What the Dover Case Says

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Kitzmiller v. Dover Area School District is a major victory for science and a major blow to those who have tried to sneak religion into the classroom by disguising in scientific garb. But it's more than that. It is a brilliant, insightful, profound decision that reaches to the bottom of ID and finds it empty.

Judge John Jones, a George W. Bush appointee, deserves the praise and thanks of every defender of rigorous, meaningful scientific education. He has taken the time to really understand not just the legal issues, but the scientific ones as well. This decision proves he is a credit to the federal judiciary. (I should add also that the plaintiffs' attorneys, the ACLU of Pennsylvania, have shown once again why they are a devastating force in the law. Although I certainly don't agree with them on everything, they are first-rate lawyers and I am proud to have them in the profession.)

Judge Jones first addresses what test should be used in determining whether a challenged policy violates the Establishment Clause. The school district contended that the "endorsement" test---which forbids government from doing things that would send a message that government endorses a religious viewpoint---is only applicable to government-sponsored displays (like Christmas nativity scenes), but the Judge finds that this is not true. The Supreme Court has often "reviewed a public school district's or public university's, policy touching on religion" through the Endorsement Test (at 13). The question then is whether teaching ID "transgresses the limits of neutrality and...show[s] religious favoritism or sponsorship." (at 14)

To answer that question, the Judge considers the history of Intelligent Design. In the wake of the Supreme Court's Epperson decision, he notes, opponents of evolution "began cloaking religious beliefs in scientific sounding language and then mandating that schools teach the resulting 'creation science' or 'scientific creationism' as an alternative to evolution." (at 21) Of course, the famous McLean case held that this, too, violated the First Amendment, because "creation science organizations were fundamentalist religious entities that 'consider[ed] the introduction of creation science into the public schools part of their ministry.'" (Id. quoting McLean, 529 F.Supp. 1255, 1260 (E.D.Ark.1982)). Judge Jones approvingly notes that the McLean court "concluded that creation science 'is simply not science' because it depends upon 'supernatural intervention,' which cannot be explained by natural causes, or be proven through empirical investigation, and is therefore neither testable nor falsifiable. Accordingly...creation science [w]as merely bibilical creationism in a new guise." (at 22). Shortly after McLean and Edwards v. Aguillard, 482 U.S. 578 (1987), opponents of evolution shifted tactics slightly, ratcheting up their scientific-sounding talk, and cooling their religious talk a little bit more:

The only apparent difference between the argument made by [18th century theologian and creationist William] Paley and the argument for ID, as expressed by defense expert witness [Michael] Behe and [Scott] Minnich, is that ID's "official position" does not acknowledge that the designer is God. .... Although proponents of [Intelligent Design] occasionally suggest that the designer could be a space alien or a time-traveling cell biologist, no serious alternative to God as the designer has been proposed.

(at 25). This is exactly correct, and the Judge carefully and flawlessly supports this observation: "[T]he evidence at trial demonstrates that ID is nothing less than the progeny of creationism" (at 31).

That being established, the question is whether the First Amendment prohibits ID in the classroom. The school district's ID disclaimer statement, read to biology students, would lead a reasonable student to believe that the government is endorsing ID---a religious viewpoint---because "the first paragraph of the disclaimer directly addresses and disavows evolutionary theory by telling students that they have to learn about evoultionary theory because it is required by 'Pennsylvania Academic Standards' and will be tested [while] no similar disclaimer prefacing instruction is conducted regarding any other portion of the biology curriculum nor any other course's curriculum." (at 40). Thus the disclaimer wrongly "tell[s] students that they should regard [evolution] as singularly unreliable, or on shaky ground." (at 41). Then the disclaimer suggests that ID is more reliable, and therefore "'juxtaposes [the] disavowal [of evolution] with an urging to contemplate alternative religious concepts[,] impl[ying] School Board approval of religious principles." (at 43 (quoting Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 384 (5th Cir. 1999) cert. denied, 530 U.S. 1251 (2000)). Because the biology teachers refused to read the disclaimer, school administrators did so, which conveyed to students the notion that this was a particularly sensitive, secret theory that teachers would not discuss. "Unlike anything else in the curriculum, students are under the impression that the topic to which they are introduced in the disclaimer, ID, is so sensitive that the students and their teachers are completely barred from asking questions about it or discussing it." (at 46).

