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[This document was prepared after the Kitzmiller et al. v. Dover Area School District et al. trial by the lawyers for the plaintiffs. They favor the teaching of evolution and oppose the teaching of intelligent design in science classrooms of public schools. It details how they propose the judge rule in this case.]

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TAMMY KITZMILLER; BRYAN AND
CHRISTY REHM; DEBORAH FENIMORE
AND JOEL LIEB; STEVEN STOUGH;
BETH EVELAND; CYNTHIA SNEATH;
JULIE SMITH; AND ARALENE
("BARRIE") D. AND FREDERICK B.
CALLAHAN,

                             Plaintiffs

vs.

DOVER AREA SCHOOL DISTRICT;
DOVER AREA SCHOOL DISTRICT
BOARD OF DIRECTORS,

                             Defendants
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CIVIL ACTION


No. 4:04-cv-2688

(JUDGE JONES)


(Filed Electronically)

PLAINTIFFS' FINDINGS OF FACT AND CONCLUSIONS OF LAW

Other Links:
Court Docket
Files from the Court's web site. The defense's "Findings of Fact and Conclusions of Law" are numbered 335 to 335i.
  • I. INTRODUCTION

    Plaintiffs request that the Court adopt the following Findings of Fact and Conclusions of Law based on the evidence adduced at trial. Plaintiffs' detailed findings of fact are summarized in the ultimate findings of fact on pages 141-48. Legal authority and argument supporting the Conclusions of Law are set forth in the accompanying Memorandum of Law.

  • II. INTELLIGENT DESIGN IS A RELIGIOUS PROPOSITION

      • 1. The evidence presented by plaintiffs at trial demonstrates that the concept of intelligent design and the book Of Pandas and People (P11), which are presented to Dover High School students in biology class are religious, and not scientific. Intelligent design is the same argument made in the early 19th Century by the Reverend William Paley for the existence of God, distinguished only by the intelligent-design movement's refusal, in some forums, to identify with specificity who the Designer is. Unrebutted expert testimony also established that the leaders of the intelligent-design movement, both individually, and collectively through the Discovery Institute's Center for Science and Culture (previously the Center for Renewal of Science and Culture), have defined intelligent design in overtly religious terms. The evidence also demonstrates that the book Of Pandas and People was written as a creationist text, and the authors merely switched labels for its creationist arguments after the United States Supreme Court found the teaching of "creation science" in public schools to be unconstitutional. And Pandas' arguments for design, and against evolution, are strikingly similar to those of its creation-science predecessor. There is substantial evidence even beyond all this that intelligent design is a form of creationism.

    • A. Intelligent Design Is a Classical Argument for the Existence of God

      • 2. John Haught, a theologian who has written extensively on the subject of evolution and religion, testified as an expert for plaintiffs. He chaired the Department of Theology at Georgetown University, and authored thirteen books on the theological subjects. Three of those books deal specifically with the issues of evolution and religion. 9:4-5 (Haught).1 He explained that the argument for intelligent design is not a new scientific argument, but rather an old religious argument for the existence of God. This argument traces back at least to Thomas Aquinas in the 13th century, who framed the argument as a syllogism: Wherever complex design exists, there must have been a designer; nature is complex; therefore nature must have had an intelligent designer. 9:1 (Haught). Dr. Haught testified that Aquinas was explicit that this intelligent designer "everyone understands to be God." 9:7-8. The syllogism described by Dr. Haught is essentially the same argument for intelligent design presented by Professors Behe and Minnich, employing the phrase "purposeful arrangement of parts."

      • 3. Dr. Haught testified that this argument for the existence of God was advanced early in the 19th Century by Reverend Paley. 9:7-8. Defendants' experts Behe and Minnich admitted that their argument for intelligent design based on "purposeful arrangement of parts" is the same one that Paley made for design. 23:72 (Behe); 38:44, 57 (Minnich). Professor Behe testified that Paley's argument was scientific, not religious, but review of Paley's essay clearly demonstrates that Paley was arguing for the existence of God. P751, at 141-42.

      • 4. The only apparent difference between the argument made by Paley, and the argument for intelligent design, as expressed by Behe and Minnich, is that intelligent design's "official position" does not acknowledge that the designer is God. However, this seems to be a tactical position only. As Dr. Haught testified, anyone familiar with western religious thought would immediately make the association that the unnamed designer is God. 9:9. The description of the designer in Pandas as a "master intellect" (P11, at 85) suggests a supernatural deity, not any intelligent actor known to exist in the natural world. Professors Behe and Minnich acknowledged that it was their personal view that the designer is God, and Professor Minnich testified that he understands many leading advocates of intelligent design to believe that the designer is God. 21:90 (Behe); 38:36-38 (Minnich). No other serious alternative has been suggested by the intelligent-design movement, including by defendants' expert witnesses. While proponents occasionally suggest that the designer could be a space alien or a time-traveling cell biologist, 20:102-103 (Behe), these incredible suggestions are not taken seriously, ever by their sponsors.

      • 5. The religious nature of intelligent design is made explicit in Pandas, when it asks rhetorically, "what kind of intelligent agent was it [the designer], and answers: "On its own science cannot answer this question. It must leave it to religion and philosophy." P11 at 7 (emphasis added); 9:13-14 (Haught). This is an explicit concession that the intelligent designer is outside nature and science, and since the question is left to religion, must refer to God. 38:98 (Minnich).

    • B. The Intelligent Design Movement Describes Intelligent Design As a Religious Argument

      • 6. The writings of leading intelligent-design proponents similarly reveal that the designer postulated by their argument is the God of Christianity. This was demonstrated by the testimony of Dr. Barbara Forrest, and exhibits admitted during her testimony, including her book Creationism's Trojan Horse P630. Dr. Forrest has exhaustively researched and chronicled the history of intelligent design creationism in Creationism's Trojan Horse, and other writings, and for her testimony in this case. 10:15-19 (Forrest). It would be impracticable to set forth all the statements by intelligent-design leaders testified about by Dr. Forrest that demonstrate intelligent design's religious, philosophical, and cultural content. The following are representative:

        • (a) Phillip Johnson has written that "theistic realism" or "mere creation" are the defining concepts of the intelligent design movement. This means "that God is objectively real as Creator and recorded in the biological evidence." 10:80-81 (Forrest); P328.

        • (b) Phillip Johnson states that the "Darwinian theory of evolution contradicts not just the Book of Genesis, but every word in the Bible from beginning to end. It contradicts the idea that we are here because a creator brought about our existence for a purpose." 11:16-17 (Forrest), P524.

        • (c) Intelligent design proponents Johnson, William Dembski, and Charles Thaxton, one of the editors of Pandas, situate intelligent design in the Book of John in the New Testament of the Bible, which begins, "In the Beginning was the Word, and the Word was God." 11:18-20, 54-55 (Forrest); P524; P355; P357. Professor Dembski has written that, "Indeed, intelligent design is just the Logos theology of John's Gospel restated in the idiom of information theory." 11:55 (Forrest); P357.

        • (d) Dembski has written that ID is a "ground clearing operation" to allow Christianity to receive serious consideration, and "Christ is never an addendum to a scientific theory but always a completion." 11:50-53 (Forrest), P386; P390.

      • 7. Defendants' lead expert Michael Behe testified at trial that intelligent design is only a scientific project for him, not religious. However, evidence was introduced contradicting this claim. Professor Behe has written articles arguing that intelligent design requires "science [to] make room for religion" and helps Christians spread the "Good News" ­ i.e., the Christian Gospel. P723; P726; 22:15-17 (Behe).

      • 8. Most remarkably, Professor Behe claims that the plausibility of the argument for intelligent design depends on the extent to which one believes in the existence of God. P718, at 705. There is no evidence in the record that any other scientific proposition's validity rests on belief in God, and the Court is aware of none. This assertion constitutes substantial evidence that in Professor Behe's view, as with the intelligent-design leaders described above, intelligent design is a religious proposition, not a scientific one.

      • 9. The religious nature of intelligent design is further established by the Wedge Document, which was developed by the Discovery Institute's Center for Renewal of Science and Culture ("CRSC"). 11:26-48 (Forrest). The CRSC represents from an institutional standpoint the goals and objectives of the intelligent-design movement, much as the Institute for Creation Research did for the earlier creationists discussed in McLean v. Arkansas Board of Education, 529 F. Supp. 1255 (D. Ark. 1982). 11:24-25, 46 (Forrest). Virtually all the leaders of the intelligent design movement are affiliated with the CRSC, including Professors Behe and Minnich. 11:46-47 (Forrest).

      • 10. The Wedge Document states in its "Five Year Strategic Plan Summary" that the intelligent design movement's goal is to replace science as currently practiced with "theistic and Christian science." P140, at 6. Professor Behe's book Darwin's Black Box is mentioned prominently in this section of the document as having advanced this objective, an association that he has not demurred from in any way. Id.

      • 11. The intelligent design movement's "Governing Goals," as posited in the Wedge Document, are to "defeat scientific materialism and its destructive moral, cultural, and political legacies" and "to replace materialistic explanations with the theistic understanding that nature and human beings are created by God." P140, at 6. These are not scientific goals, but rather cultural and religious goals. Similar language is found throughout the document. 11:26-48 (Forrest), P140. In the Wedge Document, the CSRC expressly announces a program of Christian apologetics to promote intelligent design. P140.

    • C. Intelligent Design Requires Supernatural Creation

      • 12. Intelligent design is religious because it involves a supernatural designer. The Edwards and McLean courts expressly found that this characteristic removed creationism from the realm of science and made it a religious proposition. Edwards v. Aguillard, 482 U.S. 578, 591-592 (1987); McLean, 529 F. Supp. at 1265-1266.

      • 13. Leading intelligent design proponents have made clear that the designer is supernatural. Phillip Johnson, the law professor who developed intelligent design's Wedge Strategy, concluded that science must be redefined to include the supernatural if religious challenges to evolution are to get a hearing. 11:8-15 (Forrest); P429. According to intelligent design advocate Paul Nelson's history of the movement, Johnson argued that "[d]efinitions of science could be contrived to exclude any conclusion we dislike or to include any we favor." P429, at 3 (emphasis added).

      • 14. William Dembski, a core leader of the intelligent-design movement, agrees that science is ruled by methodological naturalism and argues that this rule must be overturned if intelligent design is to prosper. 5:32-34 (Pennock). Dembski contends that "the scientific picture of the world championed since the Enlightenment is not just wrong, but massively wrong. Indeed, entire fields of inquiry, including especially the human sciences, will need to be rethought from the ground up in terms of intelligent design." 5:35 (Pennock); P341, at 224.

      • 15. Professor Behe has also written that by intelligent design he means "not designed by the laws of nature," and that it is "implausible that the designer is a natural entity." P647, at 193; P718, at 696, 700. Professor Minnich testified that for intelligent design to be considered science, the ground rules of science have to be broadened so that supernatural causes can be considered. 38:97. Defendants' expert Fuller testified that it is intelligent design's project to change the ground rules of science to include the supernatural. 28:20-24; Fuller Dep. 115.2

      • 16. Pandas makes clear that there are two kinds of causes, natural and intelligent, clearly indicating that intelligent causes are beyond nature. P11 at 6. Professor Haught, the only theologian to testify in this case, explained that in Western intellectual tradition, non-natural causes occupy a space reserved for ultimate religious explanations. 9:13-14. Robert Pennock, the scientific philosopher who testified for plaintiffs, concurred that because its basic proposition is that the features of the natural world are produced by a transcendent, immaterial, non-natural being, intelligent design is a religious proposition, regardless of whether that religious proposition is given a recognized religious label. 5:55-56 (Pennock). No expert testifying for defendants explained how the supernatural action suggested by intelligent design could be anything but an inherently religious proposition.

