INFO 681 LEGAL RESEARCH SPRING 2013 The Legal Controversy Surrounding Kitzmiller v. Dover Board of Education Drexel University Edwin Greenlee, Instructor Name: Deirdre Crandall

Introduction

This pathfinder examines the legal controversy surrounding the

Pennsylvania case of Kitzmiller v. Dover Area School District. The Dover Area School

District was the first district in the country to include in their high school biology curriculum. According the book 40 Days and 40 Nights Darwin:

Intelligent Design, God, OxyContin and Other Oddities on Trial in , intelligent design “proposes that some things in nature appear so complex that they could not have been formed by the slow successive steps required by evolution.

They must therefore have been designed in their existing form by an “intelligent designer”’. Before the advent of intelligent design, the term “creationism” or

“creation science” was more commonly used. The switch to intelligent design is seen as an attempt to secularize the term.

The school board had voted to require biology teachers to read a statement at the start of the year stating that evolution is only a theory and accordingly, intelligent design should be considered a viable theoretical alternative to evolution.

School district parents filed a lawsuit challenging the intelligent design curriculum.

This landmark case was argued in U.S. District Court in 2005 over a period of six weeks. The judge overturned the school board’s intelligent design policy and ruled in favor of the plaintiffs. The audience for this pathfinder would be parents, educators, or students concerned about a school board trying to include intelligent design in school curricula or anyone generally interested in First Amendment rights. I found the case especially interesting because it took place in Pennsylvania where I live (in Dover,

PA which is close to York).

The key resources I used for my pathfinder were books, law review articles, cases, Westlaw, and pertinent websites.

Discussion

I started my research by finding the case, Kitzmiller v. Dover in Westlaw. I found the case by searching Pennsylvania State and Federal Cases (PA-CS-ALL) using the search terms Kitzmiller AND Dover. This search returned 18 documents, but it was easy to find the actual case.

Because the opinion is quite lengthy and a little difficult to understand for the layman, I decided to review several books that I had found in my local library on the topic. I had four books, each written by someone involved in the case, either as an observer or a witness. Each told the story from a slightly different perspective, but because there was a lot of repetition it helped solidify the facts surrounding the case for me. Also, because the books were written as “popular” works, they were easy to understand. In each case, I tried to identify any biases that a particular author might have and take that into account when reading the book. For example, Only a Theory

Evolution and the Battle for America’s Soul was written by Kenneth Miller who is also the author of the high school biology textbook that was under attack in this case. He is obviously a proponent of evolution and not intelligent design.

2 From my reading I came to the understanding that this case was a test of constitutional law, specifically the Establishment Clause (sometimes commonly known as separation of church and state). The Establishment Clause is part of the

First Amendment and basically states that Congress cannot make any laws about the establishment of religion. Later legal precedent expanded the Establishment Clause to include any government action related to the establishment of religion at any level of government. In this case, the Establishment Clause was tested, first by the

Endorsement Test, and then by the Lemon Test. Both parties agreed that it was appropriate to test the constitutional validity of teaching intelligent design in public schools by using the Lemon Test. However, the defendants disagreed about the use of the Endorsement Test because the precedent for the Endorsement Test was primarily in religious display cases. Ultimately, the court determined that both the

Endorsement and Lemon Tests could be used to test the Establishment Clause. In this case, the Endorsement Test was used to look at the message the school board’s actions conveyed as perceived by a reasonable observer, in respect to religious endorsement.

The other legal area explored in this case was whether or not intelligent design is a valid scientific theory. As detailed in the Kitzmiller v. Dover trial document, the court ruled that intelligent design is not a science, based on the following arguments: “(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

3 evolution have been refuted by the scientific community.” The law review article

“Speaking of Evolution: The Historical Context of Kitzmiller v. Dover Area School

District” was also helpful in understanding the scientific arguments for and against intelligent design as a science.

After my review of books and the case itself in Westlaw, I searched Westlaw for law review articles. I used the directory TP-ALL (Texts & Periodicals - All Law

Reviews, Texts & Bar Journals). I used the search terms “Kitzmiller v. Dover” (in quotes) and restricted the dates to the last ten years. This produced a large number of hits, but it was relatively easy to skim through them and find ones that were most relevant. The articles were helpful in understanding the many different legal facets of this case, including freedom of religion, curriculum design, textbook selection, intelligent design, evolution, and the Establishment Clause. I then focused on five articles that I thought were most representative of the legal controversy surrounding the case.

The books, law review articles and the case itself provided case law precedents to add to my research. Arguably the most famous case concerning the teaching of evolution in public schools is State of Tennessee v. Scopes where, in 1925 teaching of evolution was banned in Tennessee. The verdict was later overturned on a technicality. This is the only case that ruled in favor of not teaching evolution.

