by Lenny Flank
(c) copyright 2006
In 1999, a new player emerged in the Intelligent Design campaign. Conservative Catholic businessman Tom Monoghan, the founder of the Domino's Pizza chain, joined forces with former Michigan prosecutor Richard Thompson, best-known for his repeated attempts to jail assisted-suicide doctor Jack Kevorkian, to form the Thomas More Law Center. Describing itself as "the sword and shield for people of faith", the TMLC declared its aim as "Defending the religious freedom of Christians". (TMLC website, 2005) From the beginning, the TMLC sought out a fight with the ACLU, which it views as anti-religion atheistic secular humanists. And the issue that TMLC most wanted to cross swords over with ACLU, was evolution.
Beginning in early 2000, the TMLC actively sought out a test case involving evolution and intelligent design that it could take to the Supreme Court. TMLC lawyer Robert Muise went to Charleston, West Virginia, recommending that these school districts adopt the ID textbooks Of Pandas and People into their science courses, and offering to provide "a world class defense" for free when the ACLU sued. "We'll be your shield against such attacks," Muise told the school board. The Charleston board turned TMLC down because, as board President John Luoni recalled, "It's not really a scientific theory. It's more of a religious theory. It should be taught if a church or a denomination believes in it, but I didn't think that religious viewpoint should be taught as part of a science class." (New York Times, Nov 4, 2005) One school district after another, in Minnesota and Michigan, turned down the offer. Then, in rural central Pennsylvania, the TMLC hit paydirt.
In June 2004, the Dover School District, near York, Pennsylvania, was carrying out a routine review of the textbooks being used by the district's biology students. During the review, School Board Curriculum Committee member William Buckingham complained that the biology textbooks were "laced with darwinism" (York Daily Record, Dec 26, 2005). In a TV interview a week later, Buckingham declared, "My opinion, it's OK to teach Darwin, but you have to balance it with something else such as creationism". (York Daily Record, Jan 16, 2005). A month later, in July 2004, an "anonymous donation" of 60 copies of the intelligent design textbook Of Pandas and People, was made to the school district for use as a "supplemental text" in classrooms. In October 2004, the full School Board voted 6-3 to amend the district's curriculum to include intelligent design "theory". The amended curriculum guide read, "Students will be made aware of gaps/problems in Darwin's Theory and of other theories of evolution including, but not limited to, Intelligent Design. The Origin of Life is not taught." (York Daily Record, Dec 26, 2004) Several board members resigned in protest.
The Board, meanwhile, wrote up a brief "statement" to be announced in each biology class, which read:
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 continues to be 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 who might be interested in gaining an understanding of what Intelligent Design actually involves.
With respect to 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." (York Daily Record, Jan 8, 2005)
The district's science teachers in turn sent a letter to the board stating that they would not read any such statement, forcing school administrators to do the deed themselves. In the press, meanwhile, Board members argued that they were not "teaching" intelligent design; they were only "mentioning" it to make students "aware" of it -- a silly argument, and not the last time that the Board would make itself look spectacularly stupid in public.
In December, eleven parents contacted the ACLU in Pennsylvania, which filed a lawsuit on their behalf charging the district with violating church/state provisions by teaching the religious doctrine of intelligent design "theory". The ACLU was joined by Americans United for Separation of Church and State in the suit, and advice and assistance was also offered by the National Center for Science Education, a national nonprofit group that opposes efforts to weaken science education with creationism or intelligent design. NCSE's legal advisory counsel, Eric Rothschild, offered to head up the plaintiff team. The Thomas Moore Law Center, in turn, immediately offered to defend the Board for free. School Board members, meanwhile, were making statements to the press acknowledging that their aims were indeed religious:
"If the Bible is right, God created us. If God did it, it's history and also science". -- Dover School Board member John Rowand (Washington Post, Dec 26, 2004, p A01)
"Our country was founded on Christianity and our children should be taught as such." -- Board Member William Buckingham (Washington Post, Dec 26, 2004, p A01)
"Nearly 2000 years ago, someone died on the cross for us. Shouldn't we have the courage to stand up for him?" -- Board Member William Buckingham (New York Times, Jan 16, 2005)
"Our country was founded on Christian beliefs and principles. . . . You can teach creationism without it being Christianity. It can be presented as a higher power." -- Board Member Heather Geesey (York Daily Record, June 27, 2004)
The Discovery Institute was lukewarm about the case right from the beginning, and was particularly wary since the Dover board members had made so many public religious comments: "Although Discovery Institute believes that there are a number of secular purposes in teaching students about intelligent design, it was not evident whether the Dover board had based its policy on these purposes." (Discovery Institute press release, Nov 4, 2005) The Thomas More Law Center planned to call prominent IDers William Dembski, Stephen Meyer, Michael Behe, John Angus Campbell and Scott Minnich as "expert witnesses". During the deposition process, however, problems arose that quickly led to a split. Just before their depositions, Dembski, Meyer and Campbell were all fired (or left) as experts. Behe and Minnich had already been deposed -- the Discovery Institute apparently wanted them to withdraw from the case too, but both decided to stay.