    • D. Intelligent Design is a Form of Creationism

      • 17. The evidence demonstrates that intelligent design is simply a new label for the "creationism" or "creation science" that was promoted to public schools in the 1970s and 1980s, and which federal courts, including the Supreme Court in Edwards, found to be religious.

      • 18. The most compelling, although far from the only, evidence supporting this finding is Pandas' historical pedigree. Pandas is published by an organization called the Foundation for Thought and Ethics (FTE). Buell Dep. at 13. The FTE's Articles of Incorporation and filings with the Internal Revenue Service describe it as a religious, Christian organization. P461; P28. The FTE's President Jon Buell appeared before this Court on July 14, 2005 in support of the FTE's petition to intervene, and denied that his organization actually had the mission set forth in the public, legally required filings that he had signed, blaming their contents on lawyers and accountants. July 14 2005 Tr. 83-85. This testimony was not credible, particularly in light of other documents created by Buell, including a fundraising letter (P566), Foundation newsletter (P633), and mission statement (P168A), all evidencing a clear evangelical-Christian agenda. The fundraising letter prepared in 1995, described FTE's mission as addressing the "deep hostility to traditional Christian views and values" found in school curriculum. P568. Buell testified that this issue was particularly important for biology curriculum. Buell Dep. at 50. Buell appeared determined to hide or deny an obvious religious agenda, which seems to be a consistent practice and tactic in the intelligent-design movement.

      • 19. Pandas was written by Dean Kenyon and Percival Davis, both acknowledged creationists. 10:102-08 (Forrest). Davis is the author of a creationist book called The Case for Creation. P344. He has never represented himself as being anything but a Young Earth Creationist. 10:104 (Forrest). Dean Kenyon is also an acknowledged creationist. In 1986, he submitted an affidavit in support of the defendants in the Edwards case. P418. In that affidavit he asserted that "creation science" is the "sole scientific alternative" to the theory of evolution. Id. ¶ D10. This is significant, because at or around the same time the affidavit was filed, Kenyon was writing Pandas. 10:8 (Forrest).

      • 20. Nancy Pearcey contributed to the writing of Pandas. Pearcey is a Young Earth Creationist, who for many years edited the Bible Science Newsletter, which describes its mission as making the Biblical case for origins. 10:102-08 (Forrest); P634.

      • 21. The published version of Pandas states that "[i]ntelligent 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." P11, at 99-100. This was described by many witnesses for plaintiffs and defendants, including Scott Minnich and Steven Fuller, as "special creation" of kinds of animals, an inherently, religious and creationist concept. 28:85-86 (Fuller); Minnich Dep. at 34; 1:141-42 (Miller); 9:10 (Haught); 33:54-56 (Bonsell); 1/3/05 Nilsen Dep. at 100-01. Professor Behe's assertion that this passage was merely a description of appearances in the fossil record is not logical. It is clear from review of pages of Pandas that the passage of 99-100 is not a description of the fossil record, but rather a conclusion about how life began, based on an interpretation of the fossil record. This is reinforced by the content of the drafts of Pandas, described below.

      • 22. Plaintiffs' claim that intelligent design is simply a new label for creationism, not a new concept, is supported by comparing the pre-and post-Edwards' drafts of Pandas. Two important points emerge from this comparison: (1) the definition for creation science in early drafts is identical to the definition of intelligent design; (2) cognates of the word creation (creationism and creationist) are systematically replaced with intelligent design; and (3) the changes occurred shortly after the Supreme Court held in Edwards that creation science is religious and cannot be taught in public-school-science classes.

      • 23. Pandas' drafts prepared with working titles Biology and Creation, Biology and Origins, and Of Pandas and People, used the term "creation" pervasively as the proposition in competition with the theory of evolution. 10:108-128 (Forrest); P1; P560; 562; P565; P652. In fact, the term "creation" is defined in these drafts as "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.", the same way "intelligent design" is defined in the published versions. P560, at 210; P1, at 2-13; P562, at 2-14, 2015; P652, at 2-15; P6, at 99-100; P11, at 99-100; P8562. This evidence supports plaintiffs' argument that intelligent design is creationism re-labeled.

      • 24. In the published version of Pandas, "intelligent design" replaces the word "creation" and its cognates throughout the book, without changing other content. 10:119-122 (Forrest); P856.3-856.4. The FTE had no scientific basis for changing terms. Thaxton Dep. at 72; Buell Dep. at 121.

      • 25. The evidence demonstrates that the change from "creation" to "intelligent design" occurred sometime in 1987, after the Supreme Court's Edwards decision that teaching "creation science" in public schools is unconstitutional. 10:122 (Forrest); P856.2. There was evidence that Buell was following the case closely, and recognized that a ruling against teaching "creation science" would adversely affect the market for his book. P350; July 14, 2005 Tr. 91-94. Based on all the evidence, the Court can draw the inference that FTE changed terminology because of the legal ruling.

      • 26. It is not surprising that "intelligent design" means the same thing as "creationism." "Design" does not fully describe the biological event advanced by intelligent design proponents. As Dr. Miller explained "the design had to be executed. It had to be created. It had to be put into physical form" 2:44. Defendants' expert Scott Minnich agreed that the designer did not just design biological systems like the bacterial flagellum, it "made" or "built" or "created" the flagellum. 38:38-41. "Creation" is a much more apt term than intelligent design for the process advocated by the intelligent design movement.

      • 27. The evidence described above demonstrates that intelligent design is a form of creationism, that Pandas is a creationist book, and that the Dover Area School Board and Dover Area School District are suggesting that students read a creationist book.

      • 28. In addition, plaintiffs submitted substantial additional evidence that intelligent design is a form of creationism, and uses the same arguments as earlier arguments for creationism 16:79-81, 85-86, 105-07 (Padian); 5:9-15 (Pennock). Dr. Forrest testified and sponsored exhibits showing six arguments common to creationists. 10:140-48 (Forrest); P856.1-6. For example, creationists made the same argument that the complexity of the bacterial flagellum supported creationism as Professors Behe and Minnich now make for intelligent design. P853, P845; 37:155-156 (Minnich). The intelligent design movement openly welcomes adherents to creationism into its "Big Tent," urging them to postpone biblical disputes like the age of the earth. 11:3-15 (Forrest); P429. Intelligent design advocate Mark Hartwig, who wrote a section of the second version of Pandas, described the leaders of the intelligent design movement as creationists. P350; 10:133-38 (Forrest). Also, defendants' expert Steven Fuller admitted that intelligent design is a form of creationism. Fuller Dep. at 67.

      • 29. Professors Behe and Minnich testified that intelligent design is not creationism, but their testimony on this subject was primarily by way of assertion only. They did not directly rebut the creationist history of Pandas or other evidence presented by plaintiffs showing the commonality between creationism and intelligent design. The only argument that defendants made to distinguish creationism from intelligent design was the assertion that the term "creationism" applies only to arguments based on the Book of Genesis, a young earth, and a catastrophic Noaich flood. But there was substantial evidence introduced that this is only one form of creationism, including the chart that was distributed to the Board Curriculum Committee. P149, at 2. See also 10:129-32 (Forrest); P555, at 22-24 (draft summary chapter of Pandas, describing differing types of creationism). Kenyon's affidavit in the Edwards' case states that "[c]reation science does not include as essential parts the concept of catastrophism, a world-wide flood, a recent inception of the earth or life from nothingness (ex nihilo), the concept of kinds, or any concepts from Genesis or other religious texts." P418, ¶ D9. According to Kenyon, "[c]reation science means origin through abrupt appearance in complex form," which is virtually identical to the definition of "creation" found in the Pandas drafts, and the definition of intelligent design in the published versions. P418, ¶ 09. The affidavit demonstrates that "creationism" and "creation-science" are not as narrowly defined as suggested by defendants, and that intelligent design and creationism share essential elements and arguments.

    • E. Intelligent Design is a Sectarian Religious Viewpoint

      • 30. Intelligent design is not only religious, but sectarian ­ as it entails an essentially biblical and specifically a Christian view of the world. 5:10-11 (Pennock); 9:15 (Haught); 11:25-27, 43-44, 49 (Forrest). This view of creationism is not accepted by many religious denominations. 5:111-112 (Pennock).

      • 31. In fact, intelligent design is explicitly hostile to particular religious views. For example, it specifically rejects "theistic evolution" as a valid religious view. 5:111-112 (Pennock); 10:7 (Forrest).

      • 32. Further, arguments used to support intelligent design, such as inferring design by an intelligent designer through knowledge concerning the motivation and methods used by humans to design things, are considered blasphemous by some people. 28:100-102 (Fuller). Teaching intelligent design forces students to confront theological questions in science class, including whether any intelligent designer even exists. 1:54-55 (Miller); 22:97-98 (Behe); 17:27 (Padian).

    • III. INTELLIGENT DESIGN IS NOT SCIENCE

      • 33. Intelligent design is not science. It fails on three distinct levels, any one of which invalidates the proposition: a) by invoking and permitting supernatural causation, intelligent design violates the centuries-old ground rules of science; b) intelligent design, including it's poster child argument, irreducible complexity, employs the same flawed and illogical, contrived dualism that doomed creation science in the 1980's; and c) intelligent design's negative attacks on evolution have been refuted by the scientific community. Furthermore, intelligent design has failed to gain acceptance in the scientific community, generate peer-reviewed publications, or been the subject of testing and research.

    • A. Reliance on Supernatural Causation Removes Intelligent Design from the Realm of Science

      • 34. The word "science" derives from the Latin word scientia, which means knowledge. 1:58-59 (Miller). As distinguished from the social sciences like political and library science, the natural sciences include biology, chemistry, astronomy, physics. 1:59. References to "science" hereafter, unless otherwise noted, are to the natural sciences.

      • 35. 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) ("That's probably what's most characteristic of the scientific revolution, rejecting appeal to authority and saying we will appeal just to the evidence, the empirical evidence."). Consequently, since that time, 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).

      • 36. Science has deliberately left out theological or "ultimate" explanations for the existence or characteristics of the natural world. 9:21 (Haught). Science does not consider issues of "meaning and purpose" in the world. 1:64, 87 (Miller).

      • 37. Supernatural explanations are important and may have merit, but they are not part of science. 3:103 (Miller); 9:19-20 (Haught).

      • 38. 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." 5:23, 29-30 (Pennock).

      • 39. Methodological naturalism, also sometimes known as the scientific method, is a "ground rule" of science today. 1:59 (Miller); 5:8, 23 (Pennock). This "ground rule" of science requires scientists to seek explanations in the world around us based upon things we can observe, test, replicate and verify. 1:59-64, 2:41-43 (Miller); 5:23-30 (Pennock). Professor Minnich agrees that methodological naturalism is the current rule of science. 38:97.

      • 40. The National Academy of Sciences (NAS) was recognized by experts for both sides as being the "most prestigious" scientific association in this country. 1:94 ("probably the most prestigious scientific association in the world"), 160-61 (Miller); 14:72 (Alters); 37:31 (Minnich). Accordingly, where appropriate, the Court cites to the NAS position.

      • 41. NAS agrees 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 on empirical evidence are not a part of science." P649, at 27 (Teaching about Evolution and the Nature of Science, National Academy Press (2003)). The restriction to natural explanations in science is implicit in this definition because non-natural explanations are not testable.

