by Anne Marie Lofaso, Associate Adjunct Professor American University, Washington College of LawProf. Lofaso authored an ACS white paper on intelligent design which can be read here.
It is by now well know that the Dover Area School Board of Directors last year passed a resolution stating that "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. Note: Origins of Life is not taught." The School District later announced that it would require biology teachers to read a lengthy statement disclaiming Darwin's theory of evolution as "not a fact," while promoting intelligent design as an alternative explanation to Darwin's theory. Several parents sued, seeking among other things, injunctive relief. Kitzmiller v. Dover Area School District, Case No. 04-cv-2688.
On December 20, 2005, the Honorable John E. Jones III, United States District Court for the Middle District of Pennsylvania, issued a memorandum opinion, declaring unconstitutional the Dover Area School District's actions. Based on that conclusion, the court permanently enjoined Dover from maintaining that policy in any school within the Dover Area School District.
The 139-page opinion is thorough and thoughtful. The court meticulously examined every available legal argument to show how and why the School Board's policy runs afoul of the First Amendment's Establishment Clause, which prohibits government from establishing a religion or favoring one religion over another. The court also found that the policy violated the state constitution.
Applying the Supreme Court's endorsement test, which essentially asks whether an objective observer would view the government's action as endorsing religion, the court explained that intelligent design's religious nature would be evident to the objective observer because of its overt appeal to a supernatural designer. The court initially noted that it must answer that question with the historical context of the dispute in mind--in this case, a century-long "strategy to weaken education of evolution by focusing students on alleged gaps in the theory of evolution." Opinion, p.18. The court thereby concluded that "both an objective student and an objective adult member of the Dover community would perceive Defendants' conduct to be a strong endorsement of religion." Opinion, p.63. That conclusion is bolstered, in the court's view, by evidence running the gamut from expressly religious statements of those Board members who endorsed the policy to the hundreds of letters written by Dover area residents to local newspapers expressing their belief that the policy endorsed religion. Those letters were written by those who favored and disfavored the policy.
The court next turned to the question whether intelligent design is science, presumably to determine whether the Dover Area School District had a bone fide secular purpose in supporting its policy. The court concluded, based on the voluminous expert testimony, that intelligent design is not science for three main reasons. First, intelligent design "violates the centuries-old ground rules of science by invoking and permitting supernatural causation." Opinion, p.64. Simply put, supernatural causes have been definitionally excluded from the pursuit of science for centuries in a successful effort to promote scientific and technological progress by continually seeking natural explanations for natural phenomena. Second, intelligent design's central tenant-that some natural phenomena are irreducibly complex, defined as too complex to have arisen by natural selection or any other natural cause-employs a "flawed and illogical contrived dualism." Id. As the court pointed out, evidence in favor of intelligent design does not disprove evolution; and evidence that disfavors evolution does not prove intelligent design. Third, the court pointed out that intelligent design, which in its current reincarnation is mainly a negative attack on evolutionary theories (as opposed to a theory in itself), has been refuted by the scientific community as unscientific. Along these lines, the court notes that intelligent design is not accepted by the scientific community, has not generated peer-reviewed publications, and is not testable or falsifiable.

The court next showed that the School Board's policy also fails to meet the Lemon test, because the policy has an overtly religious purpose and religious effects. "The disclaimer's plain language, the legislative history, and the historical context in which the ID Policy arose, all inevitably lead to the conclusion that Defendants consciously chose to change Dover's biology curriculum to advance religion. [The] wealth of evidence . . . reveals that the District's purpose was to advance creationism, an inherently religious view, both by introducing it directly under the label ID and by disparaging the scientific theory of evolution, so that creationism would gain credence by default as the only apparent alternative to evolution." Opinion, p.93. Again the court's conclusion is bolstered by expressly religious statements by School Board members, such as "liberals in black robes" were "taking away the rights of Christians" and words to the effect of "2,000 years ago someone died on a cross. Can't someone take a stand for him?" Opinion, p.105. The court also found that two School Board members tried to cover up the policy's overtly religious purpose by lying, at their depositions, about who donated 60 copies of the book OF PANDAS (a book written by creationists and published by a Christian organization) to the school district. It turns out that a Board member's relative and his church were involved in the acquisition. The court further concluded that the School Board's stated secular purpose--"[to] improve[e] science education and to exercise critical thinking skills"--was "simply irreconcilable with the record evidence." Id., at 130. Here the court noted the School Board's failure to consult even a single scientific organization, but instead consulted religious institutions and legal counsel associated with those institutions.
The court's decision here applies court-approved constitutional jurisprudence to the evidence presented at trial, often using the admissions of the School District's own witnesses to show religious endorsement, religious purpose, and religious effects. But as the court predicted (p.137), critics of the decision have already branded its author an "activist," presumably to promote the liberal agenda of censoring bad science that is likely to confuse students. Judge Jones, a George W. Bush appointee who was unanimously confirmed by the United States Senate, simply does not have a reputation supporting such a claim. Other critics claim that the decision amounts to an "an ad hominem attack on scientists who happen to believe in God." But the court's decision, which is careful to express no opinion about the veracity of the design inference, does not deserve that label either. It is unfortunate that some critics have resorted to name calling, a practice that fails to advance the critical thinking and debate that proponents of intelligent design claim they crave.