It is still not entirely clear what happened. Dembski, it turned out, had close ties to the Pandas book -- he worked as an editor for the Foundation for Thought and Ethics, the publisher of Pandas, and in fact was himself writing a section of the newest version of the book, which was already in the works. In addition, as Barbara Forrest noted in an online interview with Americans United, "Although the website is registered under the organizational name, William Dembski is the administrative contact, and the FTE mailing address is actually Dembski’s." (Forrest, AU website, Feb 2005) Dembski's version of the split goes:
The Thomas More Law Center, a public interest law firm which had hired me as an expert witness, did not want the Foundation for Thought and Ethics, which publishes the ID textbook that under dispute in the Dover case (Of Pandas and People) and for which I am the academic editor, to provide me with additional legal counsel when the ACLU was to depose me on June 13th. I expect I would have gone along with the Thomas More Law Center, except that they were prepared to let Stephen Meyer have legal representation. This put me in an impossible situation with my employer FTE — how was I to justify to FTE my refusal to let their attorney be present when Thomas More was permitting Discovery to have additional legal counsel present for Stephen Meyer? When I indicated that I would need to have FTE’s counsel at the deposition, the Thomas More Law Center fired me as an expert witness. (Dembski, Uncommon Descent, June 19, 2005)
TMLC's Richard Thompson gave his version during a panel discussion at the American Enterprise Institute on October 21, 2005, while the Dover trial was still going on. The participants included Thompson, Mark Ryland of Discovery Institute, and Kenneth Miller, the anti-ID author who was serving as an expert witness against design "theory". During the forum, the following conversation took place:
MODERATOR (Jon Entine): I am curious about the Discovery Institute's involvement in the Dover case, where originally they were slated three people, affiliated with the institute were slated to give depositions, and then obviously pulled out. There was some kind of dispute about legal strategy, perhaps. And I want you to address that, because I think there is some belief, at least expressed in various newspaper articles, that there was a concern by the Discovery Institute that if this issue is decided on science, that intelligent design would be ruled as religion and therefore would fall under the Establishment Cause and therefore would be banned from being taught in science classes.
So, for fear of that almost inevitability happening, the Discovery Institute repositioned itself for tactical reasons, to be against, for teaching the controversy perhaps in nonscientific settings. I just wanted you to respond.
MARK RYLAND (DI): Sure, I'd be happy to respond. Let me back up first and say: The Discovery Institute never set out to have a school board, schools, get into this issue. We've never encouraged people to do it, we've never promoted it. We have, unfortunately, gotten sucked into it, because we have a lot of expertise in the issue, that people are interested in.
When asked for our opinion, we always tell people: don't teach intelligent design. There's no curriculum developed for it, you're teachers are likely to be hostile towards it, I mean there's just all these good reasons why you should not to go down that path. If you want to do anything, you should teach the evidence for and against Darwin's theory. Teach it dialectically.
And despite all the hoopla you've heard today, there is a great deal of -- many, many problems with Darwin's theory, in particular the power of NS and RV to do the astounding things that are attributed to them. The new demonology, as one philosopher calls it, the selfish gene can do anything.
So that's the background. And what's happened in the foreground was, when it came to the Dover school district, we advised them not to institute the policy they advised. In fact, I personally went and met with them, and actually Richard was there the same day, and they didn't listen to me, that's fine, they can do what they want, I have no power and control over them. But from the start we just disagreed that this was a good place, a good time and place to have this battle -- which is risky, in the sense that there's a potential for rulings that this is somehow unconstitutional.
That's basically from an institutional perspective what I can say and what I know. Now, individuals associated with the Discovery Institute were then, had got involved in, the possibility of becoming expert witnesses in the case. And I don't, as far as I know there was no institutional decision made one way or the other, but I think it was the case that those individuals felt they had somewhat different legal interests being -- it was often because they were both expert witnesses, but usually fact witnesses as well, about things like the history of the intelligent design movement. So they wanted to have their own lawyers involved with depositions, and I believe there was an argument, a disagreement about that. I think that was the reason why they decided not to participate.
MODERATOR: Ken, I wanted --
RICHARD THOMPSON (TMLC): I, I think I should respond...
Mod: You can respond, and then I wanted -- that's fine.
RICHARD THOMPSON (TMLC): ...just because [something] the Thomas More Law Center. First of all, Stephen Meyer, who is he, he is you're, is he the president?
MARK RYLAND (DI): He is the Director of the Center for Science and Culture.
RICHARD THOMPSON (TMLC): Okay, and David DeWolf is a Fellow of the Discovery Institute.
MARK RYLAND (DI): Right.
RICHARD THOMPSON (TMLC): They wrote a book, titled "Intelligent Design in Public School Science Curricula." The conclusion of that book was that, um:
"Moreover, as the previous discussion demonstrates, school boards have the authority to permit, and even encourage, teaching about design theory as an alternative to Darwinian evolution -- and this includes the use of textbooks such as Of Pandas and People that present evidence for the theory of intelligent design." ...and I could go further. But, you had Discovery Institute people actually encouraging the teaching of intelligent design in public school systems. Now, whether they wanted the school boards to teach intelligent design or mention it, certainly when you start putting it in writing, that writing does have consequences.
In fact, several of the members, including Steve Meyer, agreed to be expert witnesses, also prepared expert witness reports, then all at once decided that they weren't going to become expert witnesses, at a time after the closure of the time we could add new expert witnesses. So it did have a strategic impact on the way we could present the case, 'cause they backed out, when the court no longer allowed us to add new expert witnesses, which we could have done.
Now, Stephen Meyer, you know, wanted his attorney there, we said because he was an officer of the Discovery Institute, he certainly could have his attorney there. But the other experts wanted to have attorneys, that they were going to consult with, as objections were made, and not with us. And no other expert that was in the Dover case, and I'm talking about the plaintiffs, had any attorney representing them.
