RNCSE 26 (1–2)

Articles available online are listed below.
Click "Print Edition Contents" link for list of articles in the print edition.

Print Edition Contents: 26 (1-2)


  1. Updates
    News from Alabama, California, Georgia, Indiana, Kansas, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nevada, New York, Oklahoma, and Wisconsin.


  1. News from the Membership
    Glenn Branch
    A sampling of our members’ activities and accomplishments.
  2. NCSE Honors “Friends of Darwin” for 2004
    Glenn Branch
    Special recognition for outstanding efforts in support of evolution education.
  3. NCSE Thanks You for Your Generous Support
    Recognizing those who have helped NCSE financially.


  1. Whether ID is Science: Excerpt from the Memorandum Opinion in Kitzmiller v Dover
    Judge John E Jones III
    Some of the major points of the Dover ruling in the presiding judge’s own words.
  2. Closing Statement for the Plaintiffs in Kitzmiller v Dover
    Eric Rothschild
    Summing up the case against the Dover Area School Board’s policy and against ID as science.


  1. Design on Trial: How NCSE Helped Win the Kitzmiller Case
    Nick Matzke
    From an ordinary day at the office to a landmark case: How NCSE responds to threats to evolution education.
  2. Can I Keep a Witness?
    Wesley R Elsberry
    Expert witnesses for the defense of teaching ID in the classroom vanish!
  3. My Role in Kitzmiller v Dover
    Barbara Forrest
    Finding the "smoking gun" and connecting the dots between old-style creationism and "intelligent design".
  4. The Dover Victory
    Kevin Padian
    Giving the court the evidence for evolution and exposing the deception of ID.
  5. "Ties" to Canada
    Brian Alters
    Testifying about the negative impact of ID on science education and warning bemused Canadians that it can happen there.


  1. The Termination of Baylor's Michael Polanyi Center: Why "Intelligent Design" Contradicts Polanyi's Philosophy
    Richard Gelwick
    A renowned scholar of Polanyi’s work illustrates how ID proponents got it all wrong — again — and missed the point of Polanyi's work and philosophy.
  2. "Intelligent Design": The New Vitalism
    Finn Pond and Jean Pond
    Throughout its history, science has encountered roadblocks and gaps in knowledge. Whenever these were overcome, it was those practicing science who succeeded in getting to the other side, not those who threw up heir hands in favor of a non-scientific (and non-natural) explanation. "Those who ignore history ..."


  1. Praise from the Press
    Reactions to the Dover decision from major newspapers across the country.
  2. Books: Darwin, Evolution, and Literature
    Books that show the impact of evolutionary thought on literature and culture.
  3. NCSE On the Road
    An NCSE speaker may be coming to your neighborhood. Check the calendar here.
  4. Letter to the Editor


  1. Traipsing into Evolution: Intelligent Design and the Kitzmiller v Dover Decision by David K DeWolf, John G West, Casey Luskin, and Jonathan Witt
    Reviewed by Tim Beazley

"Ties" to Canada

It was the morning of the trial and I was in my hotel room trying to decide which of two neckties I should wear. It’s funny how such a seemingly trifling thing can become notable. One of the ties was traditionally sedate, the type no one would think twice about. The other was a tie I wore often and never thought that it might be considered inappropriate. It was purchased in a museum; the tag stated it was “Designed for Dr Richard Leakey and the National Museums of Kenya.” The tie depicts skulls of Homo erectus, Homo habilis, and Australopithecus boisei. I brought this tie along merely because I have numerous such natural history ties, enjoy them, and wear them often. So between the two ties I brought on the trip, I chose to wear this tie for my testimony.

When I arrived that morning in the legal office heads turned and eyes focused on my tie. Immediately the attorneys in the room had a brief quiet discussion among themselves — probably discussing the pros and cons of their witness wearing such a tie. In any case, I thought if the tie were inappropriate, then the attorneys would certainly tell me so — and quickly exchange my tie for one of their more jurisprudently appropriate neckwear. Maybe they were thinking they would have to enter my tie as an exhibit in the trial. Whatever their verdict, no further mention was made of my tie that day by anyone — until after my testimony. Outside the courtroom door, a reporter from Rolling Stone magazine asked if he might interview me and take some pictures. He immediately instructed his photographer to make sure the details of the tie would show up in the photograph. The photograph was never used in the article.

So that day the tie was discussed among constitutional attorneys and photographed by Rolling Stone. But alas, other than briefly being mentioned in the Rolling Stone article, nothing really ever came of it. And of course nothing should have; after all, it’s just natural history depicted on neckwear. However, in a trial such as this, it appears that even a tie draws attention. I still think about the trial every time I wear it, something that certainly wouldn’t happen if I had worn that traditional sedate tie. I wonder what would have happened if the defendants’ expert witnesses wore “intelligent design” ties. Are there such things?

Meanwhile, back home in Canada (although a US citizen, I live and work in beautiful Montréal), the Canadians found one media article of the trial to be the most attention-getting and humorous for understandable reasons (having nothing to do with neckwear): “Dover Statement Bombs, Even in Canada” authored by Mike Argento, the HL Mencken of the trial. Even though Argento is a US columnist, this column was talked about across Canada. Argento wrote: “And speaking of hurt feelings, you had to feel bad for Dover Superintendent Richard Nielsen and the rest of the defendants, sitting in the gallery — on the defendant side of the courtroom No 2 — when Brian Alters, a professor of science education and expert in teaching evolution, started talking. It got ugly. The defendants appeared to be relieved when Alters took the stand and said he taught at McGill University. McGill is in Montréal. That’s Canada. You could almost sense the relief among the defendants. Canada? How bad could it get? And then, the good doctor started testifying and in so many words, accused the school board and administrators, essentially, of child abuse. And he was right. Teaching ‘intelligent design’ creationism in science class wasn’t just a bad idea, he said. It wasn’t just bad teaching. It was ‘probably the worst thing I’ve heard of in science education.’ And it got worse. ... it went on and on.”

ID Closer to Home?

Through this, many Canadians felt that they got a chance for some “one-upsmanship” over their southern neighbors in an academic dispute in a high-profile federal case. After all, Canada certainly doesn’t have problems like “intelligent design” pseudoscience being seriously considered on the same footing with evolutionary science, especially not involving any federal level adjudication. Really?!

Thinking there are no “intelligent design” problems in Canada — as do most Canadians I talk with — is very wrong. I find Canadians are less smug about the “American ID problems” when they learn there are ID problems in their own country. More surprisingly, the most recent Canadian ID upheaval has never even occurred in the US. Less than three months after Judge Jones released his ruling, one of the three major Canadian federal funding agencies for academic research issued a shocking funding-denial letter (to a science education proposal), stating what appears to be ID-sympathetic rationales. By the way, the author of that proposal was me!

The proposal title was “Detrimental effects of popularizing anti-evolution’s ‘intelligent design theory’ on Canadian students, teachers, parents, administrators, and policymakers.” The proposal stated: “The purpose of this study is to measure the extent to which the recent large-scale popularization of ‘intelligent design’ is detrimentally affecting Canadians’ teaching and learning of biological evolution at high school, university, and educational administration.” The impetus of the proposal was the immense publicity that the Dover trial was garnering in Canadian (and international) media.

The reply letter from the federal funding agency, the Social Sciences and Humanities Research Council of Canada (SSHRC), states, “The decision rests upon the recommendation of the multidisciplinary adjudication committee which studied your application.” The adjudication committee wrote: “The proposal did not adequately substantiate the premise that the popularizing of Intelligent Design Theory had detrimental effects on Canadian students, teachers, parents and policymakers. Nor did the committee consider that there was adequate justification for the assumption in the proposal that the theory of Evolution, and not Intelligent Design theory, was correct. It [the adjudication committee] was not convinced, therefore, that research based on these assumptions would yield objective results.”

Within days, the highly prestigious scientific journal Nature broke the story online and in print worldwide. International media followed and carried the story in print, radio, and television — including MTV. This followed with a barrage of stinging open letters of condemnation from major scientific organizations from the American Institute of Biological Sciences (AIBS), the American Sociological Association (ASA), the Canadian Society for the Study of Ecology and Evolution (CSEE), and others. Hundreds of scientists have authored communications denouncing the stance of SSHRC.

After monumental pressure, the SSHRC did finally officially state that evolution is one of the pillars of modern science; however, to date, it has neither retracted nor officially commented on any of the ID-sympathetic language in its letter. SSHRC is the major governmental funding source for science education research in Canada.

Dover may have been a US embarrassment that provided amusement for many Canadians, but I know many Americans who find amusement in this “intelligent design” affair at the Canadian federal level.

Judge Jones wrote about the “breathtaking inanity” of the Dover school board’s actions concerning implementing their ID policy. Whether it be ties to wear in court, or a common border that ties our two countries together, we need to realize that all the breathtaking inanity concerning ID does not reside south of the US–Canadian border, eh?

About the Author(s): 
Brian Alters
Evolution Education Research Centre
3700 McTavish Street
Montreal Quebec H3A 1Y2
b.alters @ mcgill . ca
"Ties" to Canada
Brian Alters, McGill University
This version might differ slightly from the print publication.

Can I Keep a Witness?

In the Kitzmiller v Dover Area School District (Kitzmiller) case, the defense went to trial with a fraction of the expert witnesses that the Thomas More Law Center (TMLC) originally named to help make its case. The story of how this came about and what it meant for the case reflects events similar to those in McLean v Arkansas.

NCSE Public Information Director Susan Spath spent most of two months in early 2005 on analysis of the works of John Angus Campbell, a professor of rhetoric at the University of Memphis. TMLC named Campbell as an expert witness for the defense in Kitzmiller. Campbell, a Fellow of the Discovery Institute Center for Science and Culture (CSC), wrote an expert report. It was Spath’s job to dig through the report and Campbell’s writings to provide the plaintiff’s legal team, and especially Pepper Hamilton attorney Thomas Schmidt III, with items of interest to ask Campbell about at his deposition.

This was a standard procedure for all the named expert witnesses in the case: look at the expert report to see what arguments were being put on the table, see what other things had been claimed by the expert elsewhere, and find out how best to use the defense witnesses to advance the plaintiffs’ case. A designated NCSE staffer was assigned to each defense expert to aid the attorney on the plaintiffs’ team who would question the witness at the deposition. In the case of William A Dembski, the plaintiffs had also named a rebuttal expert, Jeffrey O Shallit of the University of Waterloo.

NCSE’s Spath had the assistance of activists who helped contribute to a Wiki page of criticisms and possible questions for Campbell’s deposition that was scheduled for June 2, 2005. At 9 am on that day, plaintiffs’ attorney Schmidt and legal assistant Kate Henslow were on hand in Memphis, Tennessee, to take Campbell’s deposition. Campbell, TMLC attorney Pat Gillen, and an unidentified lawyer from the Discovery Institute arrived, and Gillen made an announcement: John Angus Campbell was withdrawn as an expert witness. There would be no deposition.

Disappearing Experts

Campbell was merely the first defense expert to withdraw from the case. On June 10, CSC Senior Fellow William A Dembski was withdrawn under circumstances that remain ambiguous to this day. CSC Director Stephen C Meyer’s withdrawal followed on June 13. Philosophy professor Warren Nord of the University of North Carolina, Chapel Hill, and Richard M Carpenter, an education professor at the University of Colorado, Colorado Springs and a commentator for Focus on the Family, were withdrawn between the beginning of the trial itself and when they would have testified. The only expert witnesses left to the defense in the trial were CSC Senior Fellow Michael J Behe, CSC Fellow Scott A Minnich, and Steve Fuller, a sociologist of science at the University of Warwick.

