Casey Luskin, "A Visitor’s Guide to the Dover Intelligent Design and Evolution Case" (2005)

Outline:

1. What is the Dover case all about?

2. What are the plaintiffs’ primary arguments?

3. What is the law that will probably be applied in this case?

4. Are the plaintiffs’ primary arguments correct, accurate, and truthful?

5. What are possible outcomes of this case, and what might be the ramifications for teaching intelligent design?

6. Links to Amicus Briefs

1. What is the Dover case all about?

On October 18, 2004, the Dover Area School Board (in Dover, Pennsylvania) adopted a policy which requires that science teachers in the Dover Area School District read the following statement to students when teaching about biological evolution:

"The Pennsylvania Academic Standards require students to learn about Darwin’s theory of evolution and eventually to take a standardized test of which evolution is a part.

Because Darwin’s theory is a theory, it continues to be tested as new evidence is discovered. The theory is not a fact. Gaps in the theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

Intelligent design is an explanation of the origin of life that differs from Darwin’s view. The reference book, “Of Pandas and People,” is available for students who might be interested in gaining an understanding of what intelligent design actually involves.

With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the origins of life to individual students and their families. As a standards-driven district, class instruction focuses upon preparing students to achieve proficiency on standards-based assessments."

Subsequently, on December 14, 2004, the American Civil Liberties Union (ACLU) filed a lawsuit on behalf of 11 plaintiffs (the lead one being “Tammy Kitzmiller”) against the Dover Area School Board, seeking to prevent the reading of this 4-paragraph statement. Thus the case is titled “Kitzmiller et al. v. Dover Area School Board.” In this lawsuit, the ACLU ultimately seeks a permanent injunction to prevent this 4-paragraph statement from being read to students.

The lawsuit alleges that “the effect of the defendant Dover School Board’s October 18 resolution as implemented by defendant Dover Area School District . . . will be to compel public school science teachers to present to their students in their biology class information that is inherently religious, not scientific, in nature.”

But the truth is that the ACLU has a much broader agenda than to ban merely this 4-paragraph statement from the science classroom. The ACLU believes that it is unconstitutional to teach intelligent design in all circumstances, and thus it is seeking a broad ruling which holds that it is generally unconstitutional to teach intelligent design.

The trial over Dover’s policy began on September 26, 2005 as a bench (i.e. nonjury) trial in the Federal District Court for the Middle District of Pennsylvania in Harrisburg, Pennsylvania, with the Honorable Judge John Jones III hearing the case.

The trial concluded on November 4, 2005.

2. What are the plaintiffs’ primary arguments?

Simply put, the ACLU’s arguments can be broken down to essentially three categories. Here are their 3 primary arguments:

(a) The Dover Area School Board had predominantly religious motivations, and did not rely upon secular purposes, in enacting their policy;

(b) Dover’s policy employs “evolution is theory … not fact” language which has a primary effect which advances religion;

(c) Intelligent design is an “inherently religious view” such that teaching it will necessarily, in all circumstances, always have a primary effect which advances religion.

As can be seen, the ACLU’s arguments (a) and (b) are specific to the facts, events, and actions which have taken place in Dover (with the caveat that plaintiffs occasionally make the highly dubious allegation in their (a) argument that design could never be taught under a secular purpose under any circumstances). In contrast, however, ACLU’s argument (c) is a general argument which would allegedly apply to any school district which might teach intelligent design.

3. What is the law that will probably be applied in this case?

Since 1971, nearly every case decided by the Supreme Court about the Establishment Clause has employed a test created in the famous case Lemon v. Kurtzman (called the Lemon test). Furthermore, most Supreme Court cases dealing with religion in schools have employed the Lemon test. Additionally, the Lemon test has been the primary judicial vehicle for deciding cases over the teaching of origins of life. This Lemon test states that a law will be constitutional only if it meets each of the three following criteria (commonly called “prongs”):

[1] First, the statute must have a secular legislative purpose;

[2] [S]econd, its principal or primary effect must be one that neither
> advances nor inhibits religion, <p>

[3] [F]inally, the statute must not foster an excessive government
> entanglement with religion.&rdquo;<p>

(Lemon v. Kurtzman, 403 U.S. 602 (1971) at 612-13 (internal citations and quotations omitted))

To reiterate, if a law fails any one of these prongs, it is unconstitutional. In this case, the ACLU does not allege that Dover’s policy violates the third “entanglement prong.”

