DeWolf, West, and Luskin, Intelligent Design will Survive Kitzmiller v. Dover (2007).pdf

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INTELLIGENT DESIGN WILL SURVIVE

KITZMILLER V. DOVER*

by David K. DeWolf,** John G. West,***

and Casey Luskin****

I. I NTRODUCTION

The year 2005 was the year the theory of intelligent design

(ID) made the headlines. It was featured on the cover of Time

magazine, 1 its study was seemingly endorsed by the President of

the United States, 2 and it became one of the most talked-about

issues in the public square. However, its increasing public recog-

nition also attracted the attention of defenders of Darwinian or-

thodoxy, who vowed to banish it from the realm of respectable dis-

course.

When the Dover Area School District, located in central Penn-

sylvania, adopted a policy that required biology classes to be told

about the theory of ID as part of a short statement introducing the

topic of biological evolution, the American Civil Liberties Union

(ACLU) and Americans United for Separation of Church and

State filed suit. As the trial began in late September 2005, Barry

Lynn, Executive Director of Americans United for Separation of

Church and State, predicted that the Dover case would be “the

death knell for intelligent design as a serious issue confronting

* Kitzmiller v. Dover Area Sch. Dist. , 400 F. Supp. 2d 707 (M.D. Pa. 2005). Editors’ Note: A

critical response to the present article follows. Peter Irons, Disaster in Dover: The Trials (and

Tribulations) of Intelligent Design , 68 Mont. L. Rev. 59 (2007). Irons’s response is rebutted by the

present authors in Rebuttal to Irons , 68 Mont. L. Rev. 89 (2007). The series is preceded by Editors’

Note: Intelligent Design Articles , 68 Mont. L. Rev. 1 (2007), which includes a chronology of important

events pertaining to Kitzmiller .

** Professor of Law, Gonzaga University School of Law; Senior Fellow, Discovery Institute;

B.A., Stanford University; J.D., Yale Law School.

*** Former Chair of the Department of Political Science and Geography, Seattle Pacific University;

Senior Fellow, Discovery Institute; B.A., University of Washington; Ph.D., Claremont Graduate Univer-

sity.

**** Program Officer in Public Policy and Legal Affairs, Discovery Institute; B.S., University of

California, San Diego; M.S., University of California, San Diego; J.D., University of San Diego.

1. 166 Time Mag. front cover (Aug. 15, 2005) (referring to Claudia Willis, The Evolu-

tion Wars , id. at 26).

2. Id. at 28.

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American school boards, period. I think this will be the last

case.” 3

After several months of testimony, Judge John E. Jones III

issued an opinion that appeared to be just what the plaintiffs

wanted. The opinion was immediately hailed by opponents of ID

as having driven “a stake into the heart of the ID proponents’ cru-

sade to circumvent the Establishment Clause.” 4 Initial commen-

tary on the case seemed to assume that Judge Jones had ruled

correctly, and that the only question for the courts would be how

to identify and stop further evasions of the Establishment

Clause. 5 But announcements of the demise of ID were greatly ex-

aggerated. As even Judge Jones acknowledged, his opinion has

“no precedential value outside the Middle District [of Penn-

sylvania]”; 6 its influence will depend heavily upon its persuasive

quality, and close inspection of the opinion reveals many fatal

flaws.

Before analyzing the opinion itself, it is necessary to review

the factual setting in which the case arose, particularly with re-

gard to the role of Discovery Institute, an organization with which

3. Barry Lynn, Panel Discussion, From Scopes to Dover: Should the Courts Permit

Public Schools to Teach Intelligent Design? (Natl. Press Club, D.C., Sept. 22, 2005) (availa-

ble at http://pewforum.org/events/index.php?EventID=84 (accessed March 22, 2007)).

4. Stephen Gey, Op. Ed., Kitzmiller : An Intelligent Ruling on “Intelligent Design” , Ju-

rist Leg. News & Research (Dec. 29, 2005) (available at http://jurist.law.pitt.edu/forumy/

2005/12/kitzmiller-intelligent-ruling-on.php). A representative of the anti-ID National

Center for Science Education cheerfully told the leading science journal Nature that “Intel-

ligent design as a strategy is probably toast.” Emma Marris, Intelligent Design Verdict Set

to Sway Other Cases , 439 Nature 6, 6–7 (Jan. 5, 2006).

