My Role in Kitzmiller v Dover

Philosophers expect to be in classrooms, not courtrooms. Yet in October 2005 I found myself in federal court as an expert witness for the plaintiffs in Kitzmiller et al v Dover Area School District. As the co-author of Creationism’s Trojan Horse, which documents that "intelligent design" (ID) is both a religious belief and an extension of traditional creationism, I was called to demonstrate this to Judge John E Jones III, who presided over this first ID legal case. While writing the book, my co-author Paul Gross and I knew that creationists at the Discovery Institute’s Center for Science and Culture (CSC) had worked for almost a decade to foment a legal test case. This is part of their plan to undermine the teaching of evolution and to "renew" American culture by restoring what they believe is the country’s properly religious foundation. We had therefore taken care to solidify our argument with the best evidence available: the words of ID creationists themselves. This evidence proved invaluable in my testimony as a Kitzmiller expert witness.

The Kitzmiller case was the result of the CSC’s relentless execution of its Wedge Strategy, a well-financed PR campaign aimed at the media, the public, and educational policymakers. CSC creationists have outlined their tactics and goals in "The Wedge Strategy", informally called the "Wedge Document" (various versions of this document are available on-line, including http://www.antievolution.org/features/wedge.html). Preparing for an eventual lawsuit, they broadcast their legal arguments in a 2000 Utah Law Review article. Earlier, in Intelligent Design in Public School Science Curricula: A Legal Guidebook, a 1999 publication aimed at school officials, they explicitly argued that teaching ID is legal. Their long-sought opportunity to use these arguments came in fall 2004 in the form of the Dover Area School Board’s policy requiring teachers to read a statement endorsing ID as an alternative scientific theory. Yet the Discovery Institute wanted no part of this policy. Despite its Wedge strategy goal to achieve "nothing less than the overthrow of materialism and its cultural legacies," their legal bravado melted away like a snowball in August. What happened?

What happened is that the efforts of pro-science activists, with NCSE’s assistance, have taken their toll. Pushing back against the CSC’s attempts to get ID into their science curricula, concerned citizens in Kansas, Ohio, and elsewhere fought to thwart ID creationists’ plans to hijack their schools. In Kitzmiller, they were joined by eleven courageous parents in tiny Dover, Pennsylvania. Scholars and scientists exposed ID as a creationist sham in books and essays. Consequently, CSC creationists now disavow their own terminology, running like scared rabbits from proposals to teach "intelligent design". They urge supporters to disguise pro-ID policy proposals with code words such as teaching "evidence against evolution". After more than a decade promoting "intelligent design", ID creationists now consider this term a legal liability. But when the Dover board, supported by the Thomas More Law Center (TMLC), refused to play its linguistic game, the CSC had to face the unpleasant reality that it had lost control of its own agenda. However much it wanted to forestall the Dover trial, it was powerless to do so.

The smoking gun

I had two responsibilities as a witness: (1) to present and analyze empirical data that would demonstrate to Judge Jones that ID is merely a new strain of creationism and, as such, a religious belief; and (2) to show that Of Pandas and People is a creationist textbook. These tasks were not difficult; ID creationists had provided me with excellent resources such as the Wedge strategy. Walking the judge through this document, I explained its major points, which establish that ID is not merely religion in a general sense, but sectarian Christian apologetics. I quoted relevant statements such as this one: "Alongside a focus on influential opinion makers, we [ID creationists at the CSC] also seek to build up a popular base of support [for ID] among our natural constituency, namely Christians. We will do this primarily through apologetics seminars." I produced evidence showing that ID leaders themselves understand ID as both creationism and sectarian religion. Phillip Johnson, who developed the Wedge Strategy, defines ID as "theistic realism" or "mere creation". William Dembski, one of the strategy’s chief executors, defines it as "the Logos theology of John’s Gospel restated in the idiom of information theory."

But the "smoking gun" — as NCSE’s Nick Matzke put it — was Pandas. The NCSE archivist’s discovery in a 1981 creationist newspaper of an ad by the Foundation for Thought and Ethics (FTE) seeking authors for a textbook that would be "sensitively written to present both evolution and creation" was an auspicious find. Interpreting the ad as a tip that FTE, publisher of Pandas, might have kept early drafts, plaintiffs’ attorneys subpoenaed all documents related to the book. Among the thousands of pages FTE produced were a 1983 and a 1986 draft, and two 1987 drafts, all written in blatantly creationist language. Beginning with the 1986 draft, "creation" was defined using the classic creationist concept of "abrupt appearance": "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." The 1989 and 1993 published versions preserve this definition verbatim, except that "intelligent design" and "agency" are substituted for "creation" and "creator", respectively.

My analysis of the drafts brought a memorable "Eureka" moment. Working late one night, I discovered a crucial difference between the two 1987 drafts: one was written before the Supreme Court’s 1987 Edwards v Aguillard decision outlawing creationism in public schools, and the other was obviously written afterwards. The first version contained blatant creationist terminology. In the second, creationist terminology had been deleted and replaced by "intelligent design" and other ID terms. A new footnote in the latter version referenced the Edwards decision, indicating a conscious attempt to circumvent the Edwards ruling in the revised manuscript that would become Pandas. The "search and replace" operation must have been done in a hurry: in the post-Edwards manuscript, "creationists" was not completely deleted by whoever tried to replace it with "design proponents". The hybrid term "cdesign proponentsists" now stands as a "missing link" between the blatantly creationist earlier drafts and the post-Edwards versions of Pandas.

Knowing that my testimony would make all of this information part of the legal record, the TMLC tried to have me excluded from the case. When they failed, the saviors of modern science at the Discovery Institute tried to discredit me with ridicule by posting on their website a fake interview of Dr "Barking" Forrest by a fictitious radio host. When I saw this unbelievable silliness prior to departing for the trial, I could only hope that Judge Jones was also consulting DI’s website in his preparation for the case.

Strong community roots

A great deal was at stake in the Kitzmiller case. "Intelligent design" creationism is the Discovery Institute’s logistical contribution to the Religious Right’s decades-long attack on public education and on church and state separation. Our last line of defense, the federal courts, is also in their crosshairs. The Kitzmiller team — NCSE staff, the plaintiffs’ attorneys, and the expert witnesses — understand well the importance of what we did in that courtroom. But we also know that the people most crucial to our success remain in Pennsylvania, doing their jobs as before. Without eleven parents who objected to their children’s education being sacrificed to someone else’s religious crusade, our expertise would have been useless. Without Dover’s science teachers who faced down a school board that tried to use their students in the service of an unconstitutional agenda, we would not have had such courage to inspire us. Without a judge who recognized the truth when we presented it to him and had the integrity to act accordingly, we would not be celebrating the December 2005 ruling for public education and the Constitution that has given our efforts a newly strengthened legal foundation. This is the kind of support we will need to sustain what promises to be a long commitment.

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