So that caused us some concern about exactly where was the heart of the Discovery Institute. Was it really something of a tactical decision, was it this strategy that they've been using, in I guess Ohio and other places, where they've pushed school boards to go in with intelligent design, and as soon as there's a controversy, they back off with a compromise. And I think what was victimized by this strategy was the Dover school board, because we could not present the expert testimony we thought we could present
MODERATOR: Can I just say one thing, now I want to let Ken have his shot, and then, I think, we'll come back.
KEN MILLER: Do we have to? I'm really enjoying this. (Laughter; MR says "sure, yeah!") That is the most fascinating discussion I've heard all day. (Laughter.) This is, wow. (NCSE website, http://www.ncseweb.org/resources/news/2005/US/98_discovery_institute_and_thomas_10_23_2005.asp)
The Discovery Institute gave its story:
"Mr. Thompson blames Discovery Institute for the non-participation of Discovery Institute Fellows Stephen Meyer, William Dembski, and John Angus Campbell as expert witnesses on behalf of the Dover board. However, the non-participation of these scholars was due to Thomas More, which discharged them. Meyer, Dembski and Campbell were all willing to testify as expert witnesses. They simply requested that they have their own counsel present at their depositions in order to protect their rights. Yet Thomas More would not permit this. Mr. Thompson has been quoted in media accounts as stating that to permit independent counsel to assert the witnesses' rights would create a "conflict of interest" -- a claim for which he can offer no legal justification. When the witnesses refused to proceed without legal counsel to protect them, Thomas More canceled the deposition of Prof. Campbell and effectively fired all three expert witnesses. After dismissing its own witnesses, Thomas More made an 11th-hour offer to Dr. Meyer alone to allow him to have counsel after all. But Meyer declined the offer because the previous actions of Thomas More had undermined his confidence in their legal judgment." (Discovery Institute press release, Nov 4, 2005)
The DI's sensitivity over the Foundation for Thought and Ethics may have had something to do with FTE's own attempts to join the lawsuit as a defendant. In May 2005, the FTE filed a motion to join the case on the grounds that it had an economic interest in the Pandas book which would be adversely effected if the Kitzmiller case were to rule that ID is religious and is illegal to teach. Judge Jones concluded that FTE had nothing new or relevant to bring to the case, and rejected the motion in July.
Although the motion for FTE to join the case was rejected, the testimony that was given in support of the motion revolved around the Of Pandas and People book, and it turned out to be central to the trial. The National Center for Science Education, a national anti-ID watchdog group, maintained an extensive archive of materials pertaining to virtually every ID text ever published. One of these was Pandas, and in its files, NCSE found a 1987 book proposal to a larger publisher, offering them the opportunity to publish Pandas (then known under the title Biology And Origins), and describing the book as supporting "creation". Nick Matzke, who was serving as NSCE's liaison to the Kitzmiller legal team, wondered if these pre-Aguillard manuscripts about "creation" had mutated, after the Aguillard ruling, into manuscripts about "intelligent design". If so, this would help establish a direct link between ID and creation "science". (It was already known that both of the co-authors of Pandas were creationists -- indeed, one of them, Percival Davis, had also co-authored A Case for Creation with young-earther Wayne Frair, who had testified for the creationists at Arkansas; the other co-author, Dean Kenyon, had written the foreward to Morris and Parker's What is Creation Science?, and had also filed a deposition defending creationism for the Louisiana trial). During the "discovery" phase of the Dover trial, in which each side is obliged to turn over to the other all requested documents that are relevant to the issue at hand, therefore, the plaintiffs asked for copies of any existing draft versions of what was to become Of Pandas and People. It turned out that all of these drafts still existed; the first, in 1983, was titled Creation Biology; the second in 1986 was titled Biology and Creation; another version titled Biology And Origins was written in 1987; two different versions with the title Of Pandas and People both were written in 1987. The final draft was published in 1989, and a revised edition was published in 1993. Another expanded version, with the working title The Design of Life, was being drafted at the time of the trial.
In the summer of 2005, the plaintiffs received the early drafts from 1983-1993. They were dynamite.
When FTE President Jon Buell testified at a pre-trial hearing concerning his motion to have FTE added to the case as a defendant, the plaintiffs first questioned him about whether FTE, which published Pandas, was a religious organization:
Q Now, you testified today that the Foundation does not have a religious agenda or motive, correct?
A That's right.
MR. ROTHSCHILD: Your Honor, I would like to mark another exhibit.
BY MR. ROTHSCHILD:
Q Mr. Buell, do you recognize the document I've given you, which is the second exhibit today, a Form 990, Return of Organization Exempt from Income Tax for 2003 to be a document filed by the Foundation?
A Yes, I do. . . .
Q And the explanation that the Foundation provides to the IRS is that its primary exempt purpose is promoting and publishing textbooks presenting a Christian perspective, isn't that right?
A That's what it says.
Q Okay. And Pandas is one of those publications, isn't it?
A No, Pandas doesn't fit this because this is not an accurate statement.
Q Okay. This --
A This statement was -- we had a new CP A do our 990 and audit we had never used before. He wasn't even from the state of Texas. He was not familiar with us. You know, I neither saw that statement, nobody gave him that information, and I didn't -- I certainly didn't approve it.
Q Okay. So -- and so this statement that's filed with the IRS so that the Foundation can be exempt from paying income tax is false; is that what you're saying?
