A Textbook Case of Judicial Activism

How a Pro-ID Publisher Was Denied its Day in Court
Seth L. Cooper & Leonard G. Brown III
Discovery Website
August 22, 2006
The topic of teaching evolution in public schools continues its hold on national attention with the recent Kansas Board of Education elections. But for most of 2006, the discussion about the controversy surrounding Darwin's theory has focused upon the intelligent design (ID) case of Kitzmiller v. Dover Area School Board. Kitzmiller has become one of the most widely discussed court cases in recent memory. Yet, few are aware of the many troubling factual, procedural and legal problems leading to the verdict by federal trial Judge John Jones III. Judge Jones’s ruling on the school dispute in a small Pennsylvania township and the contents of a pro-ID textbook has no value as precedent beyond the parties to the lawsuit. Neither party appealed to the U.S. Court of Appeals for the Third Circuit. But Judge Jones’s ruling nonetheless represents a troubling misuse of federal judicial power. Early on, Judge Jones construed federal rules of civil procedure to block any participation in the lawsuit by the Foundation for Thought and Ethics (FTE), publisher of the pro-ID textbook, Of Pandas and People. Now Judge Jones might have followed his decision to block their participation with a final ruling in keeping with such a move: he could have limited his opinion to the actual parties in the lawsuit. Instead, having rebuffed FTE’s request to represent their own interests, Judge Jones purported to offer a decision on behalf of the entire federal judiciary, a decision that encompassed the publisher’s clear intellectual property, economic and constitutional interests and eviscerated them.

Kitzmiller is the first case addressing the constitutionality of teaching ID in public schools. The Dover Area School Board adopted a controversial evolution policy, requiring students be read a statement at the beginning of biology class mentioning ID. The statement noted a minority of scientists preferred the theory of ID to Darwin’s theory of evolution and told students that if they wanted to learn more about ID, they could read a supplemental textbook in the school library (i.e., Of Pandas and People). Discovery Institute, a pro-ID think-tank, thought the Dover policy unwise and urged the Board to withdraw it. Representing a handful of disgruntled Dover parents, the ACLU and other firms filed suit in December of 2004. In response, the Board hired the Thomas More Law Center.

The ACLU's complaint assailed the Board's ID policy and Pandas. The ACLU claimed ID is equivalent to the "creation science" at issue in Edwards v. Aguillard (1987). Therein a majority of the U.S. Supreme Court concluded a "creation science" statute advanced a particular religious viewpoint, violating the anti-Establishment clause via the test set out in Lemon v. Kurtzman (1971).

On April 28, 2005 Texan Jon Buell received subpoenas from the ACLU. Buell is President of FTE, the non-profit organization that publishes Pandas. Headquartered near Dallas, FTE receives revenues from sales of the textbook and has intellectual property ownership of its contents. From a handful of news stories, Buell was dimly aware of the distant Pennsylvania lawsuit. He had received no contact from the Dover Board’s attorneys. ACLU subpoenas demanded he be deposed in May, and that he turn over all documents related to Pandas. Surprisingly, the ACLU also demanded Buell turn over all unpublished working-draft materials for FTE’s as-yet-unreleased textbook, The Design of Life: Discovering Signs of Intelligence in Biological Systems.

The ACLU’s subpoenas of FTE were a broadside representing potential catastrophe for the publisher. The ACLU had secured as consultants the pro-Darwin and Oakland-based anti-ID lobby group, National Center for Science Education (NCSE). The NCSE has long been a harsh critic of Pandas, and the ACLU sought to place the important Design of Life draft into their hands.

FTE promptly filed motions in Texas and Pennsylvania for a protective order to quash the subpoenas. On May 12, 2005, Judge Jones conducted a hearing. He entered a weak protection order, denying the motion to quash. FTE was required to hand over its Design of Life manuscript and related Pandas documents. Judge Jones simply warned the ACLU and NCSE not to publicize Design of Life’s contents prior to publication and instructed the ACLU to notify FTE attorneys as to who received draft copies.

Deeply concerned by events, FTE filed a motion to intervene as a third-party defendant. Beyond the compromise of its intellectual property interests in its unpublished work, FTE claimed economic losses of approximately half a million dollars should the ACLU prove successful in its lawsuit. FTE argued that schools and education specialists would be reluctant to purchase a supplemental biology textbook deemed "religion" by a federal judge. Further, FTE asserted there was no doubt that "opponents of intelligent design theory and FTE would use such a ruling by this Court to dissuade and threaten public schools from purchasing these textbooks." FTE emphasized that the Dover Board’s attorneys had not and would not devote proper attention to FTE's interests. Specifically: Buell had no contact with the Board’s attorneys prior to the subpoenas and only limited contact thereafter. Both the ACLU and the Dover Board objected to FTE’s proposed intervention.