5. See Charles Kitcher, Lawful Design: A New Standard for Evaluating Establishment

Clause Challenges to School Science Curricula , 39 Colum. J.L. & Soc. Probs. 451, 452–53

(2006); Brenda Lee, Student Author, Kitzmiller v. Dover Area School District : Teaching

Intelligent Design in Public Schools , 41 Harv. Civ. Rights-Civ. Libs. L. Rev. 581, 583–84

(2006); Louis J. Virelli III, Making Lemon ade: A New Approach to Evaluating Evolution

Disclaimers under the Establishment Clause , 60 U. Miami L. Rev. 423, 430 n. 41 (2006);

Anne Marie Lofaso, Does Changing the Definition of Science Solve the Establishment

Clause Problem for Teaching Intelligent Design as Science in Public Schools? Doing an

End-Run around the Constitution , 4 Pierce L. Rev. 219, 222–23 (2006); Anthony Kirwin,

Student Author, Toto, I’ve a Feeling We’re . . . Still in Kansas? The Constitutionality of

Intelligent Design and the 2005 Kansas Science Education Standards ,

7 Minn. J.L. Sci. & Tech. 657, 678–89 (2006); Kristi L. Bowman, Seeing Government Pur-

pose through the Objective Observer’s Eyes: The Evolution-Intelligent Design Debates ,

29 Harv. J.L. & Pub. Policy 417, 437 (2006); Todd R. Olin, Student Author, Fruit of the

Poison Tree: A First Amendment Analysis of the History and Character of Intelligent Design

Education , 90 Minn. L. Rev. 1107, 1122–23 (2006) (“The court emphatically found that

Intelligent Design is a new form of creationism and that the designer it proposes is the God

of Christianity.”).

6. Lisa L. Granite, One for the History Books , Pa. Law. 17, 22 (July/Aug. 2006).

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INTELLIGENT DESIGN WILL SURVIVE

the authors of this article are affiliated and one which played a

role in Judge Jones’s analysis of the issues.

II. F ACTUAL B ACKGROUND OF THE K ITZMILLER C ASE AND

I NVOLVEMENT OF D ISCOVERY I NSTITUTE

The Discovery Institute was formed in 1990 as a nonprofit

public policy and research center with programs in such areas as

transportation, technology, economics, education, and representa-

tive democracy. 7 In 1996, the Institute launched the Center for

the Renewal of Science and Culture (later renamed the Center for

Science and Culture) to support research and public education

with regard to controversies surrounding ID and neo-Darwinian

theory. 8 The Center funds the work of scientists, philosophers

and historians of science, social scientists, and legal experts, and

by 2005, the Center for Science and Culture was recognized as the

leading supporter of research and scholarship on ID. 9 In 2000,

one of the authors of this article published, along with two other

co-authors, an article defending the academic freedom of teachers

to voluntarily address the topic of ID in public school classrooms. 10

In 2002, two Discovery Institute scholars were invited to testify

before the Ohio State Board of Education as the board formulated

Ohio’s science education standards. 11 In order to provide gui-

dance to individuals and organizations who were interested in bet-

ter ways to teach biological origins, the Discovery Institute as-

signed attorney Seth Cooper the task of communicating with “leg-

islators, school board members, teachers, parents and students

across the country” about how to approach the subject. 12 He de-

7. Discovery Inst., Center for Science and Culture , Top Questions , “General Questions,

1,” http://www.discovery.org/csc/topQuestions.php#generalQuestions (accessed Nov. 4,

2006) [hereinafter Discovery Inst., Top Questions ]; Discovery Inst., About Discovery , “Mis-

sion Statement,” http://www.discovery.org/about.php (accessed Dec. 20, 2006).

8. Discovery Inst. Top Questions , supra n. 7; Teresa Watanabe, Enlisting Science to

Find the Fingerprints of a Creator , L.A. Times A1 (Mar. 25, 2001).

9. Paul Nussbaum, Court Test Is Near for “Intelligent Design” , Phila. Inquirer A1

(Sept. 25, 2005); Discovery Inst., Top Questions , supra n. 7; Discovery Inst., New Book Ex-

amines Misguided Quest of Darwin’s Conservatives , http://www.discovery.org/scripts/

viewDB/index.php?command=view&id=3799 (accessed Dec. 20, 2006).

10. David K. DeWolf, Stephen C. Meyer & Mark Edward DeForrest, Teaching the Ori-

gins Controversy: Science, or Religion, or Speech? 2000 Utah L. Rev. 39.

11. Discovery Inst., Ohio Praised for Historic Decision Requiring Students to Critically

Analyze Evolutionary Theory , http://www.discovery.org/scripts/viewDB/index.php?

command=view&id=1368 (Dec. 10, 2002).

12. Seth Cooper, Discovery Inst., Center for Science and Culture , Evolution News &

Views , “Statement by Seth L. Cooper Concerning Discovery Institute and the Decision in

Kitzmiller v. Dover Area School Board Intelligent Design Case,” http://www.evolutionnews.