In 1968 Epperson v. Arkansas, a challenge to Arkansas laws banning the teaching of evolution in public schools was argued before the United States Supreme

Court. There was a unanimous decision by the judges and the law was declared

4 unconstitutional and a violation of the Establishment Clause of the First Amendment of the Constitution. This case has set the precedent for all recent cases.

A more recent 1987 Louisiana case, Edwards v. Aguillard, looked at another issue addressed in Kitzmiller v. Dover, the balanced treatment act. The balanced treatment act mandated that creation science (the precursor to intelligent design) must be taught along side evolution as part of science curricula. The US Supreme

Court found this law to be unconstitutional because it violated the Establishment

Clause.

There were many other cases cited, but these were the ones mentioned over and over again in the books, law review articles and the case itself.

A very helpful website that I first found mentioned in the book 40 Days and

40 Nights Darwin: Intelligent Design, God, OxyContin and Other Oddities on Trial in

Pennsylvania is the National Center for Science Education (NCSE)

http://ncse.com

NCSE “provides information and advice as the premier institution dedicated to keeping evolution and climate change in the science classroom and to keeping creationism and climate change denial out”. This is an excellent source of current news about science education. It also provides articles on the history of evolution science in the United States.

I tried the Supreme Court website, but it only includes newer cases, so it was not helpful for Kitzmiller v. Dover. The OYEZ website http://www.oyez.com that we used in class provided good basic information about several of the cases that set precedent for Kitzmiller v. Dover. The American Civil Liberties Union (ACLU) was

5 involved in the case and their website www.aclu.org provided good articles about the Scopes trial, Kitzmiller v. Dover, and general information about religion and public schools.

Sources

Books

Kenneth R. Miller, Only A Theory Evolution and the Battle for America’s Soul (2008).

I found this book by searching the catalog at my local public library. I thought it would be useful in researching the controversy of Kitzmiller v. Dover because it was written by a co-author of the high school biology textbook that was under assault by the Dover Board of Education. Mr. Miller served as an expert witness for the plaintiffs during the trial. As would be expected, the focus of his book is science.

He delves into the history of science in the United States and the scientific evidence behind the theory of evolution. However, the most interesting part of the book, as related to this pathfinder, was his coverage of the supposed evidence used by the intelligent design proponents to disprove evolution, known as irreducible complexity. Irreducible complexity is a term coined by , a biologist and proponent of intelligent design. It is basically the concept that certain human systems are so complex that they could not have evolved via natural selection. Three examples that are commonly used are blood clotting, bacterial flagellum, and the immune system. Miller’s writing style is clear and concise, but for the purpose of this pathfinder, only a small portion of the book relates to the legal controversy.

6 Lauri Lebo, The Devil in Dover: An Insider’s Story of Dogma v. Darwin in Small- Town America (2008).

A librarian recommended this book to me. I then located it at my local public library by searching the library catalog. This book was written by Lauri Lebo, the primary local reporter for the York Daily Record, during the Kitzmiller v. Dover trial.

Her book has an interesting perspective because her father is a fundamentalist

Christian. Because she is a journalist, much of the book is focused First Amendment freedoms, primarily freedom of speech and freedom of the press.

Matthew Chapman, 40 Days and 40 Nights Darwin: Intelligent Design, God, OxyContin and Other Oddities on Trial in Pennyslvania (2007).

A librarian recommended this book to me. I then located it at my local public library by searching the library catalog. It was written by the great-great-grandson of Charles Darwin. The author was present at the trial and frequently writes about the creation vs. evolution controversy in the United States. His book starts with a very useful “dramatis personae” which lists and gives a short description of all of the plaintiffs, school board members, lawyers, witnesses and others, including the judge and participants in the Scopes trial. Because it is not an academic book, but meant as popular non-fiction, there were a lot of extraneous details that didn’t add to my knowledge base about the case. But overall, it was a good reference to introduce the case and gave a great overview of the events of the trial.

7 Gordy Slack, The Battle Over the Meaning of Everything: Evolution. Intelligent Design and a School Board in Dover, PA. (2007)

I located this book in the stacks at my local public library when getting other books on the same topic. It is a well-written and easy-to-read book that gives an excellent overview of the trial, the players involved, and the issues at stake.

Constitutional Provisions

U.S. Const. amend. I.

I used Westlaw to find the annotated version of the United States Constitution. The

First Amendment guarantees freedom of religion. Although the wording only explicitly applies to Congress, the Supreme Court has interpreted it to apply to all levels of government. The Establishment Clause of the First Amendment, which prohibits government from passing legislation to establish a religion or to show favoritism to religion or a specific religion, is at the crux of Kitzmiller v. Dover.

Cases

All cases referenced below were in the text of Kitzmiller v. Dover and frequently mentioned in the books that I read.