      • 42. This rigorous attachment to "natural" explanations is an essential attribute of science. 1:63 (Miller); 5:29-31 (Pennock). Both definitionally and by convention, science is limited to "natural" explanations. 5:29-30 (Pennock). Science is the "systematic search for natural explanations for natural phenomena." 1:59, 63 (Miller); 5:30 (Pennock). This search is dependent on empirical observations ­ what we can observe and measure --that can be tested, replicated and disproven. 1:63 (Miller). If non-natural explanations are allowed, e.g., Dr. Miller's example about God's role in helping the Red Sox win the world series, the systematic search for "natural causes" is completely undermined. 1:63-64 (Miller). As Pennock testified, allowing non-natural explanations is "cheating"; you "can't just call for quick assistance to some supernatural power. It would certainly make science very easy..." but it would also fundamentally alter the practice of science. 5:30 (Pennock). 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). 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 ­ we have our answer. Id.

      • 43. Intelligent design is predicated on supernatural causation. 17:96 (Padian); 2:35-36 (Miller); 14:62 (Alters). Intelligent design takes a natural phenomenon and, instead of accepting or seeking a natural explanation, argues that the explanation is supernatural. 5:107 (Pennock).

      • 44. The intelligent-design reference book cited in the Dover statement as describing "what intelligent design actually involves," Of Pandas and People, is clear that the idea entails supernatural causation: "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 feature already intact ­ fish with fins and scales, birds with feathers, beaks, and wings, etc." P11, at 99-100. (Emphasis added). In other words, animals did not evolve naturally, through evolutionary means, but rather were created abruptly by a non-natural, or supernatural, designer.

      • 45. Even defendants' own expert witnesses acknowledged this point. 21:96-100 (Behe); see also, P718, Michael Behe, Reply to Critics, at 696, 700 ("implausible that the designer is a natural entity"); 28:21-22 (Fuller) ("...ID's rejection of naturalism and commitment to supernaturalism..."), 24; 38:95-96 (Minnich) (ID does not exclude possibility of supernatural designer, including deities).

      • 46. Indeed, defendants' argument, which mirrors that of the intelligent-design movement, is to change the ground rules of science to allow supernatural causation of the natural world. 5:32 (Pennock). Professor Fuller agreed that intelligent design aspires to "change the ground rules" of science. 28:26. Professor Behe admitted that his broadened definition of science, which encompasses intelligent design, would also embrace astrology. 21:37-42 (Behe). Professor Minnich acknowledged that for intelligent design to be considered science, the ground rules of science have to be broadened to allow consideration of supernatural causes. 38:97.

      • 47. William Dembski, an intelligent-design-movement leader, proclaims that science is ruled by methodological naturalism and argues that this rule must be overturned if intelligent design is to prosper. 5:32-37 (Pennock). Dembski contends that "the scientific picture of the world championed since the Enlightenment is not just wrong, but massively wrong. Indeed, entire fields of inquiry, including especially the human sciences, will need to be rethought from the ground up in terms of intelligent design." 5:35 (Pennock); P341 (William Dembski, Intelligent Design: A Bridge Between Science and Theology, at 224.

      • 48. The Discovery Institute, the think tank promoting intelligent design, has also acknowledged that the goal is to "defeat scientific materialism" and "to replace materialistic explanations with the theistic understanding that nature and human beings are created by God." P140, at 6 (The Wedge Document). See supra. ¶ 11.

      • 49. Every major scientific association that has taken a position on this issue has stated that intelligent design is not, and cannot be considered, science. 1:98-99 (Miller); 14:75-78 (Alters); 37:25 (Minnich).

      • 50. For example, NAS views intelligent design 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." P192, at 25 (National Academy Press, Science and Creationism: A View from the National Academy of Sciences (2d Ed. 1999)).

      • 51. The largest organization of scientists in this country, the American Association for the Advancement of Science ("AAAS"), has taken a similar position on intelligent design, 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...." P198 ( AAAS Board Resolution on Intelligent Design Theory, Oct. 18, 2002).

      • 52. Neither plaintiffs' nor defendants' expert witnesses identified a single major scientific association, society or organization that endorsed intelligent design as science.

      • 53. Defendant's experts admit that intelligent design is not a theory as that term is defined by the NAS. 21:37-38 (Behe); Fuller Dep. 98. According to Professor Behe, intelligent design is a scientific theory only if that term is defined loosely enough to also include astrology. 21:38-39.

      • 54. Defendants' expert Steve Fuller described intelligent design as "fringe science," which need affirmative action to become accepted. 28:47 Defendants' expert Scott Minnich admitted that intelligent design has achieved no acceptance in the scientific community; it is science "in its infancy." Minnich Dep. at 89.

      • 55. Intelligent design does not, therefore, meet the essential ground rules that limit science to testable, natural explanations. 3:101-03 (Miller); 14:62 (Alters).

      • 56. Science cannot be defined differently for Dover students than it is defined in the scientific community as an affirmative action program for a view that has been unable to gain a foothold within the scientific establishment. Intelligent design's failure to meet the ground rules of science is alone enough for this Court to rule that it is not a scientific view.

    • B. Intelligent Design Relies on the Same Logically Flawed Argument that Doomed Creation Science

      • 57. Intelligent design is premised on a false dichotomy, namely, that to the extent evolutionary theory is discredited, intelligent design is confirmed. 5:41 (Pennock). This same argument, termed "contrived dualism" in McLean v. Arkansas Board of Education, was employed by creationists in the 1980's to support "creation science." This argument is no more availing to justify intelligent design today than it was to justify creation science two decades ago.

      • 58. Intelligent design proponents primarily argue for design through negative argument against evolution, including 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); 5:38-41 (Pennock); 10:148 (Forrest). Intelligent design attempts to "poke holes" in evolutionary theory ­ to say that Darwinian mechanisms, meaning natural causes, cannot explain life's complexity. 5:39 (Pennock).

      • 59. For example, Professor Behe argued that intelligent design "focuses exclusively on the proposed mechanism of how complex biological structures arose," 21:63, but admitted that intelligent design does not propose any mechanism, just a negative argument against natural selection. 21:84-87. He also conceded that, "Pandas is making a negative argument against common descent to ... more greatly enhance the plausibility of the alternative of intelligent design." 21:82.

      • 60. The following passages from Of Pandas and People, P11, also reflect this negative argument against evolution: "Design proponents have long asserted that gaps in the fossil record are evidence for intelligent design," at 87; "Since it is not reliable, most of the so-called evidence for macro-evolution (and conversely against intelligent design) obtained from comparative anatomy and embryology is weak and could turn out to be misleading..." at 133 (parenthetical in original); Multiple accidental gene mutations are a highly improbable source of new genetic information to code for multi-functional structures...." at 72; and "[n]o creatures with a partial wing or partial eye are known. Should we close our minds to the possibility that the various types of plants and animals were intelligently designed? This alternative suggests that a reasonable natural cause explanation for origins may never be found, and that intelligent design best fits the data...." at 99-100.

      • 61. Arguments against evolution are not arguments for design. Just because scientists cannot explain today how biological systems evolved does not mean they cannot, and will not, be able to explain them tomorrow. 2:36-37 (Miller). In Dr. Padian's words, "absence of evidence is not evidence of absence." 17:45. Testimony from Drs. Miller and Padian was replete with 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, e.g., intermediate fossils showing evolution of the whale, evolution of the immune system, mapping of the chimpanzee genome "spectacularly confirming" common ancestry between humans and great apes, etc.

      • 62. Just because scientists cannot explain every evolutionary detail does not undermine its validity as a scientific theory. No theory in science is fully understood. 3:102 (Miller). But that is true in other areas of knowledge, too. We do not know every detail about what happened at Gettysburg, but historians do not doubt the fact of the battle and know a great deal about how it unfolded. 3:104-05 (Miller). Just because we do not know every detail about Gettysburg or how evolution progresses does not mean we are not confident that the battle occurred or that the theory of evolution is the best scientific explanation for change over time. Id.

      • 63. According to defendants' own expert, Stephen Fuller, design does not logically follow from scientists' inability to explain every detail of how evolution occurred. 28:63-66. See also 2:40 (Miller). In fact, Professor Fuller testified that even if the negative argument of irreducible complexity disproved natural selection, it does not follow that intelligent design is proved because it does not rule out rival hypotheses. Fuller Dep. at 167-70.

    • C. Irreducible Complexity Fails Even as a Purely Negative Argument Against Evolution

      • 64. Irreducible complexity, intelligent design's alleged scientific centerpiece, is simply a negative argument against evolution, not proof of design, 2:15 (Miller), a point conceded by Professor Minnich. 38:82 (irreducible complexity "is not a test of intelligent design; it's a test of evolution"). It fails to make any positive scientific case for intelligent design. Moreover, the evidence demonstrates that irreducible complexity fails even as a purely negative argument.

      • 65. Irreducible complexity was defined by Professor Behe in Darwin's Black Box and modified in his 2001 article Reply to My Critics, 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." P647, Behe, Michael, Darwin's Black Box, at 39, Free Press (1996). P718, at 694.

      • 66. 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." P718, at 695. Specifically, Behe 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." P718, at 695. In that article, Professor Behe wrote that he hoped to "repair this defect in future work," P718, at 695, but he never has. 22:61-65. This admitted failure to properly address the very phenomenon that irreducible complexity purports to place at issue ­ natural selection ­ is a damning indictment of the entire proposition.

      • 67. Dr. Miller and Dr. Padian explained that Professor Behe's concept of irreducible complexity depends on ignoring ways in which evolution is known to occur. Behe was adamant that in his definition of irreducible complexity when he says a precursor "missing a part is by definition nonfunctional," what he means is that it won't function in the way the system functions when all the parts are present ­ for example, in the case of the bacterial flagellum, as a rotary motor. 19:88. He excludes, by definition, the possibility that a precursor functioned in some other way ­ for example, in the case of the bacterial flagellum, as a secretory system. 19:88-95.

      • 68. This qualification on what is meant by "irreducible complexity" renders it meaningless as a criticism of evolution. 3:40 (Miller). As Dr. Padian described it: "Irreducible complexity on its face is a simple statement about a machine or some kind of structure that has several parts. If you take away one of those parts, then it stops functioning. Well, any 8-year-old with a broken bicycle chain knows that he can't ride around anymore with a broken bicycle chain, if that part is broken it's not going to work. No one's got a Nobel prize for that proposition. This only makes sense in the context of intelligent design when irreducible complexity is invoked as a way to assert that no structure could have evolved by natural means." 17:44.

      • 69. In fact, the theory of evolution has a well-recognized, well- documented explanation for how systems with multiple parts could have evolved through natural means, namely, exaptation. 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. The existence of feathers for other purposes in flightless dinosaurs is another example. 17:131-45. Even Professor Minnich freely admitted that bacteria living in soil polluted with DNT on an U.S. Air Force base had evolved a complex, multiple-protein biochemical pathway by exaptation of proteins with other functions (38:71) ("This entire pathway didn't evolve to specifically attack this substraight [substrate], all right. There was probably a modification of two or three enzymes, perhaps cloned in from a different system that ultimately allowed this to be broken down.") By defining irreducible complexity in the way he has, Professor Behe attempts to exclude the phenomenon of exaptation by definitional fiat. He asserts that evolution could not work by excluding one important way that evolution is known to work.

      • 70. The National Academy of Sciences has rejected Professor Behe's claim for irreducible complexity, using this same 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. Jawless fish have a simpler hemoglobin than do jawed fish, which in turn have a simpler hemoglobin than mammals. *** 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." P192, at 22.

