endorse or support what the Dover School District has done,"
West said. "This is not what we recommend."
Buckingham agreed he had been in touch with the Discovery Institute, but
when the idea of establishing intelligent design as part of the curriculum emerged,
he turned to the law center.17
While board members and faculty had been collaborating on a way to compromise,
Buckingham’s sudden move to include ID had not been included in previous drafts of the
12
motion. “But at a meeting in which teachers were not present,” Lebo wrote in her book,
“committee members Bonsell, Buckingham, and Sheila Harkins added a phrase that
included intelligent design.” Teachers removed the phrase, but it was reinserted
immediately before going to a vote.
After voting against the statement and watching it pass, board member Casey
Brown immediately resigned. Her letter announcing her decision made clear that tension
had been running high and that religious motivations abounded in the changes made:
“There has been a slow but steady marginalization of some board members. Our
contributions 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.” Her husband, Jeff Brown,
resigned along with her.
Noel Wenrich also resigned after attempting several times during the meeting to
reword the statement at hand. He cited that the board’s treatment of teachers was
something for which he would not stand despite his support of teaching an alternative
theory to evolution. In an October 24 York Sunday News article, he was quoted as
saying “‘The fact that teachers were cut out of the decision, the fact that they were made
irrelevant bothers me to no end. After they compromised with us to allow a book they
13
were uncomfortable with into the classroom only to be treated the way they were, well, I
don’t know why they would ever work with the board again like that in the future.’”18
Wenrich later demanded a formal apology from Buckingham for having been
disrespected at the October 18 meeting. As Maldonado wrote in an article covering this
fiery aspect of the meeting, Wenrich said that “he didn’t appreciate the way
[Buckingham] challenged his patriotism and religious beliefs.”19 After he stormed out of
the meeting, held on November 1, former board member Barrie Callahan and Dover
resident Bryan Rehm both requested access to tapes of the October 18 meeting to verify
comments they had heard about. Bonsell, however, noted that “the district’s solicitor
advised against releasing the Oct. 18 tapes to protect members of the board from potential
legal actions.”20 Such a suggestion, followed by the assertion that the board regularly
destroys recorded tapes after approving minutes, raised several eyebrows.
Other questions arose, including the source of the donated intelligent design texts.
Maldonado noted in his account of the November 1 meeting that “Former board member
Larry Snook requested the identity of those who donated the 50 intelligent design
reference books, Of Pandas and People. ‘You owe it to the community,’ he said.
‘Furthermore, those who support intelligent design deserve to know their benefactor.’”21
The teachers’ union was likewise concerned at the position in which science
faculty members now found themselves. Spokesman for the Dover Area Education
Association spoke out against the lack of “‘direction from the administration on how to
handle student questions about intelligent design.’”22 Instructors were nervous that,
despite the board’s statement that “Origins of Life would not be taught,” that student
curiosity might naturally lead in that direction and the implication that ID requires a
designer would lead to legal infractions.
14
The board additionally announced nominations for the four positions on the board
that had been vacated by Carol and Jeffrey Brown, Jane Cleaver, and Noel Wenrich. Up
for consideration was Bryan Rehm, a physics teacher who had left the Dover school
district but had four children in the school system. His impression during the interview
for board membership was that it was already predetermined that he would not make the
cut. After mentioning his perspective that perhaps ID shouldn’t be portrayed as science,
Buckingham posed the question of whether Rehm had ever been accused of abusing a
child. His replied negatively, but the insinuation remained. The open positions on the
board went to decidedly less qualified individuals who were more likely to support the
Christian track of Bonsell and Buckingham.
When Casey Brown saw the interviews take place and the results, she told Joseph
Maldonado that “taxpayers got a preacher, a home-schooler who doesn’t send his kids to
public school because of his religious beliefs and two others with barely any experience
in government.”23 Others in the audience pointed out that Rehm was obviously the most
qualified candidate, after he cited his experience as a teacher and with writing science
curricula, that he was an Eagle Scout and the awards and grants he had won for use in his
classroom. However, Buckingham was happy in the choices the board made. “While
some of the candidates suggested that the board revisit and reconsider the choice it made
to include intelligent design in the curriculum, Buckingham said that isn’t going to
happen. ‘It’s a battle,’ he said. ‘I never enter any battle with the intention of losing.’”24
With rhetoric like this, the onslaught of antagonistic opinion pieces printed by the York
Daily Record came as no surprise, nor did the fate of the ID movement in Dover.
The October 18 vote also lead the American Civil Liberties Union and Americans
United for the Separation of Church and State to begin searching for relevant Dover
15
residents, those most likely to be impacted by the board’s decision, who would be
interested in suing the district. Suddenly, Dover saw that the nation was looking over its
shoulder to see what would come next; the Anti-Defamation League sent a letter urging
reconsideration of the curriculum change to the Dover superintendent, and the New York
Times ran an article about the inclusion of ID. The National Center for Science
Education (NCSE) had been following the story since June and reached out to law firm
Pepper Hamilton, based in Philadelphia and Harrisburg.
Partner Eric Rothschild was approached by Eugenie Scott, executive director of
the NCSE, and immediately offered to take up the case with his pro bono department.
Scott put Rothschild in touch with Witold Walczak, the Pennsylvania ACLU’s legal
director, while Pepper Hamilton lawyers Steve Harvey and Tom Schmidt also climbed on
board. Americans United became a collaborator in the case, bringing its assistant legal
director Richard Katskee to the table.
On November 19, the Dover Area School District released a prepared statement
that was meant to clear up issues regarding how teachers would go about teaching
intelligent design alongside evolution. The statement that follows was to be read by
teachers to students at the start of the section on Darwin’s theory of natural selection:
The state standards require students to learn about Darwin’s Theory of
Evolution and to eventually take a standardized text of which evolution is 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
16
focuses on the standards and preparing students to be successful in standardsbased assessments.
Realizing that the Dover school board was jeopardizing the ability for ID to survive a test
in the court system, the Discovery Institute issued a new release against the action in
Dover, stating that “’Dover's current policy has a number of problems, not the least of
which is its lack of clarity.’”25 It was reported by the York Daily Record the following
week that “The [Dover school] administration will not comment on the issue, but
according to a statement released by the district, both Assistant Superintendent Michael
Baksa and Superintendent Richard Nilsen will ‘monitor the instruction to make sure no
one is promoting, but also not inhibiting religion.’”26
In early December Angie Yingling offered a letter of resignation to the board due
to the fact that she was not present at the October 18 vote to include ID in the biology
curriculum and she had been prevented from voting on the issue since then. Although
she had been urged to reconsider her decision by other board members as well as the
Dover superintendent and assistant superintendent, she spoke about her fears of
anticipated legal action in a December 8 article, saying that “‘The lawsuits are coming,
and without me, there will be no one speaking on behalf of those that don’t want to pay
those bills. But I don’t know if I want to stay on this ship. It’s like being on the Titanic.
Everyone seems to see the iceberg, but no one is steering away.’”27
III A Case to Be Made
Eleven parents came together to sue the school district, all with the commonality
of either having a child in ninth grade biology at Dover High School or who would
eventually do so. Beth Eveland and Cyndi Sneath were on board with the lawsuit early
on, and Sneath brought in her neighbor Tammy Kitzmiller. With a daughter entering
ninth grade, Kitzmiller was the ideal lead plaintiff. Bryan and Christy Rehm soon joined
17
the team, as did Joel Lieb and partner Deborah Fenimore, Steve Stough, Julie Smith, and
Fred and Barrie Callahan. The group was pleased that others in their community felt as
strongly as they did regarding the issue, and as compelled to stand up against the school
board and attach their names to the legal action at hand.
The lawsuit went public on December 14, 2004. “‘Teaching students about
religion’s role in world history and culture is proper, but disguising a particular religious
belief as science is not,’ Walczak said. ‘Intelligent design is a Trojan horse for bringing
religious creationism back into public school science classes.’” A press conference was
held in Harrisburg later that week. As Lauri Lebo described the event, “The school board
and its legal team may have seen Dover as part of this nation’s culture war, but the
parents viewed it as an issue critical to their town,” and were surprised at the national
attention they garnered.28
However, there were soon other aspects of the case that demanded more worry
than the media spotlight. The initial strategy of the parents’ lawyers was to gain a
temporary restraining order before the statement including ID was actually read in Dover
classrooms. However, in order to do so, they needed depositions from the school board
members recounting their public discussions regarding creationism so that their religious
motivations could be officially recognized in the court record.
Richard Thompson, defense lawyer for the school board, knew that exposing the
Christian-based remarks made by Buckingham and others during the summer would
extinguish the case early. As the founder, president, and chief counsel of the Thomas
More Law Center, that’s the last thing Thompson wanted. As Gordy Slack describes,
“[Thompson] is himself moved, as are most Americans who disdain evolution, more by
the implications of the theory than by the science itself.”29 Just as the NCSE had been
18
following the events as they unfolded in Dover, so had Thomas More been on the lookout
for an ID test case. Based in Michigan and funded by conservative money from Thomas
Monaghan of Domino’s Pizza fame, Thomas More Law Center is “a not-for-profit public
interest law firm dedicated to the defense and promotion of the religious freedom of
Christians, time-honored family values, and the sanctity of human life. 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,”
according to its website. Armed with information from the Discovery Institute,
Thompson planned to make sure that ID would be included in biology classes across the
country.
That effort explained why in the depositions collected from Bill Buckingham,
Alan Bonsell, new board president Sheila Harkins, and Superintendent Richard Nilsen on
January 3, all either vehemently denied any mention of creationism made at any board
meeting or else said they could not recollect. Despite dozens of newspaper articles
printed in both the York Daily Record and the York Dispatch around the time of the June
board meetings that quoted board members and recorded the debates, the board members
insisted that the liberal media was misquoting them. This denial would eventually lead
Judge Jones III to subpoena the two reporters who covered the school board meetings in
June.
The injunction fell through as the deadline passed, and the statement was read
aloud by Superintendent Nilsen and Assistant Superintendent Baksa in each ninth grade
biology class. The faculty of the science department had drafted a letter with the help of
their union representative expressing their refusal to do so themselves, due to the nature
19
of ID as non-science and their reluctance to mislead students. Jessica Kitzmiller stood
outside in the hallway.
IV Intelligent Design Stands Trial
For the next few months, both the plaintiffs and defense prepared to go to trial
before Judge John E. Jones III. Appointed in 2002 by President Bush, Jones was initially
assumed to be in the pocket of the defense. Since the trial, he has gone on to assume a
celebrity status among evolution junkies and was named to Time Magazine’s “Time 100:
People Who Shape Our World” in 2005.