Kitzmiller v. Dover, 400 F.Supp.2d 707 (2005)

This is the case that is the topic of this pathfinder. It is lengthy, but the opinion is well written and gives all the pertinent details about the legal details involved in the case.

8 Edwards v. Aguillard, 107 S.Ct. 2573(1987)

This case addressed a Louisiana law known as the “Balanced Treatment for

Creation-Science and Evolution-Science in Public School Instruction Act” which mandated that if either evolution or creation science is taught, the teacher was obligated to teach the other topic also. Louisiana parents, teachers and religious leaders challenged the act and it was determined to be unconstitutional and a violation of the Establishment Clause of the First Amendment. It provides important modern case law precedence for Kitzmiller v. Dover.

Lemon v. Kurtzman, 403 U.S. 602 (1971)

This is the case that produced the “Lemon Test”. The Lemon Test is a three- part test to determine if the Establishment Clause of the First Amendment has been violated. The three parts are whether the statute in question has a “clear secular legislative purpose”, whether its “principal or primary effect… neither advances nor inhibits religion” and whether it fosters “excessive government entanglement with religion.” The judge employed the Lemon Test during Kitzmiller v. Dover and found the Dover school board did violate the Establishment Clause.

Epperson v. State of Arkansas, 89 S. Ct. 266 U.S.Ark (1968)

Similar to Scopes, this case involved a teacher, Susan Epperson, challenging a law banning the teaching of evolution in Arkansas schools. Unlike Scopes, this case went to the Supreme Court where it was declared unconstitutional and a violation of the Establishment Clause of the First Amendment.

9 State v. Scopes, 289 S.W. 363 Tenn. (1927)

This famous case commonly known as “The Scopes Monkey Trial” was immortalized in the movie Inherit the Wind. In 1925 the Butler Act passed in

Tennessee prohibiting the teaching of evolution in Tennessee classrooms. The

Scopes trial involved John Scopes, a teacher, who agreed to stand as defendant and challenge the law. He was found guilty but the case was later overturned on a technicality.

Law Review Articles

Some of these articles were recommended to me by a librarian. I also found them when searching Westlaw (I searched TP-ALL using the search string

“Kitzmiller v. Dover” and narrowing the results to the last ten years). Most articles that I looked at gave a good overview of the case and contained many references to other cases.

Edward J. Larson, Teaching Creation, Evolution, and the New Atheism in 21st Century America: Window on an Evolving Establishment Clause, 82 Miss. L.J. 997 (2013)

This article gives a very current overview of cases focused on teaching creation and evolution in public schools.

Charles Cowan, Creationism’s Public and Private Fronts: The Protection and Restriction of Religious Freedom, 82 Miss. L.J. 223 (2013)

This article was interesting because it described a case in California where a private religious school taught creationism rather than evolution and, as a result, the University of California would not recognize the science program or accept

10 science credits from students of the school. In this case, even though the high school was permitted to teach what they wanted since they were private, the effects extended beyond high school, which could prove problematic for students.

Kevin Trowel, Divided by Design: Kitzmiller v. Dover Area School District, Intelligent Design, and Civic Education, 95 Geo L.J. 855 (2007)

I thought this article could prove useful to community members researching the topic because it focuses on the divisive nature of the intelligent design vs. evolution controversy.

Joan DelFattore, Speaking of Evolution: The Historical Context of Kitzmiller v. Dover Area School District, 9 Rutgers J.L. & Religion 3 (2007)

This article focuses on intelligent design and how its proponents define it as science and not as a religion.

Nicholas A. Schuneman, One Nation, Under… The Watchmaker?: Intelligent Design and the Establishment Clause, 22 BYU J. Pub. L. 179 (2007)

I included this article because it seems to be promoting a method of introducing the teaching of intelligent design in the classroom, but in a social science class, rather than a science class.

Organizations or Lobby Groups

American Civil Liberties Union (ACLU) www.aclu.org

The ACLU specializes in defending First Amendment rights. The website contains a good section on Religion and Schools and also concise summaries of some of the

11 historical cases important to Kitzmiller v. Dover. They even had a recent interview with Susan Epperson the appellant in Epperson v. Arkansas. I found the website using Google.

National Center for Science Education (NCSE) http://ncse.com

I found this organization first mentioned in the book 40 Days and 40 Nights Darwin:

Intelligent Design, God, OxyContin and Other Oddities on Trial in Pennsylvania. The

NCSE “provides information and advice as the premier institution dedicated to keeping evolution and climate change in the science classroom and keeping creationism and climate change denial out.” It is a great source for current news on the subject.

OYEZ http://www.oyez.com

OYEZ is a “multimedia archive devoted to the Supreme Court of the United States and its work”. I used it as a starting point when looking for information on Edwards v. Aguillard, Lemon v. Kurtzman, and Epperson v. Arkansas. It gives a concise overview of each case, the legal provision being argued, and the result. We used this website in class.

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