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Kitzmiller v. Dover Area School District

Decision of the Court (Continued)

Dover Home

E. Application of the Endorsement Test to the ID Policy (Continued)

3. Whether an Objective Dover Citizen Would Perceive Defendants' Conduct to be an Endorsement of Religion

The Court must consider whether an objective adult observer in the Dover community would perceive the challenged ID Policy as an endorsement of religion because the unrefuted evidence offered at trial establishes that although the disclaimer is read to students in their ninth grade biology classes, the Board made and subsequently defended its decision to implement the curriculum change publicly, thus casting the entire community as the "listening audience" for its religious message. Santa Fe, 530 U.S. at 308. We are in agreement with Plaintiffs that when a governmental practice bearing on religion occurs within view of the entire community, the reasonable observer is an objective, informed adult within the community at large, even if the specific practice is directed at only a subset of that community, as courts routinely look beyond the government's intended audience to the broader listening audience. Otherwise, government would be free and able to sponsor religious messages simply by declaring that those who share in the beliefs that it is espousing are the message's only intended recipients. See Allegheny, 492 U.S. at 597 ("when evaluating the effect of government conduct under the Establishment Clause, we must ascertain whether 'the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choice'") (quoting Ball, 473 U.S. at 390).9 Accordingly, not only are parents and other Dover citizens part of the listening audience for the Board's curriculum change , but they are part of its "intended audience" as well.

First, the Board brought the public into the debate over whether to include ID in the curriculum as it proposed, advocated, and ultimately approved the ID Policy in public school board meetings. These meetings were such that members of the public not only attended them, but also had the opportunity to offer public comment on the proposal. In those Board meetings, open to the public at large, several Dover School Board members advocated for the ID Policy in expressly religious terms, with their comments reported extensively in the local newspapers, as will be discussed in detail below. Second, at least two Board members, William Buckingham and Heather Geesey, defended the proposed curriculum change in the media in expressly religious terms.

Moreover, it is notable that the Board sent a newsletter to every household in Dover in February 2005 "produced to help explain the changes in the biology curriculum" and prepared in conjunction with defense counsel, the Thomas More Law Center. (P-127). Typically, the Board sent out a newsletter in the Dover area approximately four times a year and in February 2005, the Board unanimously voted to mail a specialized newsletter to the community. (Trial Tr. vol. 15, C. Sneath Test., 98-99, 136, Oct. 12, 2005; P-82). Although formatted like a typical district newsletter, an objective adult member of the Dover community is presumed to understand this mailing as an aggressive advocacy piece denigrating the scientific theory of evolution while advocating ID. Within this newsletter, the initial entry under the heading "Frequently Asked Questions" demeans Plaintiffs for protecting their Constitutional rights as it states, "A small minority of parents have objected to the recent curriculum change by arguing that the Board has acted to impose its own religious beliefs on students." (P-127 at 1). Religion is again mentioned in the second "Frequently Asked Question" as it poses the question "Isn't ID simply religion in disguise?" Id. The newsletter suggests that scientists engage in trickery and doublespeak about the theory of evolution by stating, "The word evolution has several meanings, and those supporting Darwin's theory of evolution use that confusion in definition to their advantage." Id. The newsletter additionally makes the claim that ID is a scientific theory on par with evolution and other scientific theories by explaining, "The theory of intelligent design (ID) is a scientific theory that differs from Darwin's view, and is endorsed by a growing number of credible scientists." Id. at 2. Evolution is subsequently denigrated and claims that have not been advanced, must less proven in the scientific community, are elaborated upon in the newsletter. "In simple terms, on a molecular level, scientists have discovered a purposeful arrangement of parts, which cannot be explained by Darwin's theory. In fact , since the 1950s, advances in molecular biology and chemistry have shown us that living cells, the fundamental units of life processes, cannot be explained by chance." Id. The newsletter suggests that evolution has atheistic implications by indicating that "Some have said that before Darwin, 'we thought a benevolent God had created us. Biology took away our status as made in the image of God' . . . or 'Darwinism made it possible to be an intellectually fulfilled atheist.'" Id. Finally and notably, the newsletter all but admits that ID is religious by quoting Anthony Flew, described as a "world famous atheist who now believes in intelligent design," as follows: "My whole life has been guided by the principle of Plato' s Socrates: Follow the evidence where it leads." Id.

The February 2005 newsletter was mailed to every household in Dover. Even those individuals who had no children, never attended a Dover Board meeting, and never concerned themselves with learning about school policies, were directly confronted and made the "listening audience" for the District's announcement of its sponsorship of a religious viewpoint. Thus, the February 2005 newsletter was an astonishing propaganda discourse which succeeded in advising the few individuals who were by that time not aware that a firestorm had erupted over ID in Dover.

In addition to being aware of the public debate, over whether to include ID in the biology curriculum, the public board meetings where such proposed curriculum change was advanced in expressly religious terms, and receiving a newsletter providing detailed information about the ID Policy, the District assigned Dover parents a special role regarding the ID Policy. Parents of ninth grade biology students who are subject to the ID Policy are sent a letter when their children are taking biology, "asking if anyone ha[s] a problem with the [disclaimer] statement," and calling on them to decide whether to allow their children to remain in the classroom and hear the religious message or instead to direct their children to leave the room. (P-124). When parents must give permission for their children to participate in an activity, the Supreme Court has held that the parents are the relevant audience for purposes of the endorsement. See Good News, 533 U.S. at 115 (parents are relevant audience for determining whether presence of after- school Bible club at public elementary school conveyed message of religious endorsement because the parents had to give children permission to participate in club); see also Rusk v. Crestview Local Sch. Dist., 379 F.3d 418, 421 (6th Cir. 2004) (parents are audience for flyers distributed to elementary-school students because parents must give permission for children to participate in advertised activities). The converse must also be true, when parents must decide whether to withhold permission to participate in an activity or course of instruction, they remain the relevant audience for ascertaining whether government is communicating a message favoring religion.