      • 71. Professor Behe has applied irreducible complexity only to a few select systems: the bacterial flagellum, the blood-clotting cascade and the immune system. As discussed below, Professor Behe has admitted there are no peer-reviewed articles arguing for the irreducible complexity of the bacterial flagellum, the blood-clotting cascade and the immune system, or any other purportedly irreducibly complex system.

      • 72. Because it is only a negative argument against evolution, irreducible complexity, unlike intelligent design, is testable, by showing that there are intermediate structures, with selectable functions, that could have evolved into the allegedly irreducibly complex systems. 2:15-16 (Miller). The fact that this negative argument is testable does not make the argument for intelligent design testable. 2:15 (Miller); 5:39-39 (Pennock).

      • 73. Dr. Miller presented evidence, based on peer-reviewed studies, that the biochemical systems claimed to be irreducibly complex by Professor Behe were in fact not so. 2:21-36.

      • 74. Dr. Miller pointed to peer-reviewed studies that identified a possible pre-cursor to the bacterial flagellum, a subsystem that was fully functional, namely, the Type-III Secretory System. 2:8-20; P854.23-854.32. (on bacterial flagellum). Professor Minnich admits that there is serious scientific research on the question of whether the bacterial flagellum evolved into the Type-III Secretory System, the Type-III Secretory System into the bacterial flagellum, or they both evolved from a common ancestor, and none of this research or thinking is considering intelligent design. (38:12-16). He testified about this research: "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). He also testified that "I have no idea in terms of how it came about. I just look at the structure. And it has the signature of irreducible complexity and design. It's a true rotary engine. I just come back to that. It doesn't say anything about where it came from, when it was made, or who was involved in it, or what was involved in it." 38:16.

      • 75. Dr. Miller demonstrated that the alleged irreducible complexity of the blood-clotting cascade has been disproven by peer-reviewed studies going back to 1969, which showed 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; P854.17-854.22. 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. In sum, scientists in peer-reviewed publications have refuted Behe's prediction about the alleged irreducible complexity of the blood-clotting cascade. Professor Behe tried to elide this compelling evidence by redefining the blood clotting system. (Behe) 20:26-28. Cross-examination revealed this to be an argument of convenience designed to avoid peer-reviewed scientific evidence that falsifies his argument, not a scientifically warranted redefinition. (Behe) 22:112-125.

      • 76. Dr. Miller also presented peer-reviewed studies refuting Professor Behe's claim that the immune system was irreducibly complex. 2:21-36; P854.33-854.41. Professor Behe wrote in Darwin's Black Box not only that there were no natural explanations at the time, but that in fact natural explanations were impossible: "As scientists, we yearn to understand how this magnificent mechanism came to be, but the complexity of the system dooms all Darwinian explanations to frustration. Sisyphus himself would pity us." P647, at 139; 2:26-27 (Miller). Professor Behe argued that scientists should not even bother to investigate. 2:27 (Miller). However, scientists did not heed Professor Behe's admonition, and, between 1996 and 2005, various studies confirmed each element of the evolutionary hypothesis explaining the origin of the immune system. 2:31 (Miller).

      • 77. On cross-examination Professor Behe was questioned about his 1996 claim that science would never find an evolutionary explanation for the immune system. He was confronted with the fifty-eight peer-reviewed publications, nine books and several immunology text-book chapters about the evolution of the immune system, P256, 280, 281, 283, 747, 748, 755 and 743, and he insisted that this was still not sufficient evidence of evolution ­ it was "not good enough." 23:19.

      • 78. This evidence demonstrates that the intelligent design argument depends on setting a burden of proof for the theory of evolution that is scientifically unreasonable.

      • 79. As a further example, the test for intelligent design proposed by both Professors Behe and Minnich is to grow the bacterial flagellum in the laboratory. P718, 18:125-127. But nobody inside or outside the intelligent-design movement, including Behe and Minnich, has conducted this test. 22:102-06 (Behe). Professor Behe admitted that the proposed test could not approximate real world conditions. 22:107-110. And even if it could, it would be merely a test of evolution, not design, 2:15 (Miller), a point conceded by Professor Minnich. 38:82 ("it's not a test of ID, it's a test of evolution").

      • 80. In summary, Professor Behe's claim for irreducible complexity has been refuted in peer-reviewed research papers and has been rejected by the scientific community. 17:45-46 (Padian); 3:99 (Miller). Moreover, even if irreducible complexity had not been rejected, it still does not support intelligent design. 2:15, 2:35-40 (Miller); 28:63-66 (Fuller ­ ID doesn't follow logically). Irreducible complexity is merely a test for evolution, not design. 2:15 (Miller).

      • 81. Defendants' protestations notwithstanding, the Court finds that there is no testable, positive argument for intelligent design. Neither Pandas nor any witness in this trial has proposed a scientific test for design. 2:39 (Miller).

    • D. The "Positive Argument" for Design is Unscientific and Illogical

      • 82. The purportedly positive argument for design, espoused repeatedly by Professors Behe and Minnich, is encompassed in the phrase, "purposeful arrangement of parts." 18:91 ("I discussed this in my book, Darwin's Black Box, and a short description of design is shown in this quotation from Chapter 9. Quote, What is design? Design is simply the purposeful arrangement of parts. When we perceive that parts have been arranged to fulfill a purpose, that's when we infer design."); 19:55 ("the positive argument for it is the purposeful arrangement of parts, as I have described."); 19:102 ("...I want to re-emphasize to say that it is important to keep in mind that the positive inductive argument for design is in the purposeful arrangement of parts.").

      • 83. 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, and 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 (Behe slides, at 7); 18:109-110. See also, 37:50 (Minnich).

      • 84. This is not a new argument, but a restatement of the Reverend William Paley's argument applied at the cell level. 1:6-7 (Miller); 38:44, 57 (Minnich). 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. Id.

      • 85. This inductive argument is not scientific. 2:40 (Miller). As Professor Behe admitted, it can never be ruled out. 22:101. See also, 3:99 (Miller).

      • 86. The assertion that design of biological systems can be inferred from the "purposeful arrangement of parts" is based on an analogy to human design. According to Professor Behe, because we are able to recognize design of artifacts and objects, that same reasoning can be employed to determine biological design. 18:116-17; 23:50.

      • 87. Professor Behe testified that the strength of an analogy depends on the degree of similarity entailed in the two propositions. 20:69. If this is the test, intelligent design completely fails.

      • 88. Unlike biological systems, human artifacts do not live and reproduce over deep time. They are non-replicable; they don't undergo genetic recombination; and they are not driven by natural selection. 1:131-33 (Miller); 23:57-59 (Behe). This difference is noted in one of the articles relied upon by Professor Minnich, rejecting the analogy between machines and biological systems, because "[m]achines are not made of parts that continually turn over, renew. The organism is . . . . the stability of an organism lies in resilience, the homeostatic capacity to reestablish itself." D251, at 176.

      • 89. For human artifacts, we know the designer's identity (human), the mechanism of design (because we have experience based on empirical evidence that humans can make such things), and many other attributes such as the designer's abilities, needs and desires. Id. 1:131-33 (Miller); 23:63 (Behe) 5:55-58 (Pennock). With intelligent design, proponents say that they refuse to propose hypotheses on the designer's identity, do not propose a mechanism, and he, she, it (or they) has never been seen. Professor Minnich agreed that in the case of human artifacts and objects we know who the designer is and what the capacities of humans are, but that we don't know any of those attributes for the designer of biological life. 38:44-47. Professor Behe agreed that for human design we know the designer and its attributes (needs, desires, abilities, limitations, materials, technology), 23:61-70; and we have a baseline for human design that does not exist for design of biological systems, 23:70-73. Professor Behe's only response to these insurmountable points of disanalogy was that the inference still works in science fiction movies. 23:73.

      • 90. Ultimately, the only attribute of design that biological systems share with human artifacts is their complex appearance --if it looks complex or designed, it must have been designed. 23:73 (Behe). Taken to its logical conclusion, this "positive" design argument applies to every complicated thing we see in the universe (tornadoes, the rings of Saturn, the complex ice crystals in snowflakes, etc.), a result whereby natural explanations could be replaced in every instance by "design" arguments. But as Professor Behe conceded about the long discarded geocentric theory, scientific propositions based entirely on appearance can be very wrong. 19:5-6 (Behe); see also 16:74 (Padian).

      • 91. This inference to design based on the appearance of a "purposeful arrangement of parts" is a completely subjective proposition, determined in the eye of each beholder. Both Behe and Minnich asserted that there is a quantitative aspect to the inference, but on cross-examination admitted 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). In fact, in the entire trial there was only one piece of evidence generated by defendants that addressed the strength of the intelligent-design 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. Michael J. Behe, Reply to My Critics, Biology and Philosophy100. 16:685-709, 2001. P718, at 705.

      • 92. This purported positive argument for intelligent design does not satisfy the ground rules of science, which require testable hypotheses based on natural explanations. 3:101-03 (Miller). Intelligent design relies on forces acting outside the natural world, forces that we cannot see, replicate, control or test, which have produced changes in this world. 3:101 (Miller). While such forces may exist, just as it may be true that God arranged the victory of the Red Sox in the World Series, they are not testable by science and, therefore, cannot qualify as part of the scientific process or as a scientific hypothesis or theory. 3:101-02 (Miller).

    • E. Intelligent Design's Claims Against Evolution are Based on Discredited Science

      • 93. Intelligent design proponents support their argument that evolutionary theory cannot account for life's complexity by pointing not only 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).

      • 94. Before discussing defendants' claims about evolution in greater detail, it must be noted that the overwhelming number of scientists, as reflected by every scientific association that has spoken to the matter, have rejected intelligent-design proponents' challenge to evolution. For example, NAS has adopted the position that:

        • (a) "Evolution is the central organizing principle that biologists use to understand the world. To teach biology without explaining evolution deprives students of a powerful concept that brings great order and coherence to our understanding of life." P194, at 3.

        • (b) "Those who oppose the teaching of evolution in public schools sometimes ask that teachers present `evidence against evolution.' However, there is no debate within the scientific community over whether evolution occurred, and there is no evidence that evolution has not occurred. Some of the details of how evolution occurs are still being investigated. But scientists continue to debate only the particular mechanisms that result in evolution, not the overall accuracy of evolution as the explanation of life's history." Id. at 4.

      • 95. Dr. Kenneth Miller, plaintiffs' expert in biology, explained evolutionary theory. Dr. Miller is a widely-recognized biology professor at Brown University. His research focus is cell-biology. P214 (curriculum vitae). He has written university-level and high-school-biology text books. 1:40-47. Indeed, his high school text, which was selected for use in Dover, is used by about 35% of the school districts in the nation. 1:44. He is the former editor of several prominent cell biology journals, 1:37-38, and serves as the science advisor to the PBS News Hour and formerly as an advisor to the PBS science program NOVA. P214.

      • 96. Dr. Miller explained that evolution is the process of change over time. 1:70. It consists of three core propositions. The first is that life in the past was different from today, and that it indeed has changed over time. 1:71. The second is the principle of common descent, which is that living things are united by common ancestry. Id. The third is that changes over time and common descent are driven by forces, principles and actions observable in the world today. Id. There are actually many forces and processes, but they are typically united under the term "natural selection. Id.

      • 97. Charles Darwin's contribution to evolution was to propose a plausible, workable and ultimately testable mechanism for the process that drives adaptive change over time, and that process is natural selection. 1:72-73.

