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707KITZMILLER v. DOVER AREA SCHOOL DIST.Cite as 400 F.Supp.2d 707 (M.D.Pa. 2005)

Tammy KITZMILLER,et al., Plaintiffs,

v.

DOVER AREA SCHOOL DISTRICT,et al., Defendants.

No. 04cv2688.

United States District Court,M.D. Pennsylvania.

Dec. 20, 2005.

Background: Parents of school-aged chil-dren and member of high school sciencefaculty brought action against school dis-trict and school board, challenging consti-tutionality of district’s policy on teachingof intelligent design in high school biologyclass, which required students to hear astatement mentioning intelligent design asan alternative to Darwin’s theory of evolu-tion.

Holdings: The District Court, Jones, J.,held that:

(1) policy amounted to an endorsement ofreligion in violation of the Establish-ment Clause;

(2) policy violated the EstablishmentClause under the Lemon test; and

(3) policy violated freedom of worship pro-vision of the Pennsylvania Constitu-tion.

Ordered accordingly.

1. Constitutional Law O84.5(3)

Both the endorsement test and theLemon test applied in determining wheth-er school district’s policy on teaching ofintelligent design in high school biologyclass violated the Establishment Clause.U.S.C.A. Const.Amend. 1.

2. Constitutional Law O84.5(3) Schools O165

School district’s policy on teaching ofintelligent design in high school biologyclass, which required students to hear astatement mentioning intelligent design asan alternative to Darwin’s theory of evolu-tion, amounted to an endorsement of reli-gion in violation of the EstablishmentClause; policy imposed a religious view ofbiological origins into the biology course.U.S.C.A. Const.Amend. 1.

3. Constitutional Law O84.1‘‘Endorsement test’’ used to deter-

mine whether there has been an establish-ment clause violation emanates from theprohibition against government endorse-ment of religion and it precludes govern-ment from conveying or attempting to con-vey a message that religion or a particularreligious belief is favored or preferred.U.S.C.A. Const.Amend. 1.

See publication Words and Phras-es for other judicial constructionsand definitions.

4. Constitutional Law O84.1‘‘Endorsement test’’ used to deter-

mine whether there has been an Establish-ment Clause violation consists of the re-viewing court determining what message achallenged governmental policy or enact-ment conveys to a reasonable, objectiveobserver who knows the policy’s language,origins, and legislative history, as well asthe history of the community and thebroader social and historical context inwhich the policy arose. U.S.C.A. Const.Amend. 1.


School district’s policy on teaching ofintelligent design in high school biologyclass, which required students to hear astatement mentioning intelligent design asan alternative to Darwin’s theory of evolu-

708 400 FEDERAL SUPPLEMENT, 2d SERIES

tion, violated the Establishment Clauseunder the Lemon test; policy’s primarypurpose was to change district’s biologycurriculum to advance religion, and it hadthe primary effect of imposing a religiousview of biological origins into the biologycourse. U.S.C.A. Const.Amend. 1.

6. Constitutional Law O84.1Under the Lemon test, a government-

sponsored message violates the Establish-ment Clause of the First Amendment if:(1) it does not have a secular purpose; (2)its principal or primary effect advances orinhibits religion; or (3) it creates an exces-sive entanglement of the government withreligion. U.S.C.A. Const.Amend. 1.


School district’s policy on teaching ofintelligent design in high school biologyclass, which required students to hear astatement mentioning intelligent design asan alternative to Darwin’s theory of evolu-tion, violated freedom of worship provisionof the Pennsylvania Constitution. Const.Art. 1, § 3.

8. Constitutional Law O84.5(3)It is unconstitutional under the Estab-

lishment Clause to teach intelligent designas an alternative to evolution in a publicschool science classroom. U.S.C.A. Const.Amend. 1.

Ayesha Khan, Richard B. Katskee, AlexJ. Luchenitser, Americans United for Spe-paration of Church and State, Washington,DC, Eric J. Rothschild, Stephen G. Har-vey, Alfred H. Wilcox, Joseph M. Farber,Eric J. Goldberg, Stacy I. Gregory, Chris-topher J. Lowe, Benjamin M. Mather,Pepper Hamilton LLP, Philadelphia, PA,Thomas B. Schmidt III, Pepper HamiltonLLP, Harrisburg, PA, Mary Catherine

Roper, American Civil Liberties Union ofPennsylvania, Philadelphia, PA, Paula KayKnudsen, American Civil Liberties Unionof Pennsylvania, Harrisburg, PA, Witold J.Walczak, American Civil Liberties Unionof Pennsylvania, Pittsburgh, PA, for Plain-tiffs.

Edward L. White, III, Julie Shotzbar-ger, Patrick T. Gillen, Richard Thompson,Robert J. Muise, Ann Arbor, MI, RonaldA. Turo, Turo Law Offices, Carlisle, PA,for Defendants.

MEMORANDUM OPINION

JONES, District Judge.

INTRODUCTION:

On October 18, 2004, the Defendant Do-ver Area School Board of Directors passedby a 6–3 vote the following resolution:

Students will be made aware ofgaps/problems in Darwin’s theory and ofother theories of evolution including, butnot limited to, intelligent design. Note:Origins of Life is not taught.

On November 19, 2004, the Defendant Do-ver Area School District announced bypress release that, commencing in January2005, teachers would be required to readthe following statement to students in theninth grade biology class at Dover HighSchool:

The Pennsylvania Academic Standardsrequire students to learn about Darwin’sTheory of Evolution and eventually totake a standardized test of which evolu-tion is a part.Because Darwin’s Theory is a theory, itcontinues to be tested as new evidence isdiscovered. The Theory is not a fact.Gaps in the Theory exist for which thereis no evidence. A theory is defined as awell-tested explanation that unifies abroad range of observations.Intelligent Design is an explanation ofthe origin of life that differs from Dar-


win’s view. The reference book, Of Pan-das and People, is available for studentswho might be interested in gaining anunderstanding of what Intelligent De-sign actually involves.With respect to any theory, students areencouraged to keep an open mind. Theschool leaves the discussion of the Ori-gins of Life to individual students andtheir families. As a Standards-drivendistrict, class instruction focuses uponpreparing students to achieve proficien-cy on Standards-based assessments.

A. Background and Procedural His-tory

On December 14, 2004, Plaintiffs filedthe instant suit challenging the constitu-tional validity of the October 18, 2004 reso-lution and November 19, 2004 press re-lease (collectively, ‘‘the ID Policy’’). It iscontended that the ID Policy constitutesan establishment of religion prohibited bythe First Amendment to the United StatesConstitution, which is made applicable tothe states by the Fourteenth Amendment,as well as the Constitution of the Common-wealth of Pennsylvania. Plaintiffs seekdeclaratory and injunctive relief, nominaldamages, costs, and attorneys’ fees.

This Court’s jurisdiction arises under 28U.S.C. §§ 1331, 1343, and 42 U.S.C.§ 1983. In addition, the power to issuedeclaratory judgments is expressed in 28U.S.C. §§ 2201 and 2202. This Court hassupplemental jurisdiction over Plaintiffs’cause of action arising under the Constitu-tion of the Commonwealth of Pennsylvaniapursuant to 28 U.S.C. § 1367. Venue isproper in this District under 28 U.S.C.§ 1391(b) because one or more Defendantsreside in this District, all Defendants re-side in the Commonwealth of Pennsylva-nia, and the events or omissions giving riseto the claims at issue occurred in thisDistrict.

For the reasons that follow, we hold thatthe ID Policy is unconstitutional pursuantto the Establishment Clause of the FirstAmendment of the United States Constitu-tion and Art. I, § 3 of the PennsylvaniaConstitution.

B. The Parties to the Action

We will now introduce the individualPlaintiffs and provide information regard-ing their acquaintance with the biologycurriculum controversy.1 Tammy Kitzmil-

1. Defendants again argue that certain Plain-tiffs lack standing and their claims shouldtherefore be dismissed. First, Defendantscontend that Plaintiffs Eveland and Sneathlack standing because their claims are notripe, based upon the age of their children.Defendants originally asserted this argumentin submissions regarding their previouslyfiled Motion to Dismiss. In our March 10,2005 Order disposing of such Motion, wediscussed that issue in detail and held thatPlaintiffs Eveland and Sneath should not bedismissed based upon ripeness grounds.(Rec. Doc. 41 at 21–23). We have been pre-sented with no reason to alter our prior rulingin this regard.

Defendants also argue that the CallahanPlaintiffs and Plaintiff Smith lack standingbased upon mootness grounds as their chil-dren have already passed the ninth grade. In

our March 10, 2005 Order, we addressed thisissue and found it premature to dismiss Plain-tiff Smith and the Callahan Plaintiffs. Weexplained that we would entertain a renewedmotion at a point at which the record is morefully developed. Id. at 23–25. In Defen-dants’ Motion for Summary Judgment theyraised the issue of standing by way of foot-note and subsequently raised it in their post-trial submissions. We find the cases cited byDefendants to be factually distinguishable andconclude that Defendants frame the Estab-lishment Clause claim far too narrowly. Al-though students subjected to the ID Policy inthe classroom are affected most directly,courts have never defined EstablishmentClause violations in public schools so narrow-ly as to limit standing to only those studentsimmediately subjected to the offensive con-tent. See Santa Fe Independent Sch. Dist. v.


ler, resident of Dover, Pennsylvania is aparent of a child in the ninth grade and achild in the eleventh grade at Dover HighSchool.2 She did not attend any Boardmeetings until November 2004 and firstlearned of the biology curriculum contro-versy from reading the local newspapers.Bryan and Christy Rehm, residents of Do-ver, Pennsylvania are parents of a child inthe eighth grade, a child in the secondgrade, a child in kindergarten in the DoverArea School District, and a child of pre-school age. They intend for their childrento attend Dover High School. BryanRehm learned of the biology curriculumcontroversy by virtue of being a memberof the science faculty at Dover Area HighSchool. Before and after his resignation,he regularly attended Board meetings.His wife, fellow Plaintiff Christy Rehmlearned of the biology curriculum contro-versy by virtue of discussions she had withher husband and also regularly attendedBoard meetings in 2004. Deborah F. Fen-imore and Joel A. Leib, residents of Dover,Pennsylvania are the parents of a child inthe twelfth grade at Dover High Schooland a child in the seventh grade in theDover Area School District. They intendfor their seventh grade child to attendDover High School. Leib first learned ofa change in the biology curriculum byreading local newspapers. Steven Stough,resident of Dover, Pennsylvania is a parentof a child in the eighth grade in the DoverArea School District and intends for hischild to attend Dover High School.Stough did not attend any Board meetingsuntil December 2004 and prior to that, hehad learned of the biology curriculumchange by reading the local newspapers.

Beth A. Eveland, resident of York, Penn-sylvania is a parent of a child in the firstgrade in the Dover Area School Districtand a child of pre-school age who intendsfor her children to attend Dover HighSchool. Eveland attended her first Boardmeeting on June 14, 2004. Prior to that,she had learned of the issues relating tothe purchase of the biology books fromreading the York Daily Record newspaper.Cynthia Sneath, resident of Dover, Penn-sylvania is a parent of a child in the firstgrade in the Dover Area School Districtand a child of pre-school age who intendsfor her children to attend Dover HighSchool. Sneath attended her first Boardmeeting on October 18, 2004 and prior tothat, she had learned of the biology curric-ulum controversy from reading the localnewspapers. Julie Smith, resident ofYork, Pennsylvania is a parent of a child inthe tenth grade at Dover High School.Smith did not attend a Board meeting in2004; she learned of and followed the biol-ogy curriculum controversy by reading thelocal newspapers. Aralene (hereinafter‘‘Barrie’’) Callahan and Frederick B. Calla-han, residents of Dover, Pennsylvania areparents of a child in the tenth grade atDover High School. Barrie Callahanlearned of the biology curriculum contro-versy by virtue of her status of a formerBoard member and from attending Boardmeetings. Fred Callahan learned of thebiology curriculum controversy based upondiscussions with his wife Barrie and fromattending Board meetings.