Anti-evolution watchers will recall the McLean v Arkansas case and how some defense experts also failed to deliver testimony there. Most notably, San Francisco State University professor Dean Kenyon was originally slated to testify, was deposed, and even was in Little Rock, Arkansas, during part of the trial, but never went on the stand. In both McLean and Kitzmiller, the experts testifying for the plaintiffs did deliver their testimony as planned.

The common explanation attached to expert witness withdrawals in the Kitzmiller case was that the DI expert witnesses wanted to have their own legal representation during depositions, and not be represented only by TMLC attorneys. This does not explain the eventual testimony of Behe and Minnich, or the withdrawal of Nord and Carpenter, who were not officially affiliated with the DI. In the case of Dembski’s withdrawal, TMLC issued a statement shortly after his withdrawal citing Dembski’s request for independent legal representation and TMLC’s unwillingness to permit such, though they would allow it for Stephen Meyer. Later, TMLC entered a brief in support of a motion to dismiss the case in which they cited Dembski’s withdrawal as being premised upon his desire to protect his affiliates at the Foundation for Thought and Ethics (FTE), which published the "intelligent design" textbook at the center of the case. (TMLC also suggested that it was an indication of the pervasive negative influence of "Darwinism" that Dembski should be compelled to take that step.) As Ed Brayton noted in his weblog (http://scienceblogs.com/dispatches/2005/06/conflicting_explanations_for_w.php), these two constructions of events are not reconcilable.

It is clear that there were behind-the-scenes problems between the Thomas More Law Center as attorneys for the Dover school district and the Discovery Institute as the source of most of the expert witnesses for the defense. These hidden tensions briefly became very public during a televised panel discussion hosted by the American Enterprise Institute during the trial phase of the case. The DI representative, Mark Ryland, asserted that the DI had never endorsed policies requiring the teaching of "intelligent design" in science classes. TMLC attorney Richard Thompson contradicted Ryland, citing the various legal briefs and other promotional materials produced by the DI for the apparent purpose of encouraging school boards to insert ID into their curricula.

Discovery Institute analyst Seth Cooper sent an e-mail to the Dover Area School Board in late 2004 stating that its proposed policy was likely to lead to a lawsuit and that it would be better to withdraw this policy and construct a new one that would meet with DI approval. The DI apparently was concerned enough about the Dover case that it felt that there was a considerable risk of a loss in court that could produce a legal decision that could damage the DI’s ability to promote ID as science. TMLC’s intent to use the Dover policy as a test case ignored the cautionary note that the DI had given.

The withdrawals of the expert witnesses began after depositions by Michael Behe and Scott Minnich were completed. It cannot be ruled out that the DI realized just how well prepared the plaintiffs’ legal team was in each of these and concluded that exposing more of the CSC fellows to that level of scrutiny was not in its best interests.

Where’s the controversy?

We may never know with certainty why the five defense expert witnesses were withdrawn from the roster. What is clear is the effect this had on the topics addressed at the trial. TMLC argued that ID should be taught because ID was science, and this provided the secular purpose that would set aside the Establishment Clause claims being made by the plaintiffs. To this end, TMLC put a biochemist, a microbiologist, and a sociologist of science on the witness stand. They had no philosopher of science to rebut plaintiffs’ experts Robert Pennock and Barbara Forrest. They had no educator to rebut Brian Alters. They had no theologian to rebut John Haught. They had no paleontologist to rebut Kevin Padian. In fact, the only plaintiffs’ expert whose testimony the remaining TMLC experts might speak to was that of Ken Miller, who testified on both science and science education, as a cell biologist and co-author of the high school textbook used in the Dover school system.

This is not to say that the coverage that might have been provided by the missing experts would have been perfect. Even if all the originally named experts had testified, TMLC would have fielded no theologians with experience comparable to John Haught. The defense experts who were to speak to issues of science education, Campbell, Nord, and Carpenter, did not have the sort of professional recognition in the field that plaintiffs’ expert Brian Alters brought to the case. In opposition to Kevin Padian, the defense would have called upon philosopher of science Stephen C Meyer, whose claim to expertise in paleontology rested upon the publication of a single review paper that was later repudiated by the publishing journal and his earlier career as a petroleum geologist. The gaps in coverage of defense expert testimony were noted at various points in Judge Jones’s decision, as he would write of statements given by plaintiffs’ experts Miller and Padian, their arguments were made in unrebutted testimony.

The tale of the disappearing witnesses in the Kitzmiller case reflects the earlier experience of the McLean case. While it is unknown exactly why the witnesses were withdrawn, their absence made an appreciable difference in the case. As in the McLean case, the missing witnesses left much of the case made by the experts for the plaintiffs unanswered, giving the strong — and accurate — impression that the defense had no case to make, and contributing to the forcefulness of the decisions handed down in each case.

About the Author(s): 
Wesley R Elsberry
PO Box 9477
Berkeley CA 94709-0477
Can I Keep a Witness?
Wesley R Elsberry
This version might differ slightly from the print publication.

Closing Statement for the Plaintiffs in Kitzmiller v Dover

"What am I supposed to tolerate? A small encroachment on my First Amendment rights? Well, I'm not going to. I think this is clear what these people have done, and it outrages me." That’s a statement of one citizen of Dover, Fred Callahan, standing up to the wedge that has been driven into his community and his daughter’s high school by the Dover School Board’s anti-evolution, pro-"intelligent design" policy.

The strategy that the Discovery Institute announced in its "Wedge document" for promoting theistic and Christian science and addressing cultural conditions that it disagrees with is to denigrate evolution and promote supernatural "intelligent design" as a competing theory.

This is the Discovery Institute that advised both William Buckingham and Alan Bonsell before the board voted to change the biology curriculum. This is the Discovery Institute the defendants’ experts Michael Behe and Scott Minnich proudly associate with, along with intelligent design leaders William Dembski, Paul Nelson, Jonathan Wells, Stephen Meyer, Nancy Pearcey, and Phillip Johnson.

This group’s strategy of Christian apologetics and cultural renewal includes the integration of "intelligent design" into public school science curriculum, which is now on trial in this courtroom. Dover is now the thin edge of the wedge.

Let's review how we got here. Beginning with Alan Bonsell’s election to the Dover Area School Board in the end of 2001, the teaching of evolution in biology class became a target of the board, and teaching creationism was suggested as an alternative.

As Mr Gillen told the Court in his opening statement, Mr Bonsell "had an interest in creationism. He wondered whether it could be discussed in the classroom." He didn’t just wonder to himself, he wondered out loud about teaching creationism at two board retreats. He made his opposition to the teaching of evolution known to Mr Baksa and the science teachers.

In 2004, Mr Bonsell became the president of the board and chose Bill Buckingham to head the curriculum committee. When the teachers and members of the community tried to get a new biology book approved, members of the board, including particularly Mr Buckingham, but also Mr Bonsell, insisted in public board meetings that any new biology book include creationism.

There is no evidence that any of the board members that eventually voted to change the biology curriculum objected to this idea. Heather Geesey emphatically endorsed it in her letter to the York Sunday News.

At the same meetings in June where he discussed creationism, Mr Buckingham also made the unforgettable statement that, "2000 years ago a man died on a Cross, can’t we take a stand for Him now?"; and after one meeting said to a reporter that "We are not a nation founded on Muslim ideas or evolution, but on Christianity, and our children should be taught as such."

Around the time of those June meetings, Mr Buckingham received materials and guidance from the Discovery Institute, the sponsors of theistic Christian science. After that, "intelligent design" became the label for the board’s desire to present creationism.

At this trial, plaintiffs have submitted overwhelming evidence that "intelligent design" is just a new name for creationism discarding a few of traditional creationism tenets, such as direct reference to God or the Bible and a specific commitment to a young earth, but maintaining essential aspects, particularly the special creation of kinds by a supernatural actor.

Make no mistake, the leading sponsors on the board for the change to the biology curriculum and Administrators Nilsen and Baksa knew that "intelligent design" was a form of creationism when they added it to the curriculum.

[Consider] the views on the origins of the universe chart that both Casey Brown and Jennifer Miller testified that Assistant Superintendent Baksa circulated to members of the board curriculum committee and faculty. Mrs Harkins testified that she had this document as early as June of 2004.

The second column of this chart provided to members of the board curriculum committee and administration demonstrates clearly that "intelligent design" is a form of progressive creation or old-earth creation. At the bottom of the chart of that column, the second column, under Progressive Creation and Old-Earth Creation, you see the words, "Intelligent Design" Movement, Phillip Johnson, and Michael Behe.

Mr Baksa testified in response to questions from his lawyer that he researched "intelligent design" and [Of Pandas and People] before the board adopted both into the district’s curriculum and that his research included this order form from the Institute for Creation Research, which promotes Pandas, describing it as a book that contains interpretations of classic evidences in harmony with the creation model.

Board President Bonsell and Superintendent Nilsen testified that they understood the definition of "intelligent design" found on pages 99 to 100 of Pandas to be a tenet of creationism.

The district solicitor, Stephen Russell, sent this e-mail to Richard Nilsen advising Dr Nilsen and eventually the board members who received this e-mail that, quote, Thomas More refers to the creationism issue as "intelligent design".

Board members Jeff and Casey Brown and the science teachers also warned the board that Pandas and "intelligent design" are creationism or too close for comfort, and there could be legal consequences for teaching it.

This information, equating "intelligent design" with creationism, did not deter the school board at all. It emboldened them. They rushed the curriculum change to a vote, discarding all past practices on curriculum adoption, such as placing the item on a planning meeting agenda before bringing it to a vote, involving the citizens’ curriculum advisory committee with a meeting, or showing deference to the district’s experts on the curriculum item, the school science teachers.

The record is overwhelming that board members were discussing creationism at the meetings in June of 2004. Two separate newspaper reporters, Heidi Bernhard-Bubb and Joe Maldonado, reported this in articles about the meeting which they confirmed in sworn testimony in this court. Former board members Casey and Jeff Brown and Plaintiffs Barrie Callahan and Christy and Bryan Rehm also testified to these facts.

Finally, at the end of this trial, Assistant Superintendent Mike Baksa, an agent of the defendant Dover Area School District in this case, admitted that Bill Buckingham discussed creationism at the June board meetings when discussing the biology curriculum. After a year of denying that fact, forcing reporters to testify, the truth was confirmed by defendants’ own witness.

And, of course, we saw Mr Buckingham talk about creationism on the tape of the Fox 43 interview using language almost identical to the words attributed to him by newspaper reporters covering the June 2004 board meetings.

His explanation that he misspoke the word "creationism" because it was being used in news articles, which he had just previously testified he had not read, was, frankly, incredible. We all watched that tape. And per Mr Linker’s suggestion that all the kids like movies, I’d like to show it one more time. [Tape played.] That was no deer in the headlights. That deer was wearing shades and was totally at ease.

Testimony from many witnesses called by the plaintiffs and the same newspaper reports established that Bill Buckingham made the statement "2000 years ago" when discussing the biology textbook in June.

After preparing together for their January, 2004 depositions, four witnesses for the defense — Richard Nilsen, Bill Buckingham, Alan Bonsell, and Sheila Harkins — all testified that Buckingham, Mr Buckingham, did not make that statement at that meeting, but rather only at a different meeting in November when the Pledge of Allegiance was discussed.

