Kitzmiller V. Dover Opening Statements

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Case Number :  4:04-CV-02688

TAMMY J. KITZMILLER, et al., Plaintiffs

vs.

DOVER AREA SCHOOL DISTRICT;
DOVER AREA SCHOOL DISTRICT BOARD OF DIRECTORS

TRANSCRIPT OF PROCEEDINGS OF OPENING STATEMENTS 
Before  :  HONORABLE JOHN E. JONES, III 
Date    :  September 26, 2005
Place   :  Courtroom Number 2, 9th Floor Federal Building

COUNSEL PRESENT: 
        ERIC J. ROTHSCHILD, ESQ.
        WITOLD J. WALCZAK, ESQ.
        STEPHEN G. HARVEY, ESQ.
        RICHARD B. KATSKEE, ESQ.
           For - Plaintiffs
        PATRICK T. GILLEN, ESQ.
        RICHARD THOMPSON, ESQ.
        ROBERT J. MUISE, EQ 
           For - Defendants

228 Walnut Street Harrisburg, Pennsylvania 
Lori A. Shuey, RPR, CRR Official Court Reporter 

Good morning to all. Counsel, would you enter your appearances starting with counsel for the plaintiffs.

THE COURT

Good morning, Your Honor. Eric Rothschild from Pepper Hamilton, L.L.P., for the plaintiffs.

MR. ROTHSCHILD:

Good morning, Your Honor. Steve Harvey, Pepper Hamilton, for the plaintiffs.

MR. HARVEY

Your Honor, Witold Walczak, American Civil Liberties Union of Pennsylvania, for the plaintiffs.

MR. WALCZAK

All right.

THE COURT

Good morning, Your Honor. Patrick Gillen from the Thomas More Law Center for the defendants.

MR. GILLEN

Good morning, Your Honor. Richard Thompson of the Thomas More Law Center for the defendants.

MR. THOMPSON

Good morning, Your Honor. Robert Muise from the Thomas More Law Center for the defendants.

MR. MUISE

And good morning to all of you. Are you prepared to open?

THE COURT

Yes, I am.

MR. ROTHSCHILD

You may do so.

THE COURT

Good morning, Your Honor.

My co-counsel and I represent eleven parents who are challenging the Dover Area School District’s change to its biology curriculum. That change to the biology curriculum, which is displayed on your monitor and on the screen, singles out the scientific theory of evolution, among all the scientific concepts taught to Dover High School students, as being suspect and promotes the religious proposition of intelligent design as a competing scientific theory.

Eighteen years ago, the United States Supreme Court, in Edwards versus Aguillard, held that public schools could not teach students creation science because that proposition’s core concept of a supernatural creator is religious, not scientific, and therefore violates the establishment clause of the First Amendment to the United States Constitution. The Court recognized that the teaching of creation science was motivated by a religious and cultural agenda, not the improvement of scientific education.

What we will prove at this trial is that the Dover board policy has the same characteristics and the same constitutional defects as the creation science policy struck down in Edwards. You will hear testimony from members of the Dover community, these parents, teachers, administrators, and board members, about how this change to the curriculum came to be.

Board members announced their interest in the topic of evolution in starkly religious terms. They looked for a book that could provide a religious alternative to evolution, and they found one in Of Pandas and People.

They changed the science curriculum to advance a specific religious viewpoint, and in doing so, they ignored accepted scientific knowledge, failed to avail themselves of the advice of established scientific organizations, and ignored their own science teachers who opposed the change to the science curriculum.

They did everything you would do if you wanted to incorporate a religious topic in science class and cared nothing about its scientific validity. And we will show that the members of the school board that passed this policy expressed their desire to teach creationism over and over and over again. That’s their word, “creationism.”

As Your Honor will recall, in January, you permitted expedited discovery so these plaintiffs could decide whether to move for a temporary restraining order. We deposed Alan Bonsell and Sheila Harkins, the last two board presidents, William Buckingham, the head of the curriculum committee when the curriculum change was approved, and Dr. Richard Nilsen, the Dover Area School District’s superintendent.

All of them denied media reports that the board had spoken openly about creationism at board meetings leading up to the curriculum change. And they and other witnesses continued to deny such statements in depositions throughout this litigation.