The Defendants include the Dover AreaSchool District (hereinafter ‘‘DASD’’) andDover Area School District Board of Di-rectors (hereinafter ‘‘the Board’’) (collec-

Doe, 530 U.S. 290, 313–14, 120 S.Ct. 2266,147 L.Ed.2d 295 (2000) (very adoption orpassage of a policy that violates the Establish-ment Clause represents a constitutional inju-ry). We therefore find that all Plaintiffs havestanding to bring their claims in this action.

2. We note that the ages of Plaintiffs’ childrenare expressed as of the time this lawsuit wasfiled in December 2004.


tively ‘‘Defendants’’). Defendant DASD isa municipal corporation governed by aboard of directors, which is the Board.The DASD is comprised of Dover Town-ship, Washington Township, and DoverBorough, all of which are located in YorkCounty, Pennsylvania. There are approxi-mately 3,700 students in the DASD, withapproximately 1,000 attending Dover HighSchool. (Joint Stip. of Fact ¶ 3).

The trial commenced September 26,2005 and continued through November 4,2005. This Memorandum Opinion consti-tutes the Court’s findings of fact and con-clusions of law which are based upon theCourt’s review of the evidence presentedat trial, the testimony of the witnesses attrial, the parties’ proposed findings of factand conclusions of law with supportingbriefs, other documents and evidence inthe record, and applicable law.3 Furtherorders and judgments will be in conformitywith this opinion.

C. Federal Jurisprudential LegalLandscape

As we will review the federal jurispru-dential legal landscape in detail below, wewill accordingly render only an abbreviat-ed summary of that terrain by way of anintroduction at this juncture. The reli-gious movement known as Fundamental-ism began in nineteenth century Americaas a response to social changes, new reli-gious thought and Darwinism. McLean v.

Ark. Bd. of Educ., 529 F.Supp. 1255, 1258(E.D.Ark.1982). Religiously motivatedgroups pushed state legislatures to adoptlaws prohibiting public schools from teach-ing evolution, culminating in the Scopes‘‘monkey trial’’ of 1925. McLean, 529F.Supp. at 1259; see Scopes v. State, 154Tenn. 105, 289 S.W. 363 (1927) (criminalprosecution of public-school teacher forteaching about evolution).

In 1968, a radical change occurred in thelegal landscape when in Epperson v. Ar-kansas, 393 U.S. 97, 89 S.Ct. 266, 21L.Ed.2d 228 (1968), the Supreme Courtstruck down Arkansas’s statutory prohibi-tion against teaching evolution. Religiousproponents of evolution thereafter champi-oned ‘‘balanced treatment’’ statutes requir-ing public-school teachers who taught evo-lution to devote equal time to teaching thebiblical view of creation; however, courtsrealized this tactic to be another attemptto establish the Biblical version of the cre-ation of man. Daniel v. Waters, 515 F.2d485 (6th Cir.1975).

Fundamentalist opponents of evolutionresponded with a new tactic suggested byDaniel’s reasoning which was ultimatelyfound to be unconstitutional under theFirst Amendment, namely, to utilize scien-tific-sounding language to describe reli-gious beliefs and then to require thatschools teach the resulting ‘‘creation sci-

3. The Court has received numerous letters,amicus briefs, and other forms of correspon-dence pertaining to this case. The only docu-ments submitted by third parties the Courthas considered, however, are those that havebecome an official part of the record. Consis-tent with the foregoing, the Court has takenunder consideration the following: (1) Briefof Amici Curiae Biologists and Other Scien-tists in Support of Defendants (doc. 245); (2)Revised Brief of Amicus Curiae, the DiscoveryInstitute (doc. 301); (3) Brief of Amicus Curi-ae the Foundation for Thought and Ethics

(doc. 309); and (4) Brief for Amicus CuriaeScipolicy Journal of Science and Health Poli-cy (doc. 312).

The Court accordingly grants the outstand-ing Motions for Leave to File Amicus Briefs,namely the Motion for Leave to File a RevisedAmicus Brief by The Discovery Institute (doc.301), the Motion for Leave to File AmicusBrief by The Foundation for Thought andEthics (doc. 309), and the Petition for Leaveto File Amicus Curiae Brief by Scipolicy Jour-nal of Science and Health Policy (doc. 312).


ence’’ or ‘‘scientific creationism’’ as an al-ternative to evolution.

In Edwards v. Aguillard, 482 U.S. 578,107 S.Ct. 2573, 96 L.Ed.2d 510 (1987), fiveyears after McLean, the Supreme Courtheld that a requirement that public schoolsteach ‘‘creation science’’ along with evolu-tion violated the Establishment Clause.The import of Edwards is that the Su-preme Court turned the proscriptionagainst teaching creation science in thepublic school system into a national prohi-bition.

D. Consideration of the Applicabilityof the Endorsement and LemonTests to Assess the Constitution-ality of the ID Policy

[1] Having briefly touched upon thesalient legal framework, it is evident thatas the cases and controversies haveevolved over time, so too has the methodol-ogy that courts employ in evaluating Es-tablishment Clause claims. We initiallyobserve that the Establishment Clause ofthe First Amendment of the United StatesConstitution provides that ‘‘Congress shallmake no law respecting an establishmentof religion, or prohibiting the free exercisethereof.’’ U.S. Const. amend. I. The pro-hibition against the establishment of reli-gion applies to the states through theFourteenth Amendment. Modrovich v.Allegheny County, 385 F.3d 397, 400 (3dCir.2004); see also Wallace v. Jaffree, 472U.S. 38, 49–50, 105 S.Ct. 2479, 86 L.Ed.2d29 (1985). The parties are in agreementthat an applicable test in the case subjudice to ascertain whether the challengedID Policy is unconstitutional under theFirst Amendment is that of Lemon v.Kurtzman, 403 U.S. 602, 91 S.Ct. 2125, 29L.Ed.2d 745 (1971), (hereinafter ‘‘the Lem-on test’’). See Edwards, 482 U.S. 578, 107S.Ct. 2573 (applying Lemon test to strikedown Louisiana’s ‘‘Creationism Act’’); see

also Epperson, 393 U.S. 97, 89 S.Ct. 266(considering the purpose and the primaryeffect of an Arkansas statute forbiddingthe teaching of evolution in public schools).Defendants, however, object to using theendorsement test, first arguing that it ap-plies only to religious-display cases andmost recently asserting that it applies tolimited Establishment Clause cases, in-cluding a policy or practice in questionthat involves: a facially religious display,an overtly religious group or organizationusing government facilities, the provisionof public funding or government resourcesto overly religious groups engaged in reli-gious activity, or the permission of anovertly religious practice.

After a searching review of SupremeCourt and Third Circuit Court of Appealsprecedent, it is apparent to this Court thatboth the endorsement test and the Lemontest should be employed in this case toanalyze the constitutionality of the ID Poli-cy under the Establishment Clause, for thereasons that follow.

Since a majority of the Supreme Courtfirst implemented the endorsement test inCounty of Allegheny v. ACLU, 492 U.S.573, 109 S.Ct. 3086, 106 L.Ed.2d 472(1989), the Supreme Court and the ThirdCircuit have consistently applied the testto all types of Establishment Clause cases,notably cases involving religion in public-school settings. In Santa Fe IndependentSch. Dist. v. Doe, 530 U.S. 290, 120 S.Ct.2266, 147 L.Ed.2d 295 (2000), the SupremeCourt applied the endorsement test toschool-sponsored prayer at high schoolfootball games. In Santa Fe, the SupremeCourt clearly defined the endorsement testby noting that ‘‘[i]n cases involving stateparticipation in a religious activity, one ofthe relevant questions is ‘whether an ob-jective observer, acquainted with the text,legislative history, and implementation ofthe statute, would perceive it as a state


endorsement of prayer in public schools.’ ’’Id. at 308, 120 S.Ct. 2266. The SupremeCourt then provided a more concrete ex-planation of how the test functions in thepublic-school context, explaining that:

School sponsorship of a religious mes-sage is impermissible because it sendsthe ancillary message to members of theaudience who are nonadherents ‘‘thatthey are outsiders, not full members ofthe political community, and an accom-panying message to adherents that theyare insiders, favored members of thepolitical community.’’

Id. at 309–10, 120 S.Ct. 2266 (quotingLynch v. Donnelly, 465 U.S. 668, 688, 104S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Con-nor, J., concurring)). In Zelman v. Sim-mons–Harris, 536 U.S. 639, 652–53, 122S.Ct. 2460, 153 L.Ed.2d 604 (2002), theSupreme Court applied the endorsementtest to a school-voucher program. InGood News Club v. Milford Cent. Sch., 533U.S. 98, 118–19, 121 S.Ct. 2093, 150L.Ed.2d 151 (2001), the Supreme Courtapplied the test to a school district’s policyregarding a religious student club meetingon school property. In Mitchell v. Helms,530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed.2d660 (2000), and Agostini v. Felton, 521U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391(1997), the Supreme Court applied the testto programs providing governmental aid toparochial schools. In Rosenberger v. Rec-tor & Visitors of the University of Virgi-nia, 515 U.S. 819, 841–42, 115 S.Ct. 2510,132 L.Ed.2d 700 (1995), the SupremeCourt applied the endorsement test to apublic university’s policy regarding fund-ing a religious student newspaper.

Defendants maintain that this Courtshould not apply the endorsement test tothe challenged ID Policy because the Su-preme Court did not apply the test to thecreationism statutes at issue in Eppersonand Edwards. As Plaintiffs aptly state

however, Epperson was decided in 1968,five years before Lemon, and accordinglynearly two decades before Justice O’Con-nor first began to articulate the endorse-ment test as a way to conceptualize Lem-on. In addition, not only did Edwardslikewise pre-date the test’s adoption in Al-legheny, but contrary to Defendants’ as-sertion, the Supreme Court did invoke atleast the endorsement concept in thatcase. See Edwards, 482 U.S. at 585, 107S.Ct. 2573 (‘‘If the law was enacted forthe purpose of endorsing religion, ‘no con-sideration of the second or third criteria[of Lemon ] is necessary.’ ’’) (quoting Wal-lace, 472 U.S. at 56, 105 S.Ct. 2479).Moreover, it is notable that Edwards wasa ‘‘purpose’’ case, so it would have beenunnecessary for the Supreme Court todelve into a full-scale endorsement analy-sis even had the test existed at the time,as the test is most closely associated withLemon’s ‘‘effect’’ prong, rather than its‘‘purpose’’ prong.

A review of the above cited SupremeCourt cases reveals that none of theminvolve a challenge to a religious display,yet in each such case, the Supreme Courtreviewed the challenged governmental con-duct to ascertain whether it constitutedreligious endorsement. Additionally, ineach cited case, the Supreme Court re-viewed a public school district’s, or publicuniversity’s, policy touching on religion. Itis readily apparent to this Court thatbased upon Supreme Court precedent, theendorsement test must be utilized by us inour resolution of this case.

Applicable Third Circuit Court of Ap-peals precedent regarding application ofthe endorsement test to cases involvingpublic school policies confirms our conclu-sion regarding its applicability to the in-stant dispute. In Child Evangelism Fel-lowship v. Stafford Township Sch. Dist.,386 F.3d 514 (3d Cir.2004), the Third Cir-cuit employed the endorsement test in con-


sidering whether a public school districtwould violate the Establishment Clause ifit permitted religious groups to access stu-dents through a take-home-flyer system ora back-to-school night event. Also, inACLU v. Black Horse Pike Reg’l Bd. ofEduc., 84 F.3d 1471 (3d Cir.1996), theThird Circuit applied the endorsement testin considering a challenge to a schoolboard policy concerning whether prayerwould be included in high school gradua-tion ceremonies. In Black Horse Pike, theThird Circuit clearly stated that its dutywas to ‘‘determine whether, under the to-tality of the circumstances, the challengedpractice conveys a message favoring ordisfavoring religion.’’ Id. at 1486.

