Posted by Timothy Sandefur on December 20, 2005 12:35 PM

Kitzmiller v. Dover Area School District is a major victory for science and a major blow to those who have tried to sneak religion into the classroom by disguising in scientific garb. But it’s more than that. It is a brilliant, insightful, profound decision that reaches to the bottom of ID and finds it empty.

Judge John Jones, a George W. Bush appointee, deserves the praise and thanks of every defender of rigorous, meaningful scientific education. He has taken the time to really understand not just the legal issues, but the scientific ones as well. This decision proves he is a credit to the federal judiciary. (I should add also that the plaintiffs’ attorneys, the ACLU of Pennsylvania, have shown once again why they are a devastating force in the law. Although I certainly don’t agree with them on everything, they are first-rate lawyers and I am proud to have them in the profession.)

Judge Jones first addresses what test should be used in determining whether a challenged policy violates the Establishment Clause. The school district contended that the “endorsement” test—which forbids government from doing things that would send a message that government endorses a religious viewpoint—is only applicable to government-sponsored displays (like Christmas nativity scenes), but the Judge finds that this is not true. The Supreme Court has often “reviewed a public school district’s or public university’s, policy touching on religion” through the Endorsement Test (at 13). The question then is whether teaching ID “transgresses the limits of neutrality[s] religious favoritism or sponsorship.” (at 14)

To answer that question, the Judge considers the history of Intelligent Design. In the wake of the Supreme Court’s Epperson decision, he notes, opponents of evolution “began cloaking religious beliefs in scientific sounding language and then mandating that schools teach the resulting ‘creation science’ or ‘scientific creationism’ as an alternative to evolution.” (at 21) Of course, the famous McLean case held that this, too, violated the First Amendment, because “creation science organizations were fundamentalist religious entities that ‘consider[ed] the introduction of creation science into the public schools part of their ministry.’” (Id. quoting McLean, 529 F.Supp. 1255, 1260 (E.D.Ark.1982)). Judge Jones approvingly notes that the McLean court “concluded that creation science ‘is simply not science’ because it depends upon ‘supernatural intervention,’ which cannot be explained by natural causes, or be proven through empirical investigation, and is therefore neither testable nor falsifiable. Accordingly...creation science [w]as merely bibilical creationism in a new guise.” (at 22). Shortly after McLean and Edwards v. Aguillard, 482 U.S. 578 (1987), opponents of evolution shifted tactics slightly, ratcheting up their scientific-sounding talk, and cooling their religious talk a little bit more:

The only apparent difference between the argument made by [18th century theologian and creationist William] Paley and the argument for ID, as expressed by defense expert witness [Michael] Behe and [Scott] Minnich, is that ID’s “official position” does not acknowledge that the designer is God. .... Although proponents of [Intelligent Design] 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.

(at 25). This is exactly correct, and the Judge carefully and flawlessly supports this observation: “[T]he evidence at trial demonstrates that ID is nothing less than the progeny of creationism” (at 31).

That being established, the question is whether the First Amendment prohibits ID in the classroom. The school district’s ID disclaimer statement, read to biology students, would lead a reasonable student to believe that the government is endorsing ID—a religious viewpoint—because “the first paragraph of the disclaimer directly addresses and disavows evolutionary theory by telling students that they have to learn about evoultionary theory because it is required by ‘Pennsylvania Academic Standards’ and will be tested [while] no similar disclaimer prefacing instruction is conducted regarding any other portion of the biology curriculum nor any other course’s curriculum.” (at 40). Thus the disclaimer wrongly “tell[s] students that they should regard [evolution] as singularly unreliable, or on shaky ground.” (at 41). Then the disclaimer suggests that ID is more reliable, and therefore “‘juxtaposes [the] disavowal [of evolution] with an urging to contemplate alternative religious concepts[,] impl[ying] School Board approval of religious principles.” (at 43 (quoting Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 384 (5th Cir. 1999) cert. denied, 530 U.S. 1251 (2000)). Because the biology teachers refused to read the disclaimer, school administrators did so, which conveyed to students the notion that this was a particularly sensitive, secret theory that teachers would not discuss. “Unlike anything else in the curriculum, students are under the impression that the topic to which they are introduced in the disclaimer, ID, is so sensitive that the students and their teachers are completely barred from asking questions about it or discussing it.” (at 46).