Faced with what appeared to be surprisingly contradictory evidence about what the board members actually said, plaintiffs decided not to seek a temporary restraining order so that this Court could decide this case on a more complete record. Now we have that record.

Matt, could you pull up Exhibit 21. This is superintendent Nilsen’s record of what board members said at a board retreat on January 9th, 2002. Matt, could you highlight Item C. Dr. Nilsen reported that Alan Bonsell talked about creationism and prayer at this board retreat.

Could you pull up Exhibit 25. This is Dr. Nilsen’s record of what board members said at a board retreat on March 26, 2003. And could you highlight Section D, again, under Mr. Bonsell. Again, Dr. Nilsen reported Mr. Bonsell as talking about creationism.

Could you pull up Exhibit 26, please. This is Plaintiffs’ Exhibit 26. This is a memorandum received by Mr. Michael Baksa, the assistant superintendent for the district, and copied to Dr. Nilsen, the superintendent, reflecting what Mr. Baksa told Bertha Spahr, the head of the Dover High School Science Department, about a board member’s views on teaching evolution.

Matt, could you highlight the last sentence of the first paragraph. A board member wanted 50 percent of the topic of evolution to involve the teaching of creationism.

Could you pull up Exhibit 60, please. This is a letter that Board Member Heather Geesey wrote to the York Sunday News on June 27th, 2004. Could you highlight the last paragraph, please. You can teach creationism.

Could you pull up Exhibit 662. This is a draft change to the Dover biology curriculum prepared by Assistant Superintendent Michael Baksa. Could you highlight the bottom section, please, Matt. Creationism. And if you look at the text of this draft change to the curriculum, it’s remarkably similar to the change that was actually approved, though the final version had intelligent design, not creationism.

And the entire Dover community is aware of what Mr. William Buckingham, the chair of the curriculum committee when this curriculum change was passed, has said on this subject. (Tape played.) “Such as creationism.” Defendants refusal to admit their advocacy of creationism in the face of overwhelming evidence says everything about their true motives.

What the board did was add creationism to the biology curriculum under its new name, intelligent design. You will hear from Barbara Forrest, an expert on the history of intelligent design. She will describe how the textbook Of Pandas and People that the school district directs its students to was conceived and developed as a creationist book and changed the name of the concept it was promoting to intelligent design after the Edwards decision held that creation science could not be taught.

Indeed, the very definition of intelligent design found in the Pandas book used in Dover is identical to the definition of creationism found in earlier drafts of that book. The publisher of Pandas, like the Dover Area School Board, employed semantics, wordplay, to obscure its clear religious creationist project.

Dr. Forrest will also describe how the leaders of the intelligent design movement are carrying out a strategy, what they call the Wedge strategy, to overturn the rules of modern science so that you can include supernatural activity, so that science can be Christian and theistic.

You will also hear from John Haught, a theologian, who will explain that intelligent design is not new science. It is old theology, the argument for the existence of God that has been around for centuries. He will also explain that it is not a universal religious view, but rather a particular one accepted by many people of faith but inconsistent with the beliefs of many others.

Intelligent design is not identical in every respect to the creation science previously addressed by the Supreme Court in Edwards and other courts, but in all essential aspects, it is the same. Intelligent design really is a perfect example of evolution. Throughout this century, religious opponents of evolution, concerned that evolution contradicts a literal reading of the Bible and promotes cultural decay, have employed varying tactics to denigrate or eliminate the theory of evolution in the minds of young students.

They have tried forbidding the teaching of evolution, promoting creationism or creation science as an alternative to evolution, and singling out evolution for special criticism. Each of those tactics have been found unconstitutional by courts. Confronted with that inhospitable legal environment, creationists have adapted to create intelligent design, creationism with the words “God” and “Bible” left out.

They have promoted a book, Of Pandas and People, that invokes a master intellect that shapes clay into living form and then says, we’re not referring to anyone in particular. This clever tactical repackaging of creationism does not warrant different treatment under the Constitution.