The plaintiff’s team assembled in Harrisburg with ACLU lawyer Vic Walczak;
Pepper Hamilton partners Eric Rothschild, Steve Harvey, Joseph Farber, Benjamin
Mather, Thomas Schmidt, and Alfred Wilcox; and NCSE intelligent design and evolution
expert Nick Matzke. The defense consisted of Dover’s district attorney Patrick Gillen,
and Thomas More’s Edward White, Robert Muise, and Richard Thompson.
On September 26, 2005 the trial began. Rothschild heralded the first opening
statement, dropping a bomb that had turned up through careful research through the
varying editions of Of Pandas and People. In an early draft, a definition of creationism
read that, “Creation is the theory that various forms of life began abruptly, with their
distinctive features already intact: Fish with fins and scales, birds with feathers and
wings, mammals with fur and mammary glands,” whereas an eventually published
version describing ID read that, “Intelligent design means that various forms of life began
abruptly through an intelligent agency, with their distinctive features already intact: Fish
with fins and scales, birds with feathers, beaks and wings, et cetera.” Rothschild
prepared to show the court that religion motivated the board members to include ID in the
biology curriculum.
20
Patrick Gillen, speaking for the defense, argued that a small change had been
made and that ID was not being taught. Students, he proposed, were being exposed to
alternative theories that competed with evolution and thereby deserved equal attention in
the classroom.
The first witness called was Dr. Ken Miller, Brown University biology professor
and one of the writers of Biology, the Prentice Hall textbook that was eventually
approved by the school board for Dover high school. Aside from reveling in the debate
against creationism and ID, Miller is also a devout Catholic. This aspect of his
background helped to counter the claim that evolutionists are inherently atheists; and
Miller, personally, was concerned by the implication that it was an unusual combination.
Lebo, having sat in the front row for the trial, recounted his feelings: “He confessed his
awful fear that intelligent design could force students to choose between faith and
science, that they would abandon curiosity because it makes them question their religion.
Or, opting for science, they might turn their back on God.”30 Miller argued that science
does not attempt to answer questions regarding the meaning of life.
At the same time, Heidi Bernhard-Bubb and Joseph Maldonado were faced with
subpoenas from the plaintiffs to appear in court and testify as to the creationist statements
made at the summer board meetings. Because the board members had essentially
accused the journalists of lying in their articles when questioned for their depositions, the
only way to get a straight story was to put the journalists on the stand. They refused to
give depositions when initially subpoenaed by the defense, invoking their first
amendment right for freedom of the press after conferring with attorney Niles Benn. The
reporters argued that the information they were to provide could be found from
21
alternative sources, such as other community members that attended the board meetings
and heard the statements regarding creationism.
The defense also admitted that creationism had been discussed outside of board
meetings, but that the conversations had not impacted policy decisions or led to the
curriculum changes.
After Miller, the next expert witness was philosopher Robert Pennock of
Michigan State University. Pennock had a long history of studying intelligent design and
its relationship with creationism, having taught a class on the philosophy of science
during his time at the University of Texas in the 1990’s. His role at the trial was to make
clear the transition of creationism to intelligent design and to talk about the lens of
naturalism, or materialism, through which all science necessarily views the world. Idproponents reject naturalism as a perspective on science because it essentially removes
God, or any supernatural force, from the material world. Pennock and Rothschild went
back and forth about why a naturalistic approach was vital when practicing science
because it enables hypotheses and theories to be tested or explained through natural
causes. ID, on the other hand, is not a testable theory and has no natural explanations, and
is therefore not scientific.
Amid expert testimonies, all 11 parents took to the stand upon Thompson’s
insistence. Because the defense lawyer questioned whether all 11 had a true standing in
the case, he wanted the right to cross-examine each one of them. They provided stories
of their children being teased and their religious faith being assaulted, talked about how
they had each been impacted by the school board’s decision and why it was wrong to
include ID as part of the science curriculum.
22
When Barbara Forrest took the stand, the defense was clearly shaken. They
attempted to have her disqualified as an expert witness and failed, and her testimony is
now thought to have been some of the most influential. Forrest, co-author of
Creationism’s Trojan Horse: Intelligent Design, is a philosophy professor at
Southeastern Louisiana University. Her testimony focused on the history of the ID
movement and the efforts to insert Christian doctrine into public education despite the
1987 decision of Edwards v. Aguillard to exclude creationism in public schools. Once on
the stand, Thompson proceeded to portray her as a godless woman without merit and
without cause to participate in the case. As Gordy Slack recounts, “In one instance, she
is asked if it is true that her lack of science means that she is not in a position to evaluate
the scientific claims of ID. She says that would be true except that ID proponents aren’t
making any scientific claims. Their claims are all in the realm of philosophy and
religion, she says, and those are areas in which she does have expertise. And unlike the
design proponents, she says, she does not pretend that what she does is a science.”31
Forrest traced the ID movement back to the threat that fundamentalist Christians
feel evolution imposes on the Bible and the moral fabric of society. She brought forward
the infamous Wedge Document, a 1999 guide meant to act as a fundraiser that essentially
laid a timeline for indoctrinating society with Christian values by first inserting ID into
the realm of science and science education. In an October 6 article in the York Daily
Record, Forrest “pointed to an inherent contradiction in the movement - even as it
presented intelligent design as science, its proponents actively courted Christians and
promoted creationist beliefs.”32 Forrest could not attest to whether the Dover school
board had ever seen the Wedge Document before, but succeeded in putting the precarious
23
circumstances in Dover in a larger historical perspective of a war for morality being
fought by ID proponents generally.
Furthermore, Forrest traced the different editions of Of Pandas and People from
before and after the Supreme Court deemed creationism in schools to be unconstitutional
in 1987. Starting with the first edition in 1983, which was initially titled Creation
Biology, coauthors Dean H. Kenyon and Percival Davis used basically the same
definition for creationism as they did in a 1987 edition for the meaning of ID. To have
found creationism to be the antecedent for ID in the very language of the textbook Dover
had sought was strongly influential. Not only that, but in the effort to replace creationists
with design proponents in the text, one example had been distorted and left behind as
evidence of the switch: cdesign proponentsists.
Next, paleontologist and professor Kevin Padian took the stand as an expert on
the fossil record, tracing the evolutionary pasts of animals that ID insists could only have
spontaneously sprung into being. In addition to his expertise on the transition from
dinosaurs to birds and land animals to whales, Padian provided a sound voice on the
impact that the Dover statement would have on students, having taught in classrooms to a
wide range of age groups. “‘My sense is that it’s very difficult to constrain inquiry just
by saying you’re going to cut it off, and it’s very difficult to say that if you just read a
statement it’s not going to harm anybody,’”33 Padian said, in reference to the openendedness of the statement Nilsen and Baksa read in biology classes. “The problem with
teaching ID, Padian said, is that it ‘makes people stupid…It confuses them unnecessarily
about things that are well understood in science, about which there is no controversy.’”34
Starting on October 17, the defense brought its witnesses forward to testify to the
fact that ID was veritable science and that the Dover school board had intended only to
24
improve the biology curriculum. There were complications, however, in compiling their
list of experts; the Discovery Institute withdrew fellows William Dempski, Stephen
Meyer, and John Angus Campbell from the list because Thomas More Law Center denied
them independent legal counsel.
First up for the defense was Michael Behe, author of Darwin’s Black Box and
biochemistry professor at Lehigh University. Behe represents the foremost academic side
of the intelligent design movement; a Roman-Catholic, he is living proof that ID does not
just flourish among evangelical Christians, and claims to keep his religious faith separate
from his scientific beliefs. He was witness to the inception of the Center for the Renewal
of Science and Culture, the branch of the Discovery Institute that aims to restore
Christian values within American culture, and coined the term irreducible complexity, the
primary basis for which intelligent design reasons life’s diversity could not have evolved
incrementally.
However, his cross-examination was a telling example of the lack of answers that
ID provides to inquiry on any level. “In his writings supporting intelligent design,
Michael Behe […] said that ‘intelligent design theory focuses exclusively on proposed
mechanisms of how complex biological structures arose.’ But during cross examination
Tuesday, when plaintiffs' attorney Eric Rothschild asked Behe to identify those
mechanisms, he couldn't.”35
Over four weeks into the trial, the source of funding that brought 60 copies of Of
Pandas and People to Dover high school was discovered to have been Bill Buckingham.
Buckingham had raised the money from the congregation at Harmony Grove Community
Church, and had written a check to Donald Bonsell, school board member Alan Bonsell’s
father. In the subject line was written, “For Pandas and People.” This evidence
25
contradicted Buckingham’s deposition, taken nearly 10 months before. Buckingham was
not listed as a fact witness for the case, but would be brought to the stand by the plaintiffs
as a hostile witness. The defense had, by this time, spent time and effort disassociating
the former board member, who had resigned in August of 2005 in order to pursue
rehabilitation for an Oxycontin addiction he had secretly nursed.
In the Harrisburg courtroom, Superintendent Richard Nilsen appeared after Behe
as a fact witness for what had taken place in Dover. To prove that the actions of the
school board were constitutional, it was essential that the defense demonstrate that the
curriculum change had a “legitimate secular purpose,” “must not have the primary effect
of advancing or inhibiting religion,” and can’t lead to government’s “excessive
entanglement with religion” according to the Lemon test that was established in Lemon v.
Kurtzman of 1971.36
Nilsen gave a vastly different account of the events that lead up the appearance of
Pandas and the alteration to the biology curriculum. He dismissed the notion that the
school board had religious intent, confirmed very few facts but distorted their context,
and said that Buckingham had insisted on the inclusion of Pandas and that the statement
read in the classroom was meant to protect teachers from legal liability. In further
testimony, Nilsen admitted to receiving a memo from then-Dover high school principal
Trudy Peterman stating that board members wanted a biology text that included
creationism; however, he said that Peterman was prone to exaggeration that impacted her
job performance, which led him to disregard the memo entirely.
Rothschild also brought up an email sent from the local lawyer for the school
board Steve Russell to Nilsen, describing a conversation that Russell had with Richard
Thompson regarding the potential for litigation. Aside from directing the school board to
26
use the term ‘intelligent design,’ Russell “warned the district against embarking on plans
to pursue placing ID and creationism into science class because the U.S. Supreme Court
has ruled unfavorably on school policies based on religious motivations. ‘. . . in the last
several years there has been a lot of discussion, newsprint, etc. for putting religion back
in the schools,’ Russell wrote.” Nilsen said the true problem lay with the media.37
On October 24, sociologist Dr. Steve Fuller of the University of Warwick in
England testified that evolutionary theory excludes the potential for other theories to
arise. Due to the fact that “the scientific community shuts the door on radical views,
intelligent design needs to cultivate a new generation of recruits,” Fuller argued.38
The media, which Nilsen and the rest of the school board accused of lying,
testified shortly thereafter. Joseph Maldonado and Heidi Bernhard-Bubb refused to give
depositions to the defense, but testified as to what they had seen and heard at the June
2004 school board meetings. Both journalists stood fast in the face of cross-examination,
and asserted the factuality of their articles.