Our next task is to determine how toapply both the endorsement test and theLemon test to the ID Policy. We are inagreement with Plaintiffs that the betterpractice is to treat the endorsement inqui-ry as a distinct test to be applied separate-ly from, and prior to, the Lemon test. Inrecent Third Circuit cases, specifically,Freethought Society v. Chester County,334 F.3d 247, 261 (3d Cir.2003), Modro-vich, 385 F.3d at 401–04, 406–13, and ChildEvangelism, 386 F.3d at 530–35, the courtadopted the practice of applying bothtests. The Third Circuit conducted theendorsement inquiry first and subsequent-ly measured the challenged conductagainst Lemon’s ‘‘purpose’’ and ‘‘effect’’standards.4

We will therefore initially analyze theconstitutionality of the ID Policy under theendorsement test and will then proceed tothe Lemon test as it applies to this case.

E. Application of the EndorsementTest to the ID Policy

[2] The endorsement test recognizesthat when government transgresses the

limits of neutrality and acts in ways thatshow religious favoritism or sponsorship, itviolates the Establishment Clause. AsJustice O’Connor first elaborated on thisissue, the endorsement test was a gloss onLemon that encompassed both the purposeand effect prongs:

The central issue in this case is whether[the government] has endorsed [religion]by its [actions].

To answer that question, we must exam-ine both what [the government] intendedto communicate TTT and what message[its conduct] actually conveyed. Thepurpose and effect prongs of the Lemontest represent these two aspects of themeaning of the [government’s] action.

Lynch, 465 U.S. at 690, 104 S.Ct. 1355(O’Connor, J., concurring).

[3, 4] As the endorsement test devel-oped through application, it is now primar-ily a lens through which to view ‘‘effect,’’with purpose evidence being relevant tothe inquiry derivatively. In Allegheny, theSupreme Court instructed that the word‘‘endorsement is not self-defining’’ and fur-ther elaborated that it derives its meaningfrom other words that the Court has founduseful over the years in interpreting theEstablishment Clause. 492 U.S. at 593,109 S.Ct. 3086. The endorsement testemanates from the ‘‘prohibition againstgovernment endorsement of religion’’ andit ‘‘preclude[s] government from conveyingor attempting to convey a message thatreligion or a particular religious belief isfavored or preferred.’’ Id. (citations omit-ted) (emphasis in original). The test con-sists of the reviewing court determiningwhat message a challenged governmental

4. We do note that because of the evolvingcaselaw regarding which tests to apply, the‘‘belt and suspenders’’ approach of utilizing

both tests makes good sense. That said, itregrettably tasks us to make this narrative farlonger than we would have preferred.


policy or enactment conveys to a reason-able, objective observer who knows thepolicy’s language, origins, and legislativehistory, as well as the history of the com-munity and the broader social and histori-cal context in which the policy arose.McCreary County, Ky. v. ACLU, ––– U.S.––––, 125 S.Ct. 2722, 2736–37, 162 L.Ed.2d729 (2005) (objective observer ‘‘presumedto be familiar with the history of the gov-ernment’s actions and competent to learnwhat history has to show’’); Santa Fe, 530U.S. at 308, 120 S.Ct. 2266 (objective ob-server familiar with ‘‘implementation of’’governmental action); Selman, 390F.Supp.2d at 1306 (objective observer ‘‘fa-miliar with the origins and context of thegovernment-sponsored message at issueand the history of the community wherethe message is displayed’’).

In elaborating upon this ‘‘reasonable ob-server,’’ the Third Circuit explained in Mo-drovich, 385 F.3d at 407, that ‘‘the reason-able observer is an informed citizen who ismore knowledgeable than the average pas-serby.’’ Moreover, in addition to knowingthe challenged conduct’s history, the ob-server is deemed able to ‘‘glean other rele-vant facts’’ from the face of the policy inlight of its context. Id. at 407; accordCapitol Square Review & Advisory Bd. v.Pinette, 515 U.S. 753, 779–781, 115 S.Ct.2440, 132 L.Ed.2d 650 (1995) (O’Connor, J.,concurring). Knowing the challenged poli-cy’s legislative history, the community’shistory, and the broader social and histori-cal context in which the policy arose, theobjective observer thus considers the pub-licly available evidence relevant to the pur-pose inquiry, but notably does not do so toascertain, strictly speaking, what the gov-ernmental purpose actually was. See, e.g.,Selman, 390 F.Supp.2d at 1306–07. In-stead, the observer looks to that evidenceto ascertain whether the policy ‘‘in factconveys a message of endorsement or dis-approval’’ of religion, irrespective of what

the government might have intended by it.Lynch, 465 U.S. at 690, 104 S.Ct. 1355(O’Connor, J., concurring) (‘‘The centralissue in this case is whether [government]has endorsed Christianity by its [actions].To answer that question, we must examineboth what [the government] intended tocommunicate TTT and what message [itsconduct] actually conveyed. The purposeand effect prongs of the Lemon test repre-sent these two aspects of the meaning ofthe [government’s] action.’’); Freiler v.Tangipahoa Parish Bd. of Educ., 975F.Supp. 819 (E.D.La.1997), aff’d, 185 F.3d337 (5th Cir.1999); Selman, 390 F.Supp.2dat 1305–06.

We must now ascertain whether the IDPolicy ‘‘in fact conveys a message of en-dorsement or disapproval’’ of religion, withthe reasonable, objective observer beingthe hypothetical construct to consider thisissue. Lynch, 465 U.S. at 690, 104 S.Ct.1355 (O’Connor, J., concurring). As theendorsement test is designed to ascertainthe objective meaning of the statementthat the District’s conduct communicatedin the community by focusing on how ‘‘themembers of the listening audience’’ per-ceived the conduct, two inquiries must bemade based upon the circumstances of thiscase. Santa Fe, 530 U.S. at 308, 120 S.Ct.2266. First, we will consider ‘‘the messageconveyed by the disclaimer to the studentswho are its intended audience,’’ from theperspective of an objective Dover AreaHigh School student. At a minimum, thepertinent inquiry is whether an ‘‘objectiveobserver’’ in the position of a student ofthe relevant age would ‘‘perceive officialschool support’’ for the religious activity inquestion. Verbena United MethodistChurch v. Chilton County Bd. of Educ.,765 F.Supp. 704, 711 (M.D.Ala.1991) (quot-ing Bd. of Educ. of Westside Comm.Schools v. Mergens, 496 U.S. 226, 249, 110S.Ct. 2356, 110 L.Ed.2d 191 (1990)). We


find it incumbent upon the Court to addi-tionally judge Defendants’ conduct fromthe standpoint of a reasonable, objectiveadult observer. This conclusion is based,in part, upon the revelation at trial that anewsletter explaining the ID Policy in de-tail was mailed by the Board to everyhousehold in the District, as well as theBoard members’ discussion and defense ofthe curriculum change in public schoolboard meetings and in the media.

1. An Objective Observer WouldKnow that ID and Teaching About‘‘Gaps’’ and ‘‘Problems’’ in Evolu-tionary Theory are Creationist,Religious Strategies that Evolvedfrom Earlier Forms of Creationism

The history of the intelligent designmovement (hereinafter ‘‘IDM’’) and the de-velopment of the strategy to weaken edu-cation of evolution by focusing students onalleged gaps in the theory of evolution isthe historical and cultural backgroundagainst which the Dover School Board act-ed in adopting the challenged ID Policy.As a reasonable observer, whether adult orchild, would be aware of this social contextin which the ID Policy arose, and suchcontext will help to reveal the meaning ofDefendants’ actions, it is necessary totrace the history of the IDM.

It is essential to our analysis that wenow provide a more expansive account ofthe extensive and complicated federal jur-isprudential legal landscape concerning op-position to teaching evolution, and its his-torical origins. As noted, such oppositiongrew out of a religious tradition, ChristianFundamentalism that began as part ofevangelical Protestantism’s response to,among other things, Charles Darwin’s ex-position of the theory of evolution as ascientific explanation for the diversity ofspecies. McLean, 529 F.Supp. at 1258;see also, e.g., Edwards, 482 U.S. at 590–92,

107 S.Ct. 2573. Subsequently, as the Unit-ed States Supreme Court explained in Ep-person, in an ‘‘upsurge of fundamentalistreligious fervor of the twenties,’’ 393 U.S.at 98, 89 S.Ct. 266 (citations omitted), statelegislatures were pushed by religiouslymotivated groups to adopt laws prohibitingpublic schools from teaching evolution.McLean, 529 F.Supp. at 1259; see Scopes,154 Tenn. 105, 289 S.W. 363 (1927). Be-tween the 1920’s and early 1960’s, anti-evolutionary sentiment based upon a reli-gious social movement resulted in formallegal sanctions to remove evolution fromthe classroom. McLean, 529 F.Supp. at1259 (discussing a subtle but pervasiveinfluence that resulted from anti-evolution-ary sentiment concerning teaching biologyin public schools).

As we previously noted, the legal land-scape radically changed in 1968 when theSupreme Court struck down Arkansas’sstatutory prohibition against teaching evo-lution in Epperson, 393 U.S. 97, 89 S.Ct.266. Although the Arkansas statute atissue did not include direct references tothe Book of Genesis or to the fundamental-ist view that religion should be protectedfrom science, the Supreme Court conclud-ed that ‘‘the motivation of the [Arkansas]law was the same TTT: to suppress theteaching of a theory which, it was thought,‘denied’ the divine creation of man.’’ Ed-wards, 482 U.S. at 590, 107 S.Ct. 2573(quoting Epperson, 393 U.S. at 109, 89S.Ct. 266) (Arkansas sought to prevent itsteachers from discussing the theory of evo-lution as it is contrary to the belief of someregarding the Book of Genesis.).

Post-Epperson, evolution’s religious op-ponents implemented ‘‘balanced treat-ment’’ statutes requiring public schoolteachers who taught evolution to devoteequal time to teaching the biblical view ofcreation; however, such statutes did notpass constitutional muster under the Es-


tablishment Clause. See, e.g., Daniel, 515F.2d at 487, 489, 491. In Daniel, the SixthCircuit Court of Appeals held that by as-signing a ‘‘preferential position for theBiblical version of creation’’ over ‘‘any ac-count of the development of man based onscientific research and reasoning,’’ thechallenged statute officially promoted reli-gion, in violation of the EstablishmentClause. Id. at 489.

Next, and as stated, religious opponentsof evolution began cloaking religious be-liefs in scientific sounding language andthen mandating that schools teach the re-sulting ‘‘creation science’’ or ‘‘scientific cre-ationism’’ as an alternative to evolution.However, this tactic was likewise unsuc-cessful under the First Amendment.‘‘Fundamentalist organizations wereformed to promote the idea that the Bookof Genesis was supported by scientificdata. The terms ‘creation science’ and‘scientific creationism’ have been adoptedby these Fundamentalists as descriptive oftheir study of creation and the origins ofman.’’ McLean, 529 F.Supp. at 1259. In1982, the district court in McLean re-viewed Arkansas’s balanced-treatment lawand evaluated creation science in light ofScopes, Epperson, and the long history ofFundamentalism’s attack on the scientifictheory of evolution, as well as the statute’slegislative history and historical context.The court found that creation science or-ganizations were fundamentalist religiousentities that ‘‘consider[ed] the introductionof creation science into the public schoolspart of their ministry.’’ Id. at 1260. Thecourt in McLean stated that creation sci-ence rested on a ‘‘contrived dualism’’ thatrecognized only two possible explanationsfor life, the scientific theory of evolutionand biblical creationism, treated the two asmutually exclusive such that ‘‘one musteither accept the literal interpretation ofGenesis or else believe in the godless sys-tem of evolution,’’ and accordingly viewed

any critiques of evolution as evidence thatnecessarily supported biblical creationism.Id. at 1266. The court concluded thatcreation science ‘‘is simply not science’’because it depends upon ‘‘supernatural in-tervention,’’ which cannot be explained bynatural causes, or be proven through em-pirical investigation, and is therefore nei-ther testable nor falsifiable. Id. at 1267.Accordingly, the United States DistrictCourt for the Eastern District of Arkansasdeemed creation science as merely biblicalcreationism in a new guise and held thatArkansas’ balanced-treatment statutecould have no valid secular purpose oreffect, served only to advance religion, andviolated the First Amendment. Id. at1264, 1272–74.