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scribed the policy position of the Discovery Institute as recom-

mending, from both an educational and legal standpoint, that

public schools present the “scientific arguments both supporting

and challenging the contemporary version of Darwin’s theory as

well as chemical evolutionary theories for the origin of the first

life.” 13 While Fellows at the Discovery Institute had supported

the right of individual teachers, exercising their academic free-

dom, to address the topic of ID in a scientifically and educationally

responsible way, the Discovery Institute in general, and Seth

Cooper in particular, had consistently opposed policies that would

mandate the teaching of the theory of ID in public schools. 14

Cooper learned about the Dover controversy in June of 2004

after reading a newspaper article, and he then called Dover school

board member William Buckingham, and warned him that the

board was courting legal trouble if it “require[d] students to learn

about creationism or [attempted] to censor the teaching of the con-

temporary [presentation] of Darwin’s theory or chemical origin of

life scenarios.” 15 Cooper also emphasized that the Discovery Insti-

tute does not support requiring that the theory of ID be presented;

instead, it recommends that schools cover scientific criticisms of

Darwin’s theory along with the scientific evidence supporting the

theory. 16 Cooper sent Buckingham materials that included a

DVD based on the book Icons of Evolution 17 and a study guide

prepared as a companion to Icons of Evolution . 18 Notably, these

materials focused only on scientific criticisms of Darwin’s theory.

They did not discuss ID. 19 Nonetheless, in the fall of 2004, Cooper

learned that the Dover board planned to require science teachers

to use the textbook Of Pandas and People ( Pandas ). 20 Cooper

then communicated with several Dover school board members,

hoping to persuade them to rescind the policy, revise it, or aban-

org/2005/12/statement_by_seth_l_cooper_con.html (Dec. 21, 2005) [hereinafter Cooper,

Statement ].

13. Id.

14. Id.

15. Id.

16. Id.

17. Jonathan Wells, Icons of Evolution: Science or Myth? Why Much of What We Teach

about Evolution Is Wrong (Regnery Publg. 2000).

18. Cooper, Statement , supra n. 12.

19. Id.

20. Id. ; Percival Davis & Dean H. Kenyon, Of Pandas and People: The Central Question

of Biological Origins (Charles B. Thaxton ed., Haughton Publg. Co. 1993) [hereinafter Da-

vis & Kenyon, Pandas ].

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INTELLIGENT DESIGN WILL SURVIVE

don it altogether. 21 Discovery Institute also issued a statement on

October 6, 2004 opposing the policy under consideration by the

Dover board:

[A] recent news report seemed to suggest that the Center for Sci-

ence & Culture endorses the adoption of textbook supplements

teaching about the scientific theory of intelligent design (ID), which

simply holds that certain aspects of the universe and living things

can best be explained as the result of an intelligent cause rather

than merely material and purposeless processes like natural selec-

tion. Any such suggestion is incorrect. 22

Despite the lack of support from the Discovery Institute, on Octo-

ber 18, 2004 the board voted to adopt a policy that required dis-

cussion of ID in biology classes. 23 Shortly thereafter, the Discov-

ery Institute expressed to the news media its opposition to the

adopted policy, and the Institute’s disagreement with the policy

was acknowledged in an article published in early November 2004

by the Associated Press. 24 The board later modified its policy to

require that an oral disclaimer be read to biology classes. The dis-

claimer stated, “Intelligent Design is an explanation of the origin

of life that differs from Darwin’s view” and noted that “[t]he refer-

ence book, Of Pandas and People, is available for students who

might be interested in gaining an understanding of what Intelli-

gent Design actually involves.” 25 Dover’s board apparently was

encouraged to adopt its policy by assurances from the Thomas

More Law Center (TMLC) that the policy was constitutional and

that TMLC would defend the school board in the event that the

policy was challenged. 26 TMLC supported the Dover board not-

21. Cooper, Statement , supra n. 12.

22. Discovery Inst., Pennsylvania School District Considers Supplemental Textbook

Supportive of Intelligent Design , http://www.discovery.org/scripts/viewDB/in-

dex.php?command=view&id=2231 (Oct. 6, 2004).

23. Kitzmiller v. Dover Area Sch. Dist. , 400 F. Supp. 2d 707, 708 (M.D. Pa. 2005) (“Stu-

dents 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.”).

24. Martha Raffaele, Teaching “Intelligent Design” Required , Wis. State J. (Madison)

A8 (Nov. 14, 2004) (“Even the Seattle-based Discovery Institute, which supports scientists

studying intelligent-design theory, opposes mandating it in schools . . . said John West,

associate director of the institute’s Center for Science and Culture.”).

25. Kitzmiller , 400 F. Supp. 2d at 708–09 (quoting Dover Area School Board dis-

claimer).

26. E-mail interview by authors with Seth L. Cooper, Former Atty. for Discovery Inst.

(Dec. 20, 2006); Jenni Laidman, Ann Arbor Law Firm Fights to Dethrone Darwin , Toledo

Blade B1 (Mar. 5, 2006); Discovery Inst., Setting the Record Straight about Discovery Insti-

tute’s Role in the Dover School District Case , http://www.discovery.org/scripts/viewDB/

index.php?command=view&id=3003&program=News&callingPage=discoMainPage (Nov.

10, 2005) [hereinafter Discovery Inst., Setting Record Straight ]; Christina Kauffman, Crea-

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