The intelligent design movement has argued and we expect you will hear defendants argue in this courtroom that intelligent design has improved on creationism by developing a scientific argument for design. Defendants’ own experts call it science in its infancy, and if this is true, there is no educational purpose in test-driving it with high school students. But intelligent design is not science in its infancy, it’s not science at all. You will hear from Kenneth Miller, a biologist; Kevin Padian, a paleontologist; Robert Pennock, a scientific philosopher; and Brian Alters, an expert on teaching science. They will testify about how science is practiced and taught, why evolution is overwhelmingly accepted as a scientific theory, and why intelligent design has no validity as a scientific concept.

There is no data or laboratory work demonstrating intelligent design. It is not a testable hypothesis. It misrepresents established scientific knowledge. Let’s be perfectly clear, there is no controversy in the scientific community about the soundness of evolution and that intelligent design is not a scientific topic at all.

Intelligent design has arguments with fancy names like “irreducible complexity” and “specified complexity,” but these arguments are not a positive case for intelligent design, just negative attacks on evolution. And even those arguments have not been advanced in the way that real working scientists do every day, by publishing original data in peer-reviewed scientific journals. In fact, intelligent design admits that it is not science at all unless science is completely redefined to include the supernatural.

At this trial, you will hear the parties use the term “methodological naturalism.” Methodological naturalism is the term used to describe science as self-imposed limitation, that it will only consider natural causes for natural phenomena. Science does not consider supernatural explanations because it has no way of observing, measuring, repeating, or testing supernatural events. It doesn’t mean that supernatural events, including divine miracles, have not happened, just that science cannot properly make any statements about them.

But intelligent design will not accept the well-established boundaries of science and openly rejects methodological naturalism, the way science has been practiced for centuries. Why? Because it has to. In the end, no matter how many stones intelligent design throws at the theory of evolution, the only alternative it presents for the development and diversity of life, the only explanation for how a bacterial flagellum or the human eye came to be is a miracle, an abrupt appearance, an act of supernatural creation. design as argument, cannot be That, by itself, establishes intelligent a religious argument, not a scientific for the creation of biological life that taught to public school students.

The district will argue that any constitutional problem with its policy may be ignored because the statement read to students is brief and because it has promised not to teach intelligent design or even allow students to ask questions about it. This limitation, of course, raises the question, what’s the point? What possible secular educational purpose could the policy have?

Plaintiffs’ scientific and teaching experts will explain that there is none. Worse yet, the statement denigrates the theory of evolution in a way that one of defendants’ own experts describes as misleading.

Of course, there is no such thing as a little constitutional violation, and this policy surely isn’t one. The Dover board has imposed its particular religious viewpoint on the students at Dover High School and through a newsletter to the entire Dover community.

Viewed in the context of the public statements and actions by the board in developing and implementing the policy, it can only be viewed by the Dover High School students and Dover community as an expression of the board’s religious viewpoint and as favoring a religious view about creation.

In the Edwards decision, the Supreme Court underscored that it must be particularly vigilant in monitoring compliance with the establishment clause in elementary and secondary schools. Families entrust public schools with the education of their children but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the students and his or her family.

The Dover School Board has violated these parents’ trust by imposing its own religious agenda on Dover High School students and the Dover community. And it has clearly divided the Dover community, which could not help but conclude that its high school curriculum now includes a religious proposition, the 21st Century version of creationism.

The evidence that I have described this morning and much more evidence that you will hear during the course of this trial will demonstrate that the board had the purpose of promoting religion and that its policy had that effect.

For those reasons, at the end of trial, we will request that the Court enter an order finding that the Dover School Board’s change to its high school biology curriculum is unconstitutional and ask you to permanently enjoin the district from implementing that curriculum change. Thank you, Your Honor.

MR. ROTHSCHILD

All right. Thank you, Mr. Rothschild. Mr. Gillen, are you prepared to open?

THE COURT

Thank you, Your Honor. Good morning, Your Honor.

MR. GILLEN

Good morning again to you.

THE COURT

Patrick Gillen again from the Thomas More Law Center on behalf of the defendants in this action, the Dover Area School District and its board of directors. Again I’d like to introduce my colleagues at counsel’s table, Dick Thompson and Robert Muise. Absent from the courtroom but valued collaborators in this effort, my colleagues Ed White and Julie Shotzbarger.

