evolution || defending darwin

Defending DarwinAuthor(s): Stephen G. Harvey and Eric RothschildSource: Litigation, Vol. 37, No. 1, Evolution (Fall 2010), pp. 8-14Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/25801829 .

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Defending Darwin

by Stephen G. Harvey and Eric Rothschild

In the Beginning... In 2004 and 2005, we had the great privilege and good

fortune to work with a very special team of clients, lawyers, and experts on what has been called the "modern-day Scopes

Monkey Trial." The case was Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (M.D. Pa. 2005). The subject of the case was "intelligent design," the argument that there is evidence in the natural world that life and living things

were created by an unnamed, supernatural intelligent being or "designer." The defendant school district in Dover, Penn

sylvania, wanted to present intelligent design in public school

biology class as an alternative to evolution, along with a text book called Of Pandas and People, which purported to show the bona fides of intelligent design and flaws in the scientific

theory of evolution. These notions are at odds with the view of the scientific community, which regards evolution to be "as

firmly established as is the notion that the Earth is an oblate

spheroid that spins on its axis and rotates around the Sun," to

quote noted evolutionary scientist Niles Eldredge. The Dover school board amended its biology curriculum

in October 2004 to require that students be made aware that

intelligent design is an alternative to evolution, and the school board designated Pandas, which had been "anonymously donated" to the high school, as a reference book. The decision was not universally popular. Three school board members

resigned in protest. The Dover High School science teachers refused to teach intelligent design, concluding that it would violate their professional ethics to tell students that intelli gent design is science because, as they told the school district in a written statement (capitalization in original): "INTEL LIGENT DESIGN IS NOT SCIENCE. INTELLIGENT DESIGN IS NOT BIOLOGY. INTELLIGENT DESIGN IS

Stephen G. Harvey and Eric Rothschild practice with Pepper Hamilton LLP in Philadelphia, Pennsylvania.

NOT ACCEPTED SCIENTIFIC THEORY." And a handful of parents sought legal counsel to challenge what they per ceived to be bad science education and an effort by the school board to smuggle religion into science class in violation of the Establishment Clause of the First Amendment.

Our law firm, Pepper Hamilton, the American Civil Liber ties Union (ACLU) of Pennsylvania, and Americans United for

Separation of Church and State (Americans United) became the lawyers for 11 parents of schoolchildren in the district, including Tammy Kitzmiller, who became the lead plaintiff because her daughter would be the first from the group to be

exposed to intelligent design in ninth-grade biology. Unlike our colleagues from the ACLU and Americans

United, we came to this case not as constitutional litigators, but as private practice lawyers who represent mostly business clients in complex litigation. None of the lawyers on the team were experts about the science of evolution or the arguments for intelligent design. This was to change, thanks in large mea sure to the National Center for Science Education (NCSE), which provided consulting and testifying experts to the plain tiffs' legal team and which educated us about the issues.

On December 14, 2004, the plaintiffs' legal team filed a

complaint in U.S. District Court in Harrisburg, Pennsylvania, seeking to enjoin the school board's intelligent design policy. The case was assigned to U.S. District Judge John E. Jones III, who was appointed to the federal bench in 2002 by President

George W. Bush. We wrote the district, offering to dismiss the case without seeking legal fees if they would drop the intel

ligent design policy. The board never responded. The plaintiffs' legal team then faced a decision?whether

to seek a temporary restraining order (TRO) to prevent the school district from implementing the intelligent design policy in ninth-grade biology class when students returned from the

winter break in January 2005. We thought we might be able to convince Judge Jones to grant a TRO based on newspaper

Litigation Fall 2010 Volume 37 Number 1



reports that, at public meetings in June 2004, leaders of the school board had openly discussed their desire to teach cre ationism in public school science class and had made other

religious statements in connection to the biology curriculum. The board later changed its terminology from "creationism" to

"intelligent design," after meeting lawyers from the Thomas More Law Center in Ann Arbor, Michigan, which bills itself as "the Christian answer to the ACLU" and "the sword and shield for people of faith." See About the Thomas More Law Center, http://www.thomasmore.org/qry/page.taf?id=23. These same lawyers would represent the board at trial.

