Legal Teams Square

The plaintiffs' legal team included two civil liberties organizations, the Pennsylvania affiliate of the ACLU and Americans United for Separation of Church and State (AU). It also included the large Philadelphia-based law firm of Pepper Hamilton LLP, and a consultant, the National Center for Science Education (NCSE). The school district was defended by the Thomas More Law Center (TMLC); its regular attorney had warned it not to adopt the antievolution policy. The Discovery Institute (DI), the leading ID organization in the country, began corresponding with Buckingham and another board member, Alan Bonsell, in June 2004, and members of its staff and DI fellows were involved early in the case as expert witnesses. But later, the DI and the TMLC parted ways—according to the director of the TMLC, Richard Thompson—because personnel associated with the DI insisted on having their own attorneys present at pretrial depositions (NCSE 2005).

The claim of the plaintiffs was that the board's policies requiring the teaching of ID violated the First Amendment ban on the promotion of religion in the public schools, because ID was an inherently religious doctrine. In defense, the district's attorneys had to show that the policies were passed not to promote religion but to improve science education. The defense would argue that large numbers of scientists were questioning evolution, and that students should be able to think critically about its so-called gaps and problems. The defense would contend that any religious implications of ID were incidental to ID as a valid science—the claimed secular reason for teaching ID. Demonstrating that ID was an up-and-coming scientific field thus formed a major component of the defense's strategy.

The legality of the policy would ultimately stand or fall on whether ID was primarily or secondarily religious: was ID valid science, as the defense claimed, or merely the most recent variant of creation science, as the plaintiffs claimed? Since the inception of ID, its proponents have assiduously tried to avoid the creationist label; creationism had previously been judged to be unconstitutional by the Supreme Court in Edwards v. Aguillard. It was essential to the defense that ID be judged as valid science, and it was just as essential to plaintiffs that it be judged either nonscience or inaccurate science (or both), because if either were true, there would be no valid secular, pedagogical reason to teach it. Both sides, therefore, organized their cases at least partly around the scientific status of ID and consequently requested a ruling by the judge on this issue. This necessarily would require a ruling on the nature of science, as well as on whether ID fulfilled the definition of science (Jones 2007).

Plaintiffs' lawyers prepared to attack as a sham the defense's claim that teaching ID would improve students' science education: on the contrary, they would claim, teaching ID would miseducate students. First, ID does not follow the established approach universally used by scientists of restricting scientific explanation to natural causes: the intelligent agent was God. Second, the (few) fact claims ID makes, such as the impossibility of the evolution of an irreducibly complex structure, were simply wrong. They would further argue that ID relies on arguments (e.g., irreducible complexity) wherein evolution is denigrated as a way of supporting ID. This, they would contend, is merely a variant of creation science's two-model approach, which denigrates evolution to promote special creationism. In reference to the gaps and problems aspect of the Dover policy, plaintiffs' attorneys again would point out the history of the denigration of evolution as a creationist strategy. Because evolution is sound science, teaching students that evolution is weak or unreliable science would miseducate them about a central scientific concept. Because there was no real pedagogical purpose or effect of teaching ID and/or denigrating evolution, the only purpose and effect of the policy would be to advance religion, and the policy should therefore be struck down. It was also necessary for plaintiffs to show that ID was a religious view: plaintiffs' attorneys would try to convince the judge that the history of ID indicated a direct ancestral relationship to the unconstitutional creation science, both in personnel and content.

Expert witnesses for the plaintiffs were cell biologist Kenneth R. Miller (the coauthor of the textbook used in Dover's schools), paleontologist Kevin Padian, philosophers Robert Pennock and Barbara Forrest, theologian John Haught, and professor of education Brian Alters. Mathematician Jeffrey Shallit was listed and deposed as a rebuttal witness (a deposition is a questioning of a witness by the opposing attorneys in the fact-gathering period before the trial itself). Expert witnesses for the defense included biochemist Michael Behe, microbiologist Scott Minnich, communications professor John Angus Campbell, professor of education Dick M. Carpenter II, theologian, philosopher, and mathematician William A. Dembski, and philosopher Warren A. Nord. Sociologist Steve Fuller and philosopher Stephen Meyer were listed as rebuttal witnesses. Of the defense witnesses, only Behe, Minnich, and Fuller actually testified, however; others—Campbell, Dembski, and Meyer, all DI fellows or employees—were withdrawn, and Nord and Carpenter mysteriously were not called as witnesses. Both sides also called plaintiffs, defendants, and other citizens to testify as to the facts of the case.

The trial began on September 26, 2005, and stretched over six weeks, ending on November 4. In all, court was in session for twenty-one days—a long trial. The federal district court judge John E. Jones III presided.