An objective adult member of the Dover community would also be presumed to know that ID and teaching about supposed gaps and problems in evolutionary theory are creationist religious strategies that evolved from earlier forms of creationism, as we previously detailed. The objective observer is therefore aware of the social context in which the ID Policy arose and considered in light of this history, the challenged ID Policy constitutes an endorsement of a religious view for the reasons that follow.

First, the disclaimer's declaration that evolution "is a theory . . . not a fact" has the cultural meaning that the Selman court explained: "[W]hether evolution [is] referenced as a theory or a fact is . . . a loaded issue with religious undertones," reflecting "a lengthy debate between advocates of evolution and proponents of religious theories of origin[.]" It is "one of the latest strategies to dilute evolution instruction employed by anti-evolutionists with religious motivations." Selman, 390 F. Supp. 2d at 1304, 1307-08 (citing Edwards, 482 U.S. at 624) (Scalia, J., dissenting) (noting that balanced-treatment act's sponsor opposed evolution being taught as fact because it would communicate to students that "science has proved their religious beliefs false"); Freiler, 975 F. Supp. at 824 (noting school board members' concern with teaching evolution as fact because many students in district believed in biblical view of creation). A reasonable observer is presumed to know the social meaning of the theory-not-fact deliberate word choice and would "perceive the School Board to be aligning itself with proponents of religious theories of origin," thus "communicat[ing] to those who endorse evolution that they are political outsiders, while . . . communicat[ing] to the Christian fundamentalists and creationists who pushed for a disclaimer that they are political insiders." Selman, 390 F. Supp. 2d at 1308.

Second, the Dover School Board singles out the scientific theory of evolution, specifically and repeatedly targeting it as a "theory" with "[g]aps," "problems," and inadequate empirical support. In singling out the one scientific theory that has historically been opposed by certain religious sects, the Board sent the message that it "believes there is some problem peculiar to evolution," and "[i]n light of the historical opposition to evolution by Christian fundamentalists and creationists[,] . . . the informed, reasonable observer would infer the School Board's problem with evolution to be that evolution does not acknowledge a creator." Id. at 1309.

Third, it is readily apparent to the Court that the entire community became intertwined in the controversy over the ID Policy. The Board's actions from June 2004 through October 18, 2004, the date the Board approved the curriculum change, were consistently reported in news articles in the two local newspapers, the York Daily Record and the York Dispatch. (P-44/P-804; P-45/P-805; P-46/P-790; P-47/P-791; P-51/P-792; P-53/P-793; P-54/P-806; P-55; P-795; P-807; P-809; P- 797).10 Most of the Plaintiffs testified that they did not attend the 2004 Board meetings that preceded the curriculum change and became aware of the Board's actions only after reading about them in the local newspapers. Tammy Kitzmiller, Beth Eveland, Cindy Sneath, Steven Stough, and Joel Lieb all first learned of the Board's actions regarding the biology curriculum and textbook from the news articles.11 (Trial Tr. vol. 3, Kitzmiller Test., 114, Sept. 27, 2005; Trial Tr. vol. 6, Eveland Test., 93-94, Sept. 28, 2005; 15:77-78 (C. Sneath); 15:113-14 (Stough); Trial Tr. vol. 17, Leib Test., 143, Oct. 14, 2005).

The news reports in the York newspapers were followed by numerous letters to the editor and editorials published in the same papers. (P-671; P-672; P-674; P- 675). Although Defendants have strenuously objected to Plaintiffs' introduction of the letters to the editor and editorials from the York Daily Record and the York Dispatch addressing the curriculum controversy, we will admit such materials into evidence and consider them pursuant to the endorsement test and Lemon's effect prong. The letters and editorials are not offered for the truth of what is contained therein, but they are probative of the perception of the community at large. They reveal that the entire community has consistently and unwaveringly understood the controversy to concern whether a religious view should be taught as science in the Dover public school system. Moreover, and as will be explained below, the letters to the editor and editorials are relevant and probative of the community's collective social judgment that the challenged conduct advances religion. Epperson, 393 U.S. at 108 n.16.12

As previously noted, the Supreme Court held in Santa Fe that a public school district's conduct touching on re ligion should be evaluated under the endorsement test from the standpoint of how the "listening audience" would view it; and, if members of the listening audience would perceive the district's conduct as endorsing religion or a particular religious view, then the conduct violates the Establishment Clause. Santa Fe, 530 U.S. at 308. Because the endorsement inquiry is not about the perceptions of particular individuals, Plaintiffs do not argue before the Court that any particular letter or editorial, or the views expressed therein, can or should supplant this Court's consideration of the curriculum change from the standpoint of a reasonable observer. See Pinette, 515 U.S. at 779 (O'Connor, J., concurring in part and concurring in judgment). Instead, the Court looks to the hypothetical reasonable observer as a "personification of a community ideal of reasonable behavior, determined by the [collective] social judgment." Id. at 780.

The 225 letters to the editor and sixty-two editorials that Plaintiffs have offered constitute what Plaintiffs' counsel believe to be the entire set of such materials published in the York newspapers serving the Dover community during the period from June 1, 2004 through September 1, 2005, which includes the time period from the first Board meetings in which the proposal to change the biology curriculum was announced through the approximate starting date of the trial in this case. We have been presented with no reason to doubt this assertion. The York Daily Record published 139 letters to the editor regarding the Board's actions and eighty-six of those letters addressed the issues in religious terms. (16:18-20 (Stough)). The York Daily Record published forty-three editorials regarding the Board's actions and twenty-eight of such editorials addressed the issues in religious terms. (P-674; 16:22-24 (Stough)). The York Dispatch published eighty- six letters to the editor regarding the Board's actions, sixty of which addressed the issue in religious terms. (16:24 (Stough)). The York Dispatch published nineteen editorials regarding the Board's actions, seventeen of which addressed the issues in religious terms. Id. at 25.