Five years after McLean was decided, in1987, the Supreme Court struck downLouisiana’s balanced-treatment law in Ed-wards for similar reasons. After a thor-ough analysis of the history of fundamen-talist attacks against evolution, as well asthe applicable legislative history includingstatements made by the statute’s sponsor,and taking the character of organizationsadvocating for creation science into consid-eration, the Supreme Court held that thestate violated the Establishment Clause by‘‘restructur[ing] the science curriculum toconform with a particular religious view-point.’’ Edwards, 482 U.S. at 593, 107S.Ct. 2573.

Among other reasons, the SupremeCourt in Edwards concluded that the chal-lenged statute did not serve the legisla-ture’s professed purposes of encouragingacademic freedom and making the sciencecurriculum more comprehensive by ‘‘teach-ing all of the evidence’’ regarding originsof life because: the state law already al-lowed schools to teach any scientific theo-ry, which responded to the alleged purposeof academic freedom; and if the legislaturereally had intended to make science edu-


cation more comprehensive, ‘‘it would haveencouraged the teaching of all scientifictheories about the origins of humankind’’rather than permitting schools to foregoteaching evolution, but mandating thatschools that teach evolution must alsoteach creation science, an inherently reli-gious view. Id. at 586, 588–89, 107 S.Ct.2573. The Supreme Court further heldthat the belief that a supernatural creatorwas responsible for the creation of humankind is a religious viewpoint and that theAct at issue ‘‘advances a religious doctrineby requiring either the banishment of thetheory of evolution from public schoolclassrooms or the presentation of a reli-gious viewpoint that rejects evolution in itsentirety.’’ Id. at 591, 596, 107 S.Ct. 2573.Therefore, as noted, the import of Ed-wards is that the Supreme Court madenational the prohibition against teachingcreation science in the public school sys-tem.

The concept of intelligent design (here-inafter ‘‘ID’’), in its current form, cameinto existence after the Edwards case wasdecided in 1987. For the reasons thatfollow, we conclude that the religious na-ture of ID would be readily apparent to anobjective observer, adult or child.

We initially note that John Haught, atheologian who testified as an expert wit-ness for Plaintiffs and who has writtenextensively on the subject of evolution andreligion, succinctly explained to the Courtthat the argument for ID is not a newscientific argument, but is rather an oldreligious argument for the existence ofGod. He traced this argument back to atleast Thomas Aquinas in the 13th century,who framed the argument as a syllogism:Wherever complex design exists, theremust have been a designer; nature is com-plex; therefore nature must have had anintelligent designer. (Trial Tr. vol. 9,Haught Test., 7–8, Sept. 30, 2005). Dr.

Haught testified that Aquinas was explicitthat this intelligent designer ‘‘everyone un-derstands to be God.’’ Id. The syllogismdescribed by Dr. Haught is essentially thesame argument for ID as presented bydefense expert witnesses Professors Beheand Minnich who employ the phrase ‘‘pur-poseful arrangement of parts.’’

Dr. Haught testified that this argumentfor the existence of God was advancedearly in the 19th century by ReverendPaley and defense expert witnesses Beheand Minnich admitted that their argumentfor ID based on the ‘‘purposeful arrange-ment of parts’’ is the same one that Paleymade for design. (9:7–8 (Haught); TrialTr. vol. 23, Behe Test., 55–57, Oct. 19,2005; Trial Tr. vol. 38, Minnich Test., 44,Nov. 4, 2005). The only apparent differ-ence between the argument made by Paleyand the argument for ID, as expressed bydefense expert witnesses Behe and Min-nich, is that ID’s ‘‘official position’’ doesnot acknowledge that the designer is God.However, as Dr. Haught testified, anyonefamiliar with Western religious thoughtwould immediately make the associationthat the tactically unnamed designer isGod, as the description of the designer inOf Pandas and People (hereinafter ‘‘Pan-das ’’) is a ‘‘master intellect,’’ strongly sug-gesting a supernatural deity as opposed toany intelligent actor known to exist in thenatural world. (P–11 at 85). Moreover, itis notable that both Professors Behe andMinnich admitted their personal view isthat the designer is God and ProfessorMinnich testified that he understandsmany leading advocates of ID to believethe designer to be God. (21:90 (Behe);38:36–38 (Minnich)).

Although proponents of the IDM occa-sionally suggest that the designer could bea space alien or a time-traveling cell biolo-gist, no serious alternative to God as thedesigner has been proposed by members


of the IDM, including Defendants’ expertwitnesses. (20:102–03 (Behe)). In fact, anexplicit concession that the intelligent de-signer works outside the laws of natureand science and a direct reference to reli-gion is Pandas ’ rhetorical statement,‘‘what kind of intelligent agent was it [thedesigner]’’ and answer: ‘‘On its own sci-ence cannot answer this question. It mustleave it to religion and philosophy.’’ (P–11at 7; 9:13–14 (Haught)).

A significant aspect of the IDM is thatdespite Defendants’ protestations to thecontrary, it describes ID as a religiousargument. In that vein, the writings ofleading ID proponents reveal that the de-signer postulated by their argument is theGod of Christianity. Dr. Barbara Forrest,one of Plaintiffs’ expert witnesses, is theauthor of the book Creationism’s TrojanHorse. She has thoroughly and exhaus-tively chronicled the history of ID in herbook and other writings for her testimonyin this case. Her testimony, and the ex-hibits which were admitted with it, providea wealth of statements by ID leaders thatreveal ID’s religious, philosophical, andcultural content. The following is a repre-sentative grouping of such statementsmade by prominent ID proponents.5

Phillip Johnson, considered to be thefather of the IDM, developer of ID’s‘‘Wedge Strategy,’’ which will be discussedbelow, and author of the 1991 book entitledDarwin on Trial, has written that ‘‘theisticrealism’’ or ‘‘mere creation’’ are definingconcepts of the IDM. This means ‘‘thatGod is objectively real as Creator andrecorded in the biological evidence TTT’’(Trial Tr. vol. 10, Forrest Test., 80–81, Oct.5, 2005; P–328). In addition, Phillip John-son states that the ‘‘Darwinian theory ofevolution contradicts not just the Book ofGenesis, but every word in the Bible frombeginning to end. It contradicts the ideathat we are here because a creatorbrought about our existence for a pur-pose.’’ (11:16–17 (Forrest); P–524 at 1).ID proponents Johnson, William Dembski,and Charles Thaxton, one of the editors ofPandas, situate ID in the Book of John inthe New Testament of the Bible, whichbegins, ‘‘In the Beginning was the Word,and the Word was God.’’ (11:18–20, 54–55(Forrest); P–524; P–355; P–357). Demb-ski has written that ID is a ‘‘ground clear-ing operation’’ to allow Christianity to re-ceive serious consideration, and ‘‘Christ isnever an addendum to a scientific theorybut always a completion.’’ (11:50–53 (For-

5. Defendants contend that the Court shouldignore all evidence of ID’s lineage and reli-gious character because the Board membersdo not personally know Jon Buell, Presidentof the Foundation for Thought and Ethics(hereinafter ‘‘FTE’’), the publisher of Pandas,or Phillip Johnson, nor are they familiar withthe Wedge Document or the drafting historyof Pandas. Defendants’ argument lacks meritlegally and logically.

The evidence that Defendants are askingthis Court to ignore is exactly the sort that thecourt in McLean considered and found dis-positive concerning the question of whethercreation science was a scientific view thatcould be taught in public schools, or a reli-gious one that could not. The McLean courtconsidered writings and statements by cre-ation science advocates like Henry Morris

and Duane Gish, as well as the activities andmission statements of creationist think-tankslike the Biblic Science Association, the Insti-tution for Creation Research, and the Cre-ation Science Research Center. McLean, 529F.Supp. at 1259–60. The court did not makethe relevance of such evidence conditional onwhether the Arkansas Board of Educationknew the information. Instead, the courttreated the evidence as speaking directly tothe threshold question of what creation sci-ence was. Moreover, in Edwards, the Su-preme Court adopted McLean’s analysis ofsuch evidence without reservation, and with-out any discussion of which details about cre-ation science the defendant school board ac-tually knew. Edwards, 482 U.S. at 590 n. 9,107 S.Ct. 2573.


rest); P–386; P–390). Moreover, in turn-ing to Defendants’ lead expert, ProfessorBehe, his testimony at trial indicated thatID is only a scientific, as opposed to areligious, project for him; however, consid-erable evidence was introduced to refutethis claim. Consider, to illustrate, thatProfessor Behe remarkably and unmistak-ably claims that the plausibility of theargument for ID depends upon the extentto which one believes in the existence ofGod. (P–718 at 705) (emphasis added). Asno evidence in the record indicates thatany other scientific proposition’s validityrests on belief in God, nor is the Courtaware of any such scientific propositions,Professor Behe’s assertion constitutes sub-stantial evidence that in his view, as iscommensurate with other prominent IDleaders, ID is a religious and not a scienti-fic proposition.

Dramatic evidence of ID’s religious na-ture and aspirations is found in what isreferred to as the ‘‘Wedge Document.’’The Wedge Document, developed by theDiscovery Institute’s Center for Renewalof Science and Culture (hereinafter‘‘CRSC’’), represents from an institutionalstandpoint, the IDM’s goals and objectives,much as writings from the Institute forCreation Research did for the earlier cre-ation-science movement, as discussed inMcLean. (11:26–28 (Forrest)); McLean,529 F.Supp. at 1255. The Wedge Docu-ment states in its ‘‘Five Year StrategicPlan Summary’’ that the IDM’s goal is toreplace science as currently practiced with‘‘theistic and Christian science.’’ (P–140 at6). As posited in the Wedge Document,the IDM’s ‘‘Governing Goals’’ are to ‘‘de-feat scientific materialism and its destruc-tive moral, cultural, and political legacies’’and ‘‘to replace materialistic explanationswith the theistic understanding that natureand human beings are created by God.’’ Id.at 4. The CSRC expressly announces, inthe Wedge Document, a program of Chris-

tian apologetics to promote ID. A carefulreview of the Wedge Document’s goals andlanguage throughout the document revealscultural and religious goals, as opposed toscientific ones. (11:26–48 (Forrest); P–140). ID aspires to change the groundrules of science to make room for religion,specifically, beliefs consonant with a par-ticular version of Christianity.

In addition to the IDM itself describingID as a religious argument, ID’s religiousnature is evident because it involves asupernatural designer. The courts in Ed-wards and McLean expressly found thatthis characteristic removed creationismfrom the realm of science and made it areligious proposition. Edwards, 482 U.S.at 591–92, 107 S.Ct. 2573; McLean, 529F.Supp. at 1265–66. Prominent ID propo-nents have made abundantly clear that thedesigner is supernatural.