All of the plaintiffs' expert witnesses spoke to the question of the nature of science, and all defined it as restricted to explaining nature through natural causes. Scientist expert witnesses Miller and Padian testified on the soundness of evolution as science, and on the invalidity of the fact claims of ID (such as the unevolvability of irreducible complexity and the inaccuracy of statements about genetics and paleontology in Of Pandas and People). Theologian Haught testified that ID was a religious position with a long history in Christian theology. Philosopher of science Robert Pennock testified on the nature of science, and as part of a team of scholars researching the computer modeling of evolutionary processes, he also spoke to the invalidity of ID's claims that natural selection could not produce significant changes in an evolving population. Educational pedagogy specialist Brian Alters evaluated the policies of the Dover board from an educational standpoint and found them to foreclose rather than broaden students' understanding.

The most dramatic testimony came from philosopher Barbara Forrest, coauthor of a vigorous history and critique of ID, Creationism's Trojan Horse: The Wedge of Intelligent Design (Forrest and Gross 2004). During the pretrial wrangling, the defense had filed a legal challenge to her credentials to be an expert witness, saying "she is little more than a conspiracy theorist and a Web-surfing, 'cyber-stalker' of the Discovery Institute" (Muise 2005). After examining Forrest's academic credentials and scholarly accomplishments, the judge dismissed its motion and accepted Forrest as an expert witness on the history of ID.

Forrest's testimony traced the history of ID as an outgrowth of the earlier creation science movement. She identified creation science proponents who morphed into ID proponents, such as Dean Kenyon, the coauthor of Of Pandas and People. Kenyon had

Figure 7.1

The lines represent the number of times the words creationism or creationist (top line) or the phrase intelligent design (bottom line) occurred in each of the manuscripts associated with Of Pandas and People. In the early manuscripts, creationist and creationism occur frequently and the phrase intelligent design is rare. In 1987, the frequencies reverse, with creationist wording becoming almost extinct, replaced by intelligent design. The Supreme Court case Edwards v. Aguillard, striking down the teaching of creation science in public schools, was delivered in 1987.

Of Pandas and People drafts: Word Counts 140 -

Figure 7.1

The lines represent the number of times the words creationism or creationist (top line) or the phrase intelligent design (bottom line) occurred in each of the manuscripts associated with Of Pandas and People. In the early manuscripts, creationist and creationism occur frequently and the phrase intelligent design is rare. In 1987, the frequencies reverse, with creationist wording becoming almost extinct, replaced by intelligent design. The Supreme Court case Edwards v. Aguillard, striking down the teaching of creation science in public schools, was delivered in 1987.

Of Pandas and People drafts: Word Counts 140 -

been scheduled to testify in McLean v. Arkansas on behalf of the defense, supporting the legality of teaching creation science along with evolution. He also had prepared an affidavit for the later Edwards v. Aguillard decision, in which he described creation science in terms very much like modern-day ID proponents describe ID.

But perhaps the most striking evidence—the judge in his decision later called it "astonishing"—was the deliberate change from creationist language to ID language in early drafts of the FTE manuscripts for the book that became Of Pandas and People. During discovery (the preparation period before the trial), the plaintiffs' consultant NCSE located newspaper articles and FTE correspondence in its archives suggesting the possibility that earlier drafts of Pandas had very creationist-sounding titles and content. Plaintiffs' lawyers subpoenaed any early drafts of the manuscript from FTE. After some legal wrangling, FTE delivered them to the court. Plaintiffs' consultants analyzed them for content, finding that the number of times the terms creation, creationist, and their cognates appeared in the texts fell off dramatically in 1987—the date of the Edwards v. Aguillard Supreme Court decision. Between two 1987 drafts, the terms were replaced with other terms like intelligent design and design proponents, demonstrating that intelligent design really was just creationism (Figure 7.1)

As further proof that ID was equivalent to creationism in the minds of the authors, a crucial passage defining the topic of Pandas was compared. In the earlier manuscripts, the definition was as follows: "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." (emphasis added).

In the second 1987 and subsequent published versions of Pandas, the same words are used to define ID: "Intelligent design means that the 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." (emphasis added).

Here, too, the change from the creationist to the ID terminology took place in 1987: the same year that the Supreme Court issued its decision striking down laws requiring equal time for creation science.

When the defense took the stand, the lawyers presented expert witness testimony by scientists Michael Behe and Scott Minnich that evolution had lots of gaps and problems, and that ID was a valid, cutting-edge science that students would benefit from learning. The testimony of a sociologist of science, Steve Fuller, was intended to support the idea that methodological naturalism was not really necessary in science, that ID fell under a broadened definition of science, and that it was pedagogically valuable for students to learn it. Although the defense had announced that it would call two other expert witnesses, they were never called, and the defense of ID and the arguments regarding the nature of science rested on Behe, Minnich, and Fuller.

Testimony from the expert witnesses was not the only testimony heard, of course. The judge also heard from fact witnesses: plaintiffs, school board members, and even from a few newspaper reporters. Although school board members denied having religious motivations for their actions, it was clear from testimony and evidence that key school board members vigorously opposed evolution for religious reasons and believed that teaching ID would bring creationism into the classroom. In some instances, school board members appeared to have lied under oath, damaging their overall credibility, including the credibility of claims that they had no religious motivation for their actions.

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