A Well, I'm saying that I didn't see that statement.
Q And just if you could turn to the preceding page of the document, those are your initials on the page, aren't they, towards the bottom of the page?
A Yes.
Q Now, your counsel brought up your articles of incorporation and I'd like to show those to you as well. These are the articles of incorporation that the Foundation filed with the state of Texas. . . . And on the second page of the document there's a signature space with your signature on it?
A On the second page of the document? Yes, uh-huh, I see it.
Q If you go to the third page of the document, it identifies the purposes for the -- for which the corporation was formed?
A Right.
Q And what it states is that the primary purpose is both religious and educational, and then it talks about making known the Christian gospel and understanding of the Bible?
A Yes.
Q Is it your testimony that that's also an inaccurate submission?
A It was boilerplate that the attorney that was helping us become established used. I felt that it was inappropriate. He said we need to be clear in identifying yourself as having a genuine nonprofit purpose, and so the language that originated with me is the phrase, "but is not limited to."
Q And everything else was the attorney's?
A Yes, most of it, I think nearly all of it, possibly all of it.
Q So the accountant got it wrong and the attorney got it wrong?
A It's true. (Kitzmiller v Dover transcript)
After establishing that FTE was a religious organization with religious aims, Rothschild then went on to establish that Pandas itself was written for an explicitly religious purpose:
Q Mr. Buell, this document is something that was pulled off the Internet, but you recognize it as a purpose statement for the Foundation that used to be distributed?
A Yes. I don't actually -- I don't actually remember this statement, but it's obviously an FTE statement.
Q And in this statement it says, "The Foundation for Thought and Ethics has been established to introduce Biblical perspective into the mainstream of America's humanistic society, confronting the secular thought of modern man with the truth of God's word."
A Yes, that's right.
Q And then it talks about how there would be a public -- a textbook published which will present the scientific evidence for creation side by side with evolution.
A Yes, and this, by the way, was written before -- I can just tell from the language, this was very early, before the National Academy defined the term creation science. So the terms of art that are in play today were not in existence at that time.
Q This was just your use of the word creation?
A Yes, right.
Q And into the third paragraph it describes the Foundation as a Christian think tank, correct?
A Yes. I would say in contrast to that, there's what we've done for over 25 years, which is not to be a Christian think tank, but to actually engage in primary works of science.
Q And that includes Pandas, correct?
A It includes Pandas, yes.
MR. ROTHSCHILD: Next exhibit, Your Honor.
BY MR. ROTHSCHILD:
Q You recognize this as a letter that you wrote to raise funds for the Foundation?
A Yes, I do.
Q And this is written in 1995, well into the Foundation's 25 year existence?
A Ah-hah, um-hum.
Q And just, Mr. Buell, so the record is clear, if you can say yes.
A I'm sorry, yes.
Q Not a problem.
And this letter was written after both editions of Pandas had been published, correct?
A That is correct.
Q And in fact it mentions Pandas, right, the letter?
A Yes, it does.
Q And at the bottom of the first page, what it says is, "Our commitment is to see the monopoly of naturalistic curriculum in the schools broken. Presently school curriculum reflects a deep hostility to traditional Christian views and values, and indoctrinates students to this mindset through subtle but persuasive arguments."
Do you see that?
A I see that.
Q That's what you wrote, correct?
A Yes. (Buell testimony, Kitzmiller transcript)
Then, Rothschild went on to demonstrate that Pandas had initially started out as a book about creation "science", and only after the Supreme Court's Aguillard ruling did it transform into a book about "intelligent design" --- and then merely by substituting the words "intelligent design" for "creation" wherever they occurred:
Q And just to prod ourselves here, if you turn to the second page, there's mention of a book called Biology and Origins, is that right?
A Yes.
Q And Biology and Origins was the working title for the book that became Pandas, correct?
A Well, it was the field test edition that was used prior to the publication of the book.
Q There aren't two different books. This is the book that eventually, after field testing, became Pandas, correct?
A Right. . . .
Q Actually in this version of the book it describes who creationists are, doesn't it, if you look at pages 22 and 23 and 24. It says there's different types of creationist's literature. There are older creationists, younger creationists, agnostic creationists, right?
A Yes. We were trying to give some articulation to the breadth of what that term means.
Q And then if you could turn back to page 22, you explain that "Creation is the theory that various forms of life began abruptly, with their distinctive features already intact: Fish with fins and scales, birds with feathers and wings, mammals with fur and mammary glands."
That's how you defined creation, correct?
A Yes.
Q All right. And I would like to take -- you to take a look at an excerpt from Pandas and People. Turn to page 99 in the excerpt I gave you.
A All right.
Q Says, "Intelligent design means that various forms of life began abruptly through an intelligent agency, with their distinctive features already intact: Fish with fins and scales, birds with feathers, beaks and wings, et cetera."
Do you see that?
A I see it.
Q So that's pretty much the exact same sentence substituting creation for intelligent design, isn't that right?
A The reason that you find the similarity in the two passages is because this obviously was at a time when we were developing the manuscript. We had not chosen the term "intelligent design" at that point. We were trying to -- this was just a place holder term until we came to grips with which of the plausible two or three terms that are in scientific literature we would settle on. And that was the last thing we did before the book was revise -- I mean was sent to the publisher.