Bill Buckingham, debilitated from his drug recovery efforts, appeared as a hostile
witness called forward by the plaintiffs rather than the defense. As Gordy Slack
recounted, “[Buckingham] displays the kind of confidence that only the ignorant can
wear in public without embarrassment.”39 As the chair of the Dover curriculum
committee within the school board, Buckingham was the most public proponent of
introducing first creationism, and then ID in the high school. His own definition of ID,
when asked on the stand, was that “‘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.’”40 Buckingham was also insistent that he had never made public statements
27
regarding creationism, and that the newspapers had printed false information that he had
never bothered to correct.
Two days later, Alan Bonsell took to the stand. Steve Harvey quickly confronted
the former school board president with the discrepancy between his deposition, in which
he states he did not know the source of the Of Pandas and People donation, and the
evidence that his own father had purchased the books using money Buckingham had
collected in his church.
In his testimony Buckingham already admitted, in contradiction to his
January 3 deposition, that he had raised the money for the books at his church and
that he had written out a check for $850 to Bonsell, who had given that check to
his father, Don, who had sent it to the publishers of Of Pandas and People. So
the facts of the matter are already established. It was also clearly established that
Bonsell, like Buckingham, had originally denied this account of things. But now,
on the stand in the courtroom, he is unwilling to acknowledge that he lied in his
sworn deposition. The judge has finally had enough and exercises his prerogative
to step into the examination and dress Bonsell down.
‘Why,’ Judge Jones intones at Bonsell, ‘did you say in your deposition
that you didn’t know who was involved with the donation of the books?’41
Bonsell stammered as his confidence failed in a back-and-forth with Judge Jones that
lasted fifteen minutes and concluded the proceedings for that day.
On November 3, the final witness for the defense appeared. Microbiologist Scott
Minnich, of the University of Idaho, provided little new evidence except to reinforce the
fact that, although they don’t depend upon the Christian God as the ‘designer’ in ID, most
of its greatest proponents, himself included, personally believe that to be the case.
In their closing arguments, Gillen and Rothschild seized their last opportunity to
convince Judge Jones of their cause. By portraying Buckingham as a drug addict that
misrepresented the school board as a whole, Gillen argued that the mission had been to
improve science education. He also argued that ID was legitimate science and that
28
although it was struggling to gain respect within the field, that students should be
exposed to the benefit of alternative theories to evolution.
Rothschild, on the other hand, laid out a clear picture of what had taken place in
the courtroom: board members had lied, and at the heart of the issue had endeavored to
insert Christian principles into the high school. He also recalled the history of
Pennsylvania and its roots as a colony as it related to the contemporary issue at hand.
It’s ironic that this case is being decided in Pennsylvania in a case brought
by a plaintiff named Kitzmiller, a good Pennsylvania Dutch name. This colony
was founded on religious liberty. For much of the eighteenth century,
Pennsylvania was the only place under British rule where Catholics could legally
worship in public.
In his declaration of rights, William Penn stated, ‘All men have a natural
and indefeasible right to worship Almighty God according to the dictates of their
own consciences. No man of right can be compelled to attend, 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
establishment or mode of worship.’42
And thus the trial concluded. Less than two months later, Judge Jones would hand down
his decision.
V. A Small Town Responds
The emerging policies of the Dover school board were well documented by local
newspapers, which served both to inform the public of the growing discord within Dover
as well as gauge the sentiments of the surrounding community. In a June 27, 2004
section titled “What Do You Think? Creationism and Evolution,” the York Sunday News
printed the opinions of various citizens representing a wide range of opinions.
Extremism existed in both camps; Steven Smith of Dover Township wrote that “I am a
Christian and I feel that if you’re going to teach something that I think is not true—which
is evolution—I think you should give creationism the same chance.” Dave Singer of
Hellam appealed to the argument that the United States have Christian underpinnings
29
when he wrote that “To not teach creationism is to deny the truth and the very foundation
our laws and our country are based on[…] It’s time for our schools to throw out the
evolutionary garbage and get back to the Scriptures, fossils and face.” Jeremy Barnes of
Seven Valleys, on the other hand, asked the pointed questions, “Which creation stories do
the Dover schools plan to include? Those from the Native American and African cultures
as well as the many from Asia? There are, I believe, at least 300 recorded stories of
creation from which to choose, all of which have religious significance, and we do
believe in freedom of religion, don’t we?”43
The issue of religion and politics is undeniably heated, and the impact that of
teaching creationism and intelligent design in Dover had repercussions that demonstrated
exactly how deep the rift was within the community. Edward T. Yeatts III of
Springettsbury attacked the board early on during the summer of 2004.
It boggles my mind that people still perceive of evolution as not having a
basis in fact. They see the word “theory” and somehow assume that it means
“unproven.” Actually, evolution has been a proven fact for decades; the
mechanics of evolution is what is considered a “theory.”
Creationism and its cousin, intelligent design, are devoid of scientific
facts. Both assume knowledge that science cannot prove or disprove.
The scientific ignorance and the religious arrogance of the Dover school
board members and the public quoted in news articles only go to show the true
aims of these people. Indoctrination seems to be what they want, but they should
only do so in their own homes or in their own churches. As doubtful as it seems,
if they truly only desire to present religious viewpoints, those views should be in a
comparative religion class along with every other religion and creation belief.44
Although only nine people made up the school board, the community was being cleft in
two by its actions. Steered largely by Bonsell and Buckingham, the Dover controversy
was picked up by the national media in an election year that defined voters as either red
or blue, Republicans or Democrats without middle ground.
The notion of academic freedom became a popular argument for allowing ID into
the school system, but even the staff of the York Daily Record had to speak out against
30
the motion of the Dover school board to critique evolution in the proposed statement
approved on October 18. “Schools and libraries should be filled with different ideas,
hopefully provoking thought and questions for students. But the board’s position has,
shall we say, evolved,” from that of enabling student access to instruction within biology
classes.
There were several people in Dover caught in the middle of the science-religion
paradox; Robert Eschbach, science teach in the high school whose father Warren is an
ordained minister; active church members Christy and Bryan Rehm whose faith was
questioned to the point of insult; citizens like Charles Holsinger of Seven Valleys,
another ordained minister who was also a biology teacher. “I am convinced that if
science is taught well,” Holsinger wrote in an October 24 opinion piece in the York
Sunday News, “the pure wonder of evolution will do its own leading.[…]Any attempt to
teach science from the perspective of intelligent design will inevitably result in teaching
with a religious character.”45 The option of a religion class based in the social sciences
was even mentioned by Casey Brown at the November 1 board meeting, but received no
attention.
Others were more succinct in their criticism of the curriculum change and those
that initiated it. Kelly Adams in Hanover wrote simply that “Intelligent Design is in the
Dover school’s biology classes. Intelligent life is out of the Dover school board.”46
People ridiculed the school board, but many others weren’t laughing.
Both sides of the debate took to deriding the other as absurd; dogmatic followers
of evolution were haughtily denying the existence of God while preventing any critical
examination of the weaknesses of Darwin’s theory of evolution, whereas the Bible-
31
touting evangelists were trying to impose Christian doctrine with the wrath of God on
their side.
With each new offense from the school board, opinion pieces were written in
reaction to the increasing absurdity of the situation and the seeming omnipotence of Bill
Buckingham. In a piece that compared him to King Henry VIII, the York Daily Record
wrote that “when your subjects raise objections, you can put them down by questioning
their faith or their patriotism. Raise doubts about their religious convictions. Insult their
intelligence. Doubt whether they are true Americans or true Doverites.” This reference
is to the heated circumstances that arose between Buckingham and Wenrich, whose
resignation came amid the maelstrom of the October 18 board meeting. The opinion
piece goes further, mocking Buckingham for denying audio tape inquiries and refusing to
provide legal protection to teachers that might be sued for teaching intelligent design.47
Sarah Hied of Dover, however, chose to demonstrate her support for the mission
of the school board by writing a conversation between God and Satan. God points to the
school board as a sign of hope in taking a stand, reminding Satan also of the undying love
He has for every person, “even the Dover resident who is willing to go to any cost to
keep you out of the classroom.”48
The Browns received criticism for their resignations at one point in November,
with the York Daily Record publishing another editorial reprimands the couple for
making “it easier for the rest of the board to increase its majority and push through its
agenda.”49 By resigning, the piece continues, the Browns only “disenfranchised
themselves, diminished their ability to be a voice of opposition—only to vow to run for
the board again next year (in Jeff Brown’s case, at least.) What were they thinking?”50
This reaction held Jeff and Casey Brown responsible, not for the actions of the school
32
board, but for resigning in protest when their continued presence might have been more
practically useful to the anti-intelligent design community. In their defense, the couple
insisted that there was little they could do at that point to alter the direction of the school
board. Lauri Lebo wrote a November 28 article focusing on the media attention that the
pair had drawn through their resignations; the piece also gave them a chance to go into
greater detail regarding their decision to quit the board. “‘We’re charging our volunteers
for criminal background checks,’ [Jeff] said. ‘Then we turn around and commit the
district for an incalculable amount of money in a lawsuit.’”51
As the case decision became more imminent, the faculty at Dover Area high
school became increasingly uncomfortable and experts in science began to weigh in with
editorials in local newspapers. On December 5, only weeks before Kitzmiller was
officially filed in Harrisburg, Penn State York professor Lew Brown had an opinion piece
printed in the York Sunday News in which he shamed the Dover school board for their
action. “York County,” he began, “has a long tradition of political moderation with
progressive attitudes towards culture, education and science,” but Dover has made the
county “the laughingstock of the educational and scientific world.”52
Part II Constitutional Considerations: Judicial Background and Application to
Kitzmiller
VI Evolving Establishment Clause Tests
Interpretive flexibility is the genius of the United States Constitution. That such a
document has survived little modified for almost two hundred years in a nation whose
development is hardly envisioned from one generation to the next is certain proof of its
33
framers’ wisdom. Its adaptability has been the result not only of the Constitution’s brief
and general nature, but also its ambiguous language. Nowhere is this ambiguity more
apparent than in the opening clauses of the First Amendment: “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof…”
The religion clauses come into play when attempts are made by the State to act in
a way which either inhibits or promotes religion in the school context. They indicate in
a general fashion that the business of the State and religion are to remain separate and
distinct. The first commands of the Bill of Rights were not the revealed word of God.