      • 98. According to Dr. Miller, since Darwin's time, modern-day genetics and molecular biology have "provided dramatic confirmation" of Darwin's theory. 1:74-75.3

      • 99. The National Academy of Sciences is in accord with Dr. Miller's testimony that 20th-century developments in genetics and molecular biology actually support evolutionary theory: "The confirmation of Darwin's ideas about `descent with modification' by this recent molecular evidence has been one of the most exciting developments in biology this century." P194, at 42. The NAS report continues by saying that, "These molecular studies [referring to the human genome project] are powerful evidence for evolution." Id.

      • 100. In testimony that was unrebutted, Dr. Miller testified that evolution, including common descent and natural selection, are "overwhelmingly accepted" by the scientific community, and that every major scientific association agrees. 1:94-100. See, e.g., P194, at 16 (NAS, Teaching about Evolution). ("The concept of evolution through random genetic variation and natural selection makes sense of what would otherwise be a huge body of unconnected observations. It is no longer possible to sustain scientifically the view that the living things we see today did not evolve from earlier forms or that the human species was not produced by the same evolutionary mechanisms that apply to the rest of the living world.")

      • 101. Despite the scientific community's overwhelming support for evolution, defendants and intelligent-design proponents insist that evolution is unsupported by empirical evidence. Plaintiffs' science experts, Drs. Miller and Padian, explained how intelligent-design proponents generally, and Pandas specifically, distort and misrepresent scientific knowledge in making the anti-evolution argument.

    • F. Of Pandas And People Presents Discredited Science

      • 102. Defendants hold out Of Pandas and People as representative of the intelligent-design argument. The statement read to students expressly asserts this point: "Of Pandas and People is available for students who might be interested in gaining an understanding of what intelligent design actually involves." P124, 131. Plaintiffs' experts agreed that Pandas is representative of intelligent design. 16:83 (Padian); 1:107-08 (Miller).

      • 103. Many of the arguments against evolutionary theory in Of Pandas and People involve paleontology, which studies the life of the past and the fossil record. 16:46-47 (Padian).

      • 104. Professor Kevin Padian was the only testifying expert witness with any expertise in paleontology. Dr. Padian's qualifications are impeccable, with thirty years of research on the evolution of flight and locomotion in flying reptiles, publication of nearly one hundred peer-reviewed articles, editorships of several major scientific publications, curatorship of the Museum of Paleontology at the University of California at Berkeley, and co-editor and author of the Encyclopedia of Dinosaurs. 16:42-59 (Padian); P292 (curriculum vitae).

      • 105. None of defendants' testifying experts have any expertise in paleontology or the fossil record. 17:16-17 (Padian). Furthermore, there is no evidence that either defendants' testifying experts or any other intelligent-design proponents, including Pandas' authors, have such expertise since they have not published peer-reviewed literature or presented at scientific conferences on paleontology or the fossil record. 17:15-16 (Padian). Professor Behe admitted that he has no basis to vouch for Pandas' representation of the fossil record. 21:44-45.

      • 106. Therefore, Dr. Padian's testimony is uncontested.

      • 107. Through a series of demonstrative slides prepared based on peer-reviewed scientific literature, Dr. Padian showed how Of Pandas and People systematically distorts and misrepresents established and important evolutionary principles. For instance, 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; demonstrative P855.6-855.19. Pandas also misrepresents "homology," the "central concept of comparative biology," that has for hundreds of years allowed scientists to compare comparable parts among organisms for classification purposes. 17:27-40; P855.83-855.102. And Pandas fails to address at all the well-established biological concept of exaptation, which involves a structure changing function, like fish fins evolving fingers and bones to become legs for weight-bearing land animals, dinosaur forelimbs becoming bird wings, and the front and back legs of primitive hoofed mammals becoming whale flippers and vestigial limbs, respectively. 16:146-48. Dr. Padian testified that intelligent-design proponents do not address exaptation because they deny that organisms change function, a view necessary to support the abrupt-appearance argument. Id.

      • 108. Dr. Padian's unrebutted testimony also demonstrates that Pandas distorts and misrepresents evidence in the fossil record about pre-Cambrian-era fossils, 16:107-17; P855.25-855.33 about the evolution of fish to amphibians, 16:117-131; P855.34-855.45, the evolution of small carnivorous dinosaurs into birds, 16:131-45; P855.46-855.55, the evolution of the mammalian middle ear, 17:6-9 (Padian); P855.56-866.63, and the evolution of whales from land animals. 17:17-27; P855.64-855.82.

      • 109. NAS publications are in agreement that Pandas' misrepresents the alleged gaps in the fossil record. In fact, fossil discoveries since Darwin's time have confirmed his evolutionary theories: "At the time of Darwin, there were many unsolved puzzles, including missing links in the fossil record between major groups of animals. Guided by the central idea of evolution, thousands of scientists have spent their lives searching for evidence that either supports or conflicts with the idea. For example, since Darwin's time, paleontologists have discovered many ancient organisms that connect major groups ­ such as Archaeopteryx between ancient reptiles and birds, and Ichthyostega between ancient fish and amphibians. By now, so much evidence has been found that supports the fundamental idea of biological evolution that its occurrence is no longer questioned in science." P194, P39.

      • 110. Dr. Miller testified that Pandas' treatment of biochemical similarities between organisms is "inaccurate and downright false." 1:112 (Miller). He explained, through a series of demonstrative slides based on peer-reviewed publications, how Pandas misrepresents basic molecular biology concepts to advance the design theory. For example, he testified how Pandas misinforms readers on the standard evolutionary relationships between different types of animals, 1:113-17; P854.9-854.16, a distortion Professor Behe affirmed. 23:35-36. Dr. Miller also refuted Pandas' claim that evolution cannot account for new genetic information. Dr. Miller pointed to more than three-dozen peer-reviewed-scientific publications showing the origin of new genetic information by evolutionary processes. 1:133-36; P245. In sum, Dr. Miller testified that Pandas misrepresents molecular-biology and genetics principles, and 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. For instance, Pandas reads: "Adherents of intelligent design assume that in the beginning all basic types of organisms were given a set of genetic instructions that harbored variation but were resilient and stable." P11, at 65; 1:139-40. This is an argument for special creation that has no support in the scientific literature. 1:140-42.

    • G. Intelligent Design Has Not Produced Peer Reviewed Articles or Research

      • 111. In sum, the one textbook to which the Dover policy directs students contains badly flawed and scientifically refuted science. These flaws extend to intelligent-design arguments writ large, as discussed in the section on irreducible complexity, supra.

      • 112. Yet another measure of how intelligent design has failed to demonstrate scientific warrant is the complete absence of peer-reviewed publications supporting the concept. Peer review is "exquisitely important" in the scientific process. 1:67 (Miller). Peer review 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). Peer review helps to ensure that research papers are scientifically accurate, meet the standards of the scientific method, and are relevant and interesting to other scientists in the field. 1:39-40 (Miller).

      • 113. Peer review involves scientists submitting a manuscript to a scientific journal in the field. The journal editors will solicit critical reviews from other experts in the field. These experts decide whether the scientist has followed proper research procedures, employed up-to-date methods, considered and cited relevant literature, inferred or speculated more than appropriate, and, generally, whether the researcher has employed sound science. The editor collects the reviewers' comments and either accepts the submission, indicates changes that must be made to allow acceptance, or rejects it. More respected journals have high rejection rates, some as high as 90%. Experts repeatedly testified that the most respected journals are Nature and Science, and the Proceedings of the National Academy of Science, with more specialized publications in the various disciplines, such as Journal of Vertebrate Paleontology and Cell, having smaller circulations but also commanding wide respect. 16:49-53 (Padian); 1:39-40, 67-69 (Miller).

      • 114. Defendants' expert, Professor Behe, recognizes the importance to science of the peer review process. 22:25. Behe has written that science must "publish or perish." 22:19-21, citing P647, Michael Behe, Darwin's Black Box, at 185 (1996). Professor Minnich agreed that it is important to publish in peer-reviewed journals so scientific peers can evaluate the evidence and conclusions. 38:32.

      • 115. Books, even those published by academic presses, are not subject to the same rigorous peer review that is employed at the most prestigious scientific journals. 2:3-4 (neither Miller's book, Find Darwin's God, nor Behe's Darwin's Black Box were peer reviewed "by standards of science"), 2:79-81 (Miller). Despite Professor Behe's unsupported assertion that Darwin's Black Box was peer-reviewed, plaintiffs undermined this claim on cross examination. Dr. Behe admitted that the book contained no original research, 22:23, and he had no explanation for a published statement by one claimed-peer reviewer, Dr. Atchison, that he never read the book before recommending publication. 22:26-32. Simply because a scientist publishes a book does not automatically tra orm the subject matter into science; it is still a question of how the idea is received by the scientific community and whether it ultimately is accepted in peer-reviewed publications. 16:55-56 (Padian).

      • 116. Intelligent design is not supported by any peer-reviewed research, data or publications. Both Doctors Padian and Forrest testified that recent literature reviews of scientific and medical-electronic databases disclosed no studies supporting a biological concept of intelligent design. 17:42-43 (Padian); 11:32-33 (Forrest).

      • 117. Professor Behe, under cross examination, 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). He also acknowledged that there were 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).

      • 118. Similarly, there are no peer-reviewed articles supporting Professor Behe's argument that certain complex molecular structures are "irreducibly complex." 21:62, 22:124-25. The one article referenced by Professors Behe and Minnich, as supporting intelligent design, Behe and Snoke, "Simulating evolution by gene duplication of protein features that require multiple amino acid residues" Protein Science, P721, does not mention either irreducible complexity or intelligent design. Professor Behe also admitted that this study 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. 22:41-55; P756.

      • 119. Besides failing to produce papers in peer-reviewed journals, intelligent design also features no scientific research or testing. 28:114-115 (Fuller); 18:22-23, 105-106 (Behe). Intelligent design is now nearly two-decades old, and it has produced no scientific research. 17:45 (Padian).

      • 120. Because intelligent design has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community, it cannot be adjudged a valid, accepted scientific theory.

    • H. Conclusion to Science Section

      • 121. The Court concludes that while intelligent design arguments may be true ­ a proposition on which the Court takes no position ­ the theory is not science. Moreover, because intelligent design is ultimately predicated on a supernatural creator, the theory is religious, a finding required by the Supreme Court's holding in Edwards v. Aguillard.

  • IV. THE DOVER SCHOOL BOARD SOUGHT TO PROMOTE CREATIONISM IN THE GUISE OF INTELLIGENT DESIGN AND DENIGRATE THE SCIENTIFIC THEORY OF EVOLUTION ON RELIGIOUS GROUNDS

    • A. The Parties

      • 122. Defendant Dover Area School District is a municipal corporation with a board of directors, which is defendant Dover Area School District Board of Directors (the "Board"). The Dover Area School District is comprised of Dover Township, Washington Township, and Dover Borough, all in York County, Pennsylvania. There are approximately 3,700 students in the School District, with approximately 1,000 attending Dover High School. Joint Stipulations of Fact ¶ 3.

      • 123. There are nine seats on the Board. The nine members of the Board in 2004 were Alan Bonsell, William Buckingham, Sheila Harkins, Jane Cleaver, Heather Geesey, Angie Yingling, Noel Wenrich, Jeff Brown, and Casey Brown. Casey and Jeff Brown resigned on October 18, 2004, Wenrich and Cleaver resigned on October 4, 2004, and Yingling resigned verbally in November 2004 and in writing in February 2004. 34:113 (Harkins); Cleaver Dep. (6/9/05) at 15.

