April 05, 2019

Defending Darwin


In the beginning. . . . In 2004 and 2005, we had the great privilege and good fortune to work with a very special team of clients, lawyers, and experts on what has been called the “modern-day Scopes Monkey Trial.” The case was Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (M.D. Pa. 2005). The subject of the case was “intelligent design,” the argument that there is evidence in the natural world that life and living things were created by an unnamed, supernatural, intelligent being or “designer.” The defendant school district in Dover, Pennsylvania, wanted to present intelligent design in public school biology class as an alternative to evolution, along with a textbook called Of Pandas and People, which purported to show the bona fides of intelligent design and flaws in the scientific theory of evolution. These notions are at odds with the view of the scientific community, which regards evolution to be “as firmly established as is the notion that the Earth is an oblate spheroid that spins on its axis and rotates around the Sun,” to quote noted evolutionary scientist Niles Eldredge.

A handful of parents sought legal counsel to challenge what they perceived to be bad science education and an effort by the school board to smuggle religion into science class in violation of the Establishment Clause of the First Amendment. Our law firm, Pepper Hamilton LLP, along with the American Civil Liberties Union of Pennsylvania (ACLU) and Americans United for Separation of Church and State (Americans United), became the lawyers for 11 parents of schoolchildren in the district.

The case was assigned to U.S. District Judge John E. Jones III in Harrisburg, Pennsylvania. We asked for a chance to take expedited discovery in order to decide whether there was a basis for a temporary restraining order to enjoin the implementation of the school board’s intelligent design policy. Judge Jones granted the request, and on January 3, 2005, we deposed three school board members and the school district superintendent. Our strategy was simple: get them to corroborate newspaper reports about public school board meetings in June 2004 where several members had openly discussed their desire to teach creationism in public school science class before changing their terminology from “creationism” to “intelligent design.” We were shocked to hear at those depositions that the witnesses either could not recall or denied the events reported in the papers. The plaintiffs’ legal team decided that Judge Jones was unlikely to grant a temporary restraining order on a disputed factual record, and the lawsuit went forward.

Over the coming months, the parties would engage in a breakneck schedule of discovery, expert reports and depositions, and motion practice, all leading to a trial date in September 2005, less than a year after the policy had been adopted. What unfolded in that courtroom over 40 days was a trial not just of the defendant school district and its intelligent design policy, but also of the national creationism/intelligent design movement, which actively seeks to sow doubt in the public mind about the theory of evolution. In November 2004, the same month we were engaged to work on the case, the cover of National Geographic posed this question: “Was Darwin Wrong?” That the question could be asked by a science magazine of such renown seemed to legitimize the school board’s efforts to teach an alternative to evolution. But the answer provided inside the magazine cover dispelled this illusion: “No. The evidence for evolution is overwhelming.” This was a harbinger.

Evolution, creationism, and the law. The logical starting point for any discussion on the subject of evolution in America has to be the Scopes Monkey Trial of 1925. Most people forget that Clarence Darrow lost the case, that John Scopes was convicted (although the conviction was set aside on appeal for a technical reason in Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927)), and that states were permitted to prohibit the teaching of evolution until the 1968 Supreme Court case of Epperson v. Arkansas, 393 U.S. 97 (1968), in which the Court held that the State of Arkansas violated the Establishment Clause by prohibiting the teaching of evolution in public school.

Following Epperson, religiously motivated opponents of evolution pushed for and, in several states, succeeded in passing “balanced treatment” statutes requiring that evolution be given equal time in science class with so-called creation science. The federal courts addressed these statutes in several cases, including the 1987 Supreme Court decision in Edwards v. Aguillard, 482 U.S. 578 (1987), which invalidated Louisiana’s “Creationism Act” that prohibited the teaching of evolution in public schools, except when it was accompanied by instruction in “creation science,” which included belief in the existence of a supernatural creator. The Edwards Court found that the primary purpose of the act was to endorse a particular religious doctrine and that it therefore violated the Establishment Clause.

Against the backdrop of these precedents, the plaintiffs’ legal team prepared the case for trial. Our strategy was to present multiple, independent grounds for Judge Jones to rule in our clients’ favor. First, we wanted to prove that intelligent design is inherently and inescapably religious and sectarian. We also planned to show that intelligent design as espoused by the school district relies on the same pseudoscientific criticisms about evolution that have been repeatedly considered and rejected by the scientific community. But more than that, we wanted to prove that intelligent design, like creation science before it, invokes the existence of a supernatural being and therefore is not properly considered science at all. Finally, we set out to prove that the school board acted for the purpose of promoting a particular religious view. This necessarily entailed proving that some or all of the witnesses who testified on January 3, 2005, lied at their depositions.