The Lemon test has been sharply criticized over the years. The most common criticism is that its “first prong” should not delve into the motivations or purposes of legislators because (a) it can be difficult to correctly ascertain the true motives of an entire legislative body; (b) our country permits religious freedom and has a long history permitting people to act publicly upon their religious values; and (c) all that really matters is the effect of a law, and if the effect is secular and beneficial to society, then the motivations for passing it should be immaterial. As Justice Scalia pointed out in a case dealing with the teaching of creationism, “[t]oday's religious activism may give us the Balanced Treatment Act … yesterday's resulted in the abolition of slavery, and tomorrow's may bring relief for famine victims.”

Despite these criticisms, as one court dealing with an evolution disclaimer observed, “[a]lthough widely criticized and occasionally ignored, the Lemon test continues to govern Establishment Clause cases.” Thus, while Lemon may have flaws and many legal scholars continue to question its adequacy as a legal rule (particularly with regards to its purpose prong), it will still likely be applied in this case.

Plaintiffs allege that Dover’s policy violates the prongs of Lemon test as follows:

4. Are the plaintiffs’ primary arguments correct, accurate, and truthful?

In this section, I will try to address some of the primary arguments being offered in this case which could have a bearing upon the general constitutionality of teaching intelligent design. The following arguments will be addressed:

a. Intelligent design could never be taught under a secular purpose.

b. Science is defined by methodological naturalism.

c. ID is not science, therefore it is religion; ID endorses religion.

d. ID appeals to a supernatural creator or supernatural cause.

e. ID is not testable.

f. ID is creationism.

a. Intelligent design could never be taught under a secular purpose.

The Supreme Court in Edwards v. Aguillard held that passing a law under a religious motivation was permissible as long as the religious purpose did not “predominate.” Thus, a law which is passed under partially religious motivations is permissible as long as secular reasons for passing the law predominate.

In this section I will not address the question of “Did Dover itself have predominantly secular purposes for passing the law.” This is a question of fact for the judge to decide. However, I am interested in the bigger argument the ACLU has made, that there are NEVER any secular purposes for teaching intelligent design. I strongly disagree with this argument.

There are many secular purposes under which design theory could be taught:

• Informing students about competing theories of biological origins as they exist within the scientific community;
> &bull; Helping students to better understand neo-Darwinism by understanding a theory with which it competes; <br> • Enhancing critical thinking skills by exposing students to alternative explanations for the origin of life;
> &bull; Helping students to understand the value of dissenting viewpoints in the advancement of scientific knowledge; <br> • To comply with the Conference Report of the No Child Left Behind Act, by including “the full range of scientific views” about biological evolution in its science curriculum.

As strong evidence that these secular purposes are viable, a number of educators approve of teaching students about intelligent design in the science classroom because they believe it helps students to better understand science, and in particular it helps them to better understand Neo-Darwinism. As John Angus Campbell writes:

“That professional science educators, none of whom are associated with ID (and for all we know may be critical of it) would come to the same conclusion as ID advocates about how to best teach evolution is not surprising. The idea of teaching [controversies] is arguably the oldest idea in our common educational tradition. Darwinism and design theory are clearly opposed philosophically and scientifically; however, considered from an educational standpoint each competing perspective is half of an ancient, unbreakable dialectal pair … They will likely continue their antagonistic relation into distant futurity -- if for no other reason than each requires knowledge of the other to define and explain itself.”

(John Angus Campbell, “Intelligent Design, Darwinism, and Public Education Philosophy,” in Darwinism, Design and Public Education, pg. 21 (Michigan State University Press, 2003))

Thus there is no question that there are many secular reasons for which a school board could teach intelligent design.

b. Science is defined by methodological naturalism.

Many commentators have recognized that methodological naturalism is neither a necessary component for the practice of science, and indeed if one accepts methodological naturalism, then one might exclude some scientific hypotheses which are generally regarded as scientific. Thus, the following links discuss methodological naturalism (MN) as it applies to science and ID:

The Scientific Status of Intelligent Design: The Methodological Equivalence of Naturalistic and Non-Naturalistic Origins Theories by Stephen C. Meyer
> (critiques demarcation arguments such as those of Robert Pennock in the Dover Trial, and argues that intelligent design and Neo-Darwinism are &ldquo;methodologically equivalent&rdquo; such that intelligent design could not be excluded from science unless Neo-Darwinism were to be similarly excluded)<p>

Will Robert Pennock Become the Next Michael Ruse? by Casey Luskin (talks about critiques of methodological naturalism as made by philosophers of science)

Pennock to the Court: "Methodological Naturalism is all there is, or was, or ever will be" by Casey Luskin
> (agues that even if methodological naturalism were to be accepted by science, the reasoning behind MN would not disqualify ID from being a scientific theory)<p>

c. ID is not science, therefore it is religion; ID endorses religion.