Seated behind counsel’s table, our clients, the Dover Area School District, through its board of directors, citizens elected by their constituents, represent the interests of the parents and families of the district, the students who are educated through the hard work of the board, the administration, faculty and staff of Dover Area School District.

Your Honor, it is our pleasure to appear on behalf of our clients today because I am confident that at the conclusion of these proceedings, you will find that the evidence shows that these citizens seated before you today were engaged in a legitimate exercise of their lawful authority where they enacted a modest change to the biology curriculum for the purpose of enhancing science education, for the evidence will show that the purpose and effect truly at issue in this litigation is the purpose and effect of a curriculum change that was worked out after a process of deliberation involving the board, the administration, the science faculty, and the public.

And it resulted in a modest four-paragraph statement which mentions intelligent design, makes students aware of the existence of the theory, makes them aware that it’s a theory of the origins of life different from Darwin’s theory of evolution. It explains that there’s a book in the library, Of Pandas and People, that deals with intelligent design theory or IDT.

In fact, the evidence will show that the more recent statement points students to other books in the library addressing intelligent design theory and that three of those books are penned by the plaintiffs’ experts and critical of the theory. This case is about free inquiry in education, not about a religious agenda.

Your Honor, the evidence will also show that this four-paragraph statement is the total actual effect that the curriculum change has on science instruction in the district, because apart from that four-paragraph statement, science teachers teach evolutionary theory as required by Pennsylvania state standards. The use of texts presents the evolutionary theory. Biology by Miller and Levine, one of the coauthors, Ken Miller, is one of the plaintiffs’ experts in this case.

In this way, the evidence will show that while students are taught evolutionary theory, they are merely made aware of the existence of another theory, the intelligent design theory, and that while students are assigned a basal text that presents evolutionary theory, they’re merely made aware of the existence of a reference text in the library that deals with intelligent design theory, if they care to check it out. And they are told that they will be tested on evolutionary theory, as required by Pennsylvania state standards. Further, the evidence will show that Superintendent Richard Nilsen, in response to concerns addressed by science faculty about the implementation of the curriculum change, issued specific guidelines that intelligent design theory would not be taught, that creationism would not be taught. Teachers would not teach their own religious beliefs.

Now, there’s no question, Your Honor, that this final result was worked out through a contentious policy-making process that has led some to liken making legislation to making sausage, a process that involved, at times, heated argument by members of the public, members of the board, false charges and intemperate remarks. But the evidence will show that the consistent goal of the board, as a whole, was to pursue what they believed to be a legitimate educational purpose and to comply with the law.

Alan Bonsell is a perfect example. He came to the board without any background in education of the law, just a sincere desire to serve his fellow citizens. By virtue of his personal reading, he was aware of intelligent design theory and that 300 or so scientists had signed a statement indicating that biologists were exaggerating claims for the theory.

He had read about the famous Piltdown man hoax. He had an interest in creationism. He wondered whether it could be discussed in the classroom. Those questions are not evidence of unconstitutional conduct, Your Honor. They were quite legitimate.

In fact, the evidence will show that on the very day of the March 26th, 2003 board retreat, the assistant superintendent of the district, Mike Baksa, attended a seminar sponsored by the Pennsylvania School Boards Association given by a presenter with a law degree from Harvard, a facilitator who was a professor with a Ph.D. in the history of philosophy of science. They discussed the issue because it was a legitimate issue.

During that seminar, Mike Baksa heard the view expressed that it would be useful and good science education to at least introduce a discussion of creationism into the biology curriculum. More importantly, Your Honor, the evidence will show that nothing came of those questions.

During his tenure as board curriculum committee chair, Alan Bonsell never asked for any change to the biology curriculum, the text or instruction. He met with the science teachers in the fall of 2003 and learned that they didn’t teach origins. It was too problematic. They focused on change within species. They mentioned creationism, but they didn’t teach it, that’s what they told him, because they thought it would be illegal. And that was the end of the matter. He asked legitimate questions. He got legitimate answers. That was the end.

When Bill Buckingham tried to hold up the purchase of the basal text in August of 2004, the text authored by one of the plaintiffs’ experts, Bonsell voted against that because he believed the students should have the book recommended by the science faculty, quite apart from whether the board approved the use of Pandas and People.