      • 124. During 2004, Alan Bonsell was President of the Board. As President, he appointed William Buckingham Chair of the Board's Curriculum Committee. 32:86-87. He also appointed the other members of the Curriculum Committee: Sheila Harkins and Casey Brown. 32:86-87 (Bonsell); 34:39 (Harkins). As Board President, he also served as an ex officio member of the Curriculum Committee. 32:116 (Bonsell).

      • 125. Plaintiff Tammy J. Kitzmiller is a resident of Dover, Pennsylvania. Her two children attend the tenth and twelfth grades at Dover Area High School. 3:112-113. Kitzmiller did not attend any Board meeting until November 2004. 3:119. She first learned of the biology curriculum controversy from reading the local newspapers. 3:114-15.

      • 126. Plaintiffs Bryan and Christy Rehm are residents of Dover, Pennsylvania. They have a child in the ninth grade at Dover Area High School, a child in the third grade and a child in the first grade at schools in the Dover Area School District, and a child of pre-school age. 4:35-36 (B. Rehm); 6:59-60 (C. Rehm). Bryan Rehm learned of the biology curriculum controversy by virtue of being a member of the science faculty at Dover Area High School. 4:39-41. Before and after his resignation, he regularly attended Board meetings. 4:41, 63. (B. Rehm). Christy Rehm learned of the biology curriculum controversy by virtue of discussions she had with her husband, former Dover science teacher Bryan Rehm. 6:61 (C. Rehm). She also regularly attended board meetings in 2004. 6:62, 74-75. (C. Rehm).

      • 127. Plaintiffs Deborah F. Fenimore and Joel A. Leib are residents of Dover, Pennsylvania. They are the parents of a child in the eighth grade in the Dover Area School District and intend to send their child to Dover Area High School. 17:141-142 (Leib). Leib first learned of a change in the biology curriculum from reading local newspapers. 17:142-44 (Leib).

      • 128. Plaintiff Steven Stough is a resident of Dover, Pennsylvania. He has a child in the ninth grade in the Dover Area School District. 15:110 (Stough). Stough did not attend any board meetings until December 2004. Prior to that, he had learned of the biology curriculum change by reading the local newspapers. 15:112-14.

      • 129. Plaintiff Beth A. Eveland is a resident of York, Pennsylvania. She is the parent of a child in the second grade in the Dover Area School District and a child of pre-school age and intends to send her children to Dover Area High School. 6:92-93 (Eveland). Eveland attended her first board meeting on June 14, 2004. Prior to that, she had learned of the issues relating to the purchase of the biology books from reading the York Daily Record. 6:24.

      • 130. Plaintiff Cynthia Sneath is a resident of Dover, Pennsylvania. She is a parent of a child in the second grade in the Dover Area School District and a child of pre-school age. She intends to send her children to Dover Area High School. 15:75-76 (Sneath). Sneath attended her first board meeting on October 18, 2004. Prior to that, she had learned of the biology curriculum controversy from reading the local newspapers. 15:77-78.

      • 131. Plaintiff Julie Smith is a resident of York, Pennsylvania. She is a parent of a child in the eleventh grade at Dover Area High School. 6:35 (J. Smith). Smith did not attend a Board meeting in 2004. 6:42-43. She learned of and followed the biology curriculum controversy by reading the local newspapers. 6:35-38.

      • 132. Plaintiffs Aralene ("Barrie") D. and Frederick B. Callahan are residents of Dover, Pennsylvania. They are parents of a child in the eleventh grade at Dover Area High School. 3:123-124 (B. Callahan); 8:103 (F. Callahan). Aralene Callahan learned of the biology curriculum controversy by virtue of her status as a former board member and from attending board meetings. 3:132-35, 146. Fred Callahan learned of the biology curriculum controversy by virtue of discussions he had with his wife, former school board member, Aralene Callahan, and from attending board meetings. 8:104-10.

    • B. Bonsell's and Buckingham's Personal Religious Beliefs Conflict With the Theory of Evolution

      • 133. Bonsell believes in creationism based on the Bible, as a matter of personal religious belief. 33:54-55 (Bonsell). One aspect of his personal religious belief in creationism is that species were formed as they now exist. 33:55 (Bonsell). Another aspect of his personal religious belief in creationism is that species including man do not share common ancestors. 33: 55 (Bonsell). He believes as part of his personal religious belief in creationism that birds were formed with their feathers, beaks and wings, that fish were formed with their fins and scales, and that humans were created in their present form. 33:55-56 (Bonsell). And he also believes as a matter of personal religious belief in creationism that the earth is not billions of years old but only thousands of years old. 33:57 (Bonsell). He believes that his personal religious belief in creationism conflicts with the theory of evolution insofar as it maintains that all living things, including humans, share common ancestry. 33:57-58 (Bonsell).

      • 134. Buckingham believes in a literal reading of the Book of Genesis. 29:8 (Buckingham). He understands that the theory of evolution teaches that man and other species evolved from a common ancestor, and that conflicts with his personal religious beliefs. 29:6 (Buckingham).

    • C. Beginning in January 2002, Bonsell Repeatedly Expressed an Interest in Injecting Religion Into the Dover Schools

      • 135. The Board held a retreat on January 9, 2002, just several weeks after Bonsell joined the Board. At that meeting, each board member was given several minutes to identify and discuss any issues of interest to them. 32:69 (Bonsell). According to Superintendent Nilsen's contemporaneous notes, Bonsell identified "creationism" as his number one issue. P21. Bonsell identified "school prayer" as his number two issue. P21. Bonsell does not dispute that he raised those subjects, although he claims he cannot recall doing so. 32:70 (Bonsell). Casey Brown testified that she recalled that Bonsell "expressed a desire to look into bringing prayer and faith back into the schools," that Bonsell mentioned the Bible and creationism, and felt "there should be a fair and balanced presentation within the curriculum." 7:17-18 (C. Brown).

      • 136. Bonsell raised the subject of creationism again at a board retreat on March 26, 2003. This year, Bonsell again identified "creationism" as one of his issues of interest, as reflected in P25, Dr. Nilsen's contemporaneous notes. 35:50- 53 (Baksa). Again, Bonsell does not dispute that he raised that issue, although he claims that he cannot recall doing so. 32:75 (Bonsell).

      • 137. Former board member Jeff Brown testified that he recalled Bonsell saying at the March 26, 2003 retreat that he felt creationism "belong in biology class alongside evolution." 8:50-51 (J. Brown).

      • 138. According to the testimony of plaintiff Aralene "Barrie" Callahan, at the March 26, 2003 board retreat, Bonsell said that he wanted creationism taught 50/50 with evolution in biology class. 3:126-27 (B. Callahan). Callahan located her copy of the agenda for the March 26, 2003 board retreat (P641), on which she took notes during the meeting. 3:128-30 (B. Callahan). The notes shows that Bonsell said at that meeting: "50-50 creationism vs. evolution" and "does not believe in evolution." 3:127-28.

      • 139. Barrie Callahan's testimony and handwritten notes find corroboration not only in P25, Nilsen's contemporaneous note that Bonsell raised the issue of "creationism," but also in P26, a memo that Trudy Peterman, then the principal of Dover High School, sent to Assistant Superintendent Baksa and Science Department Chair Bertha Spahr with a copy to Superintendent Nilsen on April 1, 2003. The memo reports that Peterman learned from Spahr that Baksa had said on March 31, 2003 that an unidentified board member "wanted fifty percent (50%) of the topic of evolution to involve the teaching of Creationism."

      • 140. Spahr confirmed that she had a conversation with Baksa, as reported in the Peterman memo (P26), and that Baksa told her that Bonsell wanted to have creationism share equal time with evolution in the curriculum. 13:72-73 (Spahr).

      • 141. Baksa also confirmed that he had a conversation with Spahr as reported in the Peterman memo (P26) in which he told her that Bonsell was looking "for a 50/50 split with Darwin and some alternative." 35:53-56 (Baksa). Bonsell is thus without a doubt the unnamed board member referred to in P26.

      • 142. The only thing that Baksa does not recall is Bonsell identifying "creationism" as the subject he wanted to share equal time with evolution. 26:83 (Baksa). In fact, he claims that he cannot recall Bonsell mentioning "creationism" at any time up until April 1, 2003. 26:83 (Baksa).

      • 143. Baksa's testimony on this point is not credible, for several reasons.

        • (a) First, it is clear that Bonsell raised the subject of creationism by name at the board retreats on January 9, 2002 and March 26, 2003, because Nilsen wrote it down and Bonsell does not dispute it. 32:70, 73-75 (Bonsell). (b) Second, Baksa attended the retreat on March 26, 2003, the evening of the same day he attended a seminar on creationism at Nilsen's suggestion. 35:50-51 (Baksa). Yet he claims not to recall Bonsell raising creationism, even though Nilsen and Callahan recorded it in their notes. (c) Third, Baksa received the Peterman memo (P26) on or around April 1, 2003, but he never spoke to either Peterman or Spahr about the accuracy of the statement that this unnamed board member wanted creationism to share equal time in the curriculum with evolution. 35:56-58 (Baksa).

      • 144. In addition to raising "creationism" at the board retreats in 2002 and 2003, and stating at the board retreat in 2003 that he wanted evolution to share equal time in the curriculum with evolution, Bonsell raised the subject of creationism on numerous other occasions.

        • (a) When he ran for the Board in 2001, Bonsell told Jeff Brown he did not believe in evolution and he wanted creationism taught side-by-side with evolution in biology classes. He also said he felt taking prayer and Bible reading out of school was a mistake and he wanted it reinstated in the Dover public schools. 8:48-49 (J. Brown). (b) Later, Bonsell told Jeff Brown he wanted to be on the Board Curriculum Committee because he had concerns about the teaching of evolution and he wanted to see some changes in that area. 8:55 (J. Brown). (c) Nilsen complained to Jeff Brown that each Board President had a new set of priorities, and Bonsell had creationism as his priority. 8:53 (J. Brown).

      • 145. Given all the evidence that Bonsell repeatedly expressed interest in creationism, defendants were forced to concede in their opening statement that Bonsell "had an interest in creationism" and that he "wondered whether it could be discussed in the classroom." (1:19) And yet when pressed about whether he had a memory of having an interest in creationism, Bonsell could only say that "[t]hat could be" and "probably." 33:47-48. His inability to recall his interest in this subject, despite the admission by his counsel that he had such an interest, constitutes further proof that he intended to introduce creationism into the curriculum at Dover High School ­ particularly given the numerous inconsistencies in his testimony discussed infra at ¶¶ 271-72, 276-81.

      • 146. Bonsell not only wanted prayer in schools and creationism in science class, he wanted to inject religion into the social studies curriculum. Bonsell told Baksa that he wanted the students to learn more about the Founding Fathers. 36:17 (Baksa). Toward that end, Bonsell gave Baksa P179, a book entitled Myth of Separation by David Barton. 36:14-15 (Baksa).

      • 147. One chapter of the book proclaims "We are a Christian Nation." 36:16 (Baksa); P179, at 47. The last line of that chapter reads: "Our fathers intended that this nation should be a Christian nation, not because all who lived in it were Christians, but because it was founded on and would be governed and guided by Christian principles." 36:16 (Baksa); P179, at 82. In a chapter titled "The Solution," the book states: "We must recall our foundation and former values and establish in our thinking the conviction that this nation's institutions must return to their original foundation --the principles expressed through the Bible." 36:16 (Baksa); P179, at 260. And as part of that proposed solution, the book states that "morality acquired only with emphasis from religious principles must again become an emphasis in education." 36:17 (Baksa); P179, at 265.