We asked for an opportunity to take expedited discovery, and Judge Jones granted the request. On January 3, 2005, we

deposed four school board witnesses?three school board members and the school district superintendent. Our strategy was simple: Get these witnesses to corroborate the newspa per reports about the school board meetings in June 2004, which showed a religious purpose for modifying the biology curriculum.

We were shocked by what we heard that day. All four wit nesses had met the previous day, as a group, with two lawyers from the Thomas More Law Center, and all four witnesses gave similar testimony?they either could not recall or flatly denied that they had discussed creationism, or made other

religious statements, at the June 2004 meetings. As incredible as that testimony seemed, the plaintiffs' legal team decided that Judge Jones was unlikely to grant a TRO on a disputed factual record.

That is where matters stood in January 2005. The effort to win an early injunction was abandoned. The intelligent design policy was implemented, with administrators, not teachers, providing information about intelligent design to Dover High School students. The lawsuit went forward. Over the com

ing months, the parties would engage in a breakneck sched ule of discovery, expert reports and depositions, and motion

practice, all leading to a trial date in September 2005, less than a year after the policy had been adopted.

Before discussing the trial, we must set the stage. Each

morning of the trial, the plaintiffs' legal team?lawyers, cli ents, experts, and friends?would gather at the office of our law firm in Harrisburg for what we called the "perp walk" because it ended at the courthouse with reporters, photogra phers, and video cameras documenting our arrival. Inside the courtroom, the jury box, not otherwise needed for this bench trial, was occupied by reporters from local, regional, national, and international newspapers as well as from magazines like The New Yorker and even Rolling Stone and People. There was an assortment of other writers, including a researcher for Paramount Pictures and a freelancer writing for Harper's named Matthew Chapman, who, as Charles Darwin's great great-grandson, had a very special connection to the case. The press interest was so great that Court TV filed a motion

asking to televise the trial, a motion Judge Jones denied and later publicly regretted. On many days, the galleries were also filled with overflow media as well as interested onlookers and supporters of both the plaintiffs and the defendants. The courtroom was full during almost the entire trial. The trial

eventually became the subject of four books and a NOVA doc

umentary called Judgment Day: Intelligent Design on Trial. What unfolded in that courtroom over 40 days, with Judge

Jones and the media watching, was a trial not just of the defen dant school district and its intelligent design policy but also of the national creationism/intelligent design movement, which

actively seeks to sow doubt in the public mind about the the ory of evolution. In November 2004, the same month we were

engaged to work on the case, the cover of National Geographic posed this question: "Was Darwin Wrong?" That the question could be asked by a science magazine of such renown seemed to legitimize the school board's efforts to teach an alternative to evolution. But the answer provided inside the magazine's




cover dispelled this illusion: "No. The evidence for evolution is overwhelming." This was a harbinger of things to come.

Evolution, Creationism, and the Law The logical starting point for any discussion on the subject

of evolution in America has to be the Scopes Monkey Trial of 1925, in which John Scopes was prosecuted under a Ten nessee law that made it a crime to teach evolution. Scopes was the ACLU's first big case, with Clarence Darrow as coun sel for John Scopes. Most people forget that Darrow lost the case, that John Scopes was convicted (although the convic tion was set aside on appeal for a technical reason in Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927)), and that states were permitted to prohibit the teaching of evolution until the 1968 Supreme Court case of Epperson v. Arkansas, 393 U.S. 97 (1968), in which the Court held that the state of Arkansas violated the Establishment Clause by prohibiting the teaching of evolution in public school.

Following Epperson, religiously motivated opponents of evolution pushed for and, in several states, succeeded in pass ing "balanced treatment" statutes requiring that evolution be

given equal time in science class with so-called creation sci ence. The federal courts addressed these statutes in several cases, including the 1987 Supreme Court decision in Edwards v. Aguillard, 482 U.S. 578 (1987), which invalidated Louisi ana's "Creationism Act." This statute prohibited the teaching of evolution in public schools, except when it was accompa nied by instruction in "creation science," which included belief in the existence of a supernatural creator. The Edwards Court found that the primary purpose of the act was to endorse a

particular religious doctrine and that it therefore violated the Establishment Clause.