They were the product of the historic experience of the early colonies, a reaction to the
immediate situation at the time the country was founded, and a reflection of the thoughts
of leading intellectuals on the nature of religion, the state, and society. Because this act
grew from life, it is not remarkable that it is interpreted and reinterpreted in the context
of our national life by an institution which should not and cannot be divorced from the
social forces surrounding it.
While questions involving original intent behind a constitutional provision often
play an important role in governing Court decisions related to it, the Supreme Court, in
its treatment of the religion clauses, is provided little comfort from this quarter.
“Inconclusive” is the most descriptive term applicable to the findings of major historical
studies. Vagueness of original intent or early meaning has heightened the relevance of
community composition and needs to the decision-making process. The Court has not
been immune to the fundamental change in the pattern of beliefs held by Americans.53
What was once a Protestant nation is now in the fullest sense pluralistic, and this shift
has manifested itself in the educational field. The assumption of our ancestors that
public schools would be, in effect, Protestant public schools is no longer valid.
34
Describing the constitutional limitations for state action would be less difficult if
the clauses could be joined to form a single, adaptable principle. But the Court and most
legal commentators insist that they should be read independently and utilized separately.
With this understanding comes a need to resolve occasional conflicts between the “no
establishment” and “free exercise” requirements. Attempts at reconciliation have led in
several different directions. Some insist that the “free exercise” guarantee is dominant
and the “no establishment” restriction must be viewed as a device for furthering
religious freedom. Others see the first clause as demanding strict separation of
government and religion while the second functions as an objective served by it.
Finally, efforts have been made to give the clauses equal status with resulting formulas
of neutrality.
In the middle decades of the 20th century, the U.S. Supreme Court came under
increasing pressure to resolve a host of conflicts between state power and personal
claims of religious freedom. Not the least of these concerns was the proper relationship
of religion and government in education. The problem sprang in part from the fact that
America has a dual educational system. Public and private schools exist side by side.
This duality is caused in turn by the fact that Americans are committed to two principles
related to control of the schools. The first is that parents retain certain rights and
responsibilities in the education of their children. The second maintains that education
is of benefit not only to the individual but to the community as well; thus, the State, as a
political instrument of society, is expected to participate in education on behalf of the
general welfare.
With a few glaring exceptions54 since Lemon v. Kurtzman55
in 1971, the
Court has consistently asked the same three basic questions to determine whether a
35
particular law or government activity violated the Establishment Clause: (1) whether the
challenged government activity has a secular purpose; (2) whether the primary effect of
the law or activity advances or inhibits religion; and (3) whether the law or activity
creates excessive entanglement of government with religion.56
As straightforward as the test appeared, however, Lemon’s questions permitted
considerable play in their interpretive joints, and by the 1980s the Court produced a series
of cases which resulted in an erratic but certainly gradual erosion of separationist
principles which had served as its intellectual touchstone in previous decades.57 In spite
of the rulings in Stone v. Graham,58 Larkin v. Grendel’s Den, Inc.,59 and Wallace v.
Jaffree,60 the high Court upheld state sponsored Christmas Nativity and Chanukah
Menorah displays on public and private property,61 approved tax relief for parents who
send their children to parochial schools,62 permitted the use of government funds to
support ceremonial invocation and prayer in state legislatures,63 ruled that studentinitiated religious clubs can meet in secondary public schools,64 and in public university
facilities during non-classroom hours,65 and sustained a congressional funding
arrangement that allocated federal grants to sectarian institutions providing sex education
and counseling.66
It was also during the 1980s that Justice O’Connor began to fashion her
“endorsement” test which was intended to give clarity to Lemon. More reluctant than
most of her colleagues to overthrow long-established precedents, she sought instead to
add semantic clarity to the old standard. In Lynch v. Donnelly67 and later cases, she
proposed trimming Lemon by focusing “on institutional entanglement and on
endorsement or disapproval of religion.”68 In Justice O’Connor’s view, the purpose
prong of Lemon should be modified to consider whether a statute actually endorses
36
religion, not whether it merely possesses a religious purpose. Likewise, the second
prong, which prohibits governmental advancement or inhibition of religion, should focus
on whether the effect of the law is to endorse or disapprove of religion. A statute would
pass constitutional review under the Establishment Clause even if it advanced religion, so
long as it did not explicitly endorse or disapprove of religion.69
On the surface, the endorsement test proposed by Justice O’Connor respected the
institutional separation of religion and the state because it encompassed an analytical
framework sensitive to statutes implicating the Establishment Clause. Even some
commentators sympathetic to the strict separationist school of thought found little of the
endorsement test with which to quarrel, suggesting that it provided greater flexibility than
the earlier versions of Lemon. For example, the prominent liberal constitutional scholar
and Harvard Law professor, Laurence Tribe, gave high marks to Justice O’Connor’s
development of the “endorsement” standard, calling her religion test “the best effort
around.”70
Nevertheless, some separationist commentators found the O’Connor version of
Lemon somewhat troubling. Professor Gregg Ivers noted that:
Her treatment of the purpose and effect prongs of Lemon would permit
states to write legislation that grants assistance to or support of religion, as long as
religion is not the central or sole institutional recipient of public benefits, or so
long as the government has not lent its imprimatur to religious goals....Justice
O’Connor used the endorsement standard to reach her opinion in Westside
v.Mergens (1990)(citations omitted) in which the Court upheld the right of
student religious clubs to meet in secondary schools, on the basis that the
fundamental purpose of the Equal Access Act of 1984 was to promote student
speech, even though she acknowledged that the legislation was intended to
provide support for and advance the interest of student religion. The more
accommodating treatment given to religion under Justice O’Connor’s
jurisprudence means that legislation providing public assistance to parochial
schools or support for other forms of state-sponsored religion in the public
schools, such as moments-of-silence or religious curriculum, stand a far better
chance than before of surviving constitutional scrutiny.71
37
The decade of the Eighties witnessed a continuing assault on Lemon by the new
Chief Justice, William Rehnquist, and support for his condemnation by Justices White,
Kennedy, and Scalia. Their position was that the Establishment Clause only prohibited
government from creating a national religion, or preferring one religion over another, but
allowed government to accommodate religion or dispense aid to religious institutions on
a “neutral basis.”72
Turning to the last years of the Millennium, several Establishment Clause cases
arose, two of which deserve special attention for purposes of this review.
As long as Justices Brennan and Marshall remained on the high Court, elements
of the separationist impulse were sure to appear in its decisions,73 but as the Nineties
arrived, President Bush (“41”) appointed Justices Souter and Thomas, effectively
eliminating that approach which had so strongly informed the Court’s early rulings.
Lee v. Weisman74 involved a Providence, Rhode Island school district that invited
a rabbi to give the invocation and benediction at a middle school graduation ceremony. It
had been the long-standing policy of the school district to invite members of the clergy to
give such addresses, as long as they followed the school district’s guidelines and gave
assurances that the prayers would be non-sectarian. Ignoring the Lemon test altogether,
Justice Kennedy, writing for the majority, used his “coercive effect” test75 in holding that
state-sponsored and directed religious exercise amounted to an impermissible
involvement of government with religion.76 The Court reasoned that because the school
district provided the rabbi with a pamphlet on school policy and instructed him to deliver
a nonsectarian message, they were in effect controlling the prayer’s content.77 The Court
declared that not only are actions or practices that coerce people to support or participate
in religious activities invalid, but those that even pose the danger of doing so are likewise
38
impermissible in light of the Establishment Clause.78 Justices Scalia, White, Thomas,
and Chief Justice Rehnquist dissented because of their belief that the facts of Lee fit
comfortably within the concept of accommodation of religion by government.79 It should
be noted that these four justices refused to concur in even the weakest of the church-state
separation standards, the coercive effect test.
It was becoming apparent that these justices seemed bent on expanding the
accommodationist view of the Court in ways which would not only weaken the
separationist impulse but strengthen or maximize legislative discretion at the same time.
This point was noted critically by Professor Michael O’Connell, an ardent supporter of
accommodation and religious free exercise.
Until recently, the Free Exercise Clause was interpreted in a manner
favorable to accommodation, the Establishment Clause was interpreted to create
obstacles to accommodation....The current trend in the Court is the reverse: The
Free Exercise Clause no longer is interpreted to require accommodation in most
instances, but the Establishment Clause no longer is interpreted to interfere with
them, in most instances. This leads to a jurisprudence in which legislative
discretion is maximized and the Clauses, since they are rarely applied, rarely
conflict.80
As with Lee, the Supreme Court considered the constitutional challenge posed in
Rosenberger v. Rector of University of Virginia81 without the use of the Lemon test, even
though the Fourth Circuit Court of Appeals had dutifully applied it in its finding.82 At
issue was a refusal by the public University of Virginia to grant money from its Student
Activities Fund (SAF) to defray the costs of printing copies of “Wide Awake,” a
publication of a Christian student group. The University’s guidelines for the expenditure
of the money expressly prohibited the subsidizing of “religious activities” and it was the
State’s position that an expenditure in this instance would place the University in
violation of the Establishment Clause. Rosenberger’s complaint argued that the
39
proscription violated the free speech protection of “Wide Awake,” along with its free
exercise of religion guarantee, and finally, that the specific prohibition denied equal
protection under the Fourteenth Amendment of the Constitution.83
Essentially, the Fourth Circuit Court weighed the competing interests of free
speech and press against the establishment clause and found that although the former
guarantees had been violated by the University, the violation was appropriate in order to
satisfy the “compelling interest” of the University in avoiding an offense to the latter.84
Interestingly, that court did not consider whether the free speech and press clauses might
also provide a “compelling interest” on the other side of the dispute.