Q It was creation, creation, creation until the end and then it was intelligent design. (Buell testimony, Kitzmiller transcript)
Exhibits introduced at the trial made the abrupt change of Pandas after the 1987 Supreme Court ruling quite clear:
"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." (Biology and Creation 1986, FTE 3014-3015, pp. 2-13, 2-14)
"Creation means that 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." (Biology and Origins 1987, FTE 3235, 3237, p. 2-13, 2-14)
"Creation means that 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." (Pandas 1987, FTE 4996-4997, pp. 2-14, 2-15)
"Intelligent design means that various forms of life began abruptly through an intelligent agency, with their distinctive features already intact—fish with fins and scales, birds with feathers, beaks, and wings, etc." (Pandas 1987, FTE 4666-4667, pp. 2-14, 2-15)
"Intelligent design means that various forms of life began abruptly through an intelligent agency, with their distinctive features already intact — fish with fins and scales, birds with feathers, beaks, and wings, etc." (Pandas 1989, 1st edition, published, pp. 99-100)
"Intelligent design means that various forms of life began abruptly through an intelligent agency, with their distinctive features already intact — fish with fins and scales, birds with feathers, beaks, and wings, etc." (Pandas 1993, 2nd edition, published, pp. 99-100)
As Burt Humburg and Ed Brayton wrote in their post-trial account published in eSkeptic, "This was truly a “Eureka!” moment for the plaintiff’s team. Here was undeniable proof that Pandas had begun as a creationist textbook and, after the Edwards ruling ruled creationism out of schools, the creationists simply changed their terminology, replacing “creation” with “intelligent design” and giving both terms an identical definition. This provided substantial evidence that intelligent design was simply creationism retrofitted to adapt to modern court rulings." (http://www.skeptic.com/eskeptic/05-12-20.html)
The trial opened on September 26, 2005, and both sides declared their intentions in their opening statements. Plaintiff attorney Eric Rothschild pointedly noted:
Eighteen years ago, the United States Supreme Court, in Edwards versus Aguillard, held that public schools could not teach students creation science because that proposition's core concept of a supernatural creator is religious, not scientific, and therefore violates the establishment clause of the First Amendment to the United States Constitution. The Court recognized that the teaching of creation science was motivated by a religious and cultural agenda, not the improvement of scientific education.
What we will prove at this trial is that the Dover board policy has the same characteristics and the same constitutional defects as the creation science policy struck down in Edwards. . . . What the board did was add creationism to the biology curriculum under its new name, intelligent design.
They have tried forbidding the teaching of evolution, promoting creationism or creation science as an alternative to evolution, and singling out evolution for special criticism. Each of those tactics have been found unconstitutional by courts. Confronted with that inhospitable legal environment, creationists have adapted to create intelligent design, creationism with the words "God" and "Bible" left out. (Rothschild Opening Statement, Kitzmiller v Dover)
TMLC lawyer Patrick Guillen declared:
This case is about free inquiry in education, not about a religious agenda.
The evidence will show that while students are taught evolutionary theory, they are merely made aware of the existence of another theory, the intelligent design theory, and that while students are assigned a basal text that presents evolutionary theory, they're merely made aware of the existence of a reference text in the library that deals with intelligent design theory, if they care to check it out.
Your Honor, the evidence will also demonstrate that the board quite rightly concluded that its modest curriculum change would, in fact, enhance the biology curriculum and that the primary effect of their policy would be to advance science education, not religion.
Defendants' expert will show this Court that intelligent design theory, IDT, is science, a theory that's advanced in terms of empirical evidence and technical knowledge proper to scientific and academic specialties. It is not religion. . . . Indeed, the evidence will further show that intelligent design theory is really science in its purest form, the refusal to foreclose possible explanations based on the claims of the dominant theory or the conventions of the day, to proceed from the same sort of perspective that led Newton to explore and ultimately explicate gravity. (Guillen Opening Statement, Kitzmiller v Dover)
Testimony in the case lasted over a month.
During the testimony, some more information came to light about the "anonymous donation" of Pandas to the library. In late July 2004, Dover board member William Buckingham contacted the Thomas More Law Center to get legal advice about teaching creationism/ID. Richard Thompson offered to have TMLC represent the district, and it was from Thompson that Buckingham first heard about the ID textbook Of Pandas and People. Just before the Dover board met in August 2004 to discuss new biology textbooks, Buckingham suggested that Pandas be bought as a "supplemental text", a suggestion that was repeated by board president Sheila Harkins. At the August meeting, Buckingham flatly refused to approve any biology books unless Pandas was also purchased. The board passed a motion to purchase biology books, but did not recommend purchasing Pandas. A short while later, a total of 60 copies of Pandas appeared as an "anonymous donation".
In their depositions, taken under oath in preparation for the trial, board members Buckingham and Alan Bonsell both denied that they knew anything about the source of the donation. However, during his testimony at the trial, Bonsell admitted that they were the source of the donation. Bonsell now admitted that Buckingham had made a speech at his church asking for donations to purchase the books, that Buckingham himself had collected the money, and then had given a check for $850 to Bonsell, made out to Bonsell's father, who then used that money to actually buy the books.
At this point, as Bonsell was telling this story, the Judge made a move that is very rare and unusual in trials, and exercised his right to question the witness directly:
Q. When did you first become aware of the fact that your father was in possession of the $850.00 that was being donated to buy Of Pandas and People?
A. Well, Mr. Buckingham gave the check to me to pass to my father. He said this was money that he collected for donations to the book. So I gave it to him.