Against the backdrop of these precedents, the plaintiffs' legal team prepared the case for trial. Our strategy was to

present multiple, independent grounds for Judge Jones to rule in our clients' favor. First, we wanted to prove that intelligent design is inherently and inescapably religious and sectarian.

We also planned to show that intelligent design as espoused by the school district relies on the same tired pseudoscientific criticisms about evolution that have been repeatedly consid ered and rejected by the scientific community. But more than that, we wanted to prove that intelligent design, like creation science before it, invokes the existence of a supernatural being and therefore is not properly considered science at all.

Finally, we set out to prove that the school board acted for the purpose of promoting a particular religious view. This

necessarily entailed proving that some or all of the witnesses who testified on January 3, 2005, lied at their depositions.

The Best Example of Evolution Intelligent design is a modern twist on an old concept.

Theologian John F. "Jack" Haught of Georgetown University testified on behalf of the plaintiffs that the classical argument for the existence of God based on the appearance of design in nature has its roots in the thirteenth-century writings of Thomas Aquinas. Later, in the late eighteenth and early nine teenth centuries, the Anglican cleric William Paley updated the argument with his famous watchmaker analogy, arguing that if he found a watch in a field and saw its complex design, he would immediately recognize that there must have been a watchmaker. Similarly, if he found a mouse in a field, its com

plex design must indicate the presence of a designer. Unlike

the modern proponents of intelligent design, however, Aqui nas and Paley acknowledged that the argument was a religious one, and that the designer (or watchmaker) is God.

Haught also testified that the scientific theory of evolution is accepted as consistent with belief in God as evidenced by an authoritative statement of Pope John Paul II. This supplied a powerful response to the argument sometimes heard (and endorsed by the school board) that evolution is atheistic.

The plaintiffs also called as an expert witness Barbara Forrest, a professor of philosophy at Southeastern Louisiana

University, to prove that the modern intelligent design argu ment is as religiously directed as its historical predecessor. This argument came into currency shortly after the Supreme Court decided in Edwards v. Aguillard that creation science cannot be taught in public school science class. Following Edwards, Phillip Johnson, a law professor who is widely rec

ognized as the chief strategist of the modern intelligent design movement, concluded that for biblical or religious concepts about the development of biological life to withstand consti tutional scrutiny, advocates had to make a case that the con

cepts had scientific merit, partly by expanding how science is defined to include action by non-natural (i.e., supernatural) causes. Johnson drew to him a group of academics, such as biochemist Michael Behe, mathematician and theologian Wil liam Dembski, law professor David DeWolf, and philosophy professors Stephen Meyer and Paul Nelson. Collectively, this

group and others formed the intelligent design movement, and

began writing and speaking about the case for the intelligent design of biological life. They also affiliated with the Discov

ery Institute, a think tank in Seattle.

Meyer and DeWolf of the Discovery Institute published a

guidebook in 1999 advocating that intelligent design, includ

ing the Pandas textbook, could be properly and constitution

ally taught in a public school science class. The school board in Dover, Pennsylvania, was the first and, to date, only one to

accept the invitation. Forrest's role at trial was to document the history and state

ments of the intelligent design movement. She was the only expert whose admissibility was challenged pre-trial, the board

arguing that she was doing nothing more than bringing hear say into the courtroom. While this type of historical expert testimony is not commonplace, the plaintiffs were able to demonstrate that it is allowed, particularly when the expert's testimony in the courtroom is consistent with her work outside it. With her co-author Paul Gross, Forrest had literally written the book on the history of the intelligent design movement: Creationism's Trojan Horse: The Wedge of Intelligent Design (Oxford University Press 2004).

The book, which she opened in Judge Jones's courtroom, included statements by intelligent design leaders that revealed the religious nature of the argument:

[Intelligent design is just the Logos theology of John's

Gospel restated in the idiom of information theory. (William Dembski) The argument [for intelligent design] is less plausible to those for whom God's existence is in question, and is

much less plausible for those who deny God's existence. (Michael Behe) [T]he reality of God is tangibly recorded in evidence accessible to science, particularly in biology. (Phillip Johnson)




Forrest also opened the book on the activities of the Dis

covery Institute, including the contents of a Discovery Insti tute strategy document called the "Wedge Document," which characterized the intelligent design project in starkly religious, social, and political terms. The Wedge Document advocates the promotion of science "consonant with Christian and theis tic convictions" and sets forth a goal of "replacing] material istic explanations with the theistic understanding that nature and human beings are created by God."