And on the night, the very night that the board approved the curriculum change at issue here, when the science faculty expressed concerns that the inclusion of the mention of intelligent design in the curriculum would require them to teach it, although they did not teach origins, it was Bonsell who appended the note to the curriculum which made it clear that they would not be required to teach intelligent design theory.

He did that because he understood they did not teach origins, and they understood that intelligent design theory, as indicated by the subtitle of the book, Of Pandas and People, deals with the question of biological origins.

Your Honor, the evidence will show something very critical in this case, that Bill Buckingham did not exercise a determinative impact on this policy-making process. Not at all. In fact, the evidence will show that the board listened to the science faculty more than it listened to Bill Buckingham.

Bill Buckingham wanted the text, Of Pandas and People, approved with the basal text. He wanted it purchased with school money. He wanted it used in the classroom. He wanted the intelligent design theory presented side by side with evolutionary theory as if in dialogue. The teachers objected, and the board agreed with the teachers.

Now, it’s true at the end of the day the board didn’t agree with everything the teachers said. The board believed that intelligent design was not creationism. They knew what that was, the Book of Genesis. They concluded that intelligent design was science. They looked at the text of Pandas and People. That’s not the Book of Genesis.

They believed it was a legitimate educational goal to make students aware of the existence of another scientific theory, but they agreed with the teachers’ objections that for practical reasons, students shouldn’t be taught intelligent design theory.

Your Honor, the evidence will also demonstrate that the board quite rightly concluded that its modest curriculum change would, in fact, enhance the biology curriculum and that the primary effect of their policy would be to advance science education, not religion.

Defendants’ expert will show this Court that intelligent design theory, IDT, is science, a theory that’s advanced in terms of empirical evidence and technical knowledge proper to scientific and academic specialties. It is not religion. This expert testimony will also demonstrate that making students aware of gaps and problems in evolutionary theory is good science education. It’s good liberal education.

Dr. Michael Behe will offer you his opinion in this case. He will explain the basis for his opinion that the insights into the biochemical complexity of the cell, made possible by modern microbiology, have undermined the claims made for natural selection, the mechanism at the center of evolutionary theory. Likewise, Dr. Behe will explain that evolutionary theory does have gaps and problems and that it’s good science education to make students aware of those gaps and problems, make them aware of the intelligent design theory.

The evidence will show that Dr. Behe takes these positions and posits his thesis of irreducible complexity pointing to design not because evolutionary theory is inconsistent with his religious beliefs. It’s not. Not because he believes in creationism. He doesn’t. And as he’ll explain, creationism and intelligent design are two very different things. Dr. Behe takes these positions because the empirical evidence points in that direction.

You will also hear testimony from Dr. Scott Minnich. Dr. Minnich received his Ph.D. from Iowa State University in 1981. He was a post-doctoral fellow at Purdue and then Princeton. Since 1987, he has taught microbiology extensively at the undergraduate and graduate, including medical school, levels.

Dr. Minnich will testify that IDT is science, not religion. He will explain that design principle, design theory, drives his sophisticated research in the lab. He will testify that Of Pandas and People is a good text, a little dated, but one that asks critical questions about the mechanism of natural selection, which is a centerpiece of evolutionary theory, that it makes students aware of gaps and problems in the theory. Dr. Minnich will testify that this is good science education and it’s good for science.

Dr. Dick Carpenter will also provide testimony. He’s an assistant professor in educational leadership at the University of Colorado. He’s an expert in educational policy and practice. He will testify that DASD’s curriculum policy advances legitimate secular educational goals, promotes critical thinking, gives students a fuller understanding of evolutionary theory, including its strengths and weaknesses, something that’s mentioned in the basal text authored by the plaintiffs’ expert.

In this way, he’ll show that Dover’s modest curriculum change actually brings it more into line with Pennsylvania’s academic standards, which require that students be able to critically assess the status of existing theories, and, insofar as it helps students grasp the controversy that can surround science, points to a goal that’s included in the Santorum amendment, the No Child Left Behind Act.