But every plaintiff, teacher, reporter, and dissenting board member who testified at trial about the June 14th meeting knows this is not true, and defendants’ witnesses Harkins and Baksa conceded that the statement could have been made in June as the contemporaneous, unchallenged news reports suggest.

What I am about to say is not easy to say, and there’s no way to say it subtly. Many of the witnesses for the defendants did not tell the truth. They did not tell the truth at their depositions, and they have not told the truth in this courtroom.

They are not telling the truth when they assert that only "intelligent design" and not creationism was discussed at the June 2004 board meetings. They are not telling the truth when they placed the "2000 years ago" statement at the meeting discussing the pledge and not at the June 14, 2004, meetng discussing the biology textbook. They did not tell the truth in their depositions or, for that matter, to the citizens of Dover about how the donation of the Pandas books came about.

Truth is not the only victim here. In misrepresenting what occurred in the run-up to the change to the biology curriculum, there were human casualties. Two hard-working freelance reporters had their integrity impugned and were dragged into a legal case solely because the board members would not own up to what they had said. They could have just asked Mike Baksa. He knew.

Trudy Peterman, the former principal, has not testified in this case, but we know she was negatively evaluated for what she reported in her April 2003 memo about her conversation with Bertha Spahr. And Superintendent Nilsen continued to question her truthfulness in this court, but he never asked Mrs Spahr what she told Dr Peterman on the subject of creationism.

Had he asked her, he would have heard exactly what you heard from Mrs Spahr in this courtroom. Mr Baksa did tell her that Board Member Bonsell expressed his desire to have creationism taught 50/50 or in equal time with evolution.

And, of course, you’ve heard from board members who were at that meeting, including Casey Brown and Barrie Callahan, that Mr Bonsell did say he wanted creationism taught 50/50 with evolution. In fact, Mrs Callahan had contemporaneous notes recording Mr Bonsell saying just that. And Dr Nilsen also had contemporaneous notes showing that Mr Bonsell talked about creationism at the March 2003 board retreat.

Confronted with Dr Nilsen’s notes, Mr Bonsell finally admitted he talked about creationism, at least then. The Defendants’ smear of Dr Peterman is unpersuasive and inexcusable.

There are consequences for not telling the truth. The board members and administrators who testified untruthfully for the defendants are entitled to no credibility, none. In every instance where this Court is confronted with a disputed set of facts as between the plaintiffs’ witnesses and defendants’ witnesses that the Court deems to have been untruthful, the plaintiffs’ witnesses account should be credited.

And furthermore, and perhaps more importantly, this Court should infer from their false statements that defendants are trying to conceal an improper purpose for the policy they approved and implemented, namely an explicitly religious purpose.

The board’s behavior mimics the "intelligent design" movement at large. The Dover board discussed teaching creationism, switched to the term "intelligent design" to carry out the same objective, and then pretended they had never talked about creationism.

As we learned from Dr Forrest’s testimony, the "intelligent design" movement used the same sleight of hand in creating the Pandas textbook. They wrote it as a creationist book and then, after the Edwards decision outlawed teaching creationism, simply inserted the term "intelligent design" where "creationism" had been before.

Dean Kenyon wrote the book at the same time that he was advocating creation science to the Supreme Court in Edwards as the sole scientific alternative to the theory of evolution. But now, like the Dover board, the "intelligent design" movement now pretends that it never was talking about creationism.

I want to make a very important point here. In this case, we have abundant evidence of the religious purpose of the Dover School Board that supports a finding that its policy is unconstitutional. However, if the board had been more circumspect about its objectives or better at covering its tracks, it would not make the policy it passed any less unconstitutional.

Your Honor, you have presided over a six-week trial. Both parties have had a fair opportunity to present their cases about what happened in the Dover community and about the nature of "intelligent design". Leading experts from both sides of the issue have given extensive testimony on the subject.

This trial has established that "intelligent design" is unconstitutional because it is an inherently religious proposition, a modern form of creationism. It is not just a product of religious people, it does not just have religious implications, it is, in its essence, religious. Its central religious nature does not change whether it is called creation science or "intelligent design" or sudden emergence theory. The shell game has to stop.

If there’s any doubt about the religious nature of "intelligent design", listen to these exemplary descriptions of "intelligent design" by its leading proponents, which are in evidence in this case:

Phillip Johnson said, "‘Intelligent design’ means that we affirm that God is objectively real as Creator and that the reality of God is tangibly recorded in evidence accessible to science, particularly in biology."

William Dembski: "In its relation to Christianity, ‘intelligent design’ should be viewed as a ground-clearing operation that gets rid of the intellectual rubbish that for generations has kept Christianity from receiving serious consideration." William Dembski again, "Intelligent design is just the Logos theology of John’s Gospel restated in the idiom of information theory."

Michael Behe told this Court that "intelligent design" is not a religious proposition, but he told the readers of The New York Times the question "intelligent design" poses is whether science can make room for religion. He acknowledges that the more one believes in God, the more persuasive "intelligent design" is. The religious nature of "intelligent design" is also proclaimed loudly and repeatedly in the "Wedge document".

The other indisputable fact that marks "intelligent design" as a religious proposition that cannot be taught in public schools is that it argues that a supernatural actor designed and created biological life. Supernatural creation is the religious proposition that the Supreme Court said in Edwards cannot be taught in public schools.

And it’s obvious why this has to be the case. When we talk about an actor outside nature with the skills to design and create and build biological life, we are talking about God.

The experts that testified at this trial admit that in their view, the intelligent designer is God. The Discovery Institute’s "Wedge document"’s first paragraph bemoans the fact that the proposition that human beings are created in the image of God has been undermined by the theory of evolution. Professor Behe admitted that his argument for "intelligent design" was essentially the same as William Paley’s, which is a classic argument for the existence of God.

Who else could it be? Michael Behe suggests candidates like aliens or time travelers with a wink and a nod, not seriously.

"Intelligent design" hides behind an official position that it does not name the designer, but as Dr Minnich acknowledged this morning, all of its advocates believe that the designer is God. "Intelligent design" could not come closer to naming the designer if it was spotted with the letters G and O. The case for "intelligent design" as a religious proposition is overwhelming. The case for it as a scientific proposition, by contrast, is nonexistent. It has been unanimously rejected by the National Academy of Science, the American Association for the Advancement of Science, and every other major scientific and science education organization that has considered the issue, including, we learned this morning, the American Society of Soil Scientists.

The fact that it invokes the supernatural is, by itself, disqualifying. As William Dembski stated, unless the ground rules of science are changed to allow the supernatural, "intelligent design" has "no chance in Hades".

In this courtroom, Steve Fuller confirmed that changing the ground rules of science is "intelligent design"’s fundamental project, and if defendants get their way, those ground rules get changed first in Dover High School.

There’s a reason that science does not consider the supernatural. It has no way of measuring or testing supernatural activity. As Professor Behe testified, you can never rule out "intelligent design".

Defendants’ comparisons to the big bang or Newton’s work make no sense, for those, as with many scientific propositions, we may have at one time attributed natural phenomena to supernatural or divine action before working out the natural explanations that fall under the heading "science". "Intelligent design" is moving in the opposite direction, replacing a well-developed natural explanation for the development of biological life with a supernatural one which it has no evidence to support.

The positive case for "intelligent design" described by plaintiffs’ experts Michael Behe, the leading light of the "intelligent design" movement, and Scott Minnich over the last couple of days is a meager little analogy that collapses immediately upon inspection.

Professor Behe and Professor Minnich’s argument, summed up by the amorphous phrase "purposeful arrangement of parts", is that if we can tell that a watch or keys or a mousetrap or a cell phone was designed, we can make the same inference about the design of a biological system by an intelligent designer. This is, as both experts acknowledge, the same argument that Paley made, the argument that Paley made for the existence of God.

Plaintiffs’ witnesses Robert Pennock and Kenneth Miller explained and under cross-examination defendants’ expert Professor Behe admitted that the difference between inferences to design of artifacts and objects and to design of biological systems overwhelms any purported similarity. Biological systems can replicate and reproduce and have had millions or billions of years to develop in that fashion, providing opportunities for change that the keys, watches, stone tools, and statues designed by humans do not have.

And, of course, those objects and artifacts we recognize as design in our day-to-day life are all the product of human design. We know the designer. In the case of "intelligent design" of biological life, however, that crucial information is, to use Professor Behe’s own phrase, a black box. Because we know that humans are the designers of the various inanimate objects and artifacts discussed by Professor Behe, we also know many other useful pieces of information, what the designer’s needs, motives, abilities, and limitations are. Because we are that designer, we can actually re-create the designer’s act of creation.

Professor Behe admitted that none of this information is available for the inference to "intelligent design" of biological systems. In fact, the only piece of information that is available to support that inference is appearance. If it looks designed, it must be designed. But if that explanation makes sense, then the natural sciences must be retired. Almost everything we see in our marvelous universe — biological, chemical, physical — could be subsumed in this description.

Other than this meager analogy, intelligent design" is nothing but a negative argument against evolution, and a poor one at that. This was made strikingly clear when Professor Behe was asked about his statement that "intelligent design"’s only claim is about the proposed mechanism for complex biological systems, and he admitted that "intelligent design" proposes no mechanism for the development of biological systems, only a negative argument against one of the mechanisms proposed by the theory of evolution.

And, of course, Professor Behe also had to admit, reluctantly, that "intelligent design", as explained in Pandas, goes far beyond the argument about mechanism to attack another core proposition of the theory of evolution, common descent. In page after page of Pandas, the authors argue against common descent in favor of the creationist biblical argument for the abrupt appearance of created kind, birds with beaks, fish with fins, and so on.

The arguments in Pandas are based on wholesale misrepresentations of scientific knowledge, much of which has been known for years or even decades before Pandas was published and some of which has been developed after its last publication, demonstrating that science marches on while "intelligent design" stands still.

Kevin Padian was the only evolutionary biologist who testified in this trial. He described massive and pervasive misrepresentations of the fossil record and other scientific knowledge in Pandas. His testimony went completely unrebutted by any qualified expert.

The board members cannot claim ignorance about the flaws in Pandas. Dr Nilsen and Mr Baksa testified that the science teachers warned them that Pandas had faulty science, was outdated, and beyond the reading level of ninth-graders.

The board members had no contrary information. They have no meaningful scientific expertise or background and did not even read Pandas thoroughly. Their only outside input in favor of Pandas was a recommendation from Mr Thompson of the Thomas More Law Center, a law firm with no known scientific expertise. What these board members are doing then, knowingly, is requiring administrators or teachers to tell the students, go read that book with the faulty science.

It’s not just Pandas that’s faulty, it’s the entire "intelligent design" project. They call it a scientific theory, but they have done nothing, they have produced nothing. Professor Behe wrote in Darwin’s Black Box that if a scientific theory is not published, it must perish. That is the history of "intelligent design".

As Professor Behe testified, there are no peer-reviewed articles in science journals reporting original research or data that argue for "intelligent design". By contrast, Kevin Padian, by himself, has written more than a hundred peer-reviewed scientific articles.

Professor Behe’s only response to the "intelligent design" movement’s lack of production was repeated references to his own book, Darwin’s Black Box. He was surprised to find out that one of his purported peer-reviewers wrote an article that revealed he had not even read the book.

But putting that embarrassing episode aside, consider the following facts: Professor Behe admitted in his article "Reply to My Critics" that his central challenge to natural selection, irreducible complexity, is flawed because it doesn’t really match up with the claim made for evolution. It works backwards from the completed organism rather than forward. But he hasn’t bothered to correct that flaw. He also admits that there is no original research reported in Darwin’s Black Box, and in the almost ten years since its publication, it has not inspired research by other scientists.