The 225 letters to the editor and sixty-two editorials from the York Daily Record and York Dispatch that Plaintiffs offered at trial and which we have admitted for consideration in our analysis of the endorsement test and Lemon's effect prong, show that hundreds of individuals in this small community felt it necessary to publish their views on the issues presented in this case for the community to see. Moreover, a review of the letters and editorials at issue reveals that in letter after letter and editorial after editorial, community members postulated that ID is an inherently religious concept, that the writers viewed the decision of whether to incorporate it into the high school biology curriculum as one which implicated a religious concept, and therefore that the curriculum change has the effect of placing the government's imprimatur on the Board's preferred religious viewpoint. (P-671-72, 674-75). These exhibits are thus probative of the fact that members of the Dover community perceived the Board as having acted to promote religion, with many citizens lined up as either for the curriculum change, on religious grounds, or against the curriculum change, on the ground that religion should not play a role in public school science class. Accordingly, the letters and editorials are relevant to, and provide evidence of, the Dover community's collective social judgment about the curriculum change because they demonstrate that "[r]egardless of the listener's support for, or objection to," the curriculum change, the community and hence the objective observer who personifies it, cannot help but see that the ID Policy implicates and thus endorses religion.

It is additionally important to note that our determination to consider the letters and editorials is in line with the Supreme Court's decision in Epperson . In Epperson, the Supreme Court pointed to letters to the editor in a local newspaper as support for its conclusion that "fundamentalist sectarian conviction was and is" the reason that Arkansas enacted its statutory prohibition against teaching evolution in public schools. Epperson, 393 U.S. at 108. The Supreme Court quoted from three letters published in the Arkansas Gazette to show that the public "fear[ed] that teaching of evolution would be 'subversion of Christianity,' and that it would cause school children 'to disrespect the Bible.'" Id. at 108 n.16.13

Accordingly, taken in the aggregate, the plethora of letters to the editor and editorials from the local York newspapers constitute substantial additional evidence that the entire community became intertwined in the controversy of the ID Policy at issue and that the community collectively perceives the ID Policy as favoring a particular religious view. As a result of the foregoing analysis, we conclude that an informed, objective adult member of the Dover community aware of the social context in which the ID Policy arose would view Defendants' conduct and the challenged Policy to be a strong endorsement of a religious view.

We have now found that both an objective student and an objective adult member of the Dover community would perceive Defendants' conduct to be a strong endorsement of religion pursuant to the endorsement test. Having so concluded, we find it incumbent upon the Court to further address an additional issue raised by Plaintiffs, which is whether ID is science. To be sure, our answer to this question can likely be predicted based upon the foregoing analysis. While answering this question compels us to revisit evidence that is entirely complex, if not obtuse, after a six week trial that spanned twenty-one days and included countless hours of detailed expert witness presentations, the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.

4. Whether ID is Science

After a searching review of the record and applicable caselaw, we find that while ID arguments may be true, a proposition on which the Court takes no position, ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980's; and (3) ID's negative attacks on evolution have been refuted by the scientific community. As we will discuss in more detail below, it is additionally important to note that ID has failed to gain acceptance in the scientific community, it has not generated peer-reviewed publications, nor has it been the subject of testing and research.

Expert testimony reveals that since the scientific revolution of the 16th and 17th centuries, science has been limited to the search for natural causes to explain natural phenomena. (9:19-22 (Haught); 5:25-29 (Pennock); 1:62 (Miller)). This revolution entailed the rejection of the appeal to authority, and by extension, revelation, in favor of empirical evidence. (5:28 (Pennock)). Since that time period, science has been a discipline in which testability, rather than any ecclesiastical authority or philosophical coherence, has been the measure of a scientific idea's worth. (9:21-22 (Haught ); 1:63 (Miller)). In deliberately omitting theological or "ultimate" explanations for the existence or characteristics of the natural world, science does not consider issues of "meaning" and "purpose" in the world. (9:21 (Haught); 1:64, 87 (Miller)). While supernatural explanations may be important and have merit, they are not part of science. (3:103 (Miller); 9:19-20 (Haught)). This self-imposed convention of science, which limits inquiry to testable, natural explanations about the natural world, is referred to by philosophers as "methodological naturalism" and is sometimes known as the scientific method. (5:23, 29-30 (Pennock)). Methodological naturalism is a "ground rule" of science today which requires scientists to seek explanations in the world around us based upon what we can observe, test, replicate, and verify. (1:59-64, 2:41-43 (Miller); 5:8, 23-30 (Pennock)).

As the National Academy of Sciences (hereinafter "NAS") was recognized by experts for both parties as the "most prestigious" scientific association in this country, we will accordingly cite to its opinion where appropriate. (1:94, 160-61 (Miller); 14:72 (Alters); 37:31 (Minnich)). NAS is in agreement that science is limited to empirical, observable and ultimately testable data: "Science is a particular way of knowing about the world. In science, explanations are restricted to those that can be inferred from the confirmable data – the results obtained through observations and experiments that can be substantiated by other scientists. Anything that can be observed or measured is amenable to scientific investigation. Explanations that cannot be based upon empirical evidence are not part of science." ( P-649 at 27).

This rigorous attachment to "natural" explanations is an essential attribute to science by definition and by convention. (1:63 (Miller); 5:29-31 (Pennock)). We are in agreement with Plaintiffs' lead expert Dr. Miller, that from a practical perspective, attributing unsolved problems about nature to causes and forces that lie outside the natural world is a "science stopper." (3:14-15 (Miller)). As Dr. Miller explained, once you attribute a cause to an untestable supernatural force, a proposition that cannot be disproven, there is no reason to continue seeking natural explanations as we have our answer. Id.

ID is predicated on supernatural causation, as we previously explained and as various expert testimony revealed. (17:96 (Padian); 2:35-36 (Miller); 14:62 (Alters)). ID takes a natural phenomenon and, instead of accepting or seeking a natural explanation, argues that the explanation is supernatural. (5:107 (Pennock)). Further support for the conclusion that ID is predicated on supernatural causation is found in the ID reference book to which ninth grade biology students are directed, Pandas. Pandas states, in pertinent part, as follows:

Darwinists object to the view of intelligent design because it does not give a natural cause explanation of how the various forms of life started in the first place. Intelligent design means that various forms of life began abruptly, through an intelligent agency, with their distinctive features already intact – fish with fins and scales, birds with feathers, beaks, and wings, etc.