At the Supreme Court level, Rosenberger pleaded for an “overarching principle of
neutrality” in the Court’s Establishment Clause analysis.85 As a framework for gauging
neutrality, Rosenberger offered this recommendation:
[I]n determining whether distribution of a benefit is “neutral” toward
religion, the court must examine the range of eligible beneficiaries under the
terms of the program. If the benefit “is conferred upon a wide array of
nonsectarian groups as well as religious organizations in pursuit of some
legitimate secular end.” then the program is neutral; but if religious organizations
are singled out for special benefits, or the eligibility criteria are “skewed towards
religion,” then the program is not neutral.86
Essentially, Petitioner’s “neutrality” approach carried the day over the Lemon
test, and the high Court found in Rosenberger’s favor. A crucial factor in the Court’s
analysis was the finding that even though “Wide Awake” contained religious messages,
its sponsoring student group was not a religious organization and met the guidelines
category for “student news, information, opinion, entertainment, or academic
communications media groups.”87 Also contributing to the Court’s holding that the
“neutrality” standard had been met by Petitioners was its finding that a critical difference
existed “between government speech endorsing religion, which the Establishment Clause
40
forbids, and private speech endorsing religion, which the Free Speech and Free Exercise
Clauses protect.”88
There remained the troubling problem of direct payments by government to a
sectarian institution, but the Court hedged the issue by asserting that “no funds flow
directly to WAP’s coffers,”89 noting that payment from the Student Activities Fund was
given directly to a contracted printer and not the student organization itself.
The only hint of Lemon by the Court in Rosenberger came at the conclusion of its
analysis when it discussed the danger of censorship of student journals with a religious
point of view, if the Establishment Clause were to require a denial of funding in the case.
Such censorship, warned the Court in language reminiscent of the “excessive
entanglement” prong of the early test, “...would be far more inconsistent with the
Establishment Clause than would governmental provision of secular printing services on
a religion-blind basis....Such inquiries would tend inevitably to entangle the State with
religion in a manner forbidden by our cases.”90
Joining Justice Kennedy’s position and providing the decisive vote in a 5-4 ruling,
Justice O’Connor’s concurrence greatly tempered the potential precedential impact of
Rosenberger. While she proclaimed the principle of neutrality to be a hallmark of the
Establishment Clause, she also recognized that “[p]ublic funds may not be used to
endorse the religious message,”91 and that resolving the conflict between those sentiments
demanded “sifting through the details [of the case] and determining whether the
challenged program offends the Establishment Clause.”92 Having done that, Justice
O’Connor concluded that the “Court’s decision...neither trumpets the supremacy of the
neutrality principle nor signals the demise of the funding prohibition in Establishment
Clause jurisprudence.”93
41
Justice Souter, leading the dissent, focused on the fact that Rosenberger involved
direct state funding of a religious activity. That was the distinguishing feature from other
cases, like Lamb’s Chapel: “Using public funds for the direct subsidization of preaching
the word is categorically forbidden under the Establishment Clause, and if the Clause
were meant to accomplish nothing else, it was meant to bar this use of public money.”94
Taking aim at the majority, he complained that his colleagues ignored the content of the
“Wide Awake” publication:
Throughout its opinion, the Court refers uniformly to Wide Awake’s
“Christian viewpoint,” or its “religious perspective,” and in distinguishing
funding of Wide Awake from the funding of a church, the Court maintains that
“[Wide Awake] is not a religious institution, at least in the usual sense”....The
Court does not quote the magazine’s adoption [in the masthead of every issue] of
St. Paul’s exhortation to awaken to the nearness of salvation, or any of its articles
enjoining readers to accept Jesus Christ, or the religious verses, or the religious
textual analysis, or the suggested prayers. And so it is easy for the Court to lose
sight of what the University students and the Court of Appeals found so obvious,
and to blanch the patently and frankly evangelical character of the magazine by
unrevealing allusions to religious points of view.95
To Justice Souter, publication of the magazine was “nothing other than the
preaching of the word.”96 The Court, he said, had “never before upheld direct state
funding of the sort of proselytizing published in Wide Awake and, in fact, has
categorically condemned state programs directly aiding religious activity.”97 There was
disagreement between the majority and the dissent about whether the University’s
payment to the printer amounted to a direct aid to a religious activity. Justice Souter
claimed that it did, and that the majority was “ordering an instrumentality of the State to
support religious evangelism with direct funding. This is a flat violation of the
Establishment Clause.”98
These cases and others resulted in an almost unparalleled level of Supreme Court
disarray by the turn of the century. The Lemon test continued on, even though an actual
42
majority of the Court had at one time or another expressed distaste for it. One Justice,
Scalia, even turned to humor in expressing his unhappiness with the test:
Like some ghoul in a late-night horror movie that repeatedly sits up in its
grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks
our Establishment Clause jurisprudence once again, frightening the little children
and school attorneys.... Over the years, however, no fewer than five of the
currently sitting Justices have, in their own opinions, personally driven pencils
through the creature’s heart...and a sixth has joined an opinion doing so (Citations
omitted).
The secret of the Lemon test’s survival, I think, is that it is so easy to kill.
It is there to scare us (and our audience) when we wish it to do so, but we can
command it to return to the tomb at will. See, e.g., Lynch v. Donnelly, 465 U.S.
668, 669 (1994) (noting instances in which the Court has not applied the Lemon
test). When we wish to strike down a practice it forbids, we invoke it, see, e.g.
Aguilar v. Felton, 473 U.S. 402 (1985) (striking down state remedial education
program administered in part in parochial schools); when we wish to uphold a
practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783
(1983) (upholding state legislative chaplains). Sometimes, we take a middle
course, calling its three prongs “no more than helpful signposts,” Hunt v.McNair,
413 U.S. 734, 741 (1973). Such a docile a useful monster is worth keeping
around, at least in a somnolent state; one never knows when one might need
him.99
A couple of points seem clear about the Supreme Court’s on-going tussle with
Establishment Clause jurisprudence. First, the Court doesn’t like the Lemon test very
much but continues to use it, at least sporadically, even while occasionally refusing to
identify it by name. No substitute test has yet captured the attention of a working
majority of the current Court. It can be said that the “coercion” test of Justice Kennedy is
simply too conservative in that it would permit more forms of direct government
subsidies to religion than most members of the Court feel permissible, and Justice
O’Connor’s “endorsement/disapproval” test is little more than a reworking of the
traditional questions first put forth in Schempp and later incorporated into the “effects”
prong of Lemon.
43
Second, the Court seems enamored of the neutrality principle, albeit failing to
agree on what it is. One school of thought, championed by the late Chief Justice
Rehnquist and Justice Thomas, suggests that the neutrality of the Establishment Clause
prohibits governmental preferences for some religious faith over others. Typical of this
view was the Chief Justice’s dissent in Wallace v. Jaffree:
[T]he framers intended the Establishment Clause to prohibit the
designation of any church as a ‘national’ one. The Clause was also designed to
stop the Federal Government from asserting a preference for one religious
denomination or sect over others... States are prohibited as well from establishing
a religion or discriminating between sects. As its history abundantly shows,
however, nothing in the Establishment Clause requires government to be strictly
neutral between religion and irreligion.100
Justice Scalia agrees that the Establishment Clause prohibits only the endorsement
of an official state religion and does not hold the view that it prohibits governmental
preference of believers over nonbelievers.101
A starkly different understanding of neutrality prevails on the current Court. It
holds that the Establishment Clause prohibits not only government preferences for some
religious sects over others, but also government preferences for religion over irreligion.
Perhaps nowhere was the argument over the standard of neutrality better drawn than in
Rosenberger, and fittingly, it took the combatants back to the First Amendment’s
principal author, James Madison.
In his concurring opinion, Justice Thomas took aim at his colleague, Justice
Souter, criticizing his “extreme view that the government must discriminate against
religious adherents by excluding them from more generally available financial
subsidies.”102 He particularly disagreed with Justice Souter’s reliance on Madison’s
“Memorial and Remonstrance Against Religious Assessments” to bolster his position that
44
the Establishment Clause bars governmental funding of religious activities, saying that it
was a “misleading application of history.”103
Contrary to the dissent’s suggestion, Madison’s objection to the
assessment bill did not rest on the premise that religious entities may never
participate on equal terms in neutral government programs. Nor did Madison
embrace the argument that forms the lynchpin of the dissent: that monetary
subsidies are constitutionally different from other neutral benefits programs.104
Justice Souter responded pointedly. To argue, as Justice Thomas did, that
monetary subsidies were no different than other neutral benefits programs (in other
words, that Rosenberger should be decided like cases such as Lamb’s Chapel) was, he
said, an argument that “is as unsound as it is simple.”105 He also rejected Justice
Thomas’s interpretation of Madison:
[Madison’s “Remonstrance”] led not only to the defeat of Virginia’s tax
assessment bill, but also directly to passage of the Virginia Bill for Establishing
Religious Freedom, written by Thomas Jefferson. That bill’s preamble declared
that “to compel a man to furnish contributions of money for the propagation of
opinions which he disbelieves, is sinful and tyrannical”...
In attempting to recast Madison’s opposition [to Virginia’s assessment bill]
as having principally been targeted against “governmental preferences for
particular religious faiths,” Justice Thomas wishes to wage a battle that was lost
long ago, for “this Court has rejected unequivocally the contention that the
Establishment Clause forbids only governmental preference of one religion over
another,” (School District of Abington v. Schempp...106
VII Into the Constitutional Thicket: Epperson and Edwards
Two U.S. Supreme Court cases addressed the issue of teaching Creationism in the
public schools and deserve review before moving on to the more immediate contest
involving its progeny, Intelligent Design. The first, Epperson v. Arkansas,107 emerged as
a challenge by a public school teacher to a 1925 “anti-evolution” state statute (the same
one upheld in the infamous “Scopes Trial”) making it unlawful for any teacher in a state
supported school or university “to teach the theory or doctrine that mankind ascended or
descended from a lower order of animals,” or “to adopt or use in any such institution a
45
textbook that teaches” this theory. Violation of the law may result in the violator’s
dismissal from the teaching position.108
Justice Fortas, for the Court, considered disputes over the vagueness of the statute
and claims of possible due process violations but went straight to a conclusion of the
issue under the Establishment Clause:
“We do not rest our decision upon the asserted vagueness of the statute.
On either interpretation of its language, the Arkansas statute cannot stand. It is of
no moment whether the law is deemed to prohibit mention of Darwin’s theory or
to forbid any or all of the infinite varieties of communication embraced within the
term ‘teaching.’ Under either interpretation, the law must be stricken because of
its conflict with the constitutional prohibition of state laws respecting an
establishment of religion or the free exercise thereof. The overriding fact is that
Arkansas’ law selects from the body of knowledge a particular segment which it
proscribes for the sole reason that it is deemed to conflict with a particular
religious doctrine; that is, with a particular interpretation of the Book of Genesis
by a particular religious group.”109
After favorably citing the foundational Everson decision and later McCollum and
Engel cases, Fortas turned to the “primary purpose and effect” test in Schempp, later to
be encompassed in Lemon. These tests, he concluded, “…inevitably determine the result
of the present case. The State’s undoubted right to prescribe the curriculum for its public
schools does not carry with it the right to prohibit, on pain of criminal penalty, the
teaching of a scientific theory or doctrine where that prohibition is based on reasons that
violate the First Amendment.”110
Creationism returned to the Supreme Court cloaked in a more complex set of facts
in the 1987 case, Edwards v. Aguillard.111 Here, the offending state was Louisiana,
whose “Creationism Act” forbade the teaching of evolution in public elementary and
secondary schools unless accompanied by the instruction of “creation science” as well.