Rebutting the first part of this claim is so simple it does not need an article. Essentially, the logic claims that “if something is not science, it must be religion.” This need not be the case because many things are neither science nor “religion.” Obviously I believe intelligent design IS a scientific theory . But even if it were not, that would not mean it had to be “religion.” Philosophy, history, and many fields are considered to be outside the realm of science. But their theories and ideas are not therefore necessarily religion.

Rebutting the second part requires an understanding of the law. The "endorsement test" is a legal test which states that something is unconstitutional if an average citizen would think the government action endorsed religion. The problem with this argument is that using the test in this issue equally threatens the teaching of evolution: if some citizens think that intelligent design endorses religion, then many people also will think that teaching evolution endorses anti-religious views. Thus Justice Black wrote in the landmark case Epperson v. Arkansas:

"Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court's opinion."

(J. Black, concurring, Epperson v. Arkansas, 393 U.S. at 113 (1968))

What is sauce for the goose must be sauce for the gander. When the plaintiffs argue that teaching of intelligent design is unconstitutional because some people will think it endorses religion, they threaten the teaching of evolution on precisely the same grounds. The bottom line is that intelligent design is based upon empirical data and does not make its claims using religious arguments. If some people take it to have broader religious implications, so be it. But that should not disqualify it from being taught in schools, lest we also disqualify similarly situated theories such as Neo-Darwinism or Big Bang cosmology, which are also based upon empirical data but seen by many as having broader religious implications. As two Supreme Court Justices noted in Edwards v. Aguillard:

"A decision respecting the subject matter to be taught in public schools does not violate the Establishment Clause simply because the material to be taught "'happens to coincide or harmonize with the tenets of some or all religions.'" Harris v. McRae, 448 U.S. 297, 319 (1980) (quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961)).

(Justices Powell and O'Connor concurring, 482 U.S. at 605 (1987))

Thus, as Discovery notes in its Amicus Brief, there is a long-established legal doctrine that something can be taught if its "primary" effect does not advance religion--but the "secondary" or "incidental" or "indirect" effects may indeed impact religion. Teaching intelligent design may have indirect or incidental effects upon religion, but its empirical basis means that its primary effect is to advance science education.

d. ID appeals to a supernatural creator or supernatural cause.

This is a common claim made by the plaintiffs which is simply false. In reality, intelligent design as a scientific theory cannot address metaphysical questions such as the nature or identity of the designer. To understand the truth behind the claim that biological design requires a supernatural designer, visit this link for documentation on the actual arguments of ID proponents regarding intelligent design and the supernatural.

e. ID is not testable.
> Because plaintiffs mischaracterize intelligent design as an appeal to the supernatural, they then claim that design theory is not testable because it makes statements about supernatural entities which cannot be observed. Since their premise that ID theory tries to speculate about supernatural entities is a misrepresentation in-and-of-itself, their conclusion that ID theory is not testable is also false. <p>

In reality, intelligent design merely seeks to determine if an intelligent agent was at work in the past. Design theory thus employs established methods from fields of forensic science, archaeology, and even the Search for Extra-Terrestrial Intelligence to detect the prior action of an intelligent cause.

The second objection to design theory is that it is “untestable” or equivalent to “throwing up our hands” and making an argument from ignorance. According to the textbook I used while studying evolutionary biology at the University of California, at San Diego, Darwin’s theory couples “undirected, purposeless variation to the blind, uncaring process of natural selection” thus making “theological or spiritual explanations of the life processes superfluous.” So if evolution is science, and evolution claims we arose due to “undirected” and “purposeless” processes, then why should it be untestable to claim that life arose through an intelligently “directed” or “purposeful” process? The answer is that if the claims of evolutionary biology are testable, then the claims of design theory must also be.