P-11 at 99-100 (emphasis added). Stated another way, ID posits that animals did not evolve naturally through evolutionary means but were created abruptly by a non-natural, or supernatural, designer. Defendants' own expert witnesses acknowledged this point. (21:96-100 (Behe); P-718 at 696, 700 ("implausible that the designer is a natural entity"); 28:21-22 (Fuller) (". . . ID's rejection of naturalism and commitment to supernaturalism . . ."); 38:95-96 (Minnich) (ID does not exclude the possibility of a supernatural designer, including deities).

It is notable that defense experts' own mission, which mirrors that of the IDM itself, is to change the ground rules of science to allow supernatural causation of the natural world, which the Supreme Court in Edwards and the court in McLean correctly recognized as an inherently religious concept. Edwards, 482 U.S. at 591-92; McLean, 529 F. Supp. at 1267. First, defense expert Professor Fuller agreed that ID aspires to "change the ground rules" of science and lead defense expert Professor Behe admitted that his broadened definition of science, which encompasses ID, would also embrace astrology. (28:26 (Fuller); 21:37-42 (Behe)). Moreover, defense expert Professor Minnich acknowledged that for ID to be considered science, the ground rules of science have to be broadened to allow consideration of supernatural forces. (38:97 (Minnich)).

Prominent IDM leaders are in agreement with the opinions expressed by defense expert witnesses that the ground rules of science must be changed for ID to take hold and prosper. William Dembski, for instance, an IDM leader, proclaims that science is ruled by methodological naturalism and argues that this rule must be overturned if ID is to prosper. (5:32-37 (Pennock)); P-341 at 224 ("Indeed, entire fields of inquiry, including especially in the human sciences, will need to be rethought from the ground up in terms of intelligent design.").

The Discovery Institute, the think tank promoting ID whose CRSC developed the Wedge Document, acknowledges as "Governing Goals" to "defeat scientific materialism and its destructive moral, cultural and political legacies" and "replace materialistic explanations with the theistic understanding that nature and human beings are created by God." (P-140 at 4). In addition, and as previously noted, the Wedge Document states in its "Five Year Strategic Plan Summary" that the IDM's goal is to replace science as currently practiced with "theistic and Christian science." Id. at 6. The IDM accordingly seeks nothing less than a complete scientific revolution in which ID will supplant evolutionary theory.14

Notably, every major scientific association that has taken a position on the issue of whether ID is science has concluded that ID is not, and cannot be considered as such. (1:98-99 (Miller); 14:75-78 (Alters); 37:25 (Minnich)). Initially, we note that NAS, the "most prestigious" scientific association in this country, views ID as follows:

Creationism, intelligent design, and other claims of supernatural intervention in the origin of life or of species are not science because they are not testable by the methods of science. These claims subordinate observed data to statements based on authority, revelation, or religious belief. Documentation offered in support of these claims is typically limited to the special publications of their advocates. These publications do not offer hypotheses subject to change in light of new data, new interpretations, or demonstration of error. This contrasts with science, where any hypothesis or theory always remains subject to the possibility of rejection or modification in the light of new knowledge.

P-192 at 25. Additionally, the American Association for the Advancement of Science (hereinafter "AAAS"), the largest organization of scientists in this country, has taken a similar position on ID, namely, that it "has not proposed a scientific means of testing its claims" and that "the lack of scientific warrant for so-called 'intelligent design theory' makes it improper to include as part of science education . . ." (P-198). Not a single expert witness over the course of the six week trial identified one major scientific association, society or organization that endorsed ID as science. What is more, defense experts concede that ID is not a theory as that term is defined by the NAS and admit that ID is at best "fringe science" which has achieved no acceptance in the scientific community. (21:37-38 (Behe); Fuller Dep. at 98-101, June 21, 2005; 28:47 (Fuller); Minnich Dep. at 89, May 26, 2005).

It is therefore readily apparent to the Court that ID fails to meet the essential ground rules that limit science to testable, natural explanations. (3:101-03 (Miller); 14:62 (Alters)). Science cannot be defined differently for Dover students than it is defined in the scientific community as an affirmative action program, as advocated by Professor Fuller, for a view that has been unable to gain a foothold within the scientific establishment. Although ID's fa ilure to meet the ground rules of science is sufficient for the Court to conclude that it is not science, out of an abundance of caution and in the exercise of completeness, we will analyze additional arguments advanced regarding the concepts of ID and science.

ID is at bottom premised upon a false dichotomy, namely, that to the extent evolutionary theory is discredited, ID is confirmed. (5:41 (Pennock)). This argument is not brought to this Court anew, and in fact, the same argument, termed "contrived dualism" in McLean, was employed by creationists in the 1980's to support "creation science." The court in McLean noted the "fallacious pedagogy of the two model approach" and that "[i]n efforts to establish 'evidence' in support of creation science, the defendants relied upon the same false premise as the two model approach . . . all evidence which criticized evolutionary theory was proof in support of creation science." McLean, 529 F. Supp. at 1267, 1269. We do not find this false dichotomy any more availing to justify ID today than it was to justify creation science two decades ago.

ID proponents primarily argue for design through negative arguments against evolution, as illustrated by Professor Behe's argument that "irreducibly complex" systems cannot be produced through Darwinian, or any natural, mechanisms. (5:38-41 (Pennock); 1:39, 2:15, 2:35-37, 3:96 (Miller); 16:72-73 (Padian); 10:148 (Forrest)). However, we believe that arguments against evolution are not arguments for design. Expert testimony revealed that just because scientists cannot explain today how biological systems evolved does not mean that they cannot, and will not, be able to explain them tomorrow. (2:36-37 (Miller)). As Dr. Padian aptly noted, "absence of evidence is not evidence of absence." (17:45 (Padian)). To that end, expert testimony from Drs. Miller and Padian provided multiple examples where Pandas asserted that no natural explanations exist, and in some cases that none could exist, and yet natural explanations have been identified in the intervening years. It also bears mentioning that as Dr. Miller stated, just because scientists cannot explain every evolutionary detail does not undermine its validity as a scientific theory as no theory in science is fully understood. (3:102 (Miller)).

