ACLU Demands and Dover Designs

Joe Manzari and Seth Cooper
The American Enterprise Online
April 4, 2006
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If the ACLU happens to sue your small hometown and then demands $1 million dollars for their lawyers, would you call them generous and charitable? Strangely enough, that's exactly what they’ve done to the small town of Dover, Pennsylvania. Following the ACLU and Americans United for Separation of Church and State's (AUSCS) federal trial court victory in Kitzmiller v. Dover Area School Board (M.D.Penn. 2005), the ACLU recently announced it would "generously" demand only $1 million in costs and attorneys fees. Why $1 million you may ask? According to the ACLU’s Eric Rothschild, “We think it’s important that the public record will reflect how much it costs to stop an unconstitutional action.” But a closer look at the public record shows a highly questionable path was taken to “stop” the Dover Area School District’s evolution policy that was at the heart of the controversy.

In October 2004 the Dover Area School Board made national headlines for its controversial evolution policy. It stated: “Students will be made aware of gaps/problems in Darwin’s Theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of the life will not be taught.” The policy also required school administrators to read to students a statement mentioning problems with Darwin's theory and refers students to school library textbooks discussing the theory of intelligent design. Students were permitted to leave the room when the statement was read. Ironically, the policy itself wasn’t favored by such leading proponents of intelligent design as the Discovery Institute, which opposes mandating the topic in public schools and repeatedly urged the Dover board to repeal its policy well before any lawsuit was filed. (For a detailed treatment of the Dover policy and the ensuing trial see the newly released Traipsing into Evolution.)

A group of parents from the community sued the school district, which led to a trial last fall. The trial proceeded poorly for the Dover Board, as two of its members who testified appeared to give contradictory (and possibly false) testimony on facts leading up to the evolution policy's adoption. The trial concluded in October, with a decision not expected for a couple months.

In the meantime, the Dover Area School District held November elections for the School Board. A slate of candidates formed under the name “Dover C.A.R.E.S.,” to challenge incumbent members by campaigning on an anti-intelligent design policy platform. The Dover C.A.R.E.S. coalition campaigned vehemently against the board's flawed evolution policy, and attacked the theory of intelligent design along the same lines as the ACLU and AUSCS. Dover C.A.R.E.S. decried the litigation costs that the board risked, insisting that, by displacing the incumbents, they would heal the divided community.

In light of their opposition to the Dover Board’s evolution policy, the election season brought charges that Dover C.A.R.E.S. was in league with the ACLU and AUSCS. The incumbent Dover Board members sent letters to residents arguing that the Dover C.A.R.E.S. candidates support the ACLU. One of the Dover C.A.R.E.S candidates, Phil Herman, responded, "I’m very angry. We’re not involved with the ACLU. I would like to see [the incumbents] bring out proof that we are."

The Dover C.A.R.E.S. candidates defeated the incumbents who were up for election. The new Board has an 8-1 majority against the old board's evolution policy.

The election of Dover C.A.R.E.S. endangered the plans of the ACLU and AUSCS. Both groups used the calamitous situation in the Dover Area School District to launch a comprehensive attack against scientists, philosophers, academics, and institutions throughout the nation that advocate the emerging scientific theory of intelligent design. They hoped for an authoritative court decision banning discussion of intelligent design in public schools and government, perhaps via a U.S. Supreme Court decision to ban the theory of intelligent design by subsuming it under creationism and its decision of Edwards v. Aguillard (1987).

Dover was never the primary target of the lawsuit, but rather served as a springboard for striking a blow nationwide against the theory of intelligent design. But the election of a new board that opposed its predecessors’ evolution policy threatened the hopes of the national groups. Even if federal trial judge John E. Jones III declared the old board’s evolution policy unconstitutional, the new board could not be counted on to challenge any decision on appeal to the Third Circuit Court of Appeals, let alone the Supreme Court. Furthermore, if the new board were to rescind the old board's evolution policy prior to any ruling by Judge Jones, the case might be settled through a consent decree, which would lack the authoritativeness of a mere federal district court decision. It would also diminish or possibly eliminate any chance of the ACLU or AUSCS's recovery of legal costs and fees from the Dover School District.

One might assume the new board's first item of business would be to rescind the old board's evolution policy. Not so. During their first meeting on December 5th, former Dover Board member David Napierski proposed a resolution to rescind the old board’s evolution policy (prior to any court ruling). Acting as a private citizen, Napierski procured the opinion of an attorney, who said that a vote to rescind the evolution policy could stave off a courtroom defeat and significantly reduce or eliminate legal costs and fees. Yet the new board rejected Napierski’s proposal to rescind the old policy.

What's more, one of the new board members, Bryan Rehm, was both a Dover C.A.R.E.S. candidate and a plaintiff represented by the ACLU and AUSCS in Kitzmiller.

Why would the new board keep in place the evolution policy it once so ardently opposed? The School District’s suit brought national attention and ridicule to the community, and the testimony of the former board members exacerbated the situation. A likely forthcoming decision by Judge Jones would overrule both the board and the theory of intelligent design. By rescinding the old board's evolution policy prior to a court ruling, the new board might have curtailed legal costs and fees incurred by a victorious ACLU and AUSCS. But the new board accepted a likely stinging defeat in court, with painful legal bills attached.

It is now three months following the Dover Area School District’s courtroom defeat and the ACLU, AUSCS, and the new board members have some tough questions to answer. The groups’ ostensibly charitable demands for $1 million in costs and attorneys’ fees (rather than the original $2 million) needs to be explained in greater detail than has henceforth been granted. Dover Board member Rehm hasn’t returned phone calls or answered e-mails.

With a $1 million reimbursement from the Dover School District, and their ongoing public relations campaign to pose as generous compromisers in this struggle, the ACLU and AUSCS are playing up their achievement to the broader American public, over three quarters of which want intelligent design taught alongside Darwinism in schools. In the words of ACLU’s Eric Rothschild following their victory in Dover: "Are we a little bit famous now? Yes, and it’s amazing."

Editor's note: Correction - The Dover Board considered rescinding the evolution policy at the December 5th meeting; Board member Bryan Rehm did not participate in the consideration.

Joe Manzari is a research assistant with the American Enterprise Institute. Seth Cooper is an attorney and former law & policy analyst with the Discovery Institute.