The best example of evolution. Plaintiffs called as an expert witness Barbara Forrest, a professor of philosophy, to prove that the modern intelligent design argument is as religiously directed as its historical predecessor. Forrest’s role at trial was to document the history and statements of the intelligent design movement. Although this type of historical expert testimony is not commonplace, the plaintiffs were able to demonstrate that it is allowed, particularly when the expert’s testimony in the courtroom is consistent with her work outside it. With her co-author Paul Gross, Forrest had literally written the book on the history of the intelligent design movement: Creationism’s Trojan Horse: The Wedge of Intelligent Design.

The most powerful piece of evidence entered through Forrest—one of two smoking guns in the case—was not part of her book and, in fact, was not known to her until it came to light in discovery, but was neatly anticipated by the metaphor in the title of her book.

The National Center for Science Education had long suspected that Pandas was originally written as a creationist book. In drafts written between 1983 and 1987, the terms “creation” and “creationism” were used pervasively. After 1987, those terms were excised from the book and replaced with phrases such as “intelligent design” and “intelligent agency.”

At trial, we drove the point home with a simple word count chart that showed two lines representing the number of times the drafts of Pandas used the term “creationism” or its variants and the number of times the drafts used the terms “intelligent design” and its variants: The two lines intersected in 1987, right after the Edwards decision. And thus was proved that the Pandas book was written as a creationist text and that the phrase “intelligent design” was substituted for “creationism” in 1987, after the Supreme Court issued its decision Edwards. As we joked during the trial, creationists are the best example of evolution; they adapt to a hostile legal environment.

The biology class you wish you could have taken. The next major piece of the plaintiffs’ case was the evidence that intelligent design is not science. Both parties called practicing scientists and philosophers of science to the stand to define for the court the attributes of science and evaluate whether intelligent design met that standard. The plaintiffs invoked statements by major scientific organizations such as the National Academy of Sciences and the American Association for the Advancement of Science that intelligent design is not science. The massive weight of scientific consensus stands behind evolution and against intelligent design.

The defense led off its case with its one essential witness—Michael Behe of Lehigh University. As a biochemist with no academic credentials in evolutionary biology or paleontology, Behe did not have the expertise to rebut most of the testimony by scientists such as cell biologist Ken Miller of Brown University or paleontologist Kevin Padian of the University of California at Berkeley, nor could he defend much of the clearly creationist content in Pandas.

The truth is they lied to conceal their tracks. The third major part of the evidence concerned what we called “the local story”—school board members attempting to bring religion into the classroom and then lying to hide that motive. This evidence was central to proving that the school board acted for the purpose of promoting religion. At the very center of the local story were the school board members who had testified at those early depositions on January 3, 2005.

The most important part of the local story concerned two public school board meetings in June 2004. Two local newspapers covered those meetings and reported that school board members discussed the purchase of a biology textbook for the high school in starkly religious terms. The most memorable comment was made by Curriculum Committee Chair William Buckingham: “Two thousand years ago someone died on a cross; can’t someone take a stand for him?” After the witnesses either could not recall or flatly denied the religious statements in their depositions in January 2005, we were determined to prove the truth of the newspaper reports. The religious, creationist statements attributed to school board members had been made to audiences as large as 100 people—including some of the plaintiffs, school teachers, and fellow board members. And so, we proved the truth of the newspaper reports, with a parade of witnesses who were present at the meetings, including the two newspaper reporters themselves, as well as cross- examination of Buckingham and other board members.

On the last day of trial, after closing statements, Judge Jones made a final statement and then announced that the proceedings would be closed unless the plaintiffs or the defendants had anything else to raise. Defense counsel Patrick Gillen rose and said: “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.” Judge Jones’ off-the-cuff response is a classic: “Mr. Gillen, that is an interesting coincidence, but it was not by design.” And with those words, the trial ended. Another harbinger.

On December 21, 2005, Judge Jones issued a 139-page decision. He held that intelligent design is religion, not science, and the school board acted for the purpose of promoting religion and then members of the board lied to conceal that purpose. He issued an injunction, forbidding the Dover School District from presenting intelligent design to Dover High School science students. “It’s Over in Dover,” proclaimed one headline.


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This article is an abridged and edited version of one that originally appeared on page 8 of Litigation, Fall 2010 (37:1).

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