Professor Behe’s testimony and his book Darwin’s Black Box is really one extended insult to hard-working scientists and the scientific enterprise. For example, Professor Behe asserts in Darwin’s Black Box, "The scientific literature has no answers to the question of the origin of the immune system," and "The complexity of the system dooms all Darwinian explanations to frustration."

I showed Professor Behe more than 50 articles, as well as books, on the evolution of the immune system. He had not read most of them, but he confidently, contemptuously dismissed them as inadequate. He testified that it’s a waste of time to look for answers about how the immune system evolved.

Thankfully, there are scientists who do search for answers to the question of the origin of the immune system. It’s the immune system. It’s our defense against debilitating and fatal diseases. The scientists who wrote those books and articles toil in obscurity, without book royalties or speaking engagements. Their efforts help us combat and cure serious medical conditions. By contrast, Professor Behe and the entire "intelligent design" movement are doing nothing to advance scientific or medical knowledge and are telling future generations of scientists, don’t bother.

Not only does "intelligent design" not present its argument in the peer-reviewed journals, it does not test its claims. You heard plaintiffs’ experts Pennock, Padian, and Miller testify that scientific propositions have to be testable. Defendants’ expert [Steve] Fuller agreed that for "intelligent design" to be science, it must be tested, but he admitted that so far, "intelligent design" had not done so.

Of course, there’s an obvious reason that "intelligent design" hasn’t been tested. It can’t be. The proposition that a supernatural intelligent designer created a biological system is not testable and can never be ruled out.

"Intelligent design" does not even test its narrower negative claims. As plaintiffs’ experts explained and again Dr Fuller agreed, arguments like irreducible complexity, even if correct, only negate aspects of the theory of evolution. They do not demonstrate "intelligent design". It does not logically follow. But "intelligent design" does not even test this negative argument.

Professor Behe and Professor Minnich articulated the test of irreducible complexity. Grow a bacterial flagellum in the laboratory. The test is, as I think Dr Minnich acknowledged this morning, somewhat ridiculous. [That evolution] doesn’t occur over two or five or ten years in a laboratory population doesn’t rule out evolution over billions of years.

But if Professor Behe and Professor Minnich think this is a valid test of their design hypothesis, they or their fellow "intelligent design" adherents should be running it, but they haven’t. Their model of science is, we’ve brought an idea, sit back, do no research, and challenge evolutionists to shoot it down. That’s not how science works. Sponsors of a scientific proposition offer hypotheses, and then they test [them].

Consider the amazing example that Ken Miller gave. Evolutionary biologists were confronted with the fact that we humans have two fewer chromosomes than chimpanzees, the creatures hypothesized to be our closest living ancestors based on molecular evidence and homology. Evolutionary biologists didn’t sit back and tell creationists to figure out this problem. They rolled up their sleeves, tackled it themselves, and they figured it out. That’s real science.

And, in fact, the common ancestry of chimpanzees and humans is real science. It’s the real science that William Buckingham and Alan Bonsell and all their fellow board members who voted for the change to the curriculum made sure that the students of Dover would never hear.

Make no mistake about it, William Buckingham was determined that Dover students would not be taught anything that conflicts with the special creation of humans, no mural, no monkeys to man, no Darwin’s descent of man, his wife’s sermon from Genesis. This was all focused on protecting the biblical proposition that man was specially created by God.

Similarly, Alan Bonsell ensured that the entire biology curriculum was molded around his religious beliefs. He testified in this courtroom that it is his personal religious belief that the individual kinds of animals — birds, fish, humans — were formed as they currently exist and do not share common ancestors with each other.

Macroevolution is inconsistent with his religious beliefs. The only aspect of the theory of evolution that conforms to his religious beliefs is microevolution, change within a species. He also believes in a young earth, thousands, not billions of years old.

Sure enough, in the fall of 2003, as the older of his two children prepare to take biology, Mr Bonsell sought assurances the teachers only taught microevolution and not what the board members call origins of life, macroevolution, speciation, common ancestry, including common ancestry of humans, all the things that contradict his personal religious beliefs.

He received the assurances he was looking for that most of evolution wasn’t being taught. On October 18, this practice of depriving students of the thorough teaching of the theory of evolution, in the minds of the board members, became board policy.

Now, in fairness to the teachers, they weren’t really short-changing the students to the extent Mr Bonsell hoped. Mrs Miller testified that she does teach speciation with Darwin’s finches, her attempt to teach evolutionary theory as nonconfrontationally as possible.

Mr Buckingham and Mr Bonsell also wanted to make sure that the teachers pointed out gaps and problems with the parts of the theory of evolution they did teach. None of the board members cared whether students knew about gaps and problems in the theory of plate tectonics or germ theory or atomic theory. But for evolution, it was essential that the students see all the purported warts.

The resource the board relied upon for information about problems with evolution was not from any of the mainstream scientific organizations, but rather the Discovery Institute, the think-tank pursuing theistic science.

For Mr Bonsell, however, making sure that the teaching of evolution didn’t contradict his religious beliefs wasn’t enough. He then joined Mr Buckingham in promoting an idea that affirmatively supported his religious beliefs. "Intelligent design" asserts that birds are formed with beaks, feathers, and wings and fish with fins and scales, created kinds just like Mr Bonsell believes. And "intelligent design" accommodates Mr Bonsell’s belief in young earth creationism. He is welcome in "intelligent design’s" big tent.

And if there was any doubt that the board wanted to trash evolution and not teach it, it was confirmed by the development of the statement read to the students. There was nothing administration or faculty could do about "intelligent design" because that’s what the board wanted.

But the language they developed about evolution was actually quite honest and reasonable. "Darwin’s theory of evolution continues to be the dominant scientific explanation of the origin of species. Because Darwin’s theory is a theory, there is a significant amount of evidence that supports the theory, although it is still being tested as new evidence is discovered. Gaps in the theory exist for which there is yet no evidence."

If this language had made it into the version read to the students, it would not have cured the harm caused by promoting the religious argument for "intelligent design" and directing students to the deeply flawed Pandas book, but at least it would have conveyed to students that the theory of evolution is well accepted and supported by substantial evidence.

The board would have none of it. The only things that the board wanted the students to hear about evolution were negative things. There are gaps, it’s a theory, not a fact — language that the defendants’ own expert, Steve Fuller, admitted is misleading and denigrates the theory of evolution. As Dr Fuller and plaintiffs’ expert Brian Alters agreed, the board’s message was, we’re teaching evolution because we have to.

As if their views weren’t clear enough, the board issued a newsletter which accused the scientific community of using different meanings of the word "evolution" to their advantage as if scientists were trying to trick people into believing something that there isn’t evidence to support.

Your Honor, you may remember Cindy Sneath’s testimony about her 7-year–old son Griffin who is fascinated by science. This board is telling Griffin and children like him that scientists are just tricking you. It’s telling students like Griffin the same thing Mr Buckingham told Max Pell, don’t go off to college or you’ll just be brainwashed, don’t research the theory of evolution.

The board is delivering Michael Behe’s message. Don’t bother studying the development of the immune system, you’re just doomed to failure. In science class, they are promoting the unchanging certainty of religion in place of the adventure of open-ended scientific discovery that Jack Haught described.

How dare they. How dare they stifle these children’s education, how dare they restrict their opportunities, how dare they place a ceiling on their aspirations and on their dreams. Griffin Sneath can become anything right now. He could become a science teacher like Bert Spahr or Jen Miller or Bryan Rehm or Steven Stough turning students on to the wonders of the natural world and the satisfaction of scientific discovery, perhaps in Dover or perhaps some other lucky community.

He could become a college professor and renowned scientist like Ken Miller or Kevin Padian. He might solve mysteries about the immune system because he refused to quit. He might even figure out something that changes the whole world like Charles Darwin.

This board did not act to improve science education. It took one area of the science curriculum that has historically been the object of religiously motivated opposition and molded it to their particular religious viewpoints.

You heard five board members testify in this court. I focus today on Mr Buckingham and Mr Bonsell who are most explicit about their creationist objectives and who worked hardest to browbeat administrators and teachers to their will. But Mrs Geesey’s letter to the editor establishes her creationist position. Her testimony and Mrs Cleaver’s also demonstrates that they abdicated their decision-making responsibility to Mr Bonsell and Mr Buckingham.

In Mrs Harkins’s case, it’s hard to discern what her motives were beyond depriving students of the book their teachers said they needed while supplying them with books describing a concept "intelligent design" that to this day she candidly admits she does not understand.

The board never discussed what "intelligent design" is or how it could improve science education. Clearly no valid secular purpose can be derived from those facts. All that remains is the religious objectives represented in Mr Bonsell and Mr Buckingham’s statements about teaching creationism and Christian values, the same values that animate the entire Wedge strategy.

Mr Buckingham said that separation of church and state is a myth, and then he acted that way. Mr Buckingham and his fellow board members wanted religion in the public schools as an assertion of their rights as Christians. But Christianity and all religious exercise have thrived in this country precisely because of the ingenious system erected by our founders which protects religious belief from intervention by government.

The law requires that government not impose its religious beliefs on citizens, not because religion is disfavored or unimportant, because it is so important to so many of us and because we hold a wide variety of religious beliefs, not just one.

The Supreme Court explained in McCreary that one of the major concerns that prompted adoption of the religion clauses was that the framers and the citizens of their time intended to guard against the civil divisiveness that follows when the government weighs in on one side of a religious debate. We’ve seen that divisiveness in Dover: School board member pitted against school board member. Administrators and board members no longer on common ground with the schoolteachers. Julie Smith’s daughter asking "what kind of Christian are you?" because her mother believes in evolution. Casey Brown and Bryan Rehm being called atheists.

It even spilled over into this courtroom where Jack Haught, a prominent theologian and practicing Catholic, had his religious beliefs questioned, not as they relate to the subject of evolution, but on basic Christian tenets like the virgin birth of Christ. That was impeachment by the defendants’ lawyers in this case.

It’s ironic that this case is being decided in Pennsylvania in a case brought by a plaintiff named Kitzmiller, a good Pennsylvania Dutch name. This colony was founded on religious liberty. For much of the 18th century, Pennsylvania was the only place under British rule where Catholics could legally worship in public.

In his declaration of rights, William Penn stated, "All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man can of right be compelled to attend, erect, or support any place of worship or to maintain any ministry against his consent. No human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishment or modes of worship."

In defiance of these principles which have served this state and this country so well, this board imposed their religious views on the students in Dover High School and the Dover community. You have met the parents who have brought this lawsuit. The love and respect they have for their children spilled out of that witness stand and filled this courtroom.

They don’t need Alan Bonsell, William Buckingham, Heather Geesey, Jane Cleaver, and Sheila Harkins to teach their children right from wrong. They did not agree that this board could commandeer the religious education of their children, and the Constitutions of this country and this Commonwealth do not permit it.

[The preceding is a lightly edited version of Eric Rothschild’s closing argument in Kitzmiller v Dover, delivered in Harrisburg, Pennsylvania, on November 4, 2005. For the official transcript of the day’s proceedings, visit http://www.ncseprojects.org/files/pub/legal/kitzmiller/trial_transcripts/2005_1104_day21_pm.pdf.]
Closing Statement for the Plaintiffs in Kitzmiller v Dover
Eric Rothschild, Pepper Hamilton LLP
This version might differ slightly from the print publication.