All of this evidence had already been laid out in detail in Creationism's Trojan Horse. The most powerful piece of evi dence entered through Forrest?one of two smoking guns in the case?was not part of her book and, in fact, was not known to her until it came to light in discovery, but was neatly antici

pated by the metaphor in the title of her book. The NCSE had long suspected that Pandas was originally

written as a creationist book. Early in the litigation, the plain tiffs subpoenaed the publisher of Pandas for any memos, let ters, or drafts generated during the development of Pandas. The publisher contested the subpoena, but when its motion to

quash was denied, it dutifully produced boxes of documents, including numerous draft versions of Pandas.

In drafts written between 1983 and 1987, the terms "cre ation" and "creationism" were used pervasively, including in the definitional section:

Creation means that the various forms of life began abruptly through the agency of an intelligent Creator, with their distinctive features already intact?fish with fins and scales, birds with feathers, beaks, and wings, etc.

After 1987, these terms were excised from the book and

replaced with phrases like "intelligent design" and "intelligent agency," and the corresponding text in the next draft read as follows:

Intelligent design means that various forms of life began abruptly through an intelligent agency, with their distinc tive features already intact?fish with fins and scales, birds with feathers, beaks, wings, etc.

At trial, we drove the point home with a simple word count chart that showed two lines representing the number of times the drafts of Pandas used the term "creationism" or its vari ants and the number of times the drafts used the terms "intel

ligent design" and its variants: The two lines intersected in

1987, right after the Edwards decision. And thus was proved that the Pandas book, recommended by the school district to students wanting to learn more about the supposed science of

intelligent design, was written as a creationist text and that the phrase "intelligent design" was substituted for "creation ism" in 1987, after the Supreme Court issued its decision in

Edwards.

As we joked during the trial, creationists are the best exam

ple of evolution: They adapt to a hostile legal environment.

The Biology Class You Wish You Could Have Taken The next major piece of the plaintiffs' case was the evi

dence that intelligent design is not science. In the aftermath of the case, Judge Jones was criticized by leaders of the intel

ligent design movement for going beyond what was necessary to decide the case, when he held that "ID [intelligent design]

is not science." In fact, Judge Jones had no choice but to evalu ate the scientific bona fides of intelligent design?the school board had touted it as the next scientific paradigm, arguing that they had added it to the biology curriculum for the secular

purpose of improving Dover students' science education, and

offering expert evidence to support that claim. Judge Jones would have disserved his responsibility to give the parties a fair trial if he had disregarded that claim.

Instead, he allowed both parties to turn his courtroom, as The New Yorker put it, into "the biology class you wish you could have taken," where lawyers got to ask "scientists ques tions that we'd probably be too embarrassed to ask ourselves."

Margaret Talbot, Letter from Pennsylvania, "Darwin in the Dock," The New Yorker, Dec. 5, 2005, at 66, 67. Both parties called practicing scientists and philosophers of science to the stand to define for the court the attributes of science and evalu ate whether intelligent design met that standard.

The plaintiffs invoked statements by major scientific organi zations like the National Academy of Sciences and the Ameri can Association for the Advancement of Science that intelligent design is not science. The massive weight of scientific consensus stands behind evolution and against intelligent design.

Creationists are the best example of evolution: They adapt to a hostile legal environment.

These same authorities were also useful to demolish the notion that evolution is suspect because it is scientific "theory." The school board's policy required that students be forced to sit

through the reading of a statement that included this spurious claim: "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." As the National Academy of Sciences explained, this statement would mislead students: "The contention that evolution should be taught as a 'theory not as a fact,' confuses the common use of these words with the scientific use." National Academy of Sciences, Science and Creationism 2 (National Academy Press, 1999). A "theory" is a "well-substantiated explanation of some aspect of the natural world" and "evolution is one of the strongest and most useful scientific theories we have." Id.