Dr. Steven Fuller will also testify for the defendants. He has a master’s in philosophy and history of science from Cambridge University, a Ph.D. in the philosophy of science from the University of Pittsburgh. He’s the author of eleven books, over 200 articles and chapters and books that have been peer-reviewed.

He was the first post-doctoral fellow in the history of philosophy of science at the United States National Science Foundation, the first research fellow in the Public Understanding of Science at the United Kingdom’s Council for Economic and Social Research. His works have been translated into 15 languages. He has been a visiting professor in the United States, Sweden, Denmark, the Netherlands, Israel, and Japan.

Dr. Fuller will testify that intelligent design is science, not religion, that the convention of methodological naturalism, which some would use to disqualify intelligent design theory from science, is by no means a necessary feature of scientific inquiry, and that scientific progress has taken place without any commitment to methodological naturalism.

He will also testify that efforts to disqualify IDT from science based upon causation or testability or other so-called demarcation criteria, including so-called methodological naturalism, are inherently flawed. Dr. Fuller will explain that intelligent design theory is not creationism. It is not inherently religious. He will also explain, for that matter, that any number of phenomena we now understand, whether it’s gravity or the wave-particle duality of quantum mechanics, were once thought to be supernatural.

Finally, Dr. Warren Nord will testify for the defendants. Dr. Nord is a professor in the philosophy of education and philosophy of religion at the University of North Carolina Chapel Hill. Nord will testify that intelligent design theory is not religion. He will explain that efforts to exclude intelligent design theory from science based on so-called methodological naturalism actually result from a philosophical naturalism which is, itself, a nonscientific principle.

He will also explain that from the standpoint of the philosophy of education, liberal education, the thesis posited by intelligent design theorists gains greater strength when seen in a larger context, whether the fine-tuning of the universe which physicists looked at so statistically improbable but so necessary to support life on earth or work in the area of phenomena such as the mind. Dr. Nord will also explain the basis for his opinion that the board’s modest curriculum change is a step in the right direction for science education and consistent with national science education standards precisely because it makes students aware that there are scientific disputes over claims advanced by rival theories, something students should know in order to have a realistic sense of this critical dimension of scientific progress.

Taken together, this expert testimony will confirm the defendants’ judgment by showing that intelligent design theory is not creationism. Indeed, it does not even require the action of a supernatural creator, that intelligent design is not religion or inherently religious, that intelligent design theory is science. It’s a theoretical argument advanced in terms of empirical evidence, technical knowledge proper to scientific and academic specialties.

Indeed, the evidence will further show that intelligent design theory is really science in its purest form, the refusal to foreclose possible explanations based on the claims of the dominant theory or the conventions of the day, to proceed from the same sort of perspective that led Newton to explore and ultimately explicate gravity.

It shares the attitude of those who worked in the field of quantum mechanics, who posited the wave-particle duality, despite the fact that to some it smacked of the supernatural. It shares the determination of scientists who this very day will look at paranormal phenomena or phenomena that defy our current understanding such as the mind.

For just these reasons, the defendants’ expert testimony will show that Dover’s modest curriculum change embodies the essence of liberal education, an education that frees the mind from the confines, the constraints, the conventions of the day, and, in so doing, promotes the curiosity, the critical thinking, the quest for knowledge that has served our country so well.

In conclusion, Your Honor, I respectfully submit that the evidence will show that the primary purpose and primary effect of Dover’s modest but plainly significant curriculum change is to advance the very sort of legitimate educational goal which the United States Supreme Court recognized in Edwards versus Aguillard, what the Supreme Court of the United States acknowledged, with approval, that school boards could quite properly require the teaching, never mind mention, about the theories of origin for legitimate secular educational purposes.

Your Honor, we look forward to presenting a defense in this case. Thank you.

MR. GILLEN

All right. Thank you, Mr. Gillen.

THE COURT

(Whereupon, the Opening Statements were concluded.)

CERTIFICATION

I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within proceedings and that this copy is a correct transcript of the same.

Dated in Harrisburg, Pennsylvania, this 27th day of September, 2005.

/s/ Lori A. Shuey Lori A. Shuey, RPR, CRR Official Court Reporter United States Courthouse 228 Walnut Street, P.O. Box 983 Harrisburg, PA 17108-0983 (717)215-1270

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