Design on Trial

Just another flare-up

Kitzmiller v Dover is now famous as the first test case on the constitutionality of teaching "intelligent design" (ID) in public schools, involving a six-week trial in Harrisburg, Pennsylvania, dozens of lawyers and witnesses, nine expert witnesses, 342 filed legal documents, 400 exhibits, national and international media, subpoenas, depositions, lies, videotape, bacterial flagella, the Constitution, civil rights, education, science, religion, history, evolution, the meaning of life, divine intervention, and one recently appointed federal judge. However, it began as just another "flare-up" for the NCSE staff.

A major part of the day-to-day work at NCSE consists of monitoring flare-ups around the country. In 2004, this included about a dozen anti-evolution bills proposed in state legislatures, several battles over evolution in science standards, and 50 or more local level flare-ups, usually school-board controversies over teaching evolution.

When I first became aware of the Dover situation, I had only been working at NCSE for five months. On June 8 and 9, 2004, news articles from the York Daily Record and York Dispatch appeared on my computer screen, reporting on a controversy at a June 7 meeting of the Dover Area School Board (DASB). The controversy was over whether or not the school district would purchase a new edition of the mainstream textbook Biology, by Ken Miller and Joe Levine. A school board member named William Buckingham claimed that Biology was "laced with Darwinism," that "[i]t's inexcusable to teach from a book that says man descended from apes and monkeys," and "[w]e want a book that gives balance to education." Buckingham and another board member, Alan Bonsell, both expressed support for finding a book that would teach both creationism and evolution. Addressing Max Pell, a recent graduate of Dover Area High School who noted during the public comment period that teaching creationism would violate the separation of church and state, Buckingham asked, "Have you ever heard of brainwashing?" and declared, "If students are taught only evolution, it stops becoming theory and becomes fact." Buckingham said that the separation of church and state was "a myth." Apparently to emphasize the point, Buckingham claimed, "This country wasn't founded on Muslim beliefs or evolution," adding "This country was founded on Christianity, and our students should be taught as such."

The June 9 article in the York Dispatch contained an accurate summary of the legal situation, noting that a 1987 Supreme Court decision (Edwards v Aguillard) had barred teaching creationism in public school science classrooms. The article also quoted Rob Boston, a spokesperson for the civil liberties group Americans United for Separation of Church and State, who stated the obvious: "Creationism isn't a science, it's religion, and any attempts to introduce creationism into public school science classes would most likely spark a lawsuit." He added, "The district would almost certainly lose a lawsuit like that. It's not even worth wasting the time and energy to consider."

In retrospect, all of these statements are highly significant, and sometimes prophetic, but at the time they did not seem particularly remarkable. It may sound surprising, but such news stories are not uncommon at the NCSE office. Demagogic politicians issuing blustery uninformed anti-evolution rhetoric are a dime a dozen. The fact that "intelligent design" was not even a part of the discussion early on indicated that the anti-evolutionism in Dover was of a fairly crude and unreconstructed sort. Talk of "monkeys" and "balance" — echoes, respectively, of the Scopes Monkey Trial and the creation scientists' "Balanced Treatment" legislation in the 1980s — only confirmed this impression.

Because the Edwards decision makes the law clear in this area, proposals to teach "creationism" typically fade away when the proponents learn that the Supreme Court settled the issue in 1987. The Dover situation simmered along throughout the summer and fall of 2004, but the opposition to the anti-evolutionists appeared to be strong, and the legal situation appeared to be deterring rash action. The Miller and Levine textbook was adopted after an acrimonious board meeting, and although the ID textbook Of Pandas and People was donated to the school a few weeks later, the newspapers seemed to indicate that a reasonable compromise had been reached. In October 2004, I was about to close the file on Dover. But on October 18, the DASB voted 6–3 to pass a policy inserting "intelligent design" into Dover's biology curriculum, using Pandas as a reference. On the morning of October 19, the front page of the York Daily Record screamed, in big bold type, "'Intelligent Design' voted in." Someone immediately faxed the headline to the NCSE office.

I distinctly recall walking into the office that morning. Genie Scott was already on the phone with someone about Dover, and she waved the newspaper headline at me as I walked past her office. In a true Homer Simpson moment, I slapped my forehead in shock. Evidently the DASB was bound and determined to bring a test case on the constitutionality of "intelligent design".


Little did we know that fights over evolution had been going on behind the scenes in Dover for years before outsiders learned about it. We also did not know that the Thomas More Law Center had been seeking a test case on "intelligent design" for at least five years, and that it was TMLC that had encouraged the board to adopt the "intelligent design" terminology and the ID textbook Of Pandas and People as a recommended text, on the understanding that they would represent the school district when the inevitable court challenge came. Because of these behind-the-scenes facts, Dover was destined to develop into the famous case that attracted attention around the world, and by virtue of having been assigned the Dover flare-up at the NCSE office, I was put right in the middle of it.

The Dover ID policy and the initial steps in the Kitzmiller case, filed on December 14, 2004, were described in a previous article, "Design on trial" (RNCSE 2005 Sep/Oct; 24 [5]: 4–9). In late 2004, NCSE joined the plaintiffs' legal team as a pro bono consultant and was included as a core part of the team from the start. Over a dozen lawyers and legal staffers eventually participated in the case. The lead attorneys were Eric Rothschild and Steve Harvey of Pepper Hamilton, Vic Walczak of the Pennsylvania ACLU, and Richard Katskee of Americans United for Separation of Church and State. The lawyers were superb in every way, but it is worth noting that NCSE also made some early contributions to the language of the initial complaint, and to the philosophy of the case, that in retrospect proved very important.

Everyone knew that this case would be about "intelligent design". However, NCSE staff repeatedly emphasized the bigger picture, which was that language reflecting the "evidence against evolution" approach (the "gaps/problems" and "theory, not fact" wording in the Dover policy) also needed to be addressed in order to minimize problems associated with dealing with this argument in the future. We argued that because ID is easier to defeat than "evidence against evolution" language, we should try to discredit the latter by linking it with the former. We pointed out that the legal team should take advantage of the link in the Dover policy between the "gaps/problems" and "intelligent design" language since we might not again have the opportunity to connect them in some future lawsuit.

A supporting point we made was that ID itself, as exemplified in Pandas and other ID literature, consists almost entirely of "evidence against evolution", with only a vague argument from analogy presented as the positive explanation for biological complexity. These points became themes in the trial, and were emphasized in the plaintiffs' Proposed Findings of Fact and Conclusions of Law. Judge Jones accepted this reasoning, issuing a massive and devastating 139-page opinion that ruled broadly against ID and the various anti-evolution euphemisms in the Dover policy. The ruling was hailed internationally, and the aftershocks are still being felt. For example, the Kitzmiller ruling clearly contributed to the overturning of Ohio's "critical analysis of evolution" lesson plan in February 2006 (details to follow in the next issue of RNCSE). Various other aftershocks may yet come.

How was this amazing result achieved? It was clearly the result of coordinated action on the part of many involved people and organizations. I will concentrate here on my own work in this case, which made up perhaps 5% of the total. Much of the other 95% I only learned about while sitting through the trial, and some of it I am still learning about as I review the case history and legal filings. Imagine an artistic masterpiece such as a famous painting or symphony, the culmination of a lifetime of training and practice. Then imagine getting twenty such masterpieces from lawyers, academics, and creationism nerds and somehow putting it together seamlessly into a court case. Melodramatic this may be, but it gives you some idea of how the Kitzmiller decision came about.


In the spring of 2005, I was given two main assignments: helping to prepare the plaintiffs' expert witnesses and helping to prepare the lawyers to cross-examine the defense experts. After the Kitzmiller case was filed, Judge Jones put the case on an expedited schedule, setting the trial for the coming fall. The discovery period of the case, when each side may gather evidence through document requests, subpoenas, depositions, and so on, ran through June 15. Expert witnesses would have to be declared on March 1, and expert reports stating the content of their trial testimony would have to be produced on April 1. Rebuttal experts, if any, would be declared by April 15. Sworn depositions would be conducted in May and June.

NCSE suggested the experts for the plaintiffs, whom the legal team discussed. The lawyers chose Kenneth Miller (biology), Robert Pennock (philosophy of science), Jack Haught (theology), Brian Alters (education), Barbara Forrest (history of ID), and Kevin Padian (paleontology). Jeffrey Shallit (mathematics and probability) was added later as a rebuttal expert. Alters and Forrest, of course, are on the NCSE board of directors, and Kevin Padian is president of the board. The ID expert list originally consisted of the A-team: Michael Behe (biochemistry), Scott Minnich (microbiology), William Dembski (philosophy and mathematics), John Angus Campbell (rhetoric of science), Warren Nord (religion in education), Dick Carpenter (education), with Stephen Meyer (philosophy of science) and Steve Fuller (philosophy of science) added as rebuttal experts. This list included five Discovery Institute fellows and most of the "heavy hitters" in the ID movement.

The story of the drafts

Starting with the plaintiffs' experts, I primarily worked with Barbara Forrest, on the history of ID, and with Kenneth Miller, our anti-Behe expert. Eric Rothschild and I knew that defense expert Michael Behe was the scientific centerpoint of the whole case — if Behe was found to be credible, then the defense had at least a chance of prevailing. But if we could debunk Behe and the "irreducible complexity" argument — the best argument that ID had — then the defense's positive case would be sunk. Kenneth Miller prepared an excellent expert witness report, but I suggested that he reference a number of recent papers that had been published on the evolution of new genes, the flagellum, blood-clotting, and particularly the immune system. Since expert testimony is technically limited to the contents of the expert report, it was important include every topic that might be important to discuss. When we got to trial, Miller included segments on each of these topics, all of which were used in Jones's opinion as refuting the arguments of the ID movement and of Behe specifically.

Barbara Forrest was the expert who would have to make the connection between the ID movement and creationism. She had, of course, co-authored Creationism's Trojan Horse, on the origins and history of the Discovery Institute, the "Wedge document", and the leaders of the ID movement. However, the Discovery Institute only established the Center for the Renewal of Science and Culture in 1996. Of Pandas and People, which is the first book to use the terms "intelligent design" and "design proponents" systematically, and which presents all of the modern ID arguments, was published in 1989. The creationist origin of Pandas and the "intelligent design" phraseology was not covered in detail in previous works on the history of ID, so my job was to dig up everything we could possibly find on the origin of Pandas and "intelligent design". The NCSE archives contain several files on Pandas and on the publisher of the book, the Foundation for Thought and Ethics (FTE).

Because Frank Sonleitner and John Thomas had done significant work analyzing the book and tracking FTE's activities in the 1980s and 1990s (see Of Pandas and People resources), I gathered advice and old files from both of them. I also rummaged through the relevant files in NCSE's archives and looked up various books and articles published by the Pandas authors, working through NCSE's collection of old creationist magazines and newspapers. Finally, I examined three recent books that give histories of the ID movement — Larry Witham's By Design and Where Darwin Meets the Bible, and Thomas Woodward's Doubts About Darwin: A History of Intelligent Design. Although the role of Pandas in the ID movement is minimized in these sources, they nevertheless contained various useful tidbits from interviews with the "academic editor" of Pandas, Charles Thaxton, and other early players in the ID movement.