As referenced, the concept of irreducible complexity is ID's alleged scientific centerpiece. Irreducible complexity is a negative argument against evolution, not proof of design, a point conceded by defense expert Professor Minnich. (2:15 (Miller); 38:82 (Minnich) (irreducible complexity "is not a test of intelligent design; it's a test of evoluti on"). Irreducible complexity additionally fails to make a positive scientific case for ID, as will be elaborated upon below.

We initially note that irreducible complexity as defined by Professor Behe in his book Darwin's Black Box and subsequently modified in his 2001 article entitled "Reply to My Critics," appears as follows:

By irreducibly complex I mean a single system which is composed of several well-matched, interacting parts that contribute to the basic function, wherein the removal of any one of the parts causes the system to effectively cease functioning. An irreducibly complex system cannot be produced directly by slight, successive modifications of a precursor system, because any precursor to an irreducibly complex system that is missing a part is by definition nonfunctional . . . Since natural selection can only choose systems that are already working, then if a biological system cannot be produced gradually it would have to arise as an integrated unit, in one fell swoop, for natural selection to have anything to act on.

P-647 at 39; P-718 at 694. Professor Behe admitted in "Reply to My Critics" that there was a defect in his view of irreducible complexity because, while it purports to be a challenge to natural selection, it does not actually address "the task facing natural selection." (P-718 at 695). Professor Behe specifically explained that "[t]he current definition puts the focus on removing a part from an already- functioning system," but "[t]he difficult task facing Darwinian evolution, however, would not be to remove parts from sophisticated pre-existing systems; it would be to bring together components to make a new system in the first place." Id. In that article, Professor Behe wrote that he hoped to "repair this defect in future work;" however, he has failed to do so even four years after elucidating his defect. Id.; 22:61-65 (Behe).

In addition to Professor Behe's admitted failure to properly address the very phenomenon that irreducible complexity purports to place at issue, natural selection, Drs. Miller and Padian testified that Professor Behe's concept of irreducible complexity depends on ignoring ways in which evolution is known to occur. Although Professor Behe is adamant in his definition of irreducible complexity when he says a precursor "missing a part is by definition nonfunctional," what he obviously means is that it will not function in the same way the system functions when all the parts are present. For example in the case of the bacterial flagellum, removal of a part may prevent it from acting as a rotary motor. However, Professor Behe excludes, by definition, the possibility that a precursor to the bacterial flagellum functioned not as a rotary motor, but in some other way, for example as a secretory system. (19:88-95 (Behe)).

As expert testimony revealed, the qualification on what is meant by "irreducible complexity" renders it meaningless as a criticism of evolution. (3:40 (Miller)). In fact, the theory of evolution proffers exaptation as a well-recognized, well-documented explanation for how systems with multiple parts could have evolved through natural means. Exaptation means that some precursor of the subject system had a different, selectable function before experiencing the change or addition that resulted in the subject system with its present function (16:146-48 (Padian)). For instance, Dr. Padian identified the evolution of the mammalian middle ear bones from what had been jawbones as an example of this process. (17:6-17 (Padian)). By defining irreducible complexity in the way that he has, Professor Behe attempts to exclude the phenomenon of exaptation by definitional fiat, ignoring as he does so abundant evidence which refutes his argument.

Notably, the NAS has rejected Professor Behe's claim for irreducible complexity by using the following cogent reasoning:

[S]tructures and processes that are claimed to be 'irreducibly' complex typically are not on closer inspection. For example, it is incorrect to assume that a complex structure or biochemical process can function only if all its components are present and functioning as we see them today. Complex biochemical systems can be built up from simpler systems through natural selection. Thus, the 'history' of a protein can be traced through simpler organisms . . . The evolution of complex molecular systems can occur in several ways. Natural selection can bring together parts of a system for one function at one time and then, at a later time, recombine those parts with other systems of components to produce a system that has a different function. Genes can be duplicated, altered, and then amplified through natural selection. The complex biochemical cascade resulting in blood clotting has been explained in this fashion.

P-192 at 22.

As irreducible complexity is only a negative argument against evolution, it is refutable and accordingly testable, unlike ID, by showing that there are intermediate structures with selectable functions that could have evolved into the allegedly irreducibly complex systems. (2:15-16 (Miller)). Importantly, however, the fact that the negative argument of irreducible complexity is testable does not make testable the argument for ID. (2:15 (Miller); 5:39 (Pennock)). Professor Behe has applied the concept of irreducible complexity to only a few select systems: (1) the bacterial flagellum; (2) the blood-clotting cascade; and (3) the immune system. Contrary to Professor Behe' s assertions with respect to these few biochemical systems among the myriad existing in nature, however, Dr. Miller presented evidence, based upon peer-reviewed studies, that they are not in fact irreducibly complex.

First, with regard to the bacterial flagellum, Dr. Miller pointed to peer-reviewed studies that identified a possible precursor to the bacterial flagellum, a subsystem that was fully functional, namely the Type-III Secretory System. (2:8-20 (Miller); P-854.23-854.32). Moreover, defense expert Professor Minnich admited that there is serious scientific research on the question of whether the bacterial flagellum evolved into the Type-III Secretary System, the Type-III Secretory System into the bacterial flagellum, or whether they both evolved from a common ancestor. (38:12-16 (Minnich)). None of this research or thinking involves ID. (38:12-16 (Minnich)). In fact, Professor Minnich testified about his research as follows: "we're looking at the function of these systems and how they could have been derived one from the other. And it's a legitimate scientific inquiry." (38:16 (Minnich)).

Second, with regard to the blood-clotting cascade, Dr. Miller demonstrated that the alleged irreducible complexity of the blood-clotting cascade has been disproven by peer-reviewed studies dating back to 1969, which show that dolphins' and whales' blood clots despite missing a part of the cascade, a study that was confirmed by molecular testing in 1998. (1:122-29 (Miller); P-854.17-854.22). Additionally and more recently, scientists published studies showing that in puffer fish, blood clots despite the cascade missing not only one, but three parts. (1:128-29 (Miller)). Accordingly, scientists in peer-reviewed publications have refuted Professor Behe's predication about the alleged irreducible complexity of the blood-clotting cascade. Moreover, cross-examination revealed that Professor Behe's redefinition of the blood-clotting system was likely designed to avoid peer-reviewed scientific evidence that falsifies his argument, as it was not a scientifically warranted redefinition. (20:26-28, 22:112-25 (Behe)).

