Tammy Kitzmiller, et al. v. Dover Area School District, et al. (400 F. Supp. 2d 707, Docket no. 4cv2688) was the first direct challenge brought in the United States federal courts against a public school district that required the presentation of intelligent design as an alternative to evolution as an "explanation of the origin of life." The plaintiffs successfully argued that intelligent design is a form of creationism, and that the school board policy thus violated the Establishment Clause of the First Amendment to the United States Constitution. The judge's decision has sparked considerable response from both supporters and critics.Eleven parents of students in Dover, York County, Pennsylvania, near the City of York, sued the Dover Area School District over a statement that the school board required be read aloud in ninth-grade science classes when evolution was taught. The plaintiffs were represented by the American Civil Liberties Union (ACLU), Americans United for Separation of Church and State (AU) and Pepper Hamilton LLP. The National Center for Science Education (NCSE) acted as consultants for the plaintiffs. The defendants were represented by the Thomas More Law Center (TMLC). The Foundation for Thought and Ethics, publisher of a textbook advocating intelligent design titled Of Pandas and People , tried to join the lawsuit as a defendant but was denied.
The suit was brought in the U.S. District Court for the Middle District of Pennsylvania seeking declaratory and injunctive relief. Since it sought an equitable remedy the Seventh Amendment right to a jury trial did not apply. It was tried in a bench trial from September 26, 2005, to November 4, 2005, before Judge John E. Jones III, a conservative Republican appointed in 2002 by George W. Bush. On December 20, 2005, Judge Jones issued his 139-page findings of fact and decision ruling that the Dover mandate which required the statement to be read in class was unconstitutional and barring intelligent design from being taught in the Dover school district's public school science classrooms. The eight Dover school board members who voted for the intelligent design requirement were all defeated in a November 8, 2005, election by challengers who opposed the teaching of intelligent design in a science class, and the school board president stated that the board did not intend to appeal the ruling.
Background
From 2002 William ("Bill") Buckingham and Alan Bonsell, members of the Dover Board of Education who were young earth creationists, made various statements supporting teaching creationism as well as evolution. At a board meeting on June 7, 2004, Buckingham mentioned creationism and raised objections to proposed use of the textbook Biology written by Kenneth R. Miller, describing it as "laced with Darwinism" and saying it was "inexcusable to have a book that says man descended from apes with nothing to counterbalance it." This story made the York newspapers, and Buckingham was telephoned by Discovery Institute staff attorney Seth Cooper, whose tasks included "communicating with legislators, school board members, teachers, parents and students" to "address the topic of ID in a scientifically and educationally responsible way" in public schools. He later stated that he made the call to "steer the Dover Board away from trying to include intelligent design in the classroom or from trying to insert creationism into its cirriculum", an account Buckingham has disputed. Cooper sent the book and DVD of Icons of Evolution to Buckingham, who required the Dover High School botany teachers to watch the DVD. They did not take up the opportunity to use it in their classes. Cooper advised that the Discovery Institute was not offering legal advice, and soon afterwards Buckingham contacted Richard Thompson of the Thomas More Law Center, who agreed to represent the Dover Board, and recommended the book Of Pandas and People . On October 18, 2004, the school board voted 6–3 to add the following statement to their biology curriculum:
Students will be made aware of the 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.On November 19, 2004, the Dover Area School District issued a press release stating that, commencing in January 2005, teachers would be required to read the following statement to students in the ninth-grade biology class at Dover High School:
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 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 to individual students and their families. As a standards-driven district, class instruction focuses upon preparing students to achieve proficiency on standards-based assessments.
— (page 1 of decision)The three school board members who voted against it resigned in protest, and science teachers in the district refused to read the statement to their ninth-grade students, citing the Pennsylvania code of education, which states that teachers cannot present information they believe to be false. Instead, the statement was read to students by a school administrator.
The school board's statement asserting that there are "gaps" in evolution and that it specifically is a theory "not a fact" singled out evolution in a misleading way to imply it is just a hunch without explaining that the same applies to any other scientific theory. The presentation of intelligent design as an alternative "explanation of the origins of life" presented it as though it were a scientific explanation, in contrast to the way that evolution was described. Encouraging students to "keep an open mind" about alternatives without offering an alternative scientific explanation implied an invitation to meditate on a religious view. The school board claimed it does not teach intelligent design but simply makes students aware of its existence as an alternative to evolution. The board denied intelligent design is "religion in disguise," despite being represented in court by the Thomas More Law Center, a conservative Christian not-for-profit law center that uses litigation to promote "the religious freedom of Christians and time-honored family values". Its stated purpose is "...to be the sword and shield for people of faith".
The American Civil Liberties Union filed suit on December 14, 2004 on behalf of eleven parents from the Dover school district, and sought a law firm willing to take on the case at the risk of not being paid if the case was lost. Eric Rothschild, one of the partners of Pepper Hamilton LLP and a member of the National Center for Science Education legal advisory council, was quick to agree to take the case on such a contingency basis.
The Discovery Institute's John West said the case displayed the ACLU's "Orwellian" effort to stifle scientific discourse and objected to the issue being decided in court. "It's a disturbing prospect that the outcome of this lawsuit could be that the court will try to tell scientists what is legitimate scientific inquiry and what is not," West said. "That is a flagrant assault on free speech." Opponents, represented by the American Association for the Advancement of Science and the National Association of Biology Teachers, contended that his statement is not just ironic, but hypocritical, as the Discovery Institute opposes methodological naturalism, the basic principle that limits science to natural phenomena and natural causes without assuming the existence or non-existence of the supernatural, which by definition is beyond natural explanation.
Despite its earlier involvement, the Discovery Institute was concerned that this would be a test case and that the defendants had earlier displayed their religious motivations. This tension led to disagreements with the Thomas More Law Center and the withdrawal of three Discovery Institute fellows as defense experts prior to their depositions – William A. Dembski, Stephen C. Meyer and John Angus Campbell. This was purportedly because the Thomas More Law Center refused to allow these witnesses to have their own attorneys present during deposition, but Discovery Institute director Bruce Chapman later said that he had asked them not to testify (as well as Behe and Minnich, who testified anyway).
In May 2005, the publisher of Of Pandas and People , the Foundation for Thought and Ethics (FTE), filed a motion seeking to intervene in the case. FTE argued that a ruling that intelligent design was religious would have severe financial consequences, citing possible losses of approximately half a million dollars. By intervening, FTE would have become a co-defendant with the Dover Area School Board, and able to bring its own lawyers and expert witnesses to the case. FTE's president Jon Buell implied that if allowed to intervene, FTE would bring William A. Dembski and Stephen C. Meyer as expert witnesses. In his decision on th
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