Q. So you were the conduit --
A. Yeah.
Q. -- by which your father received the $850.00?
A. Yes.
Q. Tell me why, in January of 2005, you didn't tell Mr. Rothschild on his repeated questioning that your -- that Mr. Buckingham was involved in that exchange?
A. Basically because I understood the question to be, who donated the books? Do you know anybody that donated? I only knew my father was the one that donated the books. I am still to this day convinced, you know, that Mr. Buckingham didn't give any money towards the books.
He said to me, this is money that he collected towards the books. And I didn't ask him. You know, he didn't say -- if he would have said, some of this money is mine, or I put 50 bucks in the pot, or I did this, I would have told Mr. Rothschild at that time.
Q. The specific question was asked to you, sir: You have never spoken to anyone -- anybody else who was involved with the donation? And your answer was, I don't know the other people. That didn't say, who donated? That said, who was involved with the donation?
A. Okay. I'm sorry. What --
Q. Why did you -- I'm on page 16.
A. Okay.
Q. Line 9. That didn't say, who donated? That said, who was involved in the donation? Now you tell me why you didn't say Mr. Buckingham's name.
A. Then I misspoke. Because I was still under -- from behind -- wait a second. I -- well, I'm going back here -- and so, yeah, that's my fault, Your Honor, because that's not -- in that case, I would have -- I should have said, Mr. Buckingham.
Q. Tell me again why you gave the money to your father. Why did you utilize your father as the ultimate recipient -- not the ultimate recipient, but as a conduit for this money?
A. Why he was the conduit?
Q. You took the money from Mr. Buckingham, if I understand it. You turn it over to your father. Is that correct?
A. Yes. Yes, sir.
Q. Because the check was made specifically to your father. Why was your father involved?
A. He agreed to -- he said that he would take it, I guess, off the table or whatever, because of seeing what was going on, and with Mrs. Callahan complaining at the board meetings not using funds or whatever.
Q. Why couldn't you use Mr. Buckingham's check? What was the difference?
A. My father was the one that agreed to do the books.
Q. I understand that.
A. And that basically anybody, you know, if somebody wanted to give money, they could give money to him. He just passed, you know --
Q. Now the way I understand it from Mr. Buckingham's testimony, Mr. Buckingham stood up in front of his church. Mr. Buckingham, despite testimony which was somewhat confusing, obviously, apparently made a plea for funds for this book. Mr. Buckingham received in addition to, apparently, his own contribution funds, which totaled $850.00. Why couldn't Mr. Buckingham's check be used? Why did your father have to be involved?
A. I guess it could have been used, but put the thing is, the money was going to him, and he was purchasing the books. And I think it was basically, if somebody gave money, fine. If not, he was going to buy the books. He was going to do it himself.
Q. You don't know why Mr. -- in other words, you don't know why Mr. Buckingham couldn't just purchase the books directly? Is that what you're telling me? Because I still haven't heard an answer as to why your father -- why the funds had to be paid first to Mr. Buckingham, why Mr. Buckingham couldn't write a check. Why did he have to give the funds to your father? I still haven't heard an answer.
A. I guess he wouldn't have had to give the funds to my father. It's just that he was -- he had made -- he had made the --
Q. Who's he?
A. My father. He had made the -- oh, I don't know what word I'm looking for. He said that he would get -- donate the books, you know. So basically, I guess, he asked -- I guess you're saying, Mr. Buckingham went before his church. He collected money --
Q. You were here. You heard Mr. Buckingham.
A. He collected the money. And just -- because -- he had the check, gave me the money, I gave it to my father.
Q. I still haven't heard an answer from you as to why your father was the recipient of this money. Tell me why.
A. Because he's the one that said he would donate the books.
Q. It wasn't -- the money did not belong to your father. It came from Mr. Buckingham. He didn't donate the books. He received money from Mr. Buckingham that Mr. Buckingham received through donations from his church. Your father, unless I'm missing something, did not donate the books. He was the recipient of donated money and purchased the books.
A. No, but my father donated money towards the books. It's just that people had given money, and if -- basically, if no one had given a penny, my father would have bought all the books. So he must have went out and said, you know, if you want to give money, Mr. Bonsell is -- and so that's why the check is in his name, because the money was going to him. He was buying the books. So he did put money towards the books, and he would have bought all the books.
Q. Now you were under oath. You know you were under oath on January the 3rd of 2005, is that correct?
A. Yes.
Q. And your reason that you didn't mention Mr. Buckingham's name on January 3rd of 2005 is because you said you misspoke?
A. I was under the impression, Your Honor -- I was under the impression -- they were asking me who -- do you know anybody else? I mean, because I'm the one that brought my father forward in the testimony. I said, it was my father. He was the only one that I knew that put money towards the books. Because, to be honest -- I mean, truthfully, I did not know that Mr. Buckingham gave any money towards those books. I would have said that. I would have said that. Now like I said --
Q. You knew on January 3rd that Mr. Buckingham had possession of funds that he received from his church, didn't you?
A. Not from his church, no.
Q. You knew that Mr. Buckingham had received funds, which he turned over to your father, from someplace?
A. Oh, yes.
Q. Do you have any explanation for why Mr. Buckingham in this same series of depositions in January of 2005 also failed to admit that he was involved in soliciting money for the purchasing of this book? Do you have any explanation for that?