Examination of all of these sources together — apparently something that no one had taken the time and trouble to do before — revealed some interesting facts about the history of Pandas: (1) Thaxton and the book's authors were working on Pandas for about a decade before it was actually published in 1989; (2) in early references to the Pandas project in the 1980s, Thaxton and FTE's president John Buell described themselves and their work as "creationist" and about "creation" — not "intelligent design"; and (3) the label "intelligent design" was chosen for Pandas very late in the evolution of the book, almost as the last change made before publication. This all built a nice circumstantial case that ID developed from creationism, and this case is made in Barbara Forrest's first expert report, filed on April 1, 2005.

On about April 8, NCSE's then archivist Jessica Moran came across another document in a file in the NCSE archives: a prospectus for a book entitled Biology and Origins, sent to a textbook publisher in 1987. Somehow this ended up in the files of the late Thomas Jukes, a prominent molecular biologist and longtime NCSE supporter. In 1995, Jukes sent the page to NCSE with the handwritten note "I found this in an old file, but it is certainly fascinating!" The prospectus document indicated that Biology and Origins existed in draft form in 1987, and furthermore had been sent to school districts for testing as well as to prospective publishers. The existence of unpublished drafts of Pandas should have been obvious from the evidence mentioned in the previous paragraph, and references to Biology and Origins were known, but we thought of it as just a working title for Pandas. The prospectus document made it clear that Biology and Origins was an actual draft that was widely reproduced and sent out to publishers and reviewers, and also explicitly indicated that the book would "give students the scientific rationale for creation from the study of biology."

This discovery shed light on a rather important historical fact that had somehow been omitted from all previous histories of the origin of the "intelligent design" movement. It has always been obvious that ID arguments derived from creationist sources, but never in the wildest dreams of creationism watchers had it occurred to anyone that the phrase "intelligent design" had quite literally originated as a switch in terminology in an actual physical draft of an explicitly creationist textbook.

I summarized the situation, as I understood it at the time, to the legal team as follows, in a discussion of Dembski's expert report:

Dembski doesn't mention the "version 0" of Pandas, Biology and Origins, which is mentioned in some of the 1980s FTE fundraising letters and other material. I am reasonably sure that the word "creation" would be substituted for "design" or "intelligent design" at many points within that manuscript. This would prove our point in many ways. We have a couple written sources indicating that picking the words "intelligent design" was one of the very last things that Charles Thaxton did during the development of Pandas. We don't know:

(a) Whether any copies of Biology and Origins still exist, e.g. at FTE in Texas or in the files of Thaxton, Davis or Kenyon;

(b) Whether Dembski has seen them (based on the expert report, Dembski either doesn't know the prehistory of Pandas, or is leaving that out).

At the time, it was far from clear that creationist drafts of Pandas still existed. But Eric Rothschild knew what to do. He immediately issued a subpoena to the Foundation for Thought and Ethics for any documents relating to the origin and development of Biology and Origins and Of Pandas and People.

After a failed attempt to quash the subpoena, FTE coughed up the documents in early July. To our amazement, five major drafts were uncovered, and we were able to trace the switch in terminology from creationism to "intelligent design" to just after the Supreme Court's Edwards v Aguillard decision in 1987. Barbara Forrest included all of this in a supplementary expert report and in her testimony at trial, and it became a key piece of Judge Jones's opinion.

Although the Pandas drafts were obviously important in the Kitzmiller case, it is only slowly dawning on everyone just how significant they are. The drafts are nothing less than the smoking gun that proves exactly when and how "intelligent design" originated. This was probably the biggest discovery in creationism research since the finding that the Coso Artifact was actually a 1920s sparkplug (see RNCSE 2004 Mar/Apr; 24 [2]: 26–30). They prove that the cynical view of ID was exactly right: ID really is just creationism relabeled, and anyone who thought otherwise was either naively misinformed or engaging in wishful thinking.

Irreducible Complexity on Trial

The other half of the expert case was the cross-examination of the defense experts. NCSE staff divided up the defense experts to prepare our legal team for their depositions and cross-examination. I took Michael Behe and Scott Minnich, the two biology/irreducible complexity witnesses, and attended their depositions in May.

Three Defense expert witnesses — Discovery Institute fellows William Dembski, Stephen Meyer, and John Angus Campbell —dropped out of the case and therefore did not testify, much to the disappointment of the NCSE staff assigned to their depositions (and presumably to the dismay of the defense). The reasons for this remain mysterious, although apparently the last news that Dembski received before withdrawing from his deposition was that Wesley Elsberry and Jeff Shallit planned to attend and pass questions to the lawyer (see "Can I keep a witness?" p 45).

When Eric Rothschild flew out to Berkeley for Kevin Padian's deposition, we discussed how to deal with Behe. One key result was convincing Rothschild that Behe's biggest weakness was the evolution of the immune system. This developed into the "immune system episode" of the Behe cross-examination at trial, where we stacked up books and articles on the evolution of the immune system on Behe's witness stand, and he dismissed them all with a wave of his hand. This clearly made a negative impression on Judge Jones, who mentioned the episode in his opinion. The details of this episode are reviewed in an essay I recently coauthored in Nature Immunology (2006; 7: 433–5; available on-line at http://www.nature.com/ni/journal/v7/n5/pdf/ni0506-433.pdf).

The Train Ride

Everyone knows that the trial did not go well for the defense, and that the judge's decision was devastating, but what is not well known is that the case was actually lost between January and September 2005. A real trial, in front of the judge and the media, is like a train ride — by the time the trial gets going, it is too late to change course, find new evidence, or bring new passengers on the ride. In desperate circumstances, people can be thrown off the train (such as when the Defense dropped two more expert witnesses, Warren Nord and Richard Carpenter), but that is about it.

The trial began on September 26, 2005, and lasted for six weeks. My role was to observe the trial, work with the lawyers in the evenings and weekends, and prepare for the next day. I also spent a fair amount of time talking to the media, being careful not to provide details that would harm the case. However, few details were needed, because the daily events were so amazing and so damning for the defense and the ID movement that very little "spin" was needed.

It was clear throughout the trial that things were going badly for the defense. Whether the witness was an expert or fact witness, whether the topic was biochemistry or school board votes, ID was taking hits every time a plaintiffs' attorney was asking the questions — and sometimes when the defense attorneys were asking questions also. The plaintiffs' experts all gave the performances of their careers, bringing to bear years of actual experience and research on exactly the topics the ID movement loves to yammer on about: fossils, irreducible complexity, philosophy of science, and so on. Every scientific point was documented with scientific articles, usually from Science or Nature, and each article was put on the screen for everyone to see, and then entered into evidence as an exhibit. Of Pandas and People took fire from all directions as just another poorly informed anti-evolution polemic with some last-minute editing to introduce the "intelligent design" terminology. Barbara Forrest made a massively documented case that ID really was — as her book had said long before the Pandas drafts were discovered — "creationism's Trojan horse." On cross-examination, the plaintiffs' experts if anything outdid themselves. The Thomas More Law Center lawyers would try the usual ID talking points, but our experts had heard every single one dozens of times before, and would reply with a thorough analysis of the claim and the evidence against it.

The fact side of the case was equally impressive. For some reason, the defense insisted that every single one of the 11 Dover parents who were plaintiffs testify in court. As a result, all of them took the stand and explained exactly why they had joined the suit. Each had a powerful reason — protecting their children's education and their right to teach their children religion themselves. Outsiders might naively think that Dover's one-minute ID statement was not a big deal, but the impact on the Dover community was enormous, precisely because the core issue was that the government was getting involved in promoting particular religious beliefs. The community was torn apart over the issue, and plaintiffs and their children were accused of being atheists and unpatriotic.

After three weeks of continuous bombardment, the defense finally got its chance to attempt a reply, leading off with their star witness, Michael Behe. Due to the withdrawal of the other leading ID experts, it was up to Behe to make the entirety of the case for ID, and apparently he saw his testimony as his chance to prove all of his critics wrong once and for all. The result was a confused mishmash of standard ID talking points and graphics, continuations of old arguments with his numerous critics, argument-by-quote-mine, and soporific bits of biochemistry that I am pretty sure made sense to no one in the court room. One thing Behe did not present was any empirical research testing the ID claims — something that the plaintiffs had repeatedly emphasized as important in their direct case, presenting examples where evolutionary models had been tested and the results published in the research literature. Complaints about your opponents do not a scientific case make. And unfortunately for Behe, "complaining" really describes his testimony rather well. Unlike the cheerful plaintiffs' experts, Behe came across as embittered and downright angry at the scientific community at large — particularly the National Academy of Sciences — for not taking his objections to evolution seriously.

Behe's direct testimony went on for nearly two full days. By the time he got to talking about how Kenneth Miller had wronged him in a debate about the lac operon back in 1999, the courtroom was asleep. Then the cross-examination began.

Unbeknown to Behe, Eric Rothschild had been plotting his cross-examination for months, with help from Kenneth Miller, Kevin Padian, me, and numerous others, including random members of the public offering unsolicited e-mail suggestions ("When you get Behe on the stand, you have to ask him this …"). Rothschild had assembled several dozen lines of questioning that would dissect the irreducible complexity argument, its various supporting examples, and perhaps more importantly the indignant rhetoric that Behe uses to give the impression of an impressive scientific case. Rothschild showed numerous contradictions between Behe's statements and the published evidence (for example, the immune system episode), and between different statements made by Behe. A particularly impressive example of the latter involved blood-clotting.

Rothschild noticed something that I had not in the 1993 edition of Pandas: in 1993, Behe (who wrote the blood-clotting section on p 141–6 of the 1993 Pandas, although he is not listed as an author) defined the irreducibly complex blood-clotting system differently than he did in his 1996 Darwin's Black Box. In 1993, Behe said that if an organism had only the four core components of the blood-clotting system ("Stuart factor and his friends," as Rothschild put it), it would have a nonfunctioning system and would die. However, in 1996, Behe, presumably having become aware of the fact that there is a fair bit of variability in vertebrate blood-clotting systems, said that those four proteins constituted "the system", and furthermore at trial, Behe criticized Ken Miller for ignoring this definition. Rothschild, with mock innocence and a big grin, pointed out the discrepancy, and then let Behe attempt to invent a rationale on the fly. Behe ended up coming up with yet another definition of "the system", but the point was made — Behe protected his irreducible complexity argument from what would otherwise be a clear falsification by redefining the "irreducibly complex system" at will. Contradictory evidence was dodged with word games, rather than accepted. Rothschild set up example after example of this sort of thing, and each time Behe would exercise his substantial powers of rationalization to paper over the problem, or define it away, or provide some excuse about why evolution had produced the scientific goods and ID had not.

Although the pretrial preparation work was the bulk of my contribution to the case, I was able to provide a little more help on the scene. For example, during his direct testimony, Behe claimed vehemently that Darwin's Black Box had received more peer-review than the typical journal article. He even named the reviewers. One was Michael Atchison, a veterinary professor at the University of Pennsylvania. However, I remembered reading an on-line article written by Atchison that told a different story. I gave the Atchison article to Rothschild, who read it to Behe during cross. In short, Atchison never read Behe's book; instead, he spent ten minutes on the phone with Behe's publisher in 1994. According to Atchison, "It sounded like this Behe fellow might have some good ideas, although I could not be certain since I had never seen the manuscript" (see http://reports.ncse.com/index.php/rncse). The implication of this and numerous other vignettes in Rothschild's cross was not that Behe was dishonest, but rather that he viewed the evolution debate through a set of filters so thick that no contradictory evidence could ever convince him he was wrong.