Defendants’ expert witness ID propo-nents confirmed that the existence of asupernatural designer is a hallmark of ID.First, Professor Behe has written that byID he means ‘‘not designed by the laws ofnature,’’ and that it is ‘‘implausible that thedesigner is a natural entity.’’ (P–647 at193; P–718 at 696, 700). Second, Profes-sor Minnich testified that for ID to beconsidered science, the ground rules ofscience have to be broadened so thatsupernatural forces can be considered.(38:97 (Minnich)). Third, Professor StevenWilliam Fuller testified that it is ID’s pro-ject to change the ground rules of scienceto include the supernatural. (Trial Tr. vol.28, Fuller Test., 20–24, Oct. 24, 2005).Turning from defense expert witnesses toleading ID proponents, Johnson has con-cluded that science must be redefined toinclude the supernatural if religious chal-lenges to evolution are to get a hearing.(11:8–15 (Forrest); P–429). Additionally,Dembski agrees that science is ruled bymethodological naturalism and argues that


this rule must be overturned if ID is toprosper. (Trial Tr. vol. 5, Pennock Test.,32–34, Sept. 28, 2005).

Further support for the proposition thatID requires supernatural creation is foundin the book Pandas, to which students inDover’s ninth grade biology class are di-rected. Pandas indicates that there aretwo kinds of causes, natural and intelli-gent, which demonstrate that intelligentcauses are beyond nature. (P–11 at 6).Professor Haught, who as noted was theonly theologian to testify in this case, ex-plained that in Western intellectual tradi-tion, non-natural causes occupy a spacereserved for ultimate religious explana-tions. (9:13–14 (Haught)). Robert Pen-nock, Plaintiffs’ expert in the philosophy ofscience, concurred with Professor Haughtand concluded that because its basic prop-osition is that the features of the naturalworld are produced by a transcendent, im-material, non-natural being, ID is a reli-gious proposition regardless of whetherthat religious proposition is given a recog-nized religious label. (5:55–56 (Pennock)).It is notable that not one defense expertwas able to explain how the supernaturalaction suggested by ID could be anythingother than an inherently religious proposi-tion. Accordingly, we find that ID’s reli-gious nature would be further evident toour objective observer because it directlyinvolves a supernatural designer.

A ‘‘hypothetical reasonable observer,’’adult or child, who is ‘‘aware of the historyand context of the community and forum’’is also presumed to know that ID is a formof creationism. Child Evangelism, 386F.3d at 531 (citations omitted); Allegheny,492 U.S. at 624–25, 109 S.Ct. 3086. Theevidence at trial demonstrates that ID isnothing less than the progeny of creation-ism. What is likely the strongest evidencesupporting the finding of ID’s creationistnature is the history and historical pedi-

gree of the book to which students inDover’s ninth grade biology class are re-ferred, Pandas. Pandas is published byan organization called FTE, as noted,whose articles of incorporation and filingswith the Internal Revenue Service de-scribe it as a religious, Christian organiza-tion. (P–461; P–28; P–566; P–633; BuellDep. 1:13, July 8, 2005). Pandas was writ-ten by Dean Kenyon and Percival Davis,both acknowledged creationists, and Nan-cy Pearcey, a Young Earth Creationist,contributed to the work. (10:102–08 (For-rest)).

As Plaintiffs meticulously and effectivelypresented to the Court, Pandas wentthrough many drafts, several of whichwere completed prior to and some afterthe Supreme Court’s decision in Edwards,which held that the Constitution forbidsteaching creationism as science. By com-paring the pre and post Edwards drafts ofPandas, three astonishing points emerge:(1) the definition for creation science inearly drafts is identical to the definition ofID; (2) cognates of the word creation (cre-ationism and creationist), which appearedapproximately 150 times were deliberatelyand systematically replaced with thephrase ID; and (3) the changes occurredshortly after the Supreme Court held thatcreation science is religious and cannot betaught in public school science classes inEdwards. This word substitution is tell-ing, significant, and reveals that a purpose-ful change of words was effected withoutany corresponding change in content,which directly refutes FTE’s argumentthat by merely disregarding the words‘‘creation’’ and ‘‘creationism,’’ FTE ex-pressly rejected creationism in Pandas.In early pre-Edwards drafts of Pandas,the term ‘‘creation’’ was defined as ‘‘vari-ous forms of life that began abruptlythrough an intelligent agency with theirdistinctive features intact—fish with finsand scales, birds with feathers, beaks, and


wings, etc,’’ the very same way in whichID is defined in the subsequent publishedversions. (P–560 at 210; P–1 at 2–13; P–562 at 2–14, P–652 at 2–15; P–6 at 99–100;P–11 at 99–100; P–856.2.). This definitionwas described by many witnesses for bothparties, notably including defense expertsMinnich and Fuller, as ‘‘special creation’’of kinds of animals, an inherently religiousand creationist concept. (28:85–86 (Full-er); Minnich Dep. at 34, May 26, 2005;Trial Tr. vol. 1, Miller Test., 141–42, Sept.26, 2005; 9:10 (Haught); Trial Tr. vol. 33,Bonsell Test., 54–56, Oct. 31, 2005). Pro-fessor Behe’s assertion that this passagewas merely a description of appearancesin the fossil record is illogical and defiesthe weight of the evidence that the pas-sage is a conclusion about how life beganbased upon an interpretation of the fossilrecord, which is reinforced by the contentof drafts of Pandas.

The weight of the evidence clearly dem-onstrates, as noted, that the systemicchange from ‘‘creation’’ to ‘‘intelligent de-sign’’ occurred sometime in 1987, after theSupreme Court’s important Edwards deci-sion. This compelling evidence stronglysupports Plaintiffs’ assertion that ID iscreationism re-labeled. Importantly, theobjective observer, whether adult or child,would conclude from the fact that Pandasposits a master intellect that the intelligentdesigner is God.

Further evidence in support of the con-clusion that a reasonable observer, adultor child, who is ‘‘aware of the history andcontext of the community and forum’’ ispresumed to know that ID is a form ofcreationism concerns the fact that ID usesthe same, or exceedingly similar argu-ments as were posited in support of cre-ationism. One significant difference isthat the words ‘‘God,’’ ‘‘creationism,’’ and‘‘Genesis’’ have been systematically purgedfrom ID explanations, and replaced by an

unnamed ‘‘designer.’’ Dr. Forrest testi-fied and sponsored exhibits showing six ar-guments common to creationists. (10:140–48 (Forrest); P–856.5–856.10). Demons-trative charts introduced through Dr. For-rest show parallel arguments relating tothe rejection of naturalism, evolution’sthreat to culture and society, ‘‘abrupt ap-pearance’’ implying divine creation, the ex-ploitation of the same alleged gaps in thefossil record, the alleged inability of sci-ence to explain complex biological informa-tion like DNA, as well as the theme thatproponents of each version of creationismmerely aim to teach a scientific alternativeto evolution to show its ‘‘strengths andweaknesses,’’ and to alert students to asupposed ‘‘controversy’’ in the scientificcommunity. (10:140–48 (Forrest)). In ad-dition, creationists made the same argu-ment that the complexity of the bacterialflagellum supported creationism as Profes-sors Behe and Minnich now make for ID.(P–853; P–845; 37:155–56 (Minnich)).The IDM openly welcomes adherents tocreationism into its ‘‘Big Tent,’’ urgingthem to postpone biblical disputes like theage of the earth. (11:3–15 (Forrest); P–429). Moreover and as previously stated,there is hardly better evidence of ID’s re-lationship with creationism than an explicitstatement by defense expert Fuller thatID is a form of creationism. (Fuller Dep.at 67, June 21, 2005) (indicated that ID isa modern view of creationism).

Although contrary to Fuller, defenseexperts Professors Behe and Minnich tes-tified that ID is not creationism, their tes-timony was primarily by way of bare as-sertion and it failed to directly rebut thecreationist history of Pandas or other evi-dence presented by Plaintiffs showing thecommonality between creationism and ID.The sole argument Defendants made todistinguish creationism from ID was theirassertion that the term ‘‘creationism’’ ap-plies only to arguments based on the


Book of Genesis, a young earth, and a cat-astrophic Noaich flood; however, substan-tial evidence established that this is onlyone form of creationism, including thechart that was distributed to the BoardCurriculum Committee, as will be de-scribed below. (P–149 at 2; 10:129–32(Forrest); P–555 at 22–24).

Having thus provided the social and his-torical context in which the ID Policyarose of which a reasonable observer, ei-ther adult or child would be aware, we willnow focus on what the objective studentalone would know. We will accordinglydetermine whether an objective studentwould view the disclaimer read to theninth grade biology class as an officialendorsement of religion.

2. Whether an Objective StudentWould View the Disclaimer as aOfficial Endorsement of Religion

The Supreme Court instructed in Ed-wards that it has been particularly ‘‘vigi-lant in monitoring compliance with theEstablishment Clause in elementary andsecondary schools.’’ 482 U.S. at 583–84,107 S.Ct. 2573. The Supreme Court wenton to state that:

Families entrust public schools with theeducation of their children, but conditiontheir trust on the understanding that theclassroom will not purposely be used toadvance religious views that may conflictwith the private beliefs of the studentand his or her family. Students in suchinstitutions are impressionable and theirattendance is involuntary.

Id. (citing Grand Rapids Sch. Dist. v. Ball,473 U.S. 373, 383, 105 S.Ct. 3216, 87L.Ed.2d 267 (1985); Wallace, 472 U.S. at60 n. 51, 105 S.Ct. 2479).

In ascertaining whether an objective Do-ver High School ninth grade student wouldview the disclaimer as an official endorse-ment of religion, it is important to note

that a reasonable, objective student is nota specific, actual student, or even an amal-gam of actual students, but is instead ahypothetical student, one to whom the re-viewing court imputes detailed historicaland background knowledge, but also onewho interprets the challenged conduct inlight of that knowledge with the level ofintellectual sophistication that a child ofthe relevant age would bring to bear. See,e.g., Child Evangelism, 386 F.3d at 531(‘‘[A] reasonable observer, ‘aware of thehistory and context of the community andforum,’ would know that [the school dis-trict] has a policy of assisting a broadrange of community groups, that [the dis-trict] plays no role in composing the flyersthat are sent home and does not pay forthem, and that [the district’s] teachers donot discuss the flyers in class.’’ This de-tailed, sophisticated knowledge was imput-ed to elementary-school students.)(internalcitations omitted); Good News, 533 U.S. at119, 121 S.Ct. 2093 (Admonished not toproscribe religious activity ‘‘on the basis ofwhat the youngest members of the audi-ence might perceive.’’).

Plaintiffs accurately submit that review-ing courts often make no distinction be-tween an adult observer and a studentobserver when deciding whether a publicschool’s conduct conveys an unconstitution-al message of religious endorsement.However, when such a distinction isdrawn, as is appropriate to do under thecircumstances of this case, courts have rec-ognized that because students are moreimpressionable than adults, they may besystematically less effective than adults atrecognizing when religious conduct is unof-ficial and therefore permissible. See, e.g.,Selman, 390 F.Supp.2d at 1311 (textbooksticker stating that evolution was theorywas particularly likely to convey messageof endorsement ‘‘given the Sticker’s in-tended audience, impressionable school


students’’); Joki v. Bd. of Educ., 745F.Supp. 823, 831 (N.D.N.Y.1990) (‘‘To animpressionable student, even the mere ap-pearance of secular involvement in reli-gious activities might indicate that thestate has placed its imprimatur on a par-ticular religious creed.’’). Accordingly, theobjective student standard is a means toensure that courts exercise the particularvigilance that the Supreme Court has man-dated for protecting impressionable chil-dren from religious messages that appearto carry official imprimatur; it is not a toolfor excluding or ignoring material evi-dence.