The Act did not require the teaching of either theory unless the other was taught. The
46
theories were defined in the Act as “the scientific evidences for [creation or evolution]
and inferences from those scientific evidences.”112
For a 7-2 Court, Justice Brennan went right after the issue of constitutionality
under the Lemon test, noting that the Court “has been particularly vigilant inn monitoring
compliance with the Establishment Clause in elementary and secondary schools.”113
Focusing on the test’s “purpose” prong, Brenan noted that a legislature could err either by
attempting to promote religion generally, or by promoting one in particular. Conceding
that while the Court is normally deferential to a state’s express articulation of a secular
interest, and that the Act did state specifically that the purpose was to protect academic
freedom, Brennan nevertheless claimed that more was needed, and that the Act’s chief
sponsor undermined the stated purpose with his own testimony:
“It is not a trivial matter, however, to require that the legislature manifest a
secular purpose and omit all sectarian endorsements from its laws. That
requirement is precisely tailored to the Establishment Clause’s purpose of
assuring that Government not intentionally endorse religion or a religious practice
(citation omitted).” It is clear from the legislative history that the purpose of the
legislative sponsor, Senator Bill Keith, was to narrow the science curriculum.
During the legislative hearings, Senator Keith stated: “My preference would be
that neither [creationism nor evolution] be taught (citation omitted).” Such a ban
on teaching does not promote—indeed it undermines—the provision of a
comprehensive scientific education.
It is equally clear that requiring schools to teach creation science with
evolution does not advance academic freedom. The Act does not grant teachers a
flexibility that they did not already possess to supplant the present science
curriculum with the presentation of theories, besides evolution, about the origin of
life.114
Finally, citing Stone and Abington, Justice Brennan noted that the Court “need not be
blind …to the legislature’s preeminent religious purpose in enacting this statute.”115 He
found that there was a “historic and contemporaneous link” between certain religions and
the teaching of evolution, and went on to note that it was just such a link that doomed the
legislation in the earlier Epperson case.116
47
Justice Scalia, with whom Chief Justice Rehnquist joined, dissented. In keeping
with his traditional legislative deference, he attacked the Court’s unwillingness to assume
the validity of the Louisiana legislators’ stated secular purpose. He noted that each of the
legislators had been sworn to uphold the Constitution, and that they were well aware of
the Establishment Clause problems when they considered the legislation:
After seven hearings and several months of study, resulting in substantial
revision of the original proposal, they approved the Act overwhelmingly, and
specifically articulated the secular purpose they meant it to serve. Although the
record contains abundant evidence of the sincerity of that purpose (the only issue
pertinent to this case) the Court today holds, essentially on the basis of “its
visceral knowledge regarding what must have motivated the legislators.117
VIII On to Dover: Kitzmiller, The Supreme Court, and the Constitution
An initial and critical question confronting Judge John E. Jones III in Kitzmiler v.
Dover Area School District.118 was how to read and apply the recent U.S. Supreme
Court’s interpretations of the Establishment Clause. As suggested above, available to
him were the traditional Lemon test, the newer endorsement standard, Justice Kennedy’s
coercion construct, a rather vague neutrality principle, or none of the above. Given the
high Court’s ongoing internal disarray, his safest approach, and the one he decided upon,
was to assess the controversy under both the Lemon and endorsement tests. Interestingly,
while both parties to the contest agreed upon the applicability of the former, attorneys for
the defendant school district objected to using the latter.
Beginning with the endorsement standard, Judge Jones pointed out that it had
been “applied consistently,” to school cases since it was first enunciated in 1989.119 He
dismissed defendants’ claim that since it had not been employed in either Epperson or
Edwards, it should not be applied here. The former, he noted, was decided prior to the
existence of the test. The latter was a “purpose” case, and so “…it would have been
unnecessary for the Supreme Court to delve into a full-scale endorsement analysis even
48
had the test had existed at the time, as the test is most closely associated with Lemon’s
‘effect’ prong, rather than its ‘purpose’ prong.”120
Having noted that for Justice O’Connor, the endorsement test applied to both the
purpose and effect prongs, Jones nevertheless claimed that through the years it was
applied most directly to the latter and only “derivatively” to the former. The standard, he
said was this: “The test consists of what message a challenged governmental policy or
enactment conveys to a reasonable, objective observer who knows the policy’s language,
origins, and legislative history, as well as the history of the community and the broader
social and historical context in which the policy arose.”121 Giving extra weight to the
“effect” prong over the “purpose” prong, Jones then added that “…the objective observer
thus considers the publicly available evidence relevant to the purpose inquiry, but notably
does not do so to ascertain, strictly speaking, what the governmental purpose actually
was. Instead, the observer looks to that evidence to ascertain whether the policy ‘in fact
conveys a message of endorsement or approval’ of religion, irrespective of what the
government might have intended by it.”122 In short, for him, the evidence regarding
purpose colors or informs the effect of the challenged object.
Judge Jones wisely determined that “members of the listening audience” included
BOTH students and parents, as both were targeted in the administration of the ID policy
by the Dover School Board. Before assessing the matter of “perception” by these two
groups, he devoted several pages to the history of religious fundamentalists’ efforts to
breathe creationism into formal school curricula. Beginning with the 1920s, he
highlighted the Scopes trial and moved through the basic issues and rulings of Epperson
and Edwards before coming to grips with the post-creationism world of Intelligent
Design.
49
Relying heavily on one of Plaintiffs’ star witnesses, Dr. John Haught, a
theologian, Judge Jones noted that the argument for creationism and later ID, for the
existence of God, was a very old one, tracing back at least to Thomas Aquinas in the 13th
century. The argument, said Haught, was framed as a syllogism:
“Wherever complex design exists, there must have been a designer; nature
is complex; therefore nature must have had an intelligent designer. Dr, Haught
testified that Aquinas was explicit that his intelligent designer ‘everyone
understands to be God.’ The syllogism described by Dr. Haught is essentially the
same argument for ID as presented by expert defense witnesses, Professors Behe
and Minnich who employ the phrase ‘purposeful arrangements of parts.’” 123
Although it was argued that nowhere did ID’s “official position” acknowledge that the
designer was God, Judge Jones again relied upon Dr. Haught’s claim that “anyone
familiar with Western religious thought would immediately make the association….”124
Further, even with considerable testimony on both sides of this particular issue, Jones
found compelling a statement by Defendants’ witness, Professor Behe, that the
“plausibility of the argument for ID depends upon the extent to which one believes in the
existence of God”125
Judge Jones found further damning evidence in the so-called “Wedge Document,”
a statement developed by the Discovery Institute’s Center for Renewal of Science and
Culture. According to that source, the ID movement’s “Governing Goals” are to “defeat
scientific materialism and its destructive moral, cultural, and political legacies” and “to
replace materialistic explanations with the theistic understanding that nature and human
beings are created by God.”126
Finally, Judge Jones relied heavily on testimony
regarding the book, Of Pandas and People, multiple copies of which had been donated to
the school library to serve as a reference for students interested in ID. The book was
published by FTE, whose articles of incorporation and filings with the IRS describe it as
a religious, Christian organization. Plaintiffs, the judge noted, had meticulously
50
described the ways in which drafts of the book had been altered following the high
Court’s ruling in Edwards.127 He concluded that “…a purposeful change of words was
effected without any corresponding change in content, which directly refutes FTE’s
argument that by merely disregarding the words ‘creation’ and ‘creationism,’ FTE
expressly rejected creationism in Pandas.”128
After recounting the social and historical context of the matter, Judge Jones then
turned to the question of whether ninth grade biology students would perceive a
governmental endorsement of religion. To do this, he constructed a “hypothetical”
student, rather than relying on any particular student or amalgam of actual ones. He
noted, too, that young people are more “impressionable” than adults and thus “less
effective …at recognizing when religious conduct is unofficial and therefore
permissible.”129
The most telling aspect of the student perception issue for Judge Jones was the
“Disclaimer” which the school board required to be read in class.130 He concluded that
an objective student would indeed view the statement as a “strong official endorsement of
religion.” There were three contributing factors to his finding. One was that the school
board did not mandate a similar pronouncement “about any other aspect of the biology
curriculum or the curriculum for any other course, despite the fact that state standards
directly address numerous other topics covered in the biology curriculum and the
students’ other classes, and despite the fact that standardized tests cover such other topics
as well.”131 A second telling factor was the “awkward” statement designed to accompany
the disclaimer, that “there will be no other discussion of the issue and your teachers will
not answer questions of the issue.”132 This struck the judge as being secretive,
pedagogically unsound, and in sum, suspicious.
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A third factor involved the “opt out” feature of the controversial program.
Students and their parents who wished to avoid the offending religious message could
avoid exposure to it, according to the school rules, and that had the dual consequence of
giving even more attention to the disclaimer, in the eyes of the students, and of setting
those who chose to opt out apart from the larger student body, of conveying to them the
message that they were not “full members of the political community.”133
Turning to the question of whether an adult community member would perceive a
governmental endorsement of religion, Judge Jones included both parents of students
affected and others in the broader population. He drew heavily on evidence provided by
utterances at public school board meetings, a newsletter which was sent by the board to
every household in Dover (‘produced to help explain the changes in the biology
curriculum’ and prepared in conjunction with defense counsel, the Thomas More Law
Center134) and some 225 letters to the editor and 62 editorials published in the York Daily
Record and the York Dispatch, newspapers serving the Dover citizenry.
Again, drawing close parallels with the work of the Supreme Court, Judge Jones
noted that considering letters and editorials was “in line” with the high Court’s decision
in Epperson, where three letters published in the Arkansas Gazette were used to show
that a teaching of evolution would be a “subversion of Christianity.”135 Taken in the
aggregate, he found the letters and editorial commentaries to be conclusive evidence that
adult members of the Dover community would perceive the school board’s activity to
constitute a “strong endorsement” of religion under the endorsement test.