After the downfall of the mighty Michael Behe, the defense case was probably hopeless, but they gamely staggered on. Unfortunately every day just dug the hole deeper. The defendants — the pro-ID members of the Dover Area School Board — were shown to be either ignorant, liars, or in some cases, bigoted liars. Although the expert side of the case was important, the real heart of the case turned out to be William Buckingham and Alan Bonsell versus the beleaguered Dover science teachers. Cross-examination of the defense witnesses revealed step-by-step how the DASB had applied the screws to the teachers to attempt to get them to stop teaching evolution, despite the fact that teaching evolution was the teachers' job as mandated by the Pennsylvania science education standards. This, not any of the expert testimony, was the most important part of the case: for once, the outright intimidation of biology teachers — by far the most common, though rarely reported, anti-evolution problem in the US — was exposed in all its ugly glory, in open court for everyone to see.

Steve Harvey of Pepper Hamilton cross-examined Buckingham. Harvey is the nicest man you could ever meet, but somewhere deep down there is a bit of the classic movie lawyer — think of Tom Cruise in A Few Good Men. It was the movie lawyer who conducted the cross-examination of Buckingham. It turned out that Buckingham, who had said at his deposition that he didn't know who had donated the money to buy the Pandas books for the Dover school, had actually stood up in front of his church and taken up a collection to purchase the books. Harvey confronted Buckingham with a copy of the check that Buckingham had written, saying, "Mr Buckingham, you lied to me at your deposition on January 3rd, 2005. Isn't that true?" After a few minutes of Buckingham's quivering on the stand under such questions, Judge Jones had seen enough, saying "Mr Harvey … I get the point, and you've made the point very effectively."

Alan Bonsell, also caught lying by Harvey, did not experience a tonguelashing from Harvey, because in this case Judge Jones was so annoyed he stepped in and interrogated Bonsell himself. When a witness lies in court, the integrity of the entire justice system is compromised, and Jones raised his voice for the only time in the entire six-week trial to point this out personally to Bonsell, who was reduced from confident gum-chewing to meek apologies.

Against this backdrop, the testimony of the two surviving defense experts, though genuine, had an air of unreality about it. Steve Fuller, a prolific professor from the United Kingdom who studies the sociology of science and who is a fellow traveler with the ID movement, attempted to make the case that it was those in the scientific establishment who were the "meanies" — a bizarre argument in light of the events in Dover. Fuller did not help the Defense case much when he conceded that, yes, ID was creationism, nor when he stated that he believed science needed to have "an affirmative action strategy with regard to disadvantaged theories".

In the last week of the case, everyone began to realize that they were living through and participating in a piece of history. Analogies to the Scopes trial and the McLean v Arkansas trial were a regular feature of discussions. The presence of national media and several documentary filmmakers added to this feeling (one of the journalists/documentarians was Matthew Chapman, a great-great-grandson of Charles Darwin himself — and frankly looking a bit like the pre-beard Darwin in his 50s — who regularly sat at the front end of the jury box, glowering at the ID witnesses as if the very spirit of Darwin had showed up to observe the proceedings). As if that weren't enough, Robert Gentry, the final creation-science witness in McLean, pitched up in Harrisburg to watch the last few days of the Kitzmiller trial. He even held a press conference in the nearby state capitol building, giving the same old lines about how polonium halos proved a young earth and how the judge and Brent Dalrymple snubbed him back in 1981.

Scott Minnich, the final witness, probably performed the best of any of the defense witnesses, mostly through his reasonable demeanor and much shorter presentation. However, he had nothing new to add beyond what Behe said and was much less adept at dancing away from contradictory evidence than was Behe. The most memorable episode on cross came with Harvey's first questions, in which Harvey put up young-earth creationist articles (another NCSE contribution), showing that they used the bacterial flagellum in exactly the same way that Behe did, years and even decades before Behe's 1996 book. The ID jig was clearly up at this point in the case and the plaintiffs were just running up the score. This is probably why little attention was paid when Minnich gave away the store yet again. In response to a question from Harvey about evil designs in nature — such as the Type III secretion system, which the bubonic plague bacterium uses to inject toxins into human cells, and which Minnich studies for a living — Minnich replied that such issues were questions of "theodicy". Theodicy is the part of theology that deals with defending the benevolence and omnipotence of God in the face of suffering and evil; Minnich's remark thus bolstered the plaintiffs' case that ID was all about God after all.

On Friday afternoon of the sixth week, Rothschild and Gillen gave closing arguments for each side. Rothschild masterfully wove together all of the threads of the case, putting special emphasis on the eerie parallels between the local situation in Dover, where the school board had adopted ID and denied they wanted to teach creationism, despite abundant written evidence to the contrary, and the national ID movement, which had performed exactly the same operation on a grand scale after the 1987 Edwards decision (see p 26). Gillen's closing argument was not particularly memorable, but he redeemed himself just as the judge was about to close the proceedings:

THE COURT: Counsel, do you have anything further before we adjourn these proceedings? From the plaintiffs?

MR. ROTHSCHILD: No, Your Honor. Thank you.

THE COURT: From the defendants?

MR. GILLEN: Your Honor, I have one question, and that's this: By my reckoning, this is the 40th day since the trial began and tonight will be the 40th night, and I would like to know if you did that on purpose.

THE COURT: Mr. Gillen, that is an interesting coincidence, but it was not by design.

(Laughter and applause.)

With that, I declare the trial portion of this extended case adjourned.

Everyone in the fully-packed courtroom stood up, clapping, as the judge walked out. At this point I halfway expected a movie director to emerge and shout, "Cut it, print it!" This was one of those moments where real life and fiction merged.

A long press conference followed outside the courthouse, where the plaintiffs and their legal team finally felt that they could speak freely to the press without "giving away" any elements of the case. Then followed the post-trial party in downtown Harrisburg where the ACLU handed out little stuffed monkey dolls.


After the trial was finished we still had several weeks of work as the lawyers assembled the Proposed Findings of Fact and Conclusions of Law, a massive task in a six-week case. Primarily I helped the lawyers with the science aspects of these documents (I recall clarifying for one lawyer that organisms and organs are not the same — your NCSE dollars at work!). Once all of this was done, we had a few weeks where we could attempt to catch up with other business. On December 20, 2005, the decision came down, a grand slam home run. I was particularly gratified to see the science section of the case, which contains an amazingly erudite discussion of the science of evolution and the scientific problems with the ID arguments. I imagine that Kitzmiller is the only decision in existence where "exaptation" makes an appearance. December 20 was certainly the biggest media day in NCSE history, with the phone ringing off the hook from 8 am until the evening. Staff participated in several television interviews that week as well as many radio shows.

As I mentioned at the beginning, the aftershocks to Kitzmiller continue. The case was for "intelligent design" exactly what McLean was for "creation science" — the beginning of the end. It is hard to say if there will be an Edwards-like Supreme Court case for ID. The current situation in Kansas could potentially end up there, but first creationist members of the Kansas board of education have to survive the 2006 elections. Regardless, history shows that anti-evolutionism does not disappear after defeat in the courts: it merely evolves. But when it does, NCSE will be there to keep an eye on it.

About the Author(s): 

Nick Matzke
PO Box 9477
Berkeley CA 94709-0477

Design on Trial: How NCSE Helped Win the Kitzmiller Case

Nick Matzke, NCSE Public Information Director

This version might differ slightly from the print publication.

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.

About the Author(s): 
Barbara Forrest
Department of History and Political Science
Southeastern Louisiana University
Hammond LA 70402
My Role in Kitzmiller v Dover
Barbara Forrest, Southeastern Louisiana University
This version might differ slightly from the print publication.

The Dover Victory

On the morning of December 20, 2005, we were sitting in the law offices of Pepper Hamilton in Harrisburg, waiting for the judge to deliver his verdict in the Dover trial. It was expected to come sometime that day, or maybe the next day; no one could be completely sure. We had heard that the decision was a long one. An office pool had been started, and the bets were in on what time the verdict would be announced. The waiting was getting unbearable. Finally, at about 10:30, the e-mailed attachment began showing up on the office computers. Immediately, people started to download it and print it out. And then, one by one, the whoops and hollers began to be heard from offices all over the floor.

The attorneys, being used to this sort of thing, immediately flipped to the back pages to learn the formal points of the ruling. What they read astounded them. The judge had given us everything we asked for. It was clear that he had carefully read all the testimony, and that he had bowed to no political pressure in rendering his decision. As we began to compare notes on the different passages of the verdict, the exhilaration quickly grew, and the sports metaphors started to come out. This was a grand slam, a shut-out, a slam-dunk. It was like winning the Super Bowl.

The judge agreed with the findings of fact that our side proposed: "intelligent design" was not science, but religion; the Dover school board had acted with a religious purpose; and bogus "evidence against evolution" could not be presented in classrooms as legitimate science. Going into the trial, it seemed that the second point was a sure thing. We felt confident that we could demonstrate the first point, but we did not know how the judge would react. We decided to go for the third point because we knew that if we didn’t, we would be doing this all over again in six months.

My role in the case, as the only full-time evolutionary biologist, was to explain the principles and methods of the field, and to show how the "intelligent design" proponents misrepresented and distorted them. We decided to focus on the Pandas book, because it embodies the teachings of the "intelligent design" movement, and because it was the specific text that the school board placed in the library for students to consult on "intelligent design".

Like many others in the case, I had never been a witness before, let alone an expert witness. In the months since the trial, people have often asked me if I was nervous testifying in a big trial like this. Quite the contrary: I had been waiting all of my professional life to do this. For decades, creationists had maintained that scientists are either deluded or are deluding the public, including their students. Creationists, including the "intelligent design" proponents, had boasted for years that their science was legitimate, that they were victims of discrimination, and that they would win if they ever got their day in court. Well, they got their day in court.

For me, to be able at last to explain in a public forum, under oath, what our science is really about, was the greatest opportunity that someone in my position could ever have. Winding up the case for the plaintiffs was like coming out in the ninth inning to shut down the ballgame. And this game took place on a level playing field, where you had to answer direct questions, even if you didn’t like them. The opposition found out that they couldn’t run and they couldn’t hide. They were questioned relentlessly about the very things they have tried so hard to hide from the public for over a decade: "Intelligent design" is religion, not science. That is now a finding of fact in federal court.

Bringing science to the public

I have been a scientist and an educator for over 30 years. I’ve taught middle school, high school, and university students. And so, in my testimony I was able to explain the science as well as to describe the effects on students of having bogus alternatives to that science taught in their classrooms. I focused on three major kinds of specific problems with the Pandas text. There are of course the general issues that science as a process and as a philosophy is completely misrepresented in this book. There is the further problem that no authors of Pandas are experts in the sciences that have to do with evolution, particularly those that I deal with. This was made clear by the judge in his decision, when he noted that my testimony went completely unrebutted by the other side, and when he accepted my testimony that there are no "intelligent design" proponents who are recognized authorities in any fields related to evolution.

The three major kinds of problems I dealt with were classification, macroevolution, and homology. Classification is based on ancestry, as Darwin showed. But "intelligent design" proponents, like other creationists, do not accept common ancestry of living things, so it is impossible for them to explain classification accurately to students. They also cannot explain macroevolution, because they do not accept that either. They just think it is impossible. They cannot describe it as the patterns and processes of evolution above the species level, because they do not even accept speciation. But the concept of homology was the truly puzzling one in the mix of ID daffynitions. The criteria of homology include relative position, development, and composition of tissues and elements; these were established well before Darwin. Darwin showed that common ancestry explains why the patterns of homology make sense. But the authors of Pandas even managed to distort a concept that is pre-Darwinian. And, perhaps emblematically, they could not even get the anatomy of the panda’s thumb right.

