See blogspot 35 for preliminary background of the case.
The Discovery Institute was concerned that the defendants in the case had earlier, emphatically, and publicly displayed their religious motivations. This engendered disagreements between the Institute and the Thomas More Law Center over who would represent three Institute fellows who were listed as defense experts. Prior to their depositions, the three fellows bowed out of the trial. In May, 2005, the Foundation for Thought and Ethics (FTE), the publisher of Of Pandas and People, filed a motion to intervene in the case. They argued that a ruling that intelligent design was religious would have severe financial consequences—losses of nearly half a million dollars. By intervening the FTE would become a co-defendant and could bring in their own attorneys and expert witnesses—the intent being to bring in the three experts whom the Institute had rejected because of the issue of legal representation. Judge Jones ruled that the FTE was not entitled to intervene because its motion was not timely, and further that its reasons for trying to be involved were “both unavailing and disingenuous”.
In the November, 2005 elections, none of the members of the Dover School Board who voted for the intelligent design policy were re-elected. The newly constituted board rejected the policy and took office. This effectively precluded the possibility of an appeal to a higher court since the succeeding board announced that it had no intention of making an appeal.
The eleven litigants for the plaintiffs were all parents of students enrolled in the Dover Area School district and included Tammy Kitzmiller, Bryan and Christy Rehm, Deborah Fenimore, Joel Lieb, Steven Stough, Beth Eveland, Cynthia Sneath, Julie Smith, Aralene D. and Frederick B. Callahan. The defendants were the members of the Dover Area School District. The suit was brought in the U.S. District Court for the Middle District of Pennsylvania seeking injunctive relief. Since the suit sought an equitable remedy, there was no right to a jury trial; the Seventh Amendment to the Constitution did not apply. The bench trial commenced on September 26, 2005 and concluded on November 4, 2005. The judge’s 139 page findings of fact and decision was issued on December 20, 2005.
Eric Rothschild, in his opening statement for the plaintiffs said that the plaintiffs would be able to provide many examples of school board members wishing to balance the teaching of evolution with creationism. He attacked prior defense claims that it was a minor affair by saying that there is no such thing as a “little constitutional violation”. He quoted the definition of creationism given by an early draft of Pandas: “Creation is the theory that various forms of life began abruptly, with their distinctive features already intact: Fish with fins and scales, birds with feathers, beaks, and wings, et cetera.” The eventually published version was only slightly different in that it substituted ‘creation’ for ‘intelligent design’.
The defense’s opening was presented by Patrick Gillen. He stated that the board and its supporters had a goal to enhance science education and argued that the policy was a “modest change”. He distanced the board from its prominent member, William Buckingham, and his alleged comments that the plaintiffs had argued showed religious intent. He argued that the board paid more attention to the science faculty than to Mr. Buckingham. It was his contention that the board did not have a religious agenda although board member Alan Bonsell had done his own reading which made him aware of 300 or so scientists who had signed a statement indicating that biologists were exaggerating claims for the theory and had read about the Piltdown Man hoax. Gillen did allow that Bonsell had an interest in creationism.
Witnesses for the plaintiffs included Kenneth R. Miller, a biology professor from Brown University a noted author who was opposed to intelligent design. He stated that “Intelligent Design is not a testable theory and as such is not generally accepted by the scientific community. Intelligent Design was not subject to falsification, but many claims made by intelligent-design advocates had been falsified.
Aralene “Barrie” D. Callahan was a plaintiff, a Dover parent, and was for ten years a member of the Board. She had previously resigned over the actions of the board in relation to the case. She testified that Alan Bonsell, a board member, argued in a board retreat in Spring, 2003 that if evolution were taught then creationism should also be taught, “fifty-fifty”. Julie Smith testified that her daughter was harassed for her Catholic background, being told that she is an atheist since she accepted evolution.
Barbara Forrest testified as an expert witness for the plaintiff side. She supplied the court with a written expert witness report and a supplemental report. She is a professor of philosophy in the Department of History and Political Science at Southeastern Louisiana University and co-authored a book critical of the creationism movement and its devious efforts to gain control of school boards. The defendants had filed a motion to exclude her testimony because she was “little more than a conspiracy theorist and a web-surfing, cyber stalker of the Discovery Institute”. She was ridiculed on the institute’s web-site. The motion was denied.
Dr. Forrest cited prominent Discovery Institute figures writing about the institute’s Wedge Document for how the evolution debate can be won. She described in detail how the creationist movement was an attempt to present a religious proposition as a scientific viewpoint. She warned that one of the movement’s goals was to unify the religious world. However, Dr. Forrest had to admit that she was unaware of any evidence that the board had seen the materials she described.
Michael Behe, the first and primary witness for the defense, testified from October 17-19. He was asked to support the idea that intelligent design was legitimate science as opposed to its arguing that evolution theory was flawed. Under cross-examination he had to concede 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”. Further, he was led to admit that the definition of theory to intelligent design was so loose that astrology would also qualify. Under oath he accepted that the institute’s peer-reviewed and peer-edited simulated modeling of evolution publications supporting the theory of intelligent design showed that the biochemical systems therein described could evolve within 20,000 years even if the parameters of the simulation were rigged to make that outcome as unlikely as possible.
Michael R. Baksa, board superintendent, testified that the book, Myth of Separation, was circulated among at least three board members. The book described separation of church and state as “absurd”. He would not accept language from the teachers stating that “evolution continues to be the dominant scientific explanation of the origin of the species”. Because he believed that the board would reject language stating that there is a “significant amount of evidence” supporting evolution, he eliminated that phrase from the board’s policy statement. Steve Fuller provided a qualified defense of the scientific status of intelligent design, citing Newton, Linnaeus, and Mendel. He called for an affirmative action program for the origins of intelligent design. His testimony was cited by the plaintiff’s attorneys and the defense in their closing arguments.
Alan Bonsell testified that he did not know where the money had been raised to donate sixty copies of Of Pandas and People to the school’s library. When evidence was introduced that the money had been raised in William Buckingham’s church and directed through Bonsell’s father so that it could be donated anonymously, Judge Jones elected to take over the examination of Bonsell himself.
Closing arguments were made on November 4, 2005. Upon completing of the closing arguments, Mr. Gillen of the plaintiffs, asked the judge, “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 responded, “Mr. Gillen, that is an interesting conclusion, but it was not by design.” People in the courtroom laughed and applauded.