After a careful review of the record andfor the reasons that follow, we find that anobjective student would view the disclaim-er as a strong official endorsement of reli-gion. Application of the objective studentstandard pursuant to the endorsement testreveals that an objective Dover HighSchool ninth grade student will unques-tionably perceive the text of the disclaim-er, ‘‘enlightened by its context and contem-porary legislative history,’’ as conferring areligious concept on ‘‘her school’s seal ofapproval.’’ Selman, 390 F.Supp.2d at1300; Santa Fe, 530 U.S. at 308, 120 S.Ct.2266; Edwards, 482 U.S. at 594, 107 S.Ct.2573 (in addition to ‘‘[t]he plain meaning ofthe [enactment’s] words, enlightened bytheir context and the contemporaneouslegislative history,’’ the Supreme Courtalso looks for legislative purpose in ‘‘thehistorical context of the [enactment], andthe specific sequence of events leading to[its] passage’’)(internal citations omitted);see also Santa Fe, 530 U.S. at 308, 120S.Ct. 2266 (‘‘Regardless of the listener’ssupport for, or objection to, the message,an objective Santa Fe High School studentwill unquestionably perceive the inevitablepregame prayer as stamped with herschool’s seal of approval.’’).

We arrive at this conclusion by initiallyconsidering the plain language of the dis-claimer, paragraph by paragraph. Thefirst paragraph reads as follows:

The Pennsylvania Academic Standardsrequire students to learn about Darwin’sTheory of Evolution and eventually totake a standardized test of which evolu-tion is a part.

P–124. The evidence in this case revealsthat Defendants do not mandate a similarpronouncement about any other aspect ofthe biology curriculum or the curriculumfor any other course, despite the fact thatstate standards directly address numerousother topics covered in the biology curricu-lum and the students’ other classes, anddespite the fact that standardized testscover such other topics as well. Notably,the unrefuted testimony of Plaintiffs’ sci-ence education expert Dr. Alters, the onlysuch expert to testify in the case sub judi-ce explains, and the testimony of Drs. Mil-ler and Padian confirms, the message thisparagraph communicates to ninth gradebiology students is that:

[W]e have to teach this stuff[.] Theother stuff we’re just going to teach you,but now this one we have to say thePennsylvania academic standards re-quire[ ] students to TTT eventually take atest. We’d rather not do it, but Penn-sylvania academic standards TTT requirestudents to do this.

Trial Tr. vol. 14, Alters Test., 110–11, Oct.12, 2005.

Stated another way, the first paragraphof the disclaimer directly addresses anddisavows evolutionary theory by tellingstudents that they have to learn aboutevolutionary theory because it is requiredby ‘‘Pennsylvania Academic Standards’’and it will be tested; however, no similardisclaimer prefacing instruction is conduct-ed regarding any other portion of the biol-


ogy curriculum nor any other course’s cur-riculum.

The second paragraph of the disclaimerreads as follows:

Because Darwin’s Theory is a theory, itcontinues to be tested as new evidence isdiscovered. The Theory is not a fact.Gaps in the Theory exist for which thereis no evidence. A theory is defined as awell-tested explanation that unifies abroad range of observations.

P–124. This paragraph singles out evolu-tion from the rest of the science curricu-lum and informs students that evolution,unlike anything else that they are learning,is ‘‘just a theory,’’ which plays on the‘‘colloquial or popular understanding of theterm [‘theory’] and suggest[ing] to the in-formed, reasonable observer that evolutionis only a highly questionable ‘opinion’ or a‘hunch.’ ’’ Selman, 390 F.Supp.2d at 1310;14:110–12 (Alters); 1:92 (Miller). Immedi-ately after students are told that ‘‘Darwin’sTheory’’ is a theory and that it continuesto be tested, they are told that ‘‘gaps’’ existwithin evolutionary theory without any in-dication that other scientific theories mightsuffer the same supposed weakness. AsDr. Alters explained this paragraph is bothmisleading and creates misconceptions instudents about evolutionary theory by mis-representing the scientific status of evolu-tion and by telling students that theyshould regard it as singularly unreliable,or on shaky ground. (14:117 (Alters)).Additionally and as pointed out by Plain-tiffs, it is indeed telling that even defenseexpert Professor Fuller agreed with thisconclusion by stating that in his own ex-pert opinion the disclaimer is misleading.(Fuller Dep. 110–11, June 21, 2005). Dr.

Padian bluntly and effectively stated thatin confusing students about science gener-ally and evolution in particular, the dis-claimer makes students ‘‘stupid.’’ (TrialTr. vol. 17, Padian Test., 48–52, Oct. 14,2005).

In summary, the second paragraph ofthe disclaimer undermines students’ edu-cation in evolutionary theory and sets thegroundwork for presenting students withthe District’s favored religious alternative.

Paragraph three of the disclaimer pro-ceeds to present this alternative and readsas follows:

Intelligent Design is an explanation ofthe origin of life that differs from Dar-win’s view. The reference book, Of Pan-das and People, is available for studentswho might be interested in gaining anunderstanding of what Intelligent De-sign actually involves.

P–124. Students are therefore provided in-formation that contrasts ID with ‘‘Darwin’sview ’’ and are directed to consult Pandasas though it were a scientific text thatprovided a scientific account of, and empir-ical scientific evidence for, ID. The theoryor ‘‘view’’ of evolution, which has beendiscredited by the District in the student’seyes, is contrasted with an alternative ‘‘ex-planation,’’ as opposed to a ‘‘theory,’’ thatcan be offered without qualification or cau-tionary note. The alternative ‘‘explana-tion’’ thus receives markedly differenttreatment from evolutionary ‘‘theory.’’ Inother words, the disclaimer relies upon thevery same ‘‘contrived dualism’’ that thecourt in McLean recognized to be a cre-ationist tactic that has ‘‘no scientific factualbasis or legitimate educational purpose.’’McLean, 529 F.Supp. at 1266.6

6. The McLean court explained that:The approach to teaching ‘‘creation sci-ence’’ and ‘‘evolution science’’ TTT is identi-cal to the two-model approach espoused bythe Institute for Creation Research and is

taken almost verbatim from ICR writings.It is an extension of Fundamentalists’ viewthat one must either accept the literal inter-pretation of Genesis or else believe in thegodless system of evolution.


The overwhelming evidence at trial es-tablished that ID is a religious view, amere re-labeling of creationism, and not ascientific theory. As the Fifth CircuitCourt of Appeals held in Freiler, an edu-cator’s ‘‘reading of a disclaimer that notonly disavows endorsement of educationalmaterials but also juxtaposes that disavow-al with an urging to contemplate alterna-tive religious concepts implies SchoolBoard approval of religious principles.’’Freiler, 185 F.3d at 348.

In the fourth and final paragraph of thedisclaimer, students are informed of thefollowing:

With respect to any theory, students areencouraged to keep an open mind. Theschool leaves the discussion of the Ori-gins of Life to individual students andtheir families. As a Standards-drivendistrict, class instruction focuses uponpreparing students to achieve proficien-cy on Standards-based assessments.

P–124.

Plaintiffs accurately submit that the dis-claimer mimics the one that the Fifth Cir-cuit struck down as unconstitutional inFreiler in two key aspects. First, whileencouraging students to keep an openmind and explore alternatives to evolution,it offers no scientific alternative; instead,the only alternative offered is an inherent-ly religious one, namely, ID. Freiler, 185F.3d at 344–47 (disclaimer urging studentsto ‘‘exercise critical thinking and gather allinformation possible and closely examineeach alternative toward forming an opin-ion’’ referenced ‘‘Biblical version of Cre-ation’’ as the only alternative theory, thus

‘‘encourag[ing] students to read and medi-tate upon religion in general’’ and the‘‘Biblical version of Creation’’ in particu-lar.) Whether a student accepts theBoard’s invitation to explore Pandas, andreads a creationist text, or follows theBoard’s other suggestion and discusses‘‘Origins of Life’’ with family members,that objective student can reasonably inferthat the District’s favored view is a reli-gious one, and that the District is accord-ingly sponsoring a form of religion. Sec-ond, by directing students to their familiesto learn about the ‘‘Origins of Life,’’ theparagraph performs the exact same func-tion as did the Freiler disclaimer: It ‘‘re-minds school children that they can rightlymaintain beliefs taught by their parents onthe subject of the origin of life,’’ therebystifling the critical thinking that the class’sstudy of evolutionary theory might other-wise prompt, to protect a religious viewfrom what the Board considers to be athreat. Id. at 345 (because disclaimer ef-fectively told students ‘‘that evolution astaught in the classroom need not affectwhat they already know,’’ it sent a mes-sage that was ‘‘contrary to an intent toencourage critical thinking, which requiresthat students approach new concepts withan open mind and willingness to alter andshift existing viewpoints’’).

A thorough review of the disclaimer’splain language therefore conveys a strongmessage of religious endorsement to anobjective Dover ninth grade student.

The classroom presentation of the dis-claimer provides further evidence that it

The two model approach of creationists issimply a contrived dualism which has noscientific factual basis or legitimate edu-cational purpose. It assumes only two ex-planations for the origins of life and exis-tence of man, plants and animals: it waseither the work of a creator or it was not.Application of these two models, according

to creationists, and the defendants, dictatesthat all scientific evidence which fails tosupport the theory of evolution is necessari-ly scientific evidence in support of creation-ism and is, therefore, creation science ‘‘evi-dence[.]’’

529 F.Supp. at 1266 (footnote omitted)(em-phasis added).


conveys a message of religious endorse-ment. It is important to initially note thatas a result of the teachers’ refusal to readthe disclaimer, school administrators wereforced to make special appearances in thescience classrooms to deliver it. No evi-dence was presented by any witness thatthe Dover students are presented with adisclaimer of any type in any other topic inthe curriculum. An objective student ob-server would accordingly be observant ofthe fact that the message contained in thedisclaimer is special and carries specialweight. In addition, the objective studentwould understand that the administratorsare reading the statement because thebiology teachers refused to do so on theground that they are legally and ethicallybarred from misrepresenting a religiousbelief as science, as will be discussed be-low. (Trial Tr. vol. 25, Nilsen Test., 56–57,Oct. 21, 2005; Trial Tr. vol. 35, BaksaTest., 38, Nov. 2, 2005). This would pro-vide the students with an additional reason

to conclude that the District is advocatinga religious view in biology class.

Second, the administrators made the re-markable and awkward statement, as partof the disclaimer, that ‘‘there will be noother discussion of the issue and yourteachers will not answer questions on theissue.’’ (P–124). Dr. Alters explainedthat a reasonable student observer wouldconclude that ID is a kind of ‘‘secret sci-ence that students apparently can’t discusswith their science teacher’’ which he indi-cated is pedagogically ‘‘about as bad as Icould possibly think of.’’ (14:125–27 (Al-ters)). Unlike anything else in the curric-ulum, students are under the impressionthat the topic to which they are introducedin the disclaimer, ID, is so sensitive thatthe students and their teachers are com-pletely barred from asking questions aboutit or discussing it.7

A third important issue concerning theclassroom presentation of the disclaimer isthe ‘‘opt out’’ feature. Students who do

7. Throughout the trial and in various submis-sions to the Court, Defendants vigorously ar-gue that the reading of the statement is not‘‘teaching’’ ID but instead is merely ‘‘makingstudents aware of it.’’ In fact, one consisten-cy among the Dover School Board members’testimony, which was marked by selectivememories and outright lies under oath, as willbe discussed in more detail below, is that theydid not think they needed to be knowledge-able about ID because it was not being taughtto the students. We disagree.

Dr. Alters, the District’s own science teach-ers, and Plaintiffs Christy Rehm and StevenStough, who are themselves teachers, allmade it abundantly clear by their testimonythat an educator reading the disclaimer isengaged in teaching, even if it is colossallybad teaching. See, e.g., Trial Tr. vol. 6, C.Rehm Test., 77, Sept. 28, 2005; Trial Tr. vol.15, Stough Test., 139–40, Oct. 12, 2005. Dr.Alters rejected Dover’s explanation that itscurriculum change and the statement imple-menting it are not teaching. The disclaimeris a ‘‘mini-lecture’’ providing substantive mis-conceptions about the nature of science, evo-

lution, and ID which ‘‘facilitates learning.’’(14:120–23, 15:57–59 (Alters)). In addition,superintendent Nilsen agrees that students‘‘learn’’ from the statement, regardless ofwhether it gets labeled as ‘‘teaching.’’ (26:39(Nilsen)).