      • 148. The book also contains the following statement: "The doctrine of separation of church and state is absurd; it has been repeated often; and people have believed it. It is amazing what continually hearing about separation of church and state can do to a nation." 36:15-16 (Baksa); P179, at 46.

      • 149. The Myth of Separation was the only book Bonsell gave Baksa about the founding fathers. 36:17 (Baksa).

      • 150. In P91, an email to one of the social studies teachers on October 19, 2004, the day after the Board passed the resolution at issue in this case, Baksa said: "all kidding aside, be careful what you ask for. I've been given a copy of the Myth of Separation by David Barton to review from board members. Social Studies curriculum is next year. Feel free to borrow my copy to get an idea where the board is coming from." 36:14 (Baksa); P91.

    • D. Fall 2003 ­ Bonsell Confronted the Teachers About Evolution

      • 151. Beginning shortly after Baksa took a position with the Dover Area School District in the fall of 2002, he and Bonsell, then Chair of the Board Curriculum Committee, had discussions in which Bonsell expressed concern about the teaching of evolution. 26:62-64 (Baksa); 35:55 (Baksa). At some point before March 26, 2003, Baksa gave Bonsell a copy of the biology textbook used at Dover High School. 26:63 (Baksa). Bonsell expressed concern about the presentation of Darwin in the textbook. 26:63-64 (Baksa). He felt that Darwin was presented as a fact, not a theory, and that the textbook overstated the evidence and did not cover gaps and problems or leave students room to consider other theories. 26:64 (Baksa).

      • 152. Bonsell also expressed concern about the accuracy of carbon dating as proof of the age of the earth, and the concept of speciation. 26:64 (Baksa); 35:62-63 (Baksa). "[M]y understanding is that he had seen a video that was showing the evolution of a bear into a whale, and he found that improbable or ludicrous to think that could happen." 35:63 (Baksa).

      • 153. Prior to the fall of 2003, Baksa discussed Bonsell's concerns about evolution with the teachers. 35:66 (Baksa). He actually discussed the subject with the teachers at least two times before Bonsell met with the teachers. 35:66-67 (Baksa). He told them that Bonsell had a problem with the teachers teaching the origin of life, by which Bonsell meant how species change into other species, also known as macroevolution and speciation, which are aspects of the theory of evolution. 35:67-68 (Baksa).

      • 154. In the fall of 2003, Bonsell, then the head of the Board Curriculum Committee, had a meeting with the science teachers. 12:107-08 (J. Miller). At the time, Bonsell had a child in the ninth grade at Dover High School who was scheduled to take biology in the spring. 12:108-09 (J. Miller). The teachers had been told either by Baksa or Spahr that earlier that year Bonsell had advocated teaching creationism 50/50 with evolution and that Bonsell believed the earth to be approximately 10,000 years old. 12:109-10 (J. Miller).

      • 155. Baksa arranged for the meeting between Bonsell and the teachers and he attended the meeting. 35:68 (Baksa). Jennifer Miller, the senior biology teacher, acted as spokesperson for the teachers at that meeting. 12:110 (J. Miller). She testified that Bonsell expressed concern about how the teachers taught evolution. 12:110 (J. Miller). Specifically, he was concerned that the teachers conveyed something to the students in opposition to what parents presented at home leaving students with the impression that "somebody is lying." 12:111 (J. Miller). Miller explained that the teachers taught evolution as change over time with emphasis on origin of species, not origin of life. 13:76 (Spahr); 12:111 (J. Miller). By origin of species, Miller meant "speciation" or the process by which new species originate from existing species. 12:100 (J. Miller).

      • 156. Bonsell and Baksa came away from that meeting with the understanding that the teachers did not teach "origins of life," which they took to mean that the teachers only taught microevolution, or change within species, and did not teach macroevolution, including common ancestry. 33:114-15 (Bonsell); 35:68 (Baksa). That information pleased Bonsell because the concept of common ancestry offends his personal religious belief that God created man and other species in the forms they now exist and that the earth is only thousands of years old. 33:54-58, 115 (Bonsell).

      • 157. Spahr testified that the teachers left the meeting with Bonsell feeling that they had answered his questions and concerns. 13:76 (Spahr). Baksa testified that he felt that the teachers had satisfied Bonsell's concerns and that there had been a meeting of the minds. 35:68-69 (Baksa). Bonsell thought the meeting ended on good terms. 32:83-84 (Bonsell).

      • 158. Prior to the fall of 2003, no Dover administrator or board member had ever met with the biology teachers and questioned how they taught evolution. 36:75 (Linker).

      • 159. Before the meeting with Bonsell in the fall of 2003, Linker made it his practice to explain in biology class that creationism was based on "Bibles, religion, [and] Biblical writings," and that it was illegal to discuss creationism in public school. 36:83.

      • 160. After the meeting with Bonsell, Linker changed his practice by no longer distinguishing creationism as a separate non-scientific religious theory at the beginning of the evolution section. 36:82-85. He also stopped using helpful Discovery Channel videos as teaching aides. 36:82-85. Linker testified that he changed his practice because the unusual meeting with board member Bonsell had alerted him to a controversy surrounding how he taught evolution. 36:84-85.

      • 161. Linker also testified that other biology teacher, Jen Miller, changed her practices of having the students create an evolution time line in the hallway, which addressed how various species developed over millions of years. 36:86-87.

    • E. Early 2004 ­ Buckingham Contacted the Discovery Institute

      • 162. Sometime before June 2004, Seth Cooper, an attorney with the Discovery Institute, contacted Buckingham by telephone. 29:133 (Buckingham); 30:9 (Buckingham). The defendants asserted privilege over the substance of that call and two subsequent calls between the Discovery Institute and Buckingham. 29:138-39 (Buckingham). Buckingham testified that in all of those calls he sought only legal advice and the Discovery Institute provided only legal advice. 29:133-143 (Buckingham). During those calls, Buckingham and Cooper discussed the legalities of teaching intelligent design and the legalities of teaching gaps in Darwin's theory. 29:137 (Buckingham).

      • 163. After the first call with the Discovery Institute, Buckingham received a DVD, a videotape, and a book by mail from the Discovery Institute. 29:130-131 (Buckingham). He gave the materials to Nilsen to give to the science teachers. 29:131 (Buckingham); 25:100-101 (Nilsen); 26:114-115 (Baksa).

      • 164. Sometime late in the 2003-04 school year, Baksa arranged for the science teachers to watch a video from the Discovery Institute entitled Icons of Evolution. 4:48-49 (B. Rehm).

      • 165. Sometime later, but before the October 18, 2004 board meeting, two lawyers from the Discovery Institute came and made a legal presentation to the Board in executive session. 33:111-112 (Bonsell).

    • F. June 2003 to June 2004 ­ The Board Held Up the Purchase of the Biology Textbook Because of Its Treatment of Evolution

      • 166. In June 2003, the Board approved funds for new science textbooks, including a biology textbook. 3:130 (B. Callahan). Nilsen had placed textbook purchases on a seven-year cycle and this was the year for the science textbooks. 3:130 (B. Callahan).

      • 167. Although the Board approved the funds, it did not actually approve the purchase of a biology textbook. 3:130-131 (B. Callahan). Barrie Callahan repeatedly raised the subject of the approval of the biology textbook along with some chemistry and consumer science books. 3:131 (B. Callahan); 32:85 (Bonsell). She even made a motion in August 2003 for the approval of these books, but no other board member seconded it. 3:131 (B. Callahan). Callahan raised the issue several times after she left the Board in November 2003. 3:132-133 (B. Callahan).

      • 168. The faculty and administration recommended that the Board approve the purchase of the 2002 edition of Biology written by Kenneth Miller and Joseph Levine and published by Prentice Hall. 29:33 (Buckingham).

      • 169. Buckingham admitted that, as of June 2004, the Board was delaying approval of Biology recommended by the faculty and administration because of the book's treatment of evolution and the fact that it did not cover any alternatives to the theory of evolution. 29:33-34 (Buckingham).

    • G. June 2004 Board Meetings ­ Buckingham and Other Board Members Spoke Out in Favor of Teaching Creationism

      • 170. As proof that the defendant Board acted with the purpose of promoting religion, the plaintiffs introduced evidence that at public board meetings held on June 7 and 14, 2004, members of the Board spoke openly in favor of teaching creationism and disparaged the theory of evolution on religious grounds.

      • 171. On these important points, the plaintiffs introduced the testimony of plaintiffs Fred and Barrie Callahan, Bryan and Christy Rehm, Beth Eveland, former school board members Casey and Jeff Brown and William Buckingham, teachers Bertha Spahr and Jennifer Miller, and newspaper reporters Heidi Bernhard-Bubb and Joseph Maldonado. With the exception of Buckingham, the testimony of these witnesses was credible and convincing.

      • 172. As discussed in detail infra at ¶¶ 271-81 plaintiffs effectively challenged the credibility of Buckingham as well as defendants' witnesses Bonsell, Harkins, Geesey, Cleaver, and Nilsen.

      • 173. The plaintiffs also introduced into evidence newspaper articles on the subject of these meetings by Bernhard-Bubb and Maldonado, published in The York Dispatch and The York Daily Record in June 2004 (P44/P8044, P45/P805, P46/P790, P47/P791, P51/P792, P53/P793, P54/P806, and P55), a television news clip from channel Fox 43 (P145), a letter to the editor from plaintiff Beth Eveland published in The York Sunday News (P56), and a response to Eveland's letter by board member Geesey also published in The York Sunday News (P60). These documents corroborate the testimony of plaintiffs' witnesses and impeach the credibility of Buckingham, Bonsell, Harkins, Nilsen, Geesey, and Cleaver.

      • 174. Plaintiffs also rely on testimony they developed in cross examination of defendants' witnesses, most particularly Assistant Superintendent Baksa, who testified that Buckingham spoke about creationism at the June 7 board meeting. 35:77-78 (Baksa).

      • 175. Plaintiffs proved the following about the board meeting on June 7, 2004:

        • (a) Approval of several science textbooks appeared on the agenda for the meeting, but not approval of the biology textbook. P42, at 8-9.

        • (b) Barrie Callahan asked whether the Board would approve the purchase of the 2002 edition of Biology by Miller and Levine. Buckingham told Callahan that the book was "laced with Darwinism" and he spoke in favor of purchasing a textbook that included a balance of creationism and evolution. P46/ P790; 35:76-78 (Baksa); 24:45-46 (Nilsen); 3:135-36 (B. Callahan); 4:51-52 (B. Rehm); 6:62-63 (C. Rehm); 7:25-26 (C. Brown). Buckingham admitted as much. 29:36, 45-46 (Buckingham).

        • (c) Buckingham said the Board Curriculum Committee would look for a book that presented a balance between creationism and evolution. P45/P805; 30:96 (Bernhard-Bubb); P46/P790; 31:59-60 (Maldonado).

        • (d) Bonsell said that there were only two theories that could possibly be taught (creationism and evolution) and as long as both were taught as theories there would be no problems for the district. P46/P790; 6:65 (C. Rehm);

        • (e) Buckingham spoke in favor of having a biology book that included creationism. P47/P791; 8:60-61 (J. Brown); 7:33 (C. Brown); 3:137-138 (B. Callahan); 30:89-90, 105-06, 110-11 (Bernhard-Bubb); 31:60, 66 (Maldonado).

        • (f) Wenrich spoke in favor of having a biology book that included creationism. P47/P791; 8:60 (J. Brown); 7:33 (C. Brown); 30:89-90, 105-06, 110-11 (Bernhard-Bubb); 31:66 (Maldonado).