We might have rested this part of the case on the weight of that authority. But the intelligent design movement has worked so hard to create the impression that intelligent design is a scientific concept?with terms like "irreducible complex ity" and "complex specified information"?that we were con cerned that Judge Jones might think it sounded close enough to real science that he was not going to reject the contention. So the plaintiffs called to the stand cell biologist Ken Miller of Brown University, paleontologist Kevin Padian of the Univer

sity of California at Berkeley, and philosopher of science Rob ert Pennock of Michigan State University for a more granular takedown of intelligent design's claims.




Pennock's point was the simplest, and most damning to

intelligent design. Science depends on the rule of "method

ological naturalism"?that it can address and explain only natural causes for natural phenomena. It cannot address the

presence or activity of supernatural or divine forces?nei ther to rule them out nor rule them in. Intelligent design vio lates this fundamental precept. Indeed, the modern intelligent design movement was to a large extent an outgrowth of law

professor Phillip Johnson's insight that, for biblical and reli

gious explanations of biological life to compete with the the

ory of evolution, courts (and society as whole) would have to be persuaded that science could include consideration of the

supernatural. What was at stake in the trial was the very defi nition of science itself.

Miller's and Padian's testimony underscored that for sci ence to work, and contribute to our well-being, it must oper ate by certain accepted precepts, including methodological naturalism. They also described how science develops?with the testing of hypotheses, the publication of research in peer reviewed journals, and the evaluation of scientific claims by experts in the field. Only the fittest of scientific ideas survive over time. Intelligent design developed outside, and is untested

by, these time-honored processes for scientific exploration. The scientists explained why evolution is such a well-sup

ported, well-accepted explanation for the development and

diversity of biological life. They described astounding scien tific developments connecting humans to primates, and birds to dinosaurs, with vivid demonstrative evidence. They then showed how Pandas and other books and articles purporting to make scientific arguments for intelligent design were based on false, or long-debunked, evidence for "special creation."

They described the extensive scientific knowledge about the evolution of the vertebrate immune system and the blood clot

ting cascade, two systems that intelligent design proponents claimed could not have evolved through natural selection.

And they discussed the bacterial flagellum, an otherwise obscure organelle that has become the mascot of the intel

ligent design movement. The flagellum is an appendage on some bacteria that rotates at an extraordinary speed, pro pelling the bacteria like the outboard motor on a motorboat. Michael Behe?the aspiring Darwin of the intelligent design movement?argued in his book Darwin's Black Box (Simon & Schuster 2001) that the flagellum was "irreducibly complex" because it requires its full complement of approximately 40

proteins to operate like an outboard motor. Because it wouldn't have this motor function in any less complex formulation (say 25 proteins or 30 proteins), there was no pre-existing function

ing system for natural selection to work on; therefore, the fla

gellum must have acquired its complex structure and function in some way other than natural selection, such as the act of an

intelligent agent. Miller and Padian showed that the development of the fla

gellum is as susceptible to a Darwinian explanation as the many other organisms and biological systems (e.g., the human eye, the bird wing) that creationists have touted and aban doned over the years. While the flagellum may well require its full protein complement to operate like a rotary motor, dif ferent subsets of proteins may have had different functions. The idea that components of living things start with one func tion and then evolve into others?called "exaptation"?has been well established and accepted for decades. For example, the mammalian inner ear evolved from jaw bones in reptiles,

and bird feathers originated for insulation before becoming a tool for flight. In the case of the flagellum, scientists have demonstrated that some subset of the flagellum proteins likely operated as a virulent secretory system, providing a defensive function for bacteria.

After the plaintiffs rested, the defense led off its case with its one essential witness?Michael Behe of Lehigh Univer

sity. During the course of discovery, several intelligent design movement leaders who had agreed to serve as expert witnesses for the school board and had even produced expert reports? including William Dembski and Stephen Meyer of the Discov

ery Institute?dropped out of the case. A clear explanation for this exodus has never been provided, although the fact that each abandoned the case on the eve of their depositions suggests a reluctance to face aggressive questioning, rather than sympa thetic religious audiences. Among the A-list of intelligent design advocates, only Behe was willing to stand witness for the cause.