Finally, even assuming arguendo that De-fendants are correct that reading the state-ment is not ‘‘teaching’’ per se, we are inagreement with Plaintiffs that Defendants’ ar-gument is a red herring because the Estab-lishment Clause forbids not just ‘‘teaching’’religion, but any governmental action thatendorses or has the primary purpose or effectof advancing religion. The constitutional vio-lation in Epperson consisted not of teaching areligious concept but of forbidding the teach-ing of a secular one, evolution, for religiousreasons. Epperson, 393 U.S. at 103, 89 S.Ct.266. In addition, the violation in Santa Fewas school sponsorship of prayer at an extra-curricular activity, 530 U.S. at 307–09, 120S.Ct. 2266, and the violation in Selman wasembellishing students’ biology textbooks witha warning sticker disclaiming evolution. 390F.Supp.2d at 1312.


not wish to be exposed to the disclaimerand students whose parents do not care tohave them exposed it, must ‘‘opt out’’ toavoid the unwanted religious message.Dr. Alters testified that the ‘‘opt out’’ fea-ture adds ‘‘novelty,’’ thereby enhancing theimportance of the disclaimer in the stu-dents’ eyes.8 (14:123–25 (Alters)). More-over, the stark choice that exists betweensubmitting to state-sponsored religious in-struction and leaving the public schoolclassroom presents a clear message to stu-dents ‘‘who are nonadherents that they areoutsiders, not full members of the politicalcommunity.’’ Santa Fe, 530 U.S. at 309–10, 120 S.Ct. 2266 (quotation marks omit-ted).

Accordingly, we find that the classroompresentation of the disclaimer, includingschool administrators making a special ap-pearance in the science classrooms to de-liver the statement, the complete prohibi-tion on discussion or questioning ID, andthe ‘‘opt out’’ feature all convey a strongmessage of religious endorsement.

An objective student is also presumed toknow that the Dover School Board advo-cated for the curriculum change and dis-claimer in expressly religious terms, thatthe proposed curriculum change promptedmassive community debate over theBoard’s attempts to inject religious con-cepts into the science curriculum, and thatthe Board adopted the ID Policy in fur-therance of an expressly religious agenda,as will be elaborated upon below. Addi-tionally, the objective student is presumedto have information concerning the historyof religious opposition to evolution andwould recognize that the Board’s ID Policyis in keeping with that tradition. Consid-

er, for example, that the Supreme Court inSanta Fe stated it presumed that ‘‘everySanta Fe High School student understandsclearly’’ that the school district’s policy ‘‘isabout prayer,’’ and not student free speechrights as the school board had alleged, andthe Supreme Court premised that pre-sumption on the principle that ‘‘the historyand ubiquity’’ of the graduation prayerpractice ‘‘provides part of the context inwhich a reasonable observer evaluateswhether a challenged governmental prac-tice conveys a message of endorsement ofreligion.’’ Santa Fe, 530 U.S. at 315, 120S.Ct. 2266; Allegheny, 492 U.S. at 630, 109S.Ct. 3086; see also Black Horse Pike, 84F.3d at 1486.

Importantly, the historical context thatthe objective student is presumed to knowconsists of a factor that weighed heavily inthe Supreme Court’s decision to strikedown the balanced-treatment law in Ed-wards, specifically that ‘‘[o]ut of many pos-sible science subjects taught in the publicschools, the legislature chose to affect theteaching of the one scientific theory thathistorically has been opposed by certainreligious sects.’’ 482 U.S. at 593, 107 S.Ct.2573. Moreover, the objective student ispresumed to know that encouraging theteaching of evolution as a theory ratherthan as a fact is one of the latest strategiesto dilute evolution instruction employed byanti-evolutionists with religious motiva-tions. Selman, 390 F.Supp.2d at 1308.

In summary, the disclaimer singles outthe theory of evolution for special treat-ment, misrepresents its status in the scien-tific community, causes students to doubtits validity without scientific justification,presents students with a religious alterna-

8. In fact, the ‘‘opt out’’ procedure, as will bedetailed herein, is itself clumsy and thus note-worthy to students and their parents, as itinvolves the necessity for students to have aform signed by parents and returned to theclassroom before the disclaimer is read. De-spite the fact that if properly executed the

‘‘opt out’’ form would excuse a student fromhearing the disclaimer, the need to review theform and have some minimal discussion atleast between parent and child hardly obvi-ates the impact of the disclaimer, whetherheard or not in the classroom.


tive masquerading as a scientific theory,directs them to consult a creationist textas though it were a science resource, andinstructs students to forego scientific in-quiry in the public school classroom andinstead to seek out religious instructionelsewhere. Furthermore, as Drs. Altersand Miller testified, introducing ID neces-sarily invites religion into the scienceclassroom as it sets up what will be per-ceived by students as a ‘‘God-friendly’’ sci-ence, the one that explicitly mentions anintelligent designer, and that the ‘‘otherscience,’’ evolution, takes no position onreligion. (14:144–45 (Alters)). Dr. Millertestified that a false duality is produced:It ‘‘tells students TTT quite explicitly,choose God on the side of intelligent de-sign or choose atheism on the side of sci-ence.’’ (2:54–55 (Miller)). Introducingsuch a religious conflict into the classroomis ‘‘very dangerous’’ because it forces stu-dents to ‘‘choose between God and sci-ence,’’ not a choice that schools should beforcing on them. Id. at 55.

Our detailed chronology of what a rea-sonable, objective student is presumed toknow has made abundantly clear to theCourt that an objective student would viewthe disclaimer as a strong official endorse-ment of religion or a religious viewpoint.We now turn to whether an objective adultobserver in the Dover community wouldperceive Defendants’ conduct similarly.

3. Whether an Objective Dover Citi-zen Would Perceive Defendants’Conduct to be an Endorsement ofReligion

The Court must consider whether anobjective adult observer in the Dover com-

munity would perceive the challenged IDPolicy as an endorsement of religion be-cause the unrefuted evidence offered attrial establishes that although the disclaim-er is read to students in their ninth gradebiology classes, the Board made and sub-sequently defended its decision to imple-ment the curriculum change publicly, thuscasting the entire community as the ‘‘lis-tening audience’’ for its religious message.Santa Fe, 530 U.S. at 308, 120 S.Ct. 2266.We are in agreement with Plaintiffs thatwhen a governmental practice bearing onreligion occurs within view of the entirecommunity, the reasonable observer is anobjective, informed adult within the com-munity at large, even if the specific prac-tice is directed at only a subset of thatcommunity, as courts routinely look be-yond the government’s intended audienceto the broader listening audience. Other-wise, government would be free and ableto sponsor religious messages simply bydeclaring that those who share in the be-liefs that it is espousing are the message’sonly intended recipients. See Allegheny,492 U.S. at 597, 109 S.Ct. 3086 (‘‘whenevaluating the effect of government con-duct under the Establishment Clause, wemust ascertain whether ‘the challengedgovernmental action is sufficiently likely tobe perceived by adherents of the control-ling denominations as an endorsement, andby the nonadherents as a disapproval, oftheir individual religious choice’ ’’) (quotingBall, 473 U.S. at 390, 105 S.Ct. 3216).9

Accordingly, not only are parents and oth-er Dover citizens part of the listening audi-ence for the Board’s curriculum change,

9. To further illustrate, we note the Third Cir-cuit Court of Appeals’ decision in TenaflyEruv Ass’n v. Borough of Tenafly, 309 F.3d144 (3d Cir.2002). In Tenafly, the Third Cir-cuit applied the endorsement test to the ques-tion of whether a town would violate theEstablishment Clause if it allowed a group of

Orthodox Jews to attach markers to utilitypoles for religious reasons. Although themarkers ‘‘were attached for the benefit ofother Orthodox Jews, not the general public,’’the Third Circuit nonetheless performed theendorsement inquiry from the standpoint of areasonable, informed, objective observer in


but they are part of its ‘‘intended audi-ence’’ as well.

First, the Board brought the public intothe debate over whether to include ID inthe curriculum as it proposed, advocated,and ultimately approved the ID Policy inpublic school board meetings. Thesemeetings were such that members of thepublic not only attended them, but alsohad the opportunity to offer public com-ment on the proposal. In those Boardmeetings, open to the public at large, sev-eral Dover School Board members advo-cated for the ID Policy in expressly reli-gious terms, with their comments reportedextensively in the local newspapers, as willbe discussed in detail below. Second, atleast two Board members, William Buck-ingham and Heather Geesey, defended theproposed curriculum change in the mediain expressly religious terms.

Moreover, it is notable that the Boardsent a newsletter to every household inDover in February 2005 ‘‘produced to helpexplain the changes in the biology curricu-lum’’ and prepared in conjunction with de-fense counsel, the Thomas More Law Cen-ter. (P–127). Typically, the Board sentout a newsletter in the Dover area approx-imately four times a year and in February2005, the Board unanimously voted to maila specialized newsletter to the community.(Trial Tr. vol. 15, C. Sneath Test., 98–99,136, Oct. 12, 2005; P–82). Although for-matted like a typical district newsletter, anobjective adult member of the Dover com-munity is presumed to understand thismailing as an aggressive advocacy piecedenigrating the scientific theory of evolu-tion while advocating ID. Within thisnewsletter, the initial entry under the

heading ‘‘Frequently Asked Questions’’ de-means Plaintiffs for protecting their Con-stitutional rights as it states, ‘‘A smallminority of parents have objected to therecent curriculum change by arguing thatthe Board has acted to impose its ownreligious beliefs on students.’’ (P–127 at1). Religion is again mentioned in thesecond ‘‘Frequently Asked Question’’ as itposes the question ‘‘Isn’t ID simply reli-gion in disguise?’’ Id. The newsletter sug-gests that scientists engage in trickery anddoublespeak about the theory of evolutionby stating, ‘‘The word evolution has sever-al meanings, and those supporting Dar-win’s theory of evolution use that confusionin definition to their advantage.’’ Id. Thenewsletter additionally makes the claimthat ID is a scientific theory on par withevolution and other scientific theories byexplaining, ‘‘The theory of intelligent de-sign (ID) is a scientific theory that differsfrom Darwin’s view, and is endorsed by agrowing number of credible scientists.’’Id. at 2. Evolution is subsequently deni-grated and claims that have not been ad-vanced, must less proven in the scientificcommunity, are elaborated upon in thenewsletter. ‘‘In simple terms, on a molec-ular level, scientists have discovered a pur-poseful arrangement of parts, which can-not be explained by Darwin’s theory. Infact, since the 1950s, advances in molecularbiology and chemistry have shown us thatliving cells, the fundamental units of lifeprocesses, cannot be explained by chance.’’Id. The newsletter suggests that evolutionhas atheistic implications by indicatingthat ‘‘Some have said that before Darwin,‘we thought a benevolent God had createdus. Biology took away our status as madein the image of God’ TTT or ‘Darwinism

the community at large. Id. at 161–62, 174–78. This inquiry performed by the court islogical because although Orthodox Jews werethe markers’ ‘‘intended audience’’ in thesense that they were the ones for whose bene-

fit the markers were placed, the markers ap-peared on utility polices where anyone in thecommunity might see them and attempt toascertain their meaning, as well as the gov-ernment’s relationship to them. Id. at 162.


made it possible to be an intellectuallyfulfilled atheist.’ ’’ Id. Finally and notably,the newsletter all but admits that ID isreligious by quoting Anthony Flew, de-scribed as a ‘‘world famous atheist whonow believes in intelligent design,’’ as fol-lows: ‘‘My whole life has been guided bythe principle of Plato’s Socrates: Followthe evidence where it leads.’’ Id.