Another hearing was conducted before Judge Jones on June 14. FTE President Buell testified. Reports from those present for the hearing indicate that Judge Jones appeared hostile towards Buell and the proposed intervention. Additionally, Judge Jones appeared offended at any intimation that the Dover Board’s attorneys were not competently representing FTE’s interests.

Six weeks later, Judge Jones issued his order denying FTE’s motion to intervene. The hostility FTE’s attorneys sensed at the hearing was manifest in his order. Rather than issue a matter-of-fact ruling, Judge Jones declared FTE’s arguments "both unavailing and disingenuous." (Is it disingenuous for a publisher to want to protect its own economic and intellectual property rights?) Judge Jones declared that even though Buell resided in Texas, there were enough news stories about happenings in Dover, PA, that he should have sought intervention earlier. Although FTE’s motion was filed a mere four months after the law suit began and weeks of discovery remained, Judge Jones declared it untimely. Trial was not scheduled until late September. Shockingly, Judge Jones held that any court ruling that ID is the equivalent of creation science (that would likely result in the loss of hundreds of thousands of dollars to FTE) did not constitute a "legal interest as distinguished from interests of a general and indefinite character." As if beating a dead horse, Judge Jones ruled that the case (somehow) would present no potential impairment of any such interest even if FTE actually had one. Noting that the Dover Board opposed FTE's intervention, Judge Jones still concluded the Board’s attorneys would protect FTE’s interests.

Lost in Judge Jones’s ruling was any recognition that the intervention exists under the federal rules of civil procedure for parties to protect their rights and interests when jeopardized by a lawsuit. Particularly when a trial judge from another part of the country attempts a wide-ranging ruling on matters of national importance, the mandated liberal construction of the rules should require a judge to make strenuous efforts to accommodate parties whose rights and interests are placed into peril by the litigation.

FTE might have appealed their motion to intervene to the Third Circuit, but they realized that such a course would likely increase Judge Jones’s hostility. FTE chose not to appeal, hoping that the judge’s ruling would be followed by a narrow court ruling in keeping with his refusal to allow FTE to join the lawsuit.

Friend-of-the-court or amicus curiae briefs supportive of ID were filed by FTE and others, urging Judge Jones to confine his ruling to the parties before the court. Judge Jones was urged to rule merely on the constitutionality of the Dover Board’s ID policy and the Board’s own conduct, rather than the scientific and constitutional status of ID. It was even argued that a debate of high academic importance involving matters that philosophers of science cannot resolve transcends judicially manageable standards.

The Kitzmiller trial was held in October and November. Leading ID proponents were discouraged by the proceedings. Although respected microbiologist Dr. Scott Minnich and renowned biochemist Dr. Michael Behe testified as experts in favor of the scientific credibility of ID, the trial cast a decidedly negative light upon the Dover Board members.

Following the trial, November elections saw the incumbent Dover Board thrown out in favor of a slate of candidates elected on an anti-ID policy platform. Appeal of a ruling against the Board now appeared unlikely, but the pending decision still left FTE and ID proponents with much to worry about.

In December, Judge Jones issued his ruling. FTE’s worst expectations were realized. Judge Jones expansively declared at the outset that “no other tribunal in the United States is in a better position than are we to traipse into this controversial area.” He also exhorted future courts to heed his decree, rather than "waste" additional "judicial resources" on the question he had decided. In an unusually long district court opinion spanning sixty pages in the federal supplement, Judge Jones reached far beyond the Dover Board’s ID policy, far beyond the witnesses who testified and far beyond the evidence. In the process, he demonstrated why his refusal to allow FTE into the lawsuit was tragically flawed. Judge Jones demonized the theory of ID as well as FTE and ID theorists and proponents. In order to do this, Judge Jones found it necessary to first define "science." He then defined ID as beyond the court’s proffered definition of science. But more than being non-science, Judge Jones declared ID a bad argument. And religious. The ACLU’s proposed findings of fact were wholesale incorporated into Judge Jones’ opinion. According to Judge Jones, the theory of ID was so poisonous and intellectually vacuous as to be unconstitutional in any public school science classes.

Judge Jones built his opinion on often demonstrably false assertions. For instance, he claimed there is a "complete absence of peer-reviewed publications" supporting ID. Amici directly cited to such publications. But Judge Jones’s strident judicial activism was manifest even apart from obvious factual errors, through his eagerness to reach far beyond the parties to the suit while denying at least one of those parties the right to intervene. Amici pointed to the long-standing rule that courts do not reach constitutional decisions when narrower bases for a judicial decision exist. But Judge Jones ignored all clearly delineated rules for judicial restraint.

That Judge Jones’s ruling went beyond the ken of a federal district court’s rightful place in the federal court system is made clearer by additional longstanding precedents. Several federal circuit courts of appeal maintain that district court decisions have no precedential value. There is no such thing as a "law of a district." Decisions by district courts may be disregarded even by courts within that same district hearing similar issues. Moreover, lengthy judicial pontificating by federal district judges on issues not necessary for deciding cases comes close in nature to advisory opinions, which have been banned in federal courts since their beginning.