Most of my testimony was spent dissecting the major contentions of Pandas that related to macroevolution. One major implication of "irreducible complexity," as the ID proponents would have it, is that major adaptations cannot be assembled through natural processes of evolution. This is why they distort and misrepresent scientific knowledge on the subjects as they do. In fact, our evidence for many major transitions, including most of the ones discussed in Pandas, is very good. It was easy to show the scientific evidence that the Cambrian Explosion was not instantaneous, but was drawn out over 70 million years. It was a privilege and a pleasure to show the judge all the fossil animals with features transitional between living in water and living on land; between dinosaurs and birds; between mammal relatives who used two bones to articulate the jaws and other relatives who used the same bones to link to the middle ear; and between land-living relatives of whales and the familiar marine behemoths of today.

The legacy of pseudoscience

It is bad enough that "intelligent design" proponents distort and misrepresent legitimate science as they do. More disturbing are the consequences of treating a religious proposition as if it were scientific. To maintain that it is scientific to search for an ultimate designer implies that scientists can ask questions about who the "designer" is and what his attributes are, even though the ID proponents will do anything to avoid this. That will not stop students from asking such questions. They will ask why a designer could not make biological processes capable of giving a flagellum to a bacterium. They will want to know, if a designer is capable of intervening in the affairs of life, why this "agency" does not do so more often to relieve pain and suffering. They will wonder of what use is prayer. These are not hypothetical questions. My students have already raised them. For the ID crowd not to have ready answers to these questions, but to abrogate the responsibility to deal with them even as they demand that teachers do so, is, I believe, criminally negligent.

In the end, to teach "intelligent design" is to mislead students about scientific evidence and concepts, and to lead them toward an outmoded and poorly conceived theology as a replacement for empirical knowledge. To teach that "intelligent design" is science, as I said in the trial, is to make people stupid. This kind of stupidity is worse than ignorance, because people who are ignorant have simply not learned yet; whereas to be misled about common understanding is to be made stupid. It is difficult to imagine a bigger waste of time or tax dollars, or to imagine a more grievous assault on the integrity of science and science education.

This victory is due to the teachers and plaintiffs of Dover, Pennsylvania; to our crack legal team; to our NCSE staff, without whom the plaintiffs could not have prepared the scientific and historical case; to our expert witnesses; and to the supporters of NCSE. This victory is for all of us, and especially for the students who will receive a decent science education.

About the Author(s): 
Kevin Padian
c/o NCSE
PO Box 9477
Berkeley CA 94709-0477
The Dover Victory
Kevin Padian, NCSE President
This version might differ slightly from the print publication.

Review: Traipsing into Evolution

When Judge Jones ruled that the Dover (Pennsylvania) Area School Board had violated the First Amendment’s Establishment Clause by mandating a brief statement in biology class about “intelligent design” (ID), he characterized Dover’s action as “breathtaking inanity” (Kitzmiller v Dover, p 138 of the memorandum opinion). Traipsing purports to rebut Jones’s opinion, but virtually every page contains serious factual, legal, or analytical errors; out-of-context quotes; or inconsistent, irrelevant, or trivial arguments — so the rebuttal is very weak.

For example, the introduction accuses Jones of judicial overreach, partly because Jones ruled Dover’s action unconstitutional for two reasons: 1) it had no legitimate secular purpose; and 2) its primary effect would be religious, since ID has no scientific merit. The authors argue that the first reason was sufficient by itself to invalidate Dover’s policy; therefore it was overreaching for Jones to embarrass ID by adding the second reason (p 10–1). That accusation is groundless. When there are several possible justifications for a particular decision, it is common practice for judges to rule on each one. That way, even if appellate courts reject one justification, they might still sustain one of the alternative justifications. It is inexplicable that the authors, two of whom are attorneys, seem to be unaware of such a routine practice.

Chapter 1 says that Jones’s view of ID’s history was partisan, partly because he relied on “polemical ID critics” such as Barbara Forrest (p 20), who testified about ID proponents’ religious statements and creationist connections (Forrest 2005: 133–9 is a typical example). The authors label her testimony “ad hominem attacks” (p 68), which creates the impression that it was improper. Forrest’s testimony, however, merely showed that ID-proponents might be biased. Introducing evidence of bias is entirely legitimate, even according to ID’s own “intellectual godfather” Phillip Johnson (Johnson 1997: 40–1), and occurs in countless thousands of trials. It is unfortunate that the authors used such a prejudicial term for another routine practice.

Chapter 2 attacks Jones’s rejection of ID as science. Seemingly oblivious to the importance of context in interpreting precedents, the authors cite Daubert v Merrell Dow Pharmaceuticals for the proposition that Jones placed too much emphasis on ID’s lack of peer-review (p 54–6); but every lawyer knows (or should know) that rules announced in one context do not necessarily apply in others. Daubert involved a medical malpractice case, not public school education; two private parties, not the government; the interpretation of a procedural rule of evidence, not the constitutionality of a biology curriculum; a jury of adults, not a class of young students; and scientific evidence which was genuinely new, not a theory which, according to the authors, dates back to Socrates, Plato, and Aristotle (p 17). Where exactly is the similarity of context that makes the authors think Daubert applied to Kitzmiller? Complaining that Jones did not follow Daubert makes about as much sense as complaining that Steven Spielberg did not put any sharks in Schindler’s List.

Michael Behe’s essay at the end of the book (Appendix A; p 79–92) also attacks Jones’s rejection of ID as science. Jones ruled that ID’s negative arguments, in which alleged evidence against evolution is taken as evidence for ID, are illogical, because they are based on a contrived dualism or “false dichotomy” (Kitzmiller, p 64, 71). Behe responds by describing a theoretically valid dichotomy, the essential features of which are that it has two causes, natural and intelligent, which theoretically are cumulatively exhaustive (no other causes exist) and mutually exclusive (the two causes never interact) (p 80). The problem is that the essential features of Behe’s theoretical dichotomy are missing from the negative arguments that ID-proponents — including Behe himself — actually use. Behe seems not to understand that valid dichotomies are like sensible diets: they do not work if we do not follow them.

Jones also rejected ID’s arguments comparing biochemical systems to man-made machines, partly because some of the essential features relevant to the comparison were so dissimilar (Kitzmiller, p 79–82). Since Behe relies so heavily on such comparisons, one might expect his rebuttal here to be sharply focused. Instead, he resorts to frivolous word-games. Jones called the comparisons “analogies” or “inductions” at various times. Behe seizes on that, claims (without explanation) that there is a crucial difference between the two words, and accuses Jones of inconsistency (p 89). Some authorities, however, view analogies as a type of induction (Moore and Parker 2001: 392). Under that view, Jones’s alleged “inconsistency” disappears, making Behe’s argument appear not only frivolous, but wrong. Furthermore, although Behe denies that ID’s argument is an analogy (p 89), he repeatedly used that word himself, explicitly or implicitly, both in his testimony (Behe 2005a: 28, 74, 75; 2005b: 93; 2005c: 59) and in his book Darwin’s Black Box. “I liberally use analogies to familiar, everyday objects to get the ideas across” (Behe 1996: xii). Hair-splitting semantics aside, the point here is that playing word-games on important issues does not help Behe’s credibility.

Behe has his own problems with consistency. He originally indicated that irreducibly complex systems met the standard established by Darwin’s phrase: “could not possibly have been formed by numerous, successive, slight modifications” (Behe 1996: 39). Under that standard, merely plausible evolutionary explanations would be effective rebuttals; but whenever evolutionists offer such explanations, Behe arbitrarily changes the standard to “rigorous, detailed explanations” (p 86). Moving the goalposts like that destroys the rigor of Behe’s argument.

Chapter 3 addresses religious issues. Claiming that ID’s religious implications are only indirect religious effects, the authors complain that Jones did not follow the precedent of Agostini v Felton, which held that an otherwise religiously neutral policy is not rendered unconstitutional merely because it has indirect religious effects (p 63–4). But Agostini explicitly emphasized that the challenged action — public school teachers leading remedial classes in sectarian schools — had no impact on curriculum content; while teaching ID obviously does. Given Agostini’s context, its support for ID seems highly dubious, even without considering the issue of whether ID is in fact religiously neutral.

The authors also take Jones’s seemingly innocuous statement that evolution is compatible with belief in God and interpret it as an unconstitutional endorsement of religion (p 68–70). Following that logic, ruling that Copernican theory is compatible with belief in God would also be unconstitutional. I doubt any court would accept such a strained interpretation.

Chapter 4 says Jones’s decision has limited precedential value, partly because district court decisions bind only the parties involved (p 73). Well, the McLean case was also a district level case, and yet it was essentially the death knell of creation science. Judge Overton’s decision there, following a full trial, exposed creation science’s flaws so effectively, that other courts, including the Supreme Court, subsequently disposed of similar cases by way of summary judgment, without wasting time on another full trial. That’s an ominous precedent indeed.

As for the rest of the book, the conclusion is a call to arms to protect academic freedom. Appendix A is Behe’s defense of ID as science. Appendix B contains a very short list of peer-reviewed publications allegedly supporting ID. Appendix C is a supporting brief from 85 scientists. Much of that is irrelevant; some of it contradicts arguments in other sections; none of it is very persuasive.

The fact that Traipsing, written by some of ID’s leading advocates, contains so many serious errors does not inspire confidence in ID’s scientific or constitutional vitality; rather it tends to confirm Judge Jones’s characterization: “breathtaking inanity.”



Behe MJ. 1996. Darwin’s Black Box: The Biochemical Challenge to Evolution. New York: The Free Press.
Behe MJ. 2005a. Trial transcript (Kitzmiller v Dover). http://www2.ncseweb.org/kvd/trans/2005_1018_day11_am.pdf. Last accessed on May 9, 2006.
Behe MJ. 2005b. Trial transcript (Kitzmiller v Dover). http://www2.ncseweb.org/kvd/trans/2005_1018_day11_pm.pdf. Last accessed on May 9, 2006.
Behe MJ. 2005c. Trial transcript (Kitzmiller v. Dover). http://www2.ncseweb.org/kvd/trans/2005_1019_day12_pm.pdf. Last accessed on May 9, 2006.
Forrest B. 2005. Trial transcript (Kitzmiller v Dover). http://www2.ncseweb.org/kvd/trans/2005_1005_day6_am.pdf. Last accessed on May 9, 2006.
Johnson PE. 1997. Defeating Darwinism by Opening Minds. Downers Grove (IL): InterVarsity Press.
Moore BN, Parker R. 2001. Critical Thinking. 6th ed. Mountain View (CA): Mayfield Publishing Company.

Legal Cases Cited
Agostini v Felton. 521 US 203 (1997).
Daubert v Merrell Dow Pharmaceuticals, Inc. 509 US 579 (1993).
Kitzmiller v Dover Area School Board. 400 F Supp 2nd 707 (MD Pa 2005). Memorandum opinion available on-line at http://www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf. Last accessed on May 9, 2006.
McLean v Arkansas Board of Education. 529 F Supp 1255 (1982).

About the Author(s): 
Tim Beazley
5745 Friars Road, Unit 94
San Diego CA 92110
Traipsing into Evolution: Intelligent Design and the Kitzmiller v Dover Decision
Tim Beazley
David K DeWolf, John G West, Casey Luskin, and Jonathan Witt
This version might differ slightly from the print publication.
Seattle (WA): Discovery Institute Press, 2006; 123 pages.