But intelligent design is demonstrably testable. Design theory begins with observations about the types of informational properties commonly produced by intelligent action. Leading design theorist William Dembski in his 1998 Cambridge University Press book The Design Inference, explains that the informational properties commonly resulting from intelligent agency can be quantified as “complex and specified information” (CSI). CSI is basically a scenario which is unlikely to happen (making it complex), and conforms to a particular pattern (making it specified). Everyday examples of CSI include the highly unlikely yet specifically ordering words you are reading in this article. As you view these words, you immediately recognize them as a non-random event which conforms (hopefully) to the specific rules of syntax of the English language. Congratulations! You’ve just made a design inference using the precise reasoning used by biologists who recognize that the high levels of CSI in our language-based software-like genetic code were also designed. We can test for the presence of CSI in biological structures by doing reverse engineering, to determine if the structure fails to function properly if it is changed or tweaked slightly.

For a more detailed explanation of how ID is testable, please see The Positive Case for Design.

f. ID is creationism

While there is a diversity of definitions for creationism, scholars and authorities on all sides of this issue have consistently defined creationism with one common feature: that it involves the action of a supernatural being who created life on earth. Yet intelligent design theory lacks this single universally ascribed quality of creationism, because intelligent design does not attempt to use science to speculate about the nature or identity of the designing agent. Thus, intelligent design does not postulate a “supernatural creator.” This is outlined in detail here.

The plaintiffs’ arguments go deeper than this, but as they go deeper they also get much shallower. Plaintiffs allege that a pre-publication version of the textbook Of Pandas and People (Pandas)used the word “creationism.” But this should not matter, because students are not reading pre-publication drafts of Pandas. They are reading the actual published versions, which do not mention creationism.

Moreover, if the Court constructs a legal rule which looks at prior versions of Pandas to determine the constitutionality of later versions of the textbook, then it would place in legal jeopardy Kenneth Miller’s pro-evolution textbook used by 35% of students in the USA. Earlier published versions of Miller's textbooks have explicitly promoted philosophical materialism and other anti-religious positions. See this link for details.

Finally, plaintiffs' do not recognize that when pre-publication drafts of Pandas used the term "creationism," they used it in a way which was different from how creationism has been declared unconstitutional by courts. In Edwards v. Aguillard, the U.S. Supreme Court declared creationism to be a religious viewpoint because it implied a "supernatural creator." Yet in Pandas, "creation" was juxtaposed with statements that we could not scientifically detect a supernatural creator. In other words, even in its pre-publication form, the project of the authors of Pandas offered a theory that was fundamentally distinct from the versions of "creationism" struck down by courts. Plaintiffs are thus playing word games and ignoring the substance of how the term "creation" was being used. Regardless, the authors never included the term "creationism" into the published drafts not to hide something, but because their project was fundamentally distinct from that of "creationism." "Creationism" was thus not an accurate term to describe their intended project. Hence the usage of "intelligent design."

For a more detailed rebuttal of the plaintiffs' arguments that intelligent design is creationism because early drafts of Of Pandas and People used the term "creation" see Brief of Amicus Curiae Foundation for Thought and Ethics. See also Jonathan Witt's Origin of the term Intelligent design.

5. What are possible outcomes of this case, and what might be the ramifications for teaching intelligent design?

The ramifications of this case for teaching intelligent design could vary greatly. To understand possible outcomes, we must return to the ACLU’s three primary arguments:

6. Links to Amicus Brief:

For more information about Legal Arguments in this case, see the following Amicus Briefs submitted to the Court in this case:

Brief of Amici Curiae Biologists And Other Scientists In support of Defendants: The Nature of Science is not a Question to be Decided by Courts
> October 4, 2005<p>

Brief of Amicus Curiae, The Discovery Institute: Legal brief filed by Discovery Institute about secular purposes for teaching about the scientific theory of intelligent design. [Revised version]
> October 31, 2005<p>

Discovery Amicus Brief Appendix A: Documentation showing the scientific theory of intelligent design makes no claims about the identity or nature of the intelligent cause responsible for life. [Revised version]
> October 31, 2005<p>

Brief of Amicus Curiae Foundation for Thought and Ethics: Teaching about intelligent design out of Of Pandas and People does not establish religion. See also Appendices A-D.
> November 4, 2005<p>

Brief of Amici Curiae Discovery Institute and Foundation for Thought and Ethics: Reply to Plaintiffs' Response to Amicus Briefs.
> December 12, 2005<p>