A. Why he said he wouldn't solicit money? I don't know.
Q. Were you here for Mr. Buckingham's testimony?
A. I heard part of it.
Q. Well, let me represent to you that Mr. Buckingham testified in June of 2005 in his deposition that he didn't know where the money came from. Do you have any explanation for why that is?
A. I don't have any explanation for that.
THE COURT: All right. Those are the questions I have. (Bonsell testimony, Kitzmiller v Dover, 2005)
When the Judge issued his crushingly detailed 139-page decision in the case, in December 2005, it was immediately apparent why he had questioned Bonsell so closely:
The inescapable truth is that both Bonsell and Buckingham lied at their January 3, 2005 depositions about their knowledge of the source of the donation for Pandas . . . . This mendacity was a clear and deliberate attempt to hide the source of the donations by the Board President and the Chair of the Curriculum Committee to further ensure that Dover students received a creationist alternative to Darwin’s theory of evolution. We are accordingly presented with further compelling evidence that Bonsell and Buckingham sought to conceal the blatantly religious purpose behind the ID Policy. (Jones Opinion, 2005)
The Judge further concluded that Dover board members had lied about other matters as well:
"Although Baksa claims he does not recall Bonsell identifying “creationism” as the subject with which he wanted to share equal time with evolution, nor that Bonsell mentioned “creationism” at any time up until April 1, 2003, we do not find his testimony on this point to be credible."
"It is notable, and in fact incredible that Bonsell disclaimed any interest in creationism during his testimony, despite the admission by his counsel in Defendants’ opening statement that Bonsell had such an interest. Simply put, Bonsell repeatedly failed to testify in a truthful manner about this and other subjects."
"Buckingham told Callahan that the book was “laced with Darwinism” and spoke in favor of purchasing a textbook that included a balance of creationism and evolution. With surprising candor considering his otherwise largely inconsistent and non-credible testimony, Buckingham did admit that he made this statement."
"Finally, although Buckingham, Bonsell, and other defense witnesses denied the reports in the news media and contradicted the great weight of the evidence about what transpired at the June 2004 Board meetings, the record reflects that these witnesses either testified inconsistently, or lied outright under oath on several occasions, and are accordingly not credible on these points." (Jones Opinion, 2005)
In his ruling, the Judge concluded that Intelligent Design was indeed nothing more than creation "science", rehashed in an attempt to get around the Supreme Court's ruling:
"The concept of intelligent design (hereinafter “ID”), in its current form, came into existence after the Edwards case was decided in 1987. For the reasons that follow, we conclude that the religious nature of ID would be readily apparent to an objective observer, adult or child."
"Dramatic evidence of ID’s religious nature and aspirations is found in what is referred to as the “Wedge Document.” The Wedge Document, developed by the Discovery Institute’s Center for Renewal of Science and Culture (hereinafter “CRSC”), represents from an institutional standpoint, the IDM’s goals and objectives, much as writings from the Institute for Creation Research did for the earlier creation-science movement, as discussed in McLean. The Wedge Document states in its “Five Year Strategic Plan Summary” that the IDM’s goal is to replace science as currently practiced with “theistic and Christian science.” As posited in the Wedge Document, the IDM’s “Governing Goals” are to “defeat scientific materialism and its destructive moral, cultural, and political legacies” and “to replace materialistic explanations with the theistic understanding that nature and human beings are created by God.” The CSRC expressly announces, in the Wedge Document, a program of Christian apologetics to promote ID. A careful review of the Wedge Document’s goals and language throughout the document reveals cultural and religious goals, as opposed to scientific ones. ID aspires to change the ground rules of science to make room for religion, specifically, beliefs consonant with a particular version of Christianity. In addition to the IDM itself describing ID as a religious argument, ID’s religious nature is evident because it involves a supernatural designer. The courts in Edwards and McLean expressly found that this characteristic removed creationism from the realm of science and made it a religious proposition."
"The evidence at trial demonstrates that ID is nothing less than the progeny of creationism. What is likely the strongest evidence supporting the finding of ID’s creationist nature is the history and historical pedigree of the book to which students in Dover’s ninth grade biology class are referred, Pandas. Pandas is published by an organization called FTE, as noted, whose articles of incorporation and filings with the Internal Revenue Service describe it as a religious, Christian organization. Pandas was written by Dean Kenyon and Percival Davis, both acknowledged creationists, and Nancy Pearcey, a Young Earth Creationist, contributed to the work. As Plaintiffs meticulously and effectively presented to the Court, Pandas went through many drafts, several of which were completed prior to and some after the Supreme Court’s decision in Edwards, which held that the Constitution forbids teaching creationism as science. By comparing the pre and post Edwards drafts of Pandas, three astonishing points emerge: (1) the definition for creation science in early drafts is identical to the definition of ID; (2) cognates of the word creation(creationism and creationist), which appeared approximately 150 times were deliberately and systematically replaced with the phrase ID; and (3) the changes occurred shortly after the Supreme Court held that creation science is religious and cannot be taught in public school science classes in Edwards. This word substitution is telling, significant, and reveals that a purposeful change of words was effected without any corresponding change in content, which directly refutes FTE’s argument that by merely disregarding the words “creation” and “creationism,” FTE expressly rejected creationism in Pandas. In early pre-Edwards drafts of Pandas, the term “creation” was defined as “various forms of life that began abruptly through an intelligent agency with their distinctive features intact – fish with fins and scales, birds with feathers, beaks, and wings, etc,” the very same way in which ID is defined in the subsequent published versions. This definition was described by many witnesses for both parties, notably including defense experts Minnich and Fuller, as “special creation” of kinds of animals, an inherently religious and creationist concept."