Before drawing upon the Lemon test, Judge Jones ventured deeply into the vexing
question of whether ID was in fact science. Lengthy and highly professional testimony
was elicited on this question and the judge concluded, finally, that it was not.136
52
Interestingly, as if to foreshadow the “strengths and weaknesses” of evolutionary
theory
argument currently being put forth in Texas, Louisiana, and elsewhere, Judge Jones noted
that
“Accepting for the sake of argument its proponents’, as well as
Defendants’ argument that to introduce ID to students will encourage critical
thinking, it still has utterly no place in a science curriculum. Moreover, ID’s
backers have sought to avoid the scientific scrutiny which we have now
determined that it cannot withstand by advocating that the controversy, but not ID
itself, should be taught in science class. This tactic is at best disingenuous, and at
worst a canard. The goal of the IDM (movement) is not to encourage critical
thought, but to foment a revolution which would supplant evolutionary theory
with ID.”137
Next, Judge Jones subjected the offending program to the “purpose” prong of the
Lemon test. Although the Defendants had sought to have only the text of their disclaimer
considered in this light, Judge Jones disagreed strongly and instead pursued a course
dictated by the Supreme Court, looking at the enactment’s “words, enlightened by their
context and the contemporaneous legislative history…the historical context…and the
specific sequence of events leading to its passage.”138
Citing statements and notes from school board meetings and other compelling
evidence, Jones concluded that “the plain language, the legislative history, and the
historical context in which the ID policy arose, all inevitably lead to the conclusion that
Defendants consciously chose to change Dover’s biology curriculum to advance
religion.”139
Finally, Judge Jones briefly alluded to the “effect” prong of Lemon by folding it
under the abundance of findings previously marshaled in his section on endorsement.
IX Assessing Kitzmiller
Determining the lasting impact of a district court ruling is always hazardous
business, and doing so for one whose dispute is lodged in the murky jurisprudence of the
53
Establishment Clause is particularly so. Nevertheless, a few observations are in order.
First, Judge Jones was ever-mindful of the Supreme Court precedents, using them
appropriately, frequently, and well. Heavy reliance on the earlier creationism cases,
particularly Edwards, serves him well. Second, his decision to employ both the
traditional Lemon and newer endorsement tests placed him squarely within the most
accepted guidelines of the high Court. Third, his ruling gained credence through the
exhaustive testimony of the most authoritative witnesses on both sides of the dispute.
Finally, it should be noted that the high profile nature of the case made it easier for the
court to reach some important conclusions regarding the important “perception” element
of the ruling. The abundance of supporting evidence in the form of public statements,
letters, editorials, and the like, served to cast light on the sometimes slippery question of a
policy’s effect, and it worth remembering that under the Supreme Court’s standards,
failure under either the purpose or effect prongs of Lemon will doom the governmental
activity. In sum, it appears that Kitzmiller is on strong ground and may serve other courts
well as they grapple again with ID and its iterations.
X The Struggle Ahead
The circumstances under which Kitzmiller v. Dover Area School District
developed reflect a larger trend in the United States, in which the current accumulation of
small victories by religious zealots may accumulate to become the dissipation of larger
religious freedoms and distinctions between church and state. “What happened in Dover
is a tiny sliver, a broken shard of glass mirroring what plays out across the country,”
Lauri Lebo wrote in her account of the trial. “A war of fundamentalist Christian values
versus secularism. A battle between evangelical fanaticism and tolerance.”140
54
Currently, support for the kind of academic freedom thus described is becoming a
platform by which politicians appeal to conservative Christians. Most recently,
presidential candidate Senator John McCain appealed to the socially conservative base of
the Republican party by choosing Alaskan Governor Sarah Palin as his running mate.
She also represents the strides that the pro-intelligent design movement is making; Palin
supports the teaching of ID and evolution on equal time in classrooms.141 It seems clear
that there remain a number of legal lives left in the effort to place ID along side of
evolutionary theory, and no doubt, Kitzmiller will be heavily relied upon as the struggle
unfolds.
1
Jeffrey P. Moran, The Scopes Trial (New York: Bedford/St. Martin’s, 2002), 2.
2
Jeffrey P. Moran, The Scopes Trial (New York: Bedford/St. Martin’s, 2002), 25.
Guy Lancaster, Encyclopedia of Arkansas History and Culture Online. “Epperson v. Arkansas.”
http://www.encyclopediaofarkansas.net/encyclopedia/entry-detail.aspx?entryID=2528 (October
24, 2008).
3
4
Epperson v. Arkansas 393 U.S. 97 (1968).
5
US District Court, Daniel v Waters, 1975.
6
Edwards v. Aguillard, 482 U.S. 578 (1987).
7
Gordy Slack, The Battle Over the Meaning of Everything (San Francisco: John Wiley & Sons,
2007), 4.
Joseph Maldonado, “Dover schools still debating biology text,” York Daily Record, June 9,
2004.
8
9
Joseph Maldonado, “Residents join creation debate,” York Daily Record, June 10, 2004.
10
Joseph Maldonado, “Book is focus of more debate,” York Daily Record, June 15, 2004.
11
Ibid.
12
Ibid.
13
Joseph Maldonado, “Biology book squeaks by,” York Daily Record, August 4, 2004.
Lauri Lebo, “‘Of Pandas’ is shelved, for now The Dover Area School Board didn’t discuss the
textbook controversy,” York Daily Record, September 8, 2004.
14
55
Ginny Stough, “What Do You Think? Creationism and Evolution,” York Daily Record, June
27, 2004.
15
Joseph Maldonado, “Dover curriculum move likely a first,” York Daily Record, October 20,
2004.
16
17
Ibid.
Joseph Maldonado, “Creation debate draws in teachers Dover science instructors prepare to
discuss ‘intelligent design,’” York Sunday News, October 24, 2004.
18
Joseph Maldonado, “Apology demanded at Dover schools meeting, The school board released
the names of candidates to fill recently vacated board positions,” York Daily Record, November
2, 2004.
19
20
Ibid.
21
Ibid.
Joseph Maldonado, “Union says intelligent design question still unanswered,” December 3,
2004.
22
Joseph Maldonado, “Candidates chosen for school board: The Dover Area School Board
interviewed 13 candidates to fill open seats,” York Daily Record, November 19, 2004.
23
24
Ibid.
Lauri Lebo, “Some allies question Dover board’s policy,” York Daily Record, December 19,
2004.
25
26
“The Policy,” York Daily Record, November 23, 2004.
Joseph Maldonado, “Board member says the worst is coming; Angie Yingling offered her
resignation over the ‘intelligent design’ controversy,” York Daily Record, December 8, 2004.
27
28
Lauri Lebo, The Devil in Dover (New York: The New Press, 2008), 64.
29
Gordy Slack, The Battle Over the Meaning of Everything (San Francisco: John Wiley & Sons,
2007), 66.
30
Lauri Lebo, The Devil in Dover (New York: The New Press, 2008), 118.
31
Slack, The Battle Over the Meaning of Everything (San Francisco: John Wiley & Sons, 2007),
102.
32
Lauri Lebo, “Witness: Movement’s roots in creationism,” York Daily Record, October 6, 2005.
33
Lauri Lebo, The Devil in Dover (New York: The New Press, 2008), 134.
56
34
Gordy Slack, The Battle Over the Meaning of Everything (San Francisco: John Wiley & Sons,
2007), 126.
35
Lauri Lebo, “Behe backs off ‘mechanisms,’” York Daily Record, October 19, 2005.
36
Lemon v. Kurtzman, 403 U.S. 602 (1971)
37
Lauri Lebo, “Nilsen shrugged off principal,” York Daily Record, October 22, 2005.
38
“Dover defense says evolution excludes other concepts,” York Daily Record, October 24, 2005.
39
Gordy Slack, The Battle Over the Meaning of Everything (San Francisco: John Wiley & Sons,
2007), 164.
40
Ibid, 165.
41
Ibid, 168.
42
Lauri Lebo, The Devil in Dover (New York: The New Press, 2008), 176.
43
“What Do You Think? Creationism and Evolution,” York Daily Record, June 27, 2004.
44
Edward Yeatts, “Keep creationism out of science class,” York Daily Record, June 24, 2004.
Charles Holsinger, “Teacher/preacher: ID lessons belong in church,” York Sunday News,
October 24, 2004.
45
46
Kelly Adams, “Board lacks intelligence,” York Daily Record, October 26, 2004.
“Our Opinion: The tale of the tape in Dover; The school board should have released the tape of
its controversial Oct. 18 meeting,” York Daily Record, November 4, 2004.
47
48
Sarah Hied, “Imagine God and Satan,” York Sunday News, November 7, 2004.
“Our Opinion: Unintelligent resign; The Dover school board’s choices to replace members who
resigned come as no surprise,” York Daily Record, November 23, 2004.
49
50
Ibid.
Lauri Lebo, “Objections by design; Couple’s stand in evolution debate has them in the
spotlight,” York Sunday News, November 28, 2004.
51
Lew Brown, “It’s hard to bear the scientific nonsense in ‘Pandas,’” York Sunday News,
December 5, 2004.
52
53
In 1892, Justice Brewer, writing for the Court, cited several state court decisions which
proclaimed that the Christian religion was part of the common law of their states. These were
followed by a host of examples of legally recognized religious practices. In summary he added,
“These and many other matters which might be noticed, add a volume of unofficial declarations
to the mass of organic utterances that this is a Christian nation.” Church of The Holy Trinity v.
U.S., 143 U.S. 457, 470, 471 (1892). As late as 1931 Justice Sutherland was able to remark that
57
“We are a Christian people according to one another the equal right of religious freedom, and
acknowledge with reverence the duty of obedience to the will of God.” U.S. v. Macintosh, 283
U.S. 605, 525 (1931). By 1952 Justice Douglas had expanded the notion somewhat: “We are a
religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S.
306, 313 (1952). However, in 1962, while affirming his Zorach statement, Douglas felt
compelled to quote with disapproval, as contrary to the First Amendment, the very evidence he
gave to support that utterance. Engel v. Vitale, 370 U.S. 421, 437 (1962).
54
See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983); Larson v.Valente, 456 U.S. 228 (1982). In
Marsh, the challenged practice of the Nebraska Legislature paying its chaplain to open and close
sessions with prayer was upheld through the application of a historical rationale rather than the
use of the Lemon test. In Larson, a Minnesota statute which granted tax exemptions only to
churches soliciting more than half of their total contributions from members was found infirm
under the first two prongs of Lemon at the court of appeals level. Justice Brennan, for the high
Court, disagreed, finding the third prong to be more “directly implicated.” Even so, he observed
that the Lemon test was “...intended to apply to laws affording a uniform benefit to all religions,
and not to provisions...that discriminate among religions.” 50 LW 4411,4417. Accordingly, he
chose to focus instead on the close fit requirement of strict scrutiny and the appeals court decision
was affirmed on that basis.
55
409 U.S. 602 (1971).
56
Id., at 612-13.