As a biochemist with no academic credentials in evolution

ary biology or paleontology, Behe did not have the expertise to rebut most of Padian's and Miller's testimony, nor defend

much of the clearly creationist content in Pandas. He focused his testimony on defending the biochemistry-focused argu ment he made in Darwin's Black Box that the flagellum, the

blood-clotting cascade, and the immune system are all "irre

ducibly complex," incapable of having evolved from simpler systems to the complex characteristics and functions they now have. His response to the possibility that the flagellum might have evolved from a collection of proteins with a differ ent function, such as a secretory system, was to insist that his definition of irreducible complexity excludes changes in func tion. But denying the possibility of evolution through natural selection by ignoring exaptation, one of its well-established

pathways, doesn't disprove evolution at all; Judge Jones was not impressed with this "ostrich" defense of intelligent design: "By defining irreducible complexity in the way that he has, Professor Behe attempts to exclude the phenomenon of exap tation by definitional fiat, ignoring as he does so abundant evi dence which refutes his argument." Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 739 (M.D. Pa. 2005).

Behe's resistance to evidence that might falsify his argu ments for irreducible complexity and intelligent design was even more starkly evident in the case of the vertebrate immune system. Behe claimed in Darwin's Black Box that "[w]e can look high or we can look low, in books or jour nals, but the result is the same. The scientific literature has no answers to the question of the origin of the immune system." He insisted that any effort to determine how the immune sys tem had evolved was "doomed to failure" and shouldn't even be attempted?a depressing message to our next generation of scientists and doctors. Fortunately, Behe's admonition had not been followed, before or after the publication of Darwin's Black Box, probably because the development and operation of our immune system is not just an academic question but an issue of immediate and ongoing importance for our health and well-being.

To illustrate the gap between Behe's assertion and the evi dence, he was confronted with scores of articles, book chapters, and entire books discussing the well-developed explanation for how the immune system had evolved. Behe's only response to the large compilation of materials on the witness stand was that they did not include a sufficient step-by-step description of the mechanism by which the immune system had changed




over time from ancestral versions to the current form. The burden of proof that Behe set for evolution was ironic

because he had already admitted on the witness stand that neither he nor his intelligent design colleagues could identify the mechanisms that resulted in the "intelligent design" of the immune system, the flagellum, or any other biological system or organism. Intelligent design simply posits that these aspects of biological life came into existence?were created, not just designed?without any explanation of when that occurred, how that occurred, why that occurred, or, for that matter, why that same intelligent designer allowed some of these creations to lapse into extinction. In fact, Behe admitted that the only positive proof for intelligent design lies in what he labeled the

"purposeful arrangement of parts"?if a hand, or a mouse, or a complex biological organism appears from the arrangement of its parts to have been designed, it was designed. This mea

ger syllogism?it looks designed, therefore it was designed? has gained no traction in the scientific community. It can't

begin to compete with Darwin's theory of evolution either in scientific merit or in grandeur.

The Truth Is They Lied to Conceal Their Tracks The third major part of the evidence concerned what we

called "the local story"?school board members attempting to bring religion into the classroom and then lying to hide that motive. This evidence was central to proving that the school board acted for the purpose of promoting religion. At the very center of the local story were school board president

Alan Bonsell and curriculum committee chair William Buck

ingham, both of whom testified at those early depositions on

January 3, 2005. The most important part of the local story concerned two

public school board meetings in June 2004. Two local news

papers covered those meetings and reported that school board members discussed the purchase of a biology textbook for the

high school in starkly religious terms. Several of them spoke openly of a desire to teach creationism in public school sci ence class as an alternative to the scientific theory of evolution.

The most memorable comment was made by Buckingham: "Two thousand years ago someone died on a cross; can't some one take a stand for him?" Joseph Maldonado, "Book Is Focus of More Debate, York Daily Rec, June 15, 2004; Heidi Bern hard-Bubb, "Church, State Issue Divides: Creationism, Draws Hundred to Dover Meeting," York Dispatch, June 15,2004.

After the witnesses either could not recall or flatly denied the religious statements in their depositions in January 2005, we were determined to prove the truth of the newspaper reports. The religious, creationist statements attributed to school board members hadn't been made over the phone or in

hallway encounters, but to audiences as large as 100 people? including some of the plaintiffs, school teachers, and fellow board members. And so, a parade of witnesses came to the witness stand to describe what board members had said at the public meetings. No fewer than 10 witnesses testified that

Buckingham said words to the effect that "2,000 years ago someone died on a cross; can't someone take a stand for him?"