In summary, the disclaimer singles out the theory of evolution for special treatment, misrepresents its status in the scientific community, presents students with a religious alternative masquerading as a scientific theory, directs them to consult a creationist text as though it were a science resource, and instructs students to forego scientific inquiry in the public school classroom and instead to seek out religious instruction elsewhere. Furthermore...introducing ID necessarily invites religion into the science classroom as it sets up what will be perceived by students as a "God-friendly" science, the one that explicitly mentions an intelligent designer, and that the "other science," evolution, takes no position on religion.... [A] false duality is produced: It "tells students...quite explicitly, choose God on the side of intelligent design or choose atheism on the side of science." Introducing such a religious conflict into the classroom...forces students to "choose between God and science," not a choice that schools should be forcing on them."

(at 49-50). In addition, "[a]n objective adult member of the Dover community would also be presumed to know that ID and teaching about supposed gaps and problems in evolutionary theory are creationist religious strategies," and that advocating ID in the classroom is a government imprimatur on religion. (at 56).

This should really settle the issue under the Endorsement Test. But since Judge Jones wants to take "the 'belt and suspenders' approach," (at 14 n. 4), he proceeds to address whether ID is science. ID is not science, because:

(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. (at 64).

Avoiding magical explanations is "a 'ground rule' of science," which some call "'methodological naturalism,' and is sometimes known as the scientific method." (at 65). This approach is not arbitrary. It is based on the demands of epistemology as well as the proven superiority of this approach in producing usable results. "[O]nce you attribute a cause to an untestable supernatural force, a proposition that cannot be disproven, there is no reason to continue seeking natural explanations as we have our answer." (at 66). ID proponents, Judge Jones notes, (and we might mention Beckwith by name here) are trying "to change the ground rules of science to allow supernatural causation of the natural world" to factor into the analysis. (at 67) But this approach would "embrace astrology," (at 68), among other things. And, in any case, the fact that ID proponents seek "to 'defeat scientific materialism,'" and "'replace materialistic explanations with the theistic understanding that nature and human beings are created by God,'" (at 68) demonstrates that ID at least cannot qualify as science, whatever "merit" it might have (at 65). Since the current "essential ground rules...limit science to testable, natural explanations," only changing those rules would allow ID to qualify as science. But "[s]cience cannot be defined differently." (at 70).

There's a lot more here---on irreducible complexity, the argument from design, everything---that all of you should read. But let's skip ahead to the legal issues. Given that ID is religion, can advocating it or teaching it in the classroom satisfy the First Amendment? Judge Jones turns to the Lemon Test. The Lemon test says that a state action is an endorsement of religion if "(1) it does not have a secular purpose; (2) its principal or primary effect advances or inhibits religion; or (3) it creates an excessive entanglement of the government with religion.... [E]ither an improper purpose or an improper effect renders the ID policy invalid under the Establishment Clause." (at 90).

The ID disclaimer violates the purpose prong because "Defendants consciously chose to change Dover's biology curriculum to advance religion." (at 93). They did not seek any scientific advice, and what scientific advice they got, they ignored. Thus "[a]lthough Defendants attempt to persuade this Court that each Board member who voted for the biology curriculum change did so for the secular purposed [sic] of improving science education and to exercise critical thinking skills, their contentions...are a sham." (at 130)

In addition, the ID policy violates the effect prong because it sends an undeniable message of religious endorsement.

Judge Jones ends with a few apropos comments:

The citizens of the Dover area were poorly served by members of the Board who voted for the ID policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy.... Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtatking inanity of the Board's decision is evident when considered against the factual backdrop.... The students, parents, and teachers of the Dover Area School District deserved better.

(at 137). Congratulations to all on a clean sweep victory for science and reason against ignorance, superstition, and the unconstitutional establishment of religion. Have a very, very Merry Christmas!

4 TrackBacks

Huge victory for the forces of reason today in Dover. I'm supposed to be writing my paper, but had to stop and smell the roses and share some of the scathingness. The blistering, brilliant 139 page opinion is almost unbelievably... Read More

The ruling from Dover is here, and Intelligent Design just got it’s teeth kicked in. Everybody’s blogging about this, all over the internet, so I’ll just put a few good quotes in from the judge, and point you towards some links. Basi... Read More

Judge John Jones determined in the Dover, PA court case that Intelligent Design should not be taught as a reasonable scientific alternative to evolution. Well done! Read More

Legal Scholars on Dover Ruling from Dispatches from the Culture Wars on December 21, 2005 10:53 AM

I thought I'd post what some legal scholars are saying about yesterday's ruling, since a good many of them have blogs and have responded. First, Timothy Sandefur writes at the Panda's Thumb: Kitzmiller v. Dover Area School District is a... Read More


It may be beautiful, but it’s useless outside of Dover if it can’t be referenced by other court districts.