The "too remote" danger FTE faced by an anti-ID court decision has become a reality. Throughout his opinion, Judge Jones tarred-and-feathered FTE and Pandas. He plucked passages out of context for denunciation. Wherever Pandas made nuanced arguments, Judge Jones either ignored them or misrepresented them. FTE’s amicus brief was completely ignored. The actions of the Dover Board and Dover residents (in op-eds and letters to the editor in local papers) was cited by Judge Jones as proving the religious nature of ID. This notwithstanding that federal diversity jurisdiction was established, in significant part, to protect out-of-state parties from local prejudices. While Kitzmiller was decided under federal question jurisdiction, there is little question that merely local prejudices were never meant to influence answers to questions of federal law, either.

The decision's unfairness to FTE did not end there. The same Thomas More Law Center that Judge Jones strongly defended in his order denying FTE intervention was assailed by Judge Jones in his opinion. He now described the Dover Board’s counsel as "eager to find a constitutional test case on ID," driving the Board's decision of "breathtaking inanity." Discovery Institute, which was not a party to the suit and had opposed the Dover School Board’s Policy, was nonetheless attacked by the Judge in the decision.

Not only were FTE’s intellectual property rights compromised through its being required to hand over the Design of Life manuscript to NCSE, but Pandas is now banned by a federal judge who said other courts should follow his opinion. How likely is it that public high school educators will now seek to purchase copies of Pandas?

Although district court decisions have no precedential value, high profile trials such as Kitzmiller can prove tremendously influential on the culture in the legal community and in society at large. This is especially true with a topic like evolution. The county trial involving teacher John T. Scopes, or at least the fictionalized Hollywood version of it, Inherit the Wind, remains vivid in the imaginations of American attorneys, jurists and citizens alike.

Beyond Judge Jones’s statement to the media that he planned to view Inherit the Wind prior to trial for historical background and context, the cultural influence of high profile trials was evident in Judge Jones’s opinion itself. His opinion described the trial’s backdrop in terms of a longstanding battle between modernity and backward fundamentalism. Furthermore, Judge Jones’s opinion frequently cites to McLean v. Arkansas (E.D. Ark. 1981), a federal trial concerning a creation science statute. Judge Jones’s opinion is likewise littered with references to a federal trial court opinion from Selman v. Cobb Co. Sch. Dist. (N.D. Ga. 2005), a Georgia case concerning the placement of disclaimer stickers in school textbooks. (That opinion was vacated in May, 2006, by an appellate panel of the Eleventh Circuit Court of Appeals.)

In essence, Judge Jones lumped ID in with creation science, convicting FTE and other ID proponents in absentia for promoting an idea he considered more appropriate for censorship than serious reflection. And just as Judge Jones misapplied low-level but high profile cases in his opinion, so too are opponents of ID misapplying the low-level Kitzmiller opinion beyond the parties to that case and outside the case’s jurisdiction to situations substantively irrelevant to the case. ID proponents warned an anti-ID court decision would be used outside the district to censor all scientific dissent from neo-Darwinian theory. Those fears have proved too true.

Following threats of litigation against by Darwin supporters the state of Ohio, the Ohio Board of Education voted to rescind its "Critical Analysis of Evolution" lesson plan. It was ardently argued by Darwinists in Ohio that the lesson plan was written by ID proponents and that ID had been declared unconstitutional by Judge Jones in Kitzmiller. In reality, the lesson contained only scientific criticisms of neo-Darwinian theory but no affirmative arguments for ID. Indeed, intelligent design was specifically excluded in the Ohio Science Standards. Similarly, in a lawsuit filed against the El Tejon School District in California in January, Americans United for Separation of Church and State cited Kitzmiller thirteen times in its short com plaint. The School Board had permitted an elective "Philosophy of Design" course, but later backed down and withdrew it.

The real damage from the Kitzmiller decision lies with its cultural influence. But regardless of Judge Jones’s misinformed reliance upon Inherit the Wind, the myth of Scopes has already begun to unravel through subsequent historical studies. And a small book titled Traipsing into Evolution has just appeared, offering powerful criticisms of Kitzmiller. Perhaps the best way to further counter the Inherit the Wind stereotype and any overblown myths about Kitzmiller’s legal authority or reasonableness will be for scientists, scholars and citizens to continue discussing the scientific ideas presented in the book that Judge Jones purported to ban in Pennsylvania. That task is considerably less daunting than the challenge of keeping ID away from activist federal courts.

Seth L. Cooper is an attorney and former law & policy analyst for the Discovery Institute. Leonard G. Brown III is a partner with Clymer & Musser, P.C. in Lancaster, PA, and one of the attorneys representing FTE in its motion for intervention in Kitzmiller v. Dover Area School District (M.D. Pa. 2005).