Among the witnesses contradicting the "official" account was Assistant Superintendent Mike Baksa, who had been in the prep session before the early depositions of the four school board witnesses but hadn't been deposed himself. Baksa admitted that Buckingham had talked about teaching creationism at the June board meetings.

The plaintiffs also called to the stand Heidi Bernhard-Bubb and Joe Maldonado, the two reporters who had covered the June 2004 meetings. This decision was a source of heartburn for our co-counsel ACLU Legal Director Vic Walczak, whose

organization has a long history of protecting reporters from

testifying in court. Judge Jones's ruling that the questioning of these witnesses would be carefully circumscribed avoided a constitutional showdown within a constitutional showdown, and the reporters had the chance?desired or not?to vouch for the accuracy of their stories. And vouch they did.

Any remaining doubt that board members had advocated

teaching creationism, and couched their views of the biology curriculum in religious terms, was put to rest by the board members themselves. A logical question for those board mem bers was why they had not taken any actions?requests for corrections, letters to the editor?in response to the purported fabrications by two independent reporters. In fact, the only letter to the editor submitted to either newspaper by a board

member advocated teaching creationism.

Buckingham rationalized his inaction by claiming igno rance. He testified that he was unaware that the two news

papers, both of which he received on his doorstep every day, were reporting that he had made religious statements at board

meetings. That testimony placed him right in the sights of another smoking gun. After his purported ignorance about the newspaper articles was locked down in cross-examination, and after he testified that neither he nor any other board mem bers talked about creationism at any time, Buckingham was shown a videotape of a statement he made to a TV reporter in June 2004. In it, he said: "It's okay to teach Darwin, but you have to balance it with something else, such as creationism."

When asked about that video clip in cross-examination, he blurted out: "And what happened was when I was walk

ing from my car to the building, here's this lady and here's a camera man, and I had on my mind all the newspaper articles

saying we were talking about creationism, and I had it in my mind to make sure, make double sure that nobody talks about

creationism, we're talking intelligent design." Transcript of Record, vol. 29 at 96, Oct. 27, 2005, Kitzmiller v. Dover Area Sch. Dist, 400 F. Supp. 2d 707 (M.D. Pa. 2005). Buckingham was taped advocating the teaching of creationism?the very thing he had denied saying at board meetings that same day? and blamed his choice of terms on the newspaper articles he had claimed not to have read or been told about!

Cross-examination also demonstrated that Buckingham and Bonsell had lied at their depositions when they claimed not to know the source of funding for the "donated" Pandas books. In fact, Buckingham had taken up a collection at his church to buy the Pandas books and had handed a check to

Bonsell, made out to Bonsell's father Donald, which Donald used to purchase the books. The lying about these facts was so blatant that after the plaintiffs completed Bonsell's cross

examination, the normally mellow Judge Jones continued it for another 10 minutes, angrily questioning Bonsell about why he had denied knowledge about how the donation had been

funded, when he had served as the conduit for the purchase. He later referred both board members to the United States

Attorney's Office for a perjury investigation. Bonsell's and Buckingham's testimony not only sunk their

credibility about their supposed desire to enhance science edu cation by exposing students to intelligent design as an alter native to evolution; it devastated the school board's argument




that it did not act for the purpose of promoting religion. Their

advocacy of creationism and other religious statements were

strong circumstantial evidence of a religious purpose. Deny ing that the statements were ever made, however, deprived the board members of any opportunity to explain them and gave the plaintiffs an open road to argue that they demonstrated a

religious purpose. In his decision, Judge Jones noted that it was "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." Kitzmiller, 400 F. Supp. 2d at 765.

It's Over in Dover On the last day of trial, after closing statements, Judge Jones

made a final statement and then announced that the proceed ings would be closed unless the plaintiffs or the defendants had anything else to raise. Defense counsel Patrick Gillen rose and said, "Your Honor, I have one question, and that's this: By my reckoning, this is the 40th day since the trial began and

tonight will be the 40th night, and I would like to know if you did that on purpose." Judge Jones's off-the-cuff response is a classic: "Mr. Gillen, that is an interesting coincidence, but it was not by design." And with those words, the trial ended.