It’s not binding, but it can be cited by other districts.

All I can say to myself, over and over, after reading these excerpts is “Thank God”.

This is beautiful:

The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID.

The phrase just before:

This should really settle the issue under the Endorsement Test. But since Judge Jones wants…

seems to be missing a “bold” terminator.

Never mind; you caught it before I did.

Kitzmiller’s holding isn’t really that broad: the “ID is not Science” section of the opinion is technically dicta–the holding is merely that the school board’s policy violated the establishment clause. All the language about ID was a mechanism by which the court arrived at its conclusion, but it was not called upon to decide whether ID is Science (something the TMLC will harp on in appeal).

That said, it’ll certainly be looked to by other districts if they have an ID case. Where there are so few opinions on novel issues, the courts reach outside their circuits. What the TMLC would do if they were smart is not appeal, b/c this opinion is not going to reversed (but I fear the Cobb County case will be, due to the bad luck of drawing Pryor and Carnes).


I note that Jones declares the school board’s actions to be unconstitutional both under the U.S. constitution’s first amendment and Pennsylvania’s state constitution. My presumption is that this will make the decision harder to overturn. I believe the same thing happened in the Georgia textbook sticker case.

The decision is good news but this is not over.

It probably will withstand appeal because appeals courts usually show deference to trial courts decisions on factual evidence. The decision seemed to be based largely on the introduced evidence that showed that the board members were clearly religiously motivated when they introduced intelligent design.

If ID proponents want to succeed in further attempts they are going to have to cover their tracks better.

Looking through the ruling, I see that an effort was made to disqualify a couple of the plaintiffs on “ripeness grounds”. I don’t even want to know what that means!

Congratulations to the concerned parents.

I don’t understand the comments about an appeal. There seems to be little chance of an appeal being filed. The defendant school board is no more, having been swept out in the last election. The current school board, which ran on a “lets end the suit and get back to teaching science” platform will certainly not pursue this further.

I don’t understand the comments about an appeal.

You might be correct, but it appeared that the district court judge awarded the plaintiffs costs and attorneys’ fees (point 3 at the end). That is highly unusual and might be grounds for appeal. On the other hand, the current board might just want to put the entire embarrassment behind them. The trial judge was really fairly vicious, in a “nice” kind of way.

the “ID is not Science” section of the opinion is technically dicta

I’m not so sure that is so. Judge Jones is saying that ID is not science, and that finding supports that there is no secular purpose to justify forcing it into a science classroom.

If ID proponents want to succeed in further attempts they are going to have to cover their tracks better.

But that is precisely why they will never win.

To win, the fundies MUST, absolutely MUST, do one thing —— they must shut up, indefinitely, about the one thing they care about most in the world; their religious opinions.

They can’t do it. They don’t WANT to do it. What the fundies want to do is preach – and it’s simply impossible to preach without letting everyone *know* that you are preaching.

It’s why they will never win.

I just saw the news hour on PBS and the Dover school board at this point in time has no interest in an appeal. The TMLC rep was very worked up about it and kept insisting ID is science.

“Ripeness grounds. I don’t even want to know what that means” Sorry I just got to do it. Ripeness deals with timing. A good explanation is here: http://www.fseee.org/index.html?pag[…]restmag/0303strangefruit.shtml

Joseph O'Sullivan Wrote:

If ID proponents want to succeed in further attempts they are going to have to cover their tracks better.

Hmmm… I’m an atheist. For the right price I’ll do it.

WARNING: I’m an Objectivist, so it’ll cost ya bigtime.

I guess its a bad day for the Flying Spaghetti Monster (the alternative IDer)


I think the reach of the decision might be much further than many now imagine. A lot of the ID attack is on the definition of science, and that track has been cut of effectively by Jones, using the way science works itself. Consequently, any new attempt of the creationist movement to introduce something religious into the science classroom needs first to meet the criteria of science itself. So, it needs to have been established as a valid scietific theory with peer reviewed publications and factual evidence, basic acceptance of the theory if only that it is something to discuss scientifically etc. This puts the treshold for anything that comes from the fundies pretty high.….…

Good for you, EmmaPeel.

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This page contains a single entry by Timothy Sandefur published on December 20, 2005 12:35 PM.

Dover was the previous entry in this blog.

The Discovery Institute squeaks back is the next entry in this blog.

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