57
In the very first Establishment Clause case, Justice Black, for the Court defined the
constitutional command in starkly separationist language: “The Establishment of religion clause
means at least this: Neither a state nor the Federal Government can set up a church. Neither can
pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither
can force nor influence a person to go to or remain away from church against his will or force
him to profess a belief or disbelief in any religion.
...In the words of Jefferson, the clause was intended to erect a wall of separation between Church
and State.” (Everson v.Board of Education, 333 U.S. 1, 15-16 (1947). Consider also the rulings
and flavor of Engelv. Vitale, 370 U.S. 421 (1962), and Abington School District v. Schempp, 374
U.S. 203 (1963), in which governmentally sponsored prayers and Bible readings in public schools
were prohibited.
58
449 U.S. 39 (1980).
59
459 U.S. 116 (1982).
60
472 U.S. 38 (1985).
61
County of Allegheny v. American Civil Liberties Union, 429 U.S. 573 (1989).
62
Mueller v. Allen, 463 U.S. 388 (1983).
63
Marsh v. Chambers, 463 U.S. 753 (1983).
64
Board of Education of Westside Community Schools v. Mergens, 110 S.Ct. 2356 (1990).
65
Widmar v. Vincent, 454 U.S. 263 (1981).
58
66
Bowen v. Kendrick, 487 U.S. 589 (1988).
67
465 U.S. 668 (1984).
68
Id., at 689 (O’Connor, J., concurring).
69
Id.
See “Sandra Day O’Connor Emerges as Key Player in High Court Rulings,” 215 Wall Street
Journal, no. 113, June 11, 1990.
70
71
Ivers, Gregg, Lowering the Wall: Religion and the Supreme Court in the 1980s, AntiDefamation League: New York (1991), p.4.
Wallace v. Jaffree, 472 U.S. 38, 110 (1985) (Rehnquist, J., dissenting) “The Framers intended
the Establishment Clause to prohibit the designation of any church as a “national” one. The
Clause was also designed to stop the Federal Government from asserting a preference for one
religious denomination or sect over others...however, nothing in the Establishment Clause
requires government to be strictly neutral between religion and irreligion, nor does the Clause
prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory
sectarian means.”
72
73
Indeed, in at least two cases, the separationist impulse carried the day. See, Grand Rapids v.
Ball, 473 U.S. 373 (1985), and Aguilar v. Felton, 473 U.S. 402 (1985).
74
505 U.S. 577 (1992).
75
A strongly accommodationist view emerged in County of Allegeny v. ACLU, 492 U.S. 573
(1989) when Justice Kennedy for himself and three others, focused on the element of coercion as
the minimum standard for establishment clause violation. He suggested that the controlling
principles should be that “government may not coerce anyone to support or participate in any
religion or its exercise” Id. at 659 (Kennedy, J., dissenting) and that it may not “give direct
benefits to religion in such a degree that it in fact ‘establishes a [state] religion or religious faith.’”
Id. (Quoting Lynch v, Donnelly, 465 U.S. 668, 678 (1984). He continued, arguing that it would
be difficult indeed to establish a religion without some measure of more or less subtle coercion,
be it in the form of taxation to supply the substantial benefits that would sustain a stateestablished faith, direct compulsion to observance, or governmental exhortation to religiosity that
amounts in fact to proselytizing. Id. at 659-60.
76
505 U.S. at 587.
77
Id. at 588.
78
Id. at 592.
“[T]he Establishment Clause must be construed in light of the ‘[g]overnment policies of
accommodation, acknowledgment, and support for religion [that] are an accepted part of our
political and cultural heritage.’” Id. at 631 (Scalia, J., dissenting) (quoting County of Allegheny v.
ACLU, 492 U.S. 573, 657 (1989) (Kennedy, J., concurring in part and dissenting in part).
79
59
Michael O’Connell, “Accommodation of Religion: An Update and a Response to the Critics,”
60 George Washington L. Rev. 685, 695-96 (1992).
80
81
115 S.Ct. 2510 (1995).
82
115 S.Ct. 2510 (1995).
83
Rosenberger v. Rector & Visitors of University of Virginia, 18 F. 3d 269 (4th Cir. 1994) at 275.
84
Id. at 286-87.
Oral argument of Michael W. O’Connell on Behalf of Petitioners at 11-12, Rosenberger, 115
S.Ct. 2510 (No. 94-329), as reported in Kilroy, Robert L., “A Lost Opportunity to Sweeten the
Lemon,” Cornell Journal of Law and Public Policy, v. 6 (Spring, 1997) at 722.
85
86
Id. Quoted at 724. Reply Brief for petitioners at 14-15. Rosenberger, 115 S.Ct. 2510 (No. 94329) (Quoting Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 14-15 (1989); Witters v. Dept. of
Social Services, 474 U.S. 481, 488 (1986).
87
Rosenberger v. Rector & Visitors of University of Virginia, 115 S.Ct. 2510, at 2522. In an
effort to limit the breadth of the holding, the Court, in dictum, specified that “if the State pays a
church’s bills it is subsidizing it,” and such a abuse must be guarded against. Id. at 2524. The
potential danger was dismissed with respect to the Virginia student group due to its status as a
student journal, not a religious institution or religious organization. Id.
88
Id. at 2522-23 (Quoting Board of Education of Westside Community Schools (Dist.66) v.
Mergens, 496 U.S. 226, 250 (1990).
89
Id. at 2523.
90
Id. at 2524.
91
Id. at 2525 (O’Connor, J., concurring).
Id. at 2525-26. Justice O’Connor’s “sifting” resulted in finding four conditions which enabled
her to join the majority: (1) “the student organizations, at the University’s insistence, remain
strictly independent of the University;” (2) “financial assistance is distributed in a manner that
ensures its use only for permissible purposes...ensuring that the funds are used only to further the
University’s purpose in maintaining a free and robust marketplace of ideas;” (3) “assistance is
provided to the religious publication in a context that makes improbable any perception of
government endorsement of the religious message;” and (4) the possibility exists that an objecting
student could opt out of the requirement to pay the full student activity fee. Id.
92
Id. at 2528. Justice O’Connor further remarked that “experience proves that the Establishment
Clause, like the Free Exercise Clause, cannot easily be reduced to a single test.” Id. at 2499.
93
94
Id. at 2535.
95
Id. at 2540.
96
Id. at 2535.
60
97
Id. at 2539.
98
Id. at 2547.
Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-399 (Scalia,
J., concurring).
99
100
472 U.S. 38, 113 (1985) (Rehnquist, J., dissenting).
Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 397-98 (1993)
(Scalia, j., concurring); Edwards v. Aguillard, 482 U.S. 578, 636-39 (1987) (Scalia, J.,
dissenting).
101
102
Rosenberger v. Rector & Visitors of University of Virginia, 115 S.Ct. 2510, 2530 (1995)
(Thomas, J., concurring).
103
Id. at 2528.
104
Id. at 2529.
105
Id. at 2545.
106
Id. at 2537, n. 1 (Emphasis added).
107
393 U.S. 97 (1968).
108
Id., at 98, n. 3.
109
Id., at 103.
110
Id., at 107.
111
482 U.S. 578 (1987).
112
Id., Quoted in Syllabus at 578.
113
Id., at 484,485.
114
Id., at 587.
115
Id., at 589.
“These same historic and contemporaneous antagonisms between the teaching of certain
religious denominations and the teaching of evolution are present in this case. The preeminent
purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a
supernatural being created humankind. The term, “Creation science” was defined as embracing
this particular religious doctrine by those responsible for the passage of the Creationism Act.
Senator Keith’s leading expert on creation science, Edward Boudreaux, testified at the legislative
hearings that the theory of creation science included belief in the existence of a supernatural
creator.” Brennan, J., Id., at 591.
116
61
117
Id., at 610,611.
118
Case No. 04cv2688 (2005).
119
The court noted that the endorsement test had been used in Santa Fe Independent Sch. Dist. v. Doe
(2000) [school sponsored prayer at high school football games], Zelman v. Simmons-Harris (2002) [school
voucher program], Agostini v. Felton (1997) and Mitchell v. Helms (2000), [gov’t aid to parochial
schools], Good News Club v. Milford Cent. Sch. Dist. (2001) [religious student club meeting on school
property] and Rosenberger v. Rector & Visitors of the University of Virginia (1995) [funding religious
student newspaper]. Id., at 10-11.
120
Id., at 12.
121
122
Id., at 15-16.
Id., at 16-17 (citations omitted).
123
Id., at 24.
124
Id., at 25.
125
Id., at 28 (Italics by Jones, J).
126
Id., at 29.
“…Pandas went through many drafts, several of which were completed prior to and some after the
Supreme Court’s decision in Edwards…. By comparing the pre and post Edwards drafts of Pandas, three
astonishing points emerge: (1) the definition of creation science in early drafts is identical to the definition
of ID; (2) cognates of the word creation (creationism and creationist), which appeared approximately 150
times were deliberately and systematically replaced with the phrase ID; and (3) the changes occurred
shortly after the Supreme Court held that creation science is religious and cannot be taught in public school
science classes in Edwards.” Id., at 32.
127
128
Id., at 32 (Italics by Jones, J).
129
Id., at 37.
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.
With respect to any theory, students are encouraged to keep and 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 primarily upon preparing students to achieve proficiency on Standards-based
assessments. Id. at 1-2.
130
131
Id., at 39 (Italics by Judge Jones).
132
Id., Quoted at 45.
62
133
Id., at 47. It should be noted that for Judge Jones, students generally were not stupid. He adhered
closely to the sentiment of the Supreme Court when it “presumed that ‘every Santa Fe High School student
understands clearly’ that the school district’s policy ‘is about prayer,’ and not student free speech rights as
the school board had alleged, and the Supreme Court premised that presumption on the principle that the
‘history and ubiquity’ of the graduation prayer practice ‘provides part of the context in which a reasonable
observer evaluates whether a challenged governmental practice conveys an endorsement of religion.’ Santa
Fe (530 U.S. at 315). Id., at 48.
134
Id., at 52.
135
Id., at 62.
“We find that ID fails on three different levels, any one of which is sufficient to preclude a
determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by
invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID,
employs the same flawed and illogical contrived dualism that doomed creation science in the 1980’s; and
(3) ID’s negative attacks on evolution have been refuted by the scientific community.” Id., at 64.
136
137
Id., at 89.
138
Id., at 92.
139
Id., at 93.
140
Lauri Lebo, The Devil in Dover (New York: The New Press, 2008), 3.
William Yardley, “Sarah Heath Palin, an Outsider Who Charms,” The New York Times,
August 30, 2008.
141
63