Another harbinger. One week after the trial ended, the electorate in Dover went

to the polls for a school board election and voted out of office all eight school board members up for reelection. In response, Christian TV personality and former presidential aspirant Pat Robertson had this to say on the Christian Broadcasting Net work's "700 Club": "I'd like to say to the good citizens of Dover: If there is a disaster in your area, don't turn to God. You just rejected him from your city." Associated Press, Nov. 10, 2005. This reinforced rather emphatically our point that

intelligent design is really all about promoting religion, not

good science education, and underscored how divisive it is to mix the two.

Six weeks after the trial ended, on December 21, 2005? one year and one week after the complaint was filed?Judge Jones issued a 139-page decision. The parties had advance notice from Judge Jones that the decision would come down that day, and the plaintiffs' legal team had congregated at our office in Harrisburg to wait for the decision. It was worth the wait. Judge Jones held that intelligent design is religion, it is not science, and the school board acted for the purpose of promoting religion and then members of the board lied to conceal that purpose. He issued an injunction, forbidding the Dover School District from presenting intelligent design to Dover High School science students. "It's Over in Dover," pro claimed one headline.

Our clients, who had endured ill will in the Dover com

munity for having the courage to assert their rights, were

completely vindicated. For them, the issues were not abstract. Plaintiff Julie Smith, for example, had testified that her daugh ter came home from school and said:

Well, Mom, evolution is a lie, what kind of Christian are

you, anyway, which I found to be very upsetting. ... I asked her why she said that, and she said in school what

they had been talking about or amongst her friends and what's going on. She seemed to be under the impression that as a Christian, she could not believe that evolution

was a science that, you know, was true_Well, it goes

against my beliefs. I have no problems with my faith and evolution. They're not mutually exclusive.

Transcript of Record, vol. 6 at 38-39, Sept. 28,2005, Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707 (M.D. Pa. 2005).

The sad fact is that this case never had to happen. The school board missed multiple opportunities to avoid a colli sion with the First Amendment. It should have stood down

when the high school science teachers objected to the intelli

gent design policy and refused to participate in implementing the policy on the grounds that intelligent design is not science. It should have accepted the offer made by the plaintiffs shortly after the case was filed to withdraw the action and all claims if the school district would simply rescind the policy, which

was nothing more than what the law required. And the dispute could have been short-circuited if the four school board wit nesses had testified truthfully at their depositions on January 3, 2005.

Judge Jones received a great deal of praise but also some scorn for the decision. Phyllis Schlafly said that he had "stuck the knife in the backs of those who brought him to the dance," "Judge's Unintelligent Rant Against Design," Jan. 6, 2006, http://www.eagleforum.org/column/2006/jan06/06-01-04. html, referring to the Republican politicians who supported his appointment, and the voters who had elected them. In pub lic appearances, Judge Jones used this criticism as a teaching

moment about judicial independence. The trial gave us lasting memories and lasting friend

ships with the plaintiffs, our co-counsel from the ACLU and Americans United, the expert witnesses who testified at trial on behalf of the plaintiffs, our scientific consultants at NCSE, and many others who played a role in the case. We are grateful to our law firm, Pepper Hamilton, which allowed us to take this case on a pro bono basis and supported us every step of the way.

The trial also gave us a chance to use our trial skills on behalf of some pretty important principles: good science edu cation and religious freedom.

Both principles were encapsulated in the trial testimony of Plaintiff Cyndi Sneath who, when asked why she objected to the school board's intelligent design policy, had this to say:

Well, you know, as a parent, you want to be proactive in

your child's education. I mean, obviously I'm not an edu cator. I have no big degrees. I want to be proactive, but I

depend on the school district to provide the fundamentals. And I consider evolution to be a fundamental of science. And I'm quite concerned about a cautionary statement. I am quite concerned about this intelligent design idea. I do think it's confusing. I don't think it adds to his education.

And at the end of the day, I mean, in my mind, intelligent designer, I mean, the word 'designer' is a synonym for Creator, and, you know, that takes a leap of faith for me, you know. And I think it's my privilege to guide them in matters of faith, not a science teacher, not an administra tor, and not the Dover Area School Board.

Transcript of Record, vol. 15 at 100-101, Oct. 12, 2005, Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707 (M.D. Pa. 2005).

None of the lawyers, experts, or even the judge could or did say it better. 10




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