The immune system is the third system to which Professor Behe has applied the definition of irreducible complexity. Although in Darwin's Black Box, Professor Behe wrote that not only were there no natural explanations for the immune system at the time, but that natural explanations were impossible regarding its origin. (P-647 at 139; 2:26-27 (Miller)). However, Dr. Miller presented peer-reviewed studies refuting Professor Behe's claim that the immune system was irreducibly complex. Between 1996 and 2002, various studies confirmed each element of the evolutionary hypothesis explaining the origin of the immune system. (2:31 (Miller)). In fact, on cross-examination, Professor Behe was questioned concerning his 1996 claim that science would never find an evolutionary explanation for the immune system. He was presented with fifty-eight peer-reviewed publications, nine books, and several immunology textbook chapters about the evolution of the immune system; however, he simply insisted that this was still not sufficient evidence of evolution, and that it was not "good enough." (23:19 (Behe)).

We find that such evidence demonstrates that the ID argument is dependent upon setting a scientifically unreasonable burden of proof for the theory of evolution. As a further example, the test for ID proposed by both Professors Behe and Minnich is to grow the bacterial flagellum in the laboratory; however, no-one inside or outside of the IDM, including those who propose the test, has conducted it. (P-718; 18:125-27 (Behe); 22:102-06 (Behe)). Professor Behe conceded that the proposed test could not approximate real world conditions and even if it could, Professor Minnich admitted that it would merely be a test of evolution, not design. (22:107-10 (Behe); 2:15 (Miller); 38:82 (Minnich)).

We therefore find that Professor Behe's claim for irreducible complexity has been refuted in peer-reviewed research papers and has been rejected by the scientific community at large. (17:45-46 (Padian); 3:99 (Miller)). Additionally, even if irreducible complexity had not been rejected, it still does not support ID as it is merely a test for evolution, not design. (2:15, 2:35-40 (Miller); 28:63-66 (Fuller)).

We will now consider the purportedly "positive argument" for design encompassed in the phrase used numerous times by Professors Behe and Minnich throughout their expert testimony, which is the "purposeful arrangement of parts." Professor Behe summarized the argument as follows: We infer design when we see parts that appear to be arranged for a purpose. The strength of the inference is quantitative; the more parts that are arranged, the more intricately they interact, the stronger is our confidence in design. The appearance of design in aspects of biology is overwhelming. Since nothing other than an intelligent cause has been demonstrated to be able to yield such a strong appearance of design, Darwinian claims notwithstanding, the conclusion that the design seen in life is real design is rationally justified. (18:90-91, 18:109-10 (Behe); 37:50 (Minnich)). As previously indicated, this argument is merely a restatement of the Reverend William Paley's argument applied at the cell level. Minnich, Behe, and Paley reach the same conclusion, that complex organisms must have been designed using the same reasoning, except that Professors Behe and Minnich refuse to identify the designer, whereas Paley inferred from the presence of design that it was God. (1:6- 7 (Miller); 38:44, 57 (Minnich)). Expert testimony revealed that this inductive argument is not scientific and as admitted by Professor Behe, can never be ruled out. (2:40 (Miller); 22:101 (Behe); 3:99 (Miller)).

Indeed, the assertion that design of biological systems can be inferred from the "purposeful arrangement of parts" is based upon an analogy to human design. Because we are able to recognize design of artifacts and objects, according to Professor Behe, that same reasoning can be employed to determine biological design. (18:116-17, 23:50 (Behe)). Professor Behe testified that the strength of the analogy depends upon the degree of similarity entailed in the two propositions; however, if this is the test, ID completely fails.

Unlike biological systems, human artifacts do not live and reproduce over time. They are non-replicable, they do not undergo genetic recombination, and they are not driven by natural selection. (1:131-33 (Miller); 23:57-59 (Behe)). For human artifacts, we know the designer's identity, human, and the mechanism of design, as we have experience based upon empirical evidence that humans can make such things, as well as many other attributes including the designer's abilities, needs, and desires. (D-251 at 176; 1:131-33 (Miller); 23:63 (Behe); 5:55- 58 (Pennock)). With ID, proponents assert that they refuse to propose hypotheses on the designer's identity, do not propose a mechanism, and the designer, he/she/it/they, has never been seen. In that vein, defense expert Professor Minnich agreed that in the case of human artifacts and objects, we know the identity and capacities of the human designer, but we do not know any of those attributes for the designer of biological life. (38:44-47 (Minnich)). In addition, Professor Behe agreed that for the design of human artifacts, we know the designer and its attributes and we have a baseline for human design that does not exist for design of biological systems. (23:61-73 (Behe)). Professor Behe's only response to these seemingly insurmountable points of disanalogy was that the inference still works in science fiction movies. (23:73 (Behe)).

It is readily apparent to the Court that the only attribute of design that biological systems appear to share with human artifacts is their complex appearance, i.e. if it looks complex or designed, it must have been designed. (23:73 (Behe)). This inference to design based upon the appearance of a "purposeful arrangement of parts" is a completely subjective proposition, determined in the eye of each beholder and his/her viewpoint concerning the complexity of a system. Although both Professors Behe and Minnich assert that there is a quantitative aspect to the inference, on cross-examination they admitted that there is no quantitative criteria for determining the degree of complexity or number of parts that bespeak design, rather than a natural process. (23:50 (Behe); 38:59 (Minnich)). As Plaintiffs aptly submit to the Court, throughout the entire trial only one piece of evidence generated by Defendants addressed the strength of the ID inference: the argument is less plausible to those for whom God's existence is in question, and is much less plausible for those who deny God's existence. (P-718 at 705).

Accordingly, the purported positive argument for ID does not satisfy the ground rules of science which require testable hypotheses based upon natural explanations. (3:101-03 (Miller)). ID is reliant upon forces acting outside of the natural world, forces that we cannot see, replicate, control or test, which have produced changes in this world. While we take no position on whether such forces exist, they are simply not testable by scientific means and therefore cannot qualify as part of the scientific process or as a scientific theory. (3:101-02 (Miller)).