        • (g) Bonsell spoke in favor of having a biology book that included creationism. P47/P791; 8:60 (J. Brown); 7:33 (C. Brown); 3:137-38 (B. Callahan); 30:89-90, 105-06, 110-11 (Bernhard-Bubb); 31:66 (Maldonado).

        • (h) Superintendent Nilsen said that the district was looking for a textbook that presented "all options and theories." P44. He never challenged the accuracy of that quotation. 25:119-20 (Nilsen).

        • (i) Buckingham said that separation of church and state is a myth and not something he supports. P44/P804; P47/P791. 3:141-42 (B. Callahan); 7:32-33 (C. Brown); 31:66-67 (Maldonado). Buckingham admitted that he said this. 29:35-36 (Buckingham).

        • (j) Buckingham said: "It is inexcusable to have a book that says man descended from apes with nothing to counterbalance it." P44/P804; 30:77-78 (Bernhard-Bubb).

        • (k) After the meeting, Buckingham said: "This country wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity and our students should be taught as such." P46/P790; 31:63 (Maldonado).

      • 176. Plaintiffs proved the following about the board meeting on June 14, 2004:

        • (a) The subject of the biology textbook did not appear on the agenda of this meeting, but members of the public made comments and the Board continued to debate the subject of the biology textbook;

        • (b) Buckingham's wife Charlotte set the tone for the meeting during the public comment section when she gave a speech in which she said "evolution teaches nothing but lies," quoted from Genesis, asked "how can we allow anything else to be taught in our schools," recited gospel verses telling people to become born again Christians, and stated that evolution violated the teachings of the Bible. P53/P793; 4:55-56 (B. Rehm); 6:71 (C. Rehm); 7:34-35 (C. Brown); 8:104-05 (F. Callahan); 8:63 (J. Brown); 30:107-08 (Bernhard-Bubb); 31:76-77 (Maldonado); 33:37-43 (Bonsell); 29:82-83 (Buckingham); 12:125 (J. Miller); 13:84 (Spahr). At her deposition, Charlotte Buckingham admitted that she made a speech at the June 14 board meeting arguing that creationism as set forth in Genesis should be taught in Dover High School and that she read quotations from scripture as part of her speech. C. Buckingham Dep. (4/15/05) at 19-22.

        • (c) During Charlotte Buckingham's religious speech, board members William Buckingham and Geesey said "amen." 7:35 (C. Brown).

        • (d) William Buckingham stood by his opposition to the 2002 edition of Biology by Miller and Levine. P54/P806.

        • (e) Bonsell and Wenrich said that they agreed with William Buckingham that creationism should be taught to balance evolution. P806/P54;

        • (f) William Buckingham said: "Nowhere in the Constitution does it call for a separation of church and state." P793/P53; 31:74 (Maldonado); 12:126 (J. Miller); 13:85 (Spahr).

        • (g) William Buckingham said this country was founded on Christianity. P806/P54; 12:126 (J. Miller); 13:85 (Spahr); 30:106 (Bernhard-Bubb).

        • (h) William Buckingham said "I challenge you (the audience) to trace your roots to the monkey you came from." P793/P53; 31:76 (Maldonado). Buckingham admitted that he said this. 29:71 (Buckingham).

        • (i) William Buckingham said that while growing up his generation read from the Bible and prayed during school. P793/P53; 31:75 (Maldonado).

        • (j) William Buckingham said "liberals in black robes" were "taking away the rights of Christians." P793/P53; 35:81-82 (Baksa); 6:73 (C. Rehm); 31:75 (Maldonado).

        • (k) William Buckingham said words to the effect of "2,000 years ago someone died on a cross. Can't someone take a stand for him?" or "Nearly 2,000 years ago someone died on a cross for us; shouldn't we have the courage to stand up for him?" P793/P53; P806/P54; 4:54-55 (B. Rehm); 6:73 (C. Rehm); 6:96 (Eveland); 7:26-27 (C. Brown); 8:63 (J. Brown); 8:105-06 (F. Callahan); 30:105, 107 (Bernhard-Bubb); 31:75, 78-79 (Maldonado); 12:126 (J. Miller); 13:85 (Spahr).

      • 177. Buckingham, Bonsell, and other witnesses for defendants denied the reports in the news media and contradicted the great weight of the evidence about what happened at the June board meetings. As explained infra ¶¶ 271-81, the record shows that these witnesses contradicted themselves in important respects, in several cases lied outright, and should not be believed.

    • H. June 2004 Curriculum Committee Meeting ­ Creationism Morphed Into Intelligent Design

      • 178. The Board Curriculum Committee met with the teachers near the end of the school year in June 2004, very soon after the board meetings on June 7 and 14. 12:114 (J. Miller); 35:82 (Baksa). The purpose of the meeting was to discuss P132, a list of Buckingham's concerns about the textbook Biology. 12:114-15 (J. Miller). At a previous meeting in May 2004, the teachers had recommended that the Board purchase the 2002 edition of Biology. 26:118 (Baksa). Prior to the June meeting, the Science Department provided Buckingham with a copy of the teacher's edition of Biology for him to review. 13:80 (Spahr).

      • 179. All of Buckingham's concerns about the textbook Biology related to the theory of evolution. 7:45 (C. Brown). Buckingham objected to a standard timeline in the book because it listed Darwin's first publication of his findings in 1859 but did not mention creationism or God. 7:45-47. He objected to the reference to a species of finch known as Darwin's finch simply because it refers to Darwin. 7:47-48. He objected to the textbook because it did not give "balanced presentation," by which he meant that it did not include the "theory of creationism with God as creator of all life." 7:48.

      • 180. At the June meeting, Bertha Spahr asked Buckingham where he had gotten a picture of the evolution mural that had been destroyed in 2002 by Larry Reeser, the head of buildings and grounds for the Dover Area School District. 13:82-83 (Spahr); 12:115-18 (J. Miller). According to Jennifer Miller, Buckingham responded: "I gleefully watched it burn." 12:118 (J. Miller). According to Casey Brown, Buckingham expressed sympathy with Reeser's actions. 7:51 (C. Brown). Buckingham disliked the mural because he thought it advocated the theory of evolution, particularly common ancestry. 26:120 (Baksa).

      • 181. Most of the meeting centered around Buckingham's concern that the teachers were teaching what he referred to as "origins of life," which for him apparently includes origin of species and common ancestry of man and other species. 12:118 (J. Miller). Bertha Spahr testified that, at one point in the meeting, she said to Buckingham: "If you say man and monkey one more time in the same sentence, I'm going to scream." 14:15 (Spahr). Jennifer Miller, the senior biology teach, reiterated what she had explained to Bonsell in the fall of 2003 ­ that the teachers did not address origins of life but they did address the origin of species. 12:120 (J. Miller).

      • 182. At the meeting, Baksa provided those in attendance with copies of P138, a survey of biology books used in private religious schools in York County. 12:122 (J. Miller). He explained his reason for collecting this information as follows: "I went out and looked for other organizations to look at other textbooks that might have a different treatment of Darwin that would be more acceptable to the board curriculum committee." 26:118-19 (Baksa).

      • 183. Baksa also provided those in attendance at the meeting with copies of P136, a product profile of a biology textbook used at Bob Jones University. 12:120-121 (J. Miller).

      • 184. Baksa also provided those in attendance at the meeting with copies of P149, a document entitled "Beyond the Evolution vs. Creation Debate." 12:124 (J. Miller). Both Sheila Harkins and Casey Brown acknowledged having received P149 at some point, although they had different memories of when that occurred. 34:46-50 (Harkins); 7:60-61, 64-66, 69 (C. Brown). The second page of this document is entitled "Views on the Origin of the Universe and Life." It explains the difference between "Young Earth Creationism (Creation Science)," "Progressive Creationism (Old Earth Creation)," "Evolutionary Creation (Theistic Creation)," "Deistic Evolution (`Theistic Evolution')," and "Dysteleological Evolution (Atheistic Evolution)." Under each of these categories, it lists examples. The example given under Progressive Creation (Old Earth Creation) is "Intelligent Design Movement, Phillip Johnson, Michael Behe." P149. As a result, the Board Curriculum Committee knew that intelligent design is a form of creationism, which, according to statements at the June meetings, is what they wanted to teach.

      • 185. P149 is proof that not only did the Board Curriculum Committee know that intelligent design is religious, but they also knew it is sectarian, because P149 shows the different interpretations of Genesis and different theologies and philosophies underlying the various categories of views on the origin of the universe and life. For example, P149 shows that, as regards the Books of Genesis, Young Earth Creation is associated with "Strict Literalism" and Progressive Creation (including intelligent design) is associated with "General Literalism" while Evolutionary Creation (including Roman Catholicism) is not associated with a literal reading of the Books of Genesis.

      • 186. At the meeting, Buckingham sought assurance from the teachers that they were only teaching evolutionary changes within species and were not teaching origin of life, by which he means common ancestry, speciation, and macroevolution. 26:121 (Baksa). The teachers had already watched the video Icons of Evolution that Buckingham received from the Discovery Institute, but at Buckingham's insistence they agreed to review it again and consider using in class any parts from that video that aligned with their curriculum. 26:122 (Baksa). Baksa believed that the teachers had already determined that there were no parts of the video that would be appropriate to use in class, and that they agreed to Buckingham's condition so that he would approve the purchase of the Miller and Levine textbook Biology that the students needed. 35:93-94 (Baksa).

      • 187. Buckingham also demanded that the teachers agree that there would never again be a mural depicting evolution in any of the classrooms. 36:56-57 (Baksa). In exchange, Buckingham had suggested that he would agree to support the purchase of the biology textbook the students needed. 36:57.

      • 188. According to Baksa, there was some mention of the words intelligent design at this meeting, but he cannot recall who raised the subject. 35:96-97 (Baksa). The meeting took place after the Discovery Institute first made contact with Buckingham, but Baksa cannot recall having received any materials about intelligent design by this time. 35:97. At the time, he knew nothing about intelligent design and to the best of his knowledge no one else at the meeting knew anything about it either. 35:97-98. To the best of his knowledge at the time, "intelligent design" amounted to nothing more two words replacing the word "creationism" used by Buckingham at a board meeting earlier that month. 35:98.
  • 1Trial testimony is formatted as follows: Volume: page (witness). Attached as Exhibit A is the Index Of Trial Transcript Volumes. [Return]

  • 2All deposition testimony cited to was included in the Deposition Designations submitted to the court. [Return]

  • 3Dr. Miller gave two examples to show how modern genetics applies to, and supports, evolutionary theory. Both presentations were based on peer-reviewed publications. The first involved slides depicting how scientists have been able to demonstrate that pseudo-gene errors shared by three organisms ­ gorillas, chimpanzees and humans ­ are powerful evidence for common ancestry. 1:77-82; P854.1-P854.8. Dr. Miller's second example showed how evolution explained the fact that humans have 46 chromosomes and the great apes have 48. The evolutionary explanation, a fusion of two ape chromosomes into one human chromosome, was tested and verified using DNA sequences from the Human Genome Project and Chimpanzee Genome Project, and this result is strong evidence for common descent. 1:82-86; P851.1-P854.8. Dr. Miller also testified about a just-released peer-reviewed publication, in the prominent scientific journal Nature, in which the completed mapping of the chimpanzee genome "spectacularly confirmed" common ancestry. 1:88-90; P643 at 69. [Return]

  • 4Two exhibit numbers separated by a slash indicates that Plaintiffs introduced different formats of the same article under different exhibit numbers. For example, P44 is a copy of an article printed off of a computer and P804 is a photocopy of the article as it appeared in the printed newspaper. [Return]

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