In summary, the disclaimer singles out the theory of evolution for special treatment, misrepresents its status in the scientific community, presents students with a religious alternative masquerading as a scientific theory, directs them to consult a creationist text as though it were a science resource, and instructs students to forego scientific inquiry in the public school classroom and instead to seek out religious instruction elsewhere. Furthermore...introducing ID necessarily invites religion into the science classroom as it sets up what will be perceived by students as a “God-friendly” science, the one that explicitly mentions an intelligent designer, and that the “other science,” evolution, takes no position on religion.... [A] false duality is produced: It “tells students...quite explicitly, choose God on the side of intelligent design or choose atheism on the side of science.” Introducing such a religious conflict into the classroom...forces students to “choose between God and science,” not a choice that schools should be forcing on them.”

(at 49-50). In addition, “[a]n objective adult member of the Dover community would also be presumed to know that ID and teaching about supposed gaps and problems in evolutionary theory are creationist religious strategies,” and that advocating ID in the classroom is a government imprimatur on religion. (at 56).

This should really settle the issue under the Endorsement Test. But since Judge Jones wants to take “the ‘belt and suspenders’ approach,” (at 14 n. 4), he proceeds to address whether ID is science. ID is not science, because:

(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. (at 64).

Avoiding magical explanations is “a ‘ground rule’ of science,” which some call “‘methodological naturalism,’ and is sometimes known as the scientific method.” (at 65). This approach is not arbitrary. It is based on the demands of epistemology as well as the proven superiority of this approach in producing usable results. “[O]nce you attribute a cause to an untestable supernatural force, a proposition that cannot be disproven, there is no reason to continue seeking natural explanations as we have our answer.” (at 66). ID proponents, Judge Jones notes, (and we might mention Beckwith by name here) are trying “to change the ground rules of science to allow supernatural causation of the natural world” to factor into the analysis. (at 67) But this approach would “embrace astrology,” (at 68), among other things. And, in any case, the fact that ID proponents seek “to ‘defeat scientific materialism,’” and “‘replace materialistic explanations with the theistic understanding that nature and human beings are created by God,’” (at 68) demonstrates that ID at least cannot qualify as science, whatever “merit” it might have (at 65). Since the current “essential ground rules...limit science to testable, natural explanations,” only changing those rules would allow ID to qualify as science. But “[s]cience cannot be defined differently.” (at 70).

There’s a lot more here—on irreducible complexity, the argument from design, everything—that all of you should read. But let’s skip ahead to the legal issues. Given that ID is religion, can advocating it or teaching it in the classroom satisfy the First Amendment? Judge Jones turns to the Lemon Test. The Lemon test says that a state action is an endorsement of religion if “(1) it does not have a secular purpose; (2) its principal or primary effect advances or inhibits religion; or (3) it creates an excessive entanglement of the government with religion.... [E]ither an improper purpose or an improper effect renders the ID policy invalid under the Establishment Clause.” (at 90).

The ID disclaimer violates the purpose prong because “Defendants consciously chose to change Dover’s biology curriculum to advance religion.” (at 93). They did not seek any scientific advice, and what scientific advice they got, they ignored. Thus “[a]lthough Defendants attempt to persuade this Court that each Board member who voted for the biology curriculum change did so for the secular purposed [sic] of improving science education and to exercise critical thinking skills, their contentions...are a sham.” (at 130)

In addition, the ID policy violates the effect prong because it sends an undeniable message of religious endorsement.

Judge Jones ends with a few apropos comments:

The citizens of the Dover area were poorly served by 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.... Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, 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 breathtatking inanity of the Board’s decision is evident when considered against the factual backdrop.... The students, parents, and teachers of the Dover Area School District deserved better.

(at 137). Congratulations to all on a clean sweep victory for science and reason against ignorance, superstition, and the unconstitutional establishment of religion. Have a very, very Merry Christmas!