It is appropriate at this juncture to address ID's claims against evolution. ID proponents support their assertion that evolutionary theory cannot account for life's complexity by pointing to real gaps in scientific knowledge, which indisputably exist in all scientific theories, but also by misrepresenting well- established scientific propositions. (1:112, 1:122, 1:136-37 (Miller); 16:74-79, 17:45-46 (Padian)).

Before discussing Defendants' claims about evolution, we initially note that an overwhelming number of scientists, as reflected by every scientific association that has spoken on the matter, have rejected the ID proponents' challenge to evolution. Moreover, Plaintiffs' expert in biology, Dr. Miller, a widely-recognized biology professor at Brown University who has written university-level and high- school biology textbooks used prominently throughout the nation, provided unrebutted testimony that evolution, including common descent and natural selection, is "overwhelmingly accepted" by the scientific community and that every major scientific association agrees. (1:94-100 (Miller)). As the court in Selman explained, "evolution is more than a theory of origin in the context of science. To the contrary, evolution is the dominant scientific theory of origin accepted by the majority of scientists." Selman, 390 F. Supp. 2d at 1309 (emphasis in original). Despite the scientific community's overwhelming support for evolution, Defendants and ID proponents insist that evolution is unsupported by empirical evidence. Plaintiffs' science experts, Drs. Miller and Padian, clearly explained how ID proponents generally and Pandas specifically, distort and misrepresent scientific knowledge in making their anti-evolution argument.

In analyzing such distortion, we turn again to Pandas, the book to which students are expressly referred in the disclaimer. Defendants hold out Pandas as representative of ID and Plaintiffs' expert s agree in that regard. (16:83 (Padian); 1:107-08 (Miller)). A series of arguments against evolutionary theory found in Pandas involve paleontology, which studies the life of the past and the fossil record. Plaintiffs' expert Professor Padi an was the only testifying expert witness with any expertise in paleontology.15 His testimony therefore remains unrebutted. Dr. Padian's demonstrative slides, pr epared on the basis of peer-reviewing scientific literature, illustrate how Pandas systematically distorts and misrepresents established, important evolutionary principles.

We will provide several representative examples of this distortion. First, Pandas misrepresents the "dominant form of understanding relationships" between organisms, namely, the tree of life, represented by classification determined via the method of cladistics. (16:87-97 (Padian); P-855.6-855.19). Second, Pandas misrepresents "homology," the "central concept of comparative biology," that allowed scientists to evaluate comparable parts among organisms for classification purposes for hundreds of years. (17:27-40 (Padian); P-855.83-855.102). Third, Pandas fails to address the well-established biological concept of exaptation, which involves a structure changing function, such as fish fins evolving fingers and bones to become legs for weight-bearing land animals. (16:146-48 (Padian)). Dr. Padian testified that ID proponents fail to address exaptation because they deny that organisms change function, which is a view necessary to support abrupt- appearance. Id. Finally, Dr. Padian's unrebutted testimony demonstrates that Pandas distorts and misrepresents evidence in the fossil record about pre-Cambrian-era fossils, the evolution of fish to amphibians, the evolution of small carnivorous dinosaurs into birds, the evolution of the mammalian middle ear, and the evolution of whales from land animals. (16:107-17, 16:117-31, 16:131-45, 17:6-9, 17:17-27 (Padian); P-855.25-855.33, P-855.34-855.45, P-855.46-855.55, P-855.56-866.63, P-855.64-855.82).

In addition to Dr. Padian, Dr. Miller also testified that Pandas presents discredited science. Dr. Miller testified that Pandas' treatment of biochemical similarities between organisms is "inaccurate and downright false" and explained how Pandas misrepresents basic molecular biology concepts to advance design theory through a series of demonstrative slides. (1:112 (Miller)). Consider, for example, that he testified as to how Pandas misinforms readers on the standard evolutionary relationships between different types of animals, a distortion which Professor Behe, a "critical reviewer" of Pandas who wrote a section within the book, affirmed. (1:113-17 (Miller); P-854.9-854.16; 23:35-36 (Behe)).16 In addition, Dr. Miller refuted Pandas' claim that evolution cannot account for new genetic information and pointed to more than three dozen peer-reviewed scientific publications showing the origin of new genetic information by evolutionary processes. (1:133-36 (Miller); P-245). In summary, Dr. Miller testified that Pandas misrepresents molecular biology and genetic principles, as well as the current state of scientific knowledge in those areas in order to teach readers that common descent and natural selection are not scientifically sound. (1:139-42 (Miller)).

Accordingly, the one textbook to which the Dover ID Policy directs students contains outdated concepts and badly flawed science, as recognized by even the defense experts in this case.

A final indicator of how ID has failed to demonstrate scientific warrant is the complete absence of peer-reviewed publications supporting the theory. Expert testimony revealed that the peer review process is "exquisitely important" in the scientific process. It is a way for scientists to write up their empirical research and to share the work with fellow experts in the field, opening up the hypotheses to study, testing, and criticism. (1:66-69 (Miller)). In fact, defense expert Professor Behe recognizes the importance of the peer review process and has written that science must "publish or perish." (22:19-25 (Behe)). Peer review helps to ensure that research papers are scientifically accurately, meet the standards of the scientific method, and are relevant to other scientists in the field. (1:39-40 (Miller)). Moreover, peer review involves scientists submitting a manuscript to a scientific journal in the field, journal editors soliciting critical reviews from other experts in the field and deciding whether the scientist has followed proper research procedures, employed up-to-date methods, considered and cited relevant literature and generally, whether the researcher has employed sound science.