"The weight of the evidence clearly demonstrates, as noted, that the systemic change from “creation” to “intelligent design” occurred sometime in 1987, after the Supreme Court’s important Edwards decision. This compelling evidence strongly supports Plaintiffs’ assertion that ID is creationism re-labeled." (Jones Opinion, 2005)
The Judge also concluded that Intelligent Design "theory" was not science and had nothing scientific to offer:
"ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (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. As we will discuss in more detail below, it is additionally important to note that ID has failed to gain acceptance in the scientific community, it has not generated peer-reviewed publications, nor has it been the subject of testing and research."
"Accordingly, the purported positive argument for ID does not satisfy the ground rules of science which require testable hypotheses based upon natural explanations. ID is reliant upon forces acting outside of the natural world, forces that we cannot see, replicate, control or test, which have produced changes in this world. While we take no position on whether such forces exist, they are simply not testable by scientific means and therefore cannot qualify as part of the scientific process or as a scientific theory."
"We find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community. ID, as noted, is grounded in theology, not science. Accepting for the sake of argument its proponents’, as well as Defendants’ argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum. Moreover, ID’s backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID." (Jones Opinion, 2005)
"The overwhelming evidence at trial," Judge Jones concluded, "established that ID is a religious view, a mere re-labeling of creationism, and not a scientific theory":
"Although proponents of the IDM 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 by members of the IDM, including Defendants’ expert witnesses."
"A significant aspect of the IDM is that despite Defendants’ protestations to the contrary, it describes ID as a religious argument. In that vein, the writings of leading ID proponents reveal that the designer postulated by their argument is the God of Christianity."
"Moreover, in turning to Defendants’ lead expert, Professor Behe, his testimony at trial indicated that ID is only a scientific, as opposed to a religious, project for him; however, considerable evidence was introduced to refute this claim. Consider, to illustrate, that Professor Behe remarkably and unmistakably claims that the plausibility of the argument for ID depends upon the extent to which one believes in the existence of God. As no evidence in the record indicates that any other scientific proposition’s validity rests on belief in God, nor is the Court aware of any such scientific propositions, Professor Behe’s assertion constitutes substantial evidence that in his view, as is commensurate with other prominent ID leaders, ID is a religious and not a scientific proposition."
"Defendants’ expert witness ID proponents confirmed that the existence of a supernatural designer is a hallmark of ID. First, Professor Behe has written that by ID he means “not designed by the laws of nature,” and that it is “implausible that the designer is a natural entity.” Second, Professor Minnich testified that for ID to be considered science, the ground rules of science have to be broadened so that supernatural forces can be considered. Third, Professor Steven William Fuller testified that it is ID’s project to change the ground rules of science to include the supernatural. Turning from defense expert witnesses to leading ID proponents, Johnson has concluded that science must be redefined to include the supernatural if religious challenges to evolution are to get a hearing. Additionally, Dembski agrees that science is ruled by methodological naturalism and argues that this rule must be overturned if ID is to prosper."
"It is notable that not one defense expert was able to explain how the supernatural action suggested by ID could be anything other than an inherently religious proposition. Accordingly, we find that ID’s religious nature would be further evident to our objective observer because it directly involves a supernatural designer."
"It is notable that defense experts’ own mission, which mirrors that of the IDM itself, is to change the ground rules of science to allow supernatural causation of the natural world, which the Supreme Court in Edwards and the court in McLean correctly recognized as an inherently religious concept. First, defense expert Professor Fuller agreed that ID aspires to “change the ground rules” of science and lead defense expert Professor Behe admitted that his broadened definition of science, which encompasses ID, would also embrace astrology. Moreover, defense expert Professor Minnich acknowledged that for ID to be considered science, the ground rules of science have to be broadened to allow consideration of supernatural forces."
"ID is at bottom premised upon a false dichotomy, namely, that to the extent evolutionary theory is discredited, ID is confirmed. This argument is not brought to this Court anew, and in fact, the same argument, termed “contrived dualism” in McLean, was employed by creationists in the 1980's to support “creation science.” " (Jones Opinion, 2005)
The Judge also concluded that the attempt by several witnesses to lie to the Court indicated that they were also dishonest about their real aims and goals:
"Although Defendants attempt to persuade this Court that each Board member who voted for the biology curriculum change did so for the secular purposed of improving science education and to exercise critical thinking skills, their contentions are simply irreconcilable with the record evidence. Their asserted purposes are a sham."
"Finally, although Defendants have unceasingly attempted in vain to distance themselves from their own actions and statements, which culminated in repetitious, untruthful testimony, such a strategy constitutes additional strong evidence of improper purpose under the first prong of the Lemon test."
"Any asserted secular purposes by the Board are a sham and are merely secondary to a religious objective."
"Defendants’ previously referenced flagrant and insulting falsehoods to the Court provide sufficient and compelling evidence for us to deduce that any allegedly secular purposes that have been offered in support of the ID Policy are equally insincere. Accordingly, we find that the secular purposes claimed by the Board amount to a pretext for the Board’s real purpose, which was to promote religion in the public school classroom, in violation of the Establishment Clause." (Jones Opinion, 2005)
Judge Jones bluntly concluded his ruling by stating:
"The citizens of the Dover area were poorly served by the 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."
"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 breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources."
"The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board’s ID Policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents." (Jones Opinion, 2005)
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