I’ve been rereading “Monkey Girl,” (Amazon; Barnes&Noble) Edward Humes’ excellent book on the Kitzmiller trial, and ran onto something I’d either missed first time through or forgotten. As is the case in the Freshwater affair, the Rutherford Institute got involved in Kitzmiller. It represented three sets of Dover parents who requested that they be allowed to intervene in the case, joining the school board as defendants. Filed the same week that the Board’s intelligent design-based statement was read to the first classes in school, the Application to Intervene argued that those parents had a stake in the outcome of the trial, and therefore should be allowed to participate as defendants, represented, of course, by the Rutherford Institute.
The Rutherford Institute argued on behalf of the three sets of parents that if the plaintiffs (Tammy Kitzmiller, et al.) prevailed and the ID statement to biology classes was forbidden to be read, their children would not be able to hear about intelligent design. The Application to Intervene as Defendants (PDF) claimed that
The Intervenors seek to participate in this action because, if the Plaintiffs are successful, the lawsuit will have the effect of censoring the Dover Area School District Board and shielding all ninth graders from criticism of Darwin’s Theory of Evolution.
[The intervenors] seek to ensure that their children will have full access to information concerning the theory of evolution, including its many gaps for which there is no evidence. The Applicants further seek to ensure that their children not be denied access to a critical analysis of evolution merely because some persons believe that critics of the theory are religiously motivated. (pp. 2-3)
Further, in the Application to Intervene Rutherford argued that parents of school children are entitled to assert a “… First Amendment right of access to information and ideas in an academic setting…”. Still further,
The Applicants have a substantial legal interest, rooted in the First Amendment, in making sure that their children are not prevented from learning about intelligent design.
That is, parents are constitutionally empowered to determine what should be covered in public school science curricula, regardless of whether it’s accepted science or fringe pseudoscience. Consistent with Michael Behe’s and Scott Minnich’s admissions in their Kitzmiller testimony that their redefinition of science would substantially broaden the landscape of admissible explanations in science, extending it into the supernatural, the Rutherford Institute’s argument would pave the way for the return of astrology and alchemy to the science classroom, should some parent or teacher wish it.
In a way the route for Rutherford Institute’s involvement in both Dover and Mt. Vernon was similar. Rather than being a principal actor, involved in the original disputes, Rutherford was a late-comer, entering the processes well after they were in progress. It attempted (in Dover) and succeeded (in Mt. Vernon) in inserting itself into an on-going process, making arguments that neither side made prior to Rutherford’s participation. In both cases it is arguing for an expansion of First Amendment rights, in the Dover case the right of parents to determine what will be taught in public school science classrooms, and in the Mt. Vernon case the right of a teacher to override instructions from the Board of Education regarding curriculum matters. And in both cases the result would be the inclusion of any damn fool thing a parent or teacher wants taught, regardless of its appropriateness to the class or the validity of its content. As the response from the plaintiffs in opposition to the Application to Intervene put it,
Second, if Applicants were correct that there is a First Amendment right of parents to dictate the content of public school curricula, that right would eviscerate the well-recognized authority of school districts to set their own curricula. (p. 7)
The Rutherford Institute’s argument has developed and been elaborated in the seven years between Kitzmiller and Freshwater, but it rests on the same foundation: A claimed First Amendment right to allow anything at all to be taught in science classes, subject only to the idiosyncratic wishes of individual parents or teachers.
For more, see NCSE’s Archive of Rutherford Intervention documents.
Added in edit: I’m not sure I made it clear that Judge Jones denied the request to intervene in Kitzmiller.