The evidence presented in this case demonstrates that ID is not supported by any peer-reviewed research, data or publications. Both Drs. Padian and Forrest testified that recent literature reviews of scientific and medical-electronic databases disclosed no studies supporting a biological concept of ID. (17:42-43 (Padian); 11:32-33 (Forrest)). On cross-examination, Professor Behe admitted that: "There are no peer reviewed articles by anyone advocating for intelligent design supported by pertinent experiments or calculations which provide detailed rigorous accounts of how intelligent design of any biological system occurred." (22:22-23 (Behe)). Additionally, Professor Behe conceded that there are no peer-reviewed papers supporting his claims that complex molecular systems, like the bacterial flagellum, the blood-clotting cascade, and the immune system, were intelligently designed. (21:61-62 (complex molecular systems), 23:4-5 (immune system), and 22:124-25 (blood-clotting cascade) (Behe)). In that regard, there are no peer-reviewed articles supporting Professor Behe's argument that certain complex molecular structures are "irreducibly complex."17 (21:62, 22:124-25 (Behe)). In addition to failing to produce papers in peer-reviewed journals, ID also features no scientific research or testing. (28:114-15 (Fuller); 18:22-23, 105-06 (Behe)).

After this searching and careful review of ID as espoused by its proponents, as elaborated upon in submissions to the Court, and as scrutinized over a six week trial, we find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community. ID, as noted, is grounded in theology, not science. Accepting for the sake of argument its proponents', as well as Defendants' argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum. Moreover, ID's backers have sought to a void the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID.

To conclude and reiterate, we express no opinion on the ultimate veracity of ID as a supernatural explanation. However, we commend to the attention of those who are inclined to superficially consider ID to be a true "scientific" alternative to evolution without a true understanding of the concept the foregoing detailed analysis. It is our view that a reasonable, objective observer would, after reviewing both the voluminous record in this case, and our narrative, reach the inescapable conclusion that ID is an interesting theological argument, but that it is not science.

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9To further illustrate, we note the Third Circuit Court of Appeals' decision in Tenafly Eruv Ass'n v. Borough of Tenafly , 309 F.3d 144 (3d Cir. 2002). In Tenafly, the Third Circuit applied the endorsement test to the question of whether a town would violate the Establishment Clause if it allowed a group of Orthodox Jews to attach markers to utility poles for religious reasons. Although the markers "were attached for the benefit of other Orthodox Jews, not the general public," the Third Circuit nonetheless performed the endorsement inquiry from the standpoint of a reasonable, informed, objective observer in the community at large. Id. at 161- 62, 174-78. This inquiry performed by the court is logical because although Orthodox Jews were the markers' "intended audience" in the sense that they were the ones for whose benefit the markers were placed, the markers appeared on utility polices where anyone in the community might see them and attempt to ascertain their meaning, as well as the government's relationship to them. Id. at 162. [return]

10Two exhibit numbers separated by a slash indicates that Plaintiffs introduced different formats of the same article under different exhibit numbers.[return]

11In fact, Stough testified that he read the York Daily Record and the York Dispatch every day, including on the internet while he was away on vacation, to follow the Board's actions relating to the biology curriculum change. (15:112-13; 16:4 (Stough)). [return]

12In addition, the charts summarizing the letters to the editor and editorials from the York Daily Record and the York Dispatch are admitted under Fed.R.Evid. 1006 as summaries of voluminous materials. [return]

13The Supreme Court treated the letters as evidence not only of the community's view that evolutionary theory should be banned because of its perceived religious implications, but also of the public pressures driving the Arkansas legislature to adopt the measure. The Court therefore viewed them as, among other things, shedding light on the legislative purpose underlying the anti-evolution statute.

Plaintiffs accurately submit that in Modrovich, the Third Circuit Court of Appeals departed from Epperson by treating as irrelevant to the purpose inquiry letters from citizens to county officials on the grounds that (1) the letters were not authored by official decision-makers and (2) most of the letters were received after the county made its policy decision. Modrovich, 385 F.2d at 412 & n.4. Importantly, here, Plaintiffs do not offer the letters as purpose evidence, nor will they be considered as such, nor do they ask the Court to find that they prove Defendants' religious purpose for changing the curriculum. Instead, Plaintiffs offer the evidence pursuant to the endorsement test and Lemon's effect prong. [return]

14Further support for this proposition is found in the Wedge Strategy, which is composed of three phases: Phase I is scientific research, writing and publicity; Phase II is publicity and opinion-making; and Phase III is cultural confrontation and renewal. (P-140 at 3). In the "Five Year Strategic Plan Summary," the Wedge Document explains that the social consequences of materialism have been "devastating" and that it is necessary to broaden the wedge with a positive scientific alternative to materialistic scientific theories, which has come to be called the theory of ID. "Design theory promises to reverse the stifling dominance of the materialist worldview, and to replace it with a science consonant with Christian and theistic convictions." Id. at 6. Phase I of the Wedge Strategy is an essential component and directly references "scientific revolutions." Phase II explains that alongside a focus on influential opinion-makers, "we also seek to build up a popular base of support among our natural constituency, namely, Christians. We will do this primarily through apologetics seminars. We intend these to encourage and equip believers with new scientific evidence that support the faith, as well as to 'popularize' our ideas in the broader culture." Id. Finally, Phase III includes pursuing possible legal assistance "in response to resistance to the integration of design theory into public school science curricula." Id. at 7. [return]

15Moreover, the Court has been presented with no evidence that either Defendants' testifying experts or any other ID proponents, including Pandas' authors, have such paleontology expertise as we have been presented with no evidence that they have published peer-reviewed literature or presented such information at scientific conferences on paleontology or the fossil record. (17:15-16 (Padian)). [return]

16Additionally, testimony provided by Professor Behe revealed an increasing gap between his portrayal of ID theory and how it is presented in Pandas. Although he is a "critical reviewer" of the work, he disagrees with language provided in the text, including but not limited to the text's very definition of ID. (P-11 at 99-100). [return]

17The one article referenced by both Professors Behe and Minnich as supporting ID is an article written by Behe and Snoke entitled "Simulating evolution by gene duplication of protein features that require multiple amino acid residues." (P-721). A review of the article indicates that it does not mention either irreducible complexity or ID. In fact, Professor Behe admitted that the study which forms the basis for the article did not rule out many known evolutionary mechanisms and that the research actually might support evolutionary pathways if a biologically realistic population size were used. (22:41-45 (Behe); P-756). [return]

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