The February 2005 newsletter wasmailed to every household in Dover. Eventhose individuals who had no children, nev-er attended a Dover Board meeting, andnever concerned themselves with learningabout school policies, were directly con-fronted and made the ‘‘listening audience’’for the District’s announcement of itssponsorship of a religious viewpoint.Thus, the February 2005 newsletter wasan astonishing propaganda discourse whichsucceeded in advising the few individualswho were by that time not aware that afirestorm had erupted over ID in Dover.

In addition to being aware of the publicdebate, over whether to include ID in thebiology curriculum, the public board meet-ings where such proposed curriculumchange was advanced in expressly religiousterms, and receiving a newsletter provid-ing detailed information about the ID Poli-cy, the District assigned Dover parents aspecial role regarding the ID Policy. Par-ents of ninth grade biology students whoare subject to the ID Policy are sent aletter when their children are taking biolo-gy, ‘‘asking if anyone ha[s] a problem withthe [disclaimer] statement,’’ and calling onthem to decide whether to allow their chil-dren to remain in the classroom and hearthe religious message or instead to directtheir children to leave the room. (P–124).When parents must give permission fortheir children to participate in an activity,the Supreme Court has held that the par-ents are the relevant audience for pur-poses of the endorsement. See Good

News, 533 U.S. at 115, 121 S.Ct. 2093(parents are relevant audience for deter-mining whether presence of after-schoolBible club at public elementary school con-veyed message of religious endorsementbecause the parents had to give childrenpermission to participate in club); see alsoRusk v. Crestview Local Sch. Dist., 379F.3d 418, 421 (6th Cir.2004) (parents areaudience for flyers distributed to elemen-tary-school students because parents mustgive permission for children to participatein advertised activities). The conversemust also be true, when parents must de-cide whether to withhold permission toparticipate in an activity or course of in-struction, they remain the relevant audi-ence for ascertaining whether governmentis communicating a message favoring reli-gion.

An objective adult member of the Dovercommunity would also be presumed toknow that ID and teaching about supposedgaps and problems in evolutionary theoryare creationist religious strategies thatevolved from earlier forms of creationism,as we previously detailed. The objectiveobserver is therefore aware of the socialcontext in which the ID Policy arose andconsidered in light of this history, the chal-lenged ID Policy constitutes an endorse-ment of a religious view for the reasonsthat follow.

First, the disclaimer’s declaration thatevolution ‘‘is a theory TTT not a fact’’ hasthe cultural meaning that the Selmancourt explained: ‘‘[W]hether evolution [is]referenced as a theory or a fact is TTT aloaded issue with religious undertones,’’reflecting ‘‘a lengthy debate between advo-cates of evolution and proponents of reli-gious theories of origin[.]’’ It is ‘‘one ofthe latest strategies to dilute evolution in-struction employed by anti-evolutionistswith religious motivations.’’ Selman, 390F.Supp.2d at 1304, 1307–08 (citing Ed-


wards, 482 U.S. at 624, 107 S.Ct. 2573)(Scalia, J., dissenting) (noting that bal-anced-treatment act’s sponsor opposedevolution being taught as fact because itwould communicate to students that ‘‘sci-ence has proved their religious beliefsfalse’’); Freiler, 975 F.Supp. at 824 (notingschool board members’ concern with teach-ing evolution as fact because many stu-dents in district believed in biblical view ofcreation). A reasonable observer is pre-sumed to know the social meaning of thetheory-not-fact deliberate word choice andwould ‘‘perceive the School Board to bealigning itself with proponents of religioustheories of origin,’’ thus ‘‘communicat[ing]to those who endorse evolution that theyare political outsiders, while TTT communi-cat[ing] to the Christian fundamentalistsand creationists who pushed for a disclaim-er that they are political insiders.’’ Sel-man, 390 F.Supp.2d at 1308.

Second, the Dover School Board singlesout the scientific theory of evolution, spe-cifically and repeatedly targeting it as a‘‘theory’’ with ‘‘[g]aps,’’ ‘‘problems,’’ andinadequate empirical support. In singlingout the one scientific theory that has his-torically been opposed by certain religioussects, the Board sent the message that it‘‘believes there is some problem peculiar toevolution,’’ and ‘‘[i]n light of the historicalopposition to evolution by Christian funda-mentalists and creationists[,] TTT the in-formed, reasonable observer would inferthe School Board’s problem with evolutionto be that evolution does not acknowledgea creator.’’ Id. at 1309.

Third, it is readily apparent to the Courtthat the entire community became inter-twined in the controversy over the ID

Policy. The Board’s actions from June2004 through October 18, 2004, the datethe Board approved the curriculumchange, were consistently reported in newsarticles in the two local newspapers, theYork Daily Record and the York Dispatch.(P–44/P–804; P–45/P–805; P–46/P–790;P–47/P–791; P–51/P–792; P–53/P–793; P–54/P–806; P–55; P–795; P–807; P–809;P–797).10 Most of the Plaintiffs testifiedthat they did not attend the 2004 Boardmeetings that preceded the curriculumchange and became aware of the Board’sactions only after reading about them inthe local newspapers. Tammy Kitzmiller,Beth Eveland, Cindy Sneath, StevenStough, and Joel Lieb all first learned ofthe Board’s actions regarding the biologycurriculum and textbook from the newsarticles.11 (Trial Tr. vol. 3, KitzmillerTest., 114, Sept. 27, 2005; Trial Tr. vol. 6,Eveland Test., 93–94, Sept. 28, 2005;15:77–78 a. Sneath; 15:113–14 (Stough);Trial Tr. vol. 17, Leib Test., 143, Oct. 14,2005).

The news reports in the York newspa-pers were followed by numerous letters tothe editor and editorials published in thesame papers. (P–671; P–672; P–674; P–675). Although Defendants have strenu-ously objected to Plaintiffs’ introduction ofthe letters to the editor and editorials fromthe York Daily Record and the York Dis-patch addressing the curriculum contro-versy, we will admit such materials intoevidence and consider them pursuant tothe endorsement test and Lemon’s effectprong. The letters and editorials are notoffered for the truth of what is containedtherein, but they are probative of the per-

10. Two exhibit numbers separated by a slashindicates that Plaintiffs introduced differentformats of the same article under differentexhibit numbers.

11. In fact, Stough testified that he read theYork Daily Record and the York Dispatch ev-ery day, including on the internet while hewas away on vacation, to follow the Board’sactions relating to the biology curriculumchange. (15:112–13; 16:4 (Stough)).


ception of the community at large. Theyreveal that the entire community has con-sistently and unwaveringly understood thecontroversy to concern whether a religiousview should be taught as science in theDover public school system. Moreover,and as will be explained below, the lettersto the editor and editorials are relevantand probative of the community’s collectivesocial judgment that the challenged con-duct advances religion. Epperson, 393U.S. at 108 n. 16, 89 S.Ct. 266.12

As previously noted, the Supreme Courtheld in Santa Fe that a public school dis-trict’s conduct touching on religion shouldbe evaluated under the endorsement testfrom the standpoint of how the ‘‘listeningaudience’’ would view it; and, if membersof the listening audience would perceivethe district’s conduct as endorsing religionor a particular religious view, then theconduct violates the Establishment Clause.Santa Fe, 530 U.S. at 308, 120 S.Ct. 2266.Because the endorsement inquiry is notabout the perceptions of particular individ-uals, Plaintiffs do not argue before theCourt that any particular letter or editori-al, or the views expressed therein, can orshould supplant this Court’s considerationof the curriculum change from the stand-point of a reasonable observer. See Pi-nette, 515 U.S. at 779, 115 S.Ct. 2440(O’Connor, J., concurring in part and con-curring in judgment). Instead, the Courtlooks to the hypothetical reasonable ob-server as a ‘‘personification of a communi-ty ideal of reasonable behavior, deter-mined by the [collective] social judgment.’’Id. at 780, 115 S.Ct. 2440.

The 225 letters to the editor and sixty-two editorials that Plaintiffs have offeredconstitute what Plaintiffs’ counsel believeto be the entire set of such materials pub-

lished in the York newspapers serving theDover community during the period fromJune 1, 2004 through September 1, 2005,which includes the time period from thefirst Board meetings in which the proposalto change the biology curriculum was an-nounced through the approximate startingdate of the trial in this case. We havebeen presented with no reason to doubtthis assertion. The York Daily Recordpublished 139 letters to the editor regard-ing the Board’s actions and eighty-six ofthose letters addressed the issues in reli-gious terms. (16:18–20 (Stough)). TheYork Daily Record published forty-threeeditorials regarding the Board’s actionsand twenty-eight of such editorials ad-dressed the issues in religious terms. (P–674; 16:22–24 (Stough)). The York Dis-patch published eighty-six letters to theeditor regarding the Board’s actions, sixtyof which addressed the issue in religiousterms. (16:24 (Stough)). The York Dis-patch published nineteen editorials regard-ing the Board’s actions, seventeen of whichaddressed the issues in religious terms.Id. at 25.

The 225 letters to the editor and sixty-two editorials from the York Daily Recordand York Dispatch that Plaintiffs offeredat trial and which we have admitted forconsideration in our analysis of the en-dorsement test and Lemon’s effect prong,show that hundreds of individuals in thissmall community felt it necessary to pub-lish their views on the issues presented inthis case for the community to see. More-over, a review of the letters and editorialsat issue reveals that in letter after letterand editorial after editorial, communitymembers postulated that ID is an inher-ently religious concept, that the writersviewed the decision of whether to incorpo-

12. In addition, the charts summarizing theletters to the editor and editorials from theYork Daily Record and the York Dispatch are

admitted under Fed.R.Evid. 1006 as summar-ies of voluminous materials.


rate it into the high school biology curricu-lum as one which implicated a religiousconcept, and therefore that the curriculumchange has the effect of placing the gov-ernment’s imprimatur on the Board’s pre-ferred religious viewpoint. (P–671–72, 674–75). These exhibits are thus probative ofthe fact that members of the Dover com-munity perceived the Board as having act-ed to promote religion, with many citizenslined up as either for the curriculumchange, on religious grounds, or againstthe curriculum change, on the ground thatreligion should not play a role in publicschool science class. Accordingly, the let-ters and editorials are relevant to, andprovide evidence of, the Dover communi-ty’s collective social judgment about thecurriculum change because they demon-strate that ‘‘[r]egardless of the listener’ssupport for, or objection to,’’ the curricu-lum change, the community and hence theobjective observer who personifies it, can-not help but see that the ID Policy impli-cates and thus endorses religion.

It is additionally important to note thatour determination to consider the lettersand editorials is in line with the SupremeCourt’s decision in Epperson. In Epper-son, the Supreme Court pointed to lettersto the editor in a local newspaper as sup-port for its conclusion that ‘‘fundamentalistsectarian conviction was and is’’ the reasonthat Arkansas enacted its statutory prohi-bition against teaching evolution in public

schools. Epperson, 393 U.S. at 108, 89S.Ct. 266. The Supreme Court quotedfrom three letters published in the Arkan-sas Gazette to show that the public‘‘fear[ed] that teaching of evolution wouldbe ‘subversion of Christianity,’ and that itwould cause school children ‘to disrespectthe Bible.’ ’’ Id. at 108 n. 16, 89 S.Ct.266.13

Accordingly, taken in the aggregate, theplethora of letters to the editor and edito-rials from the local York newspapers con-stitute substantial additional evidence thatthe entire community became intertwinedin the controversy of the ID Policy atissue and that the community collectivelyperceives the ID Policy as favoring a par-ticular religious view. As a result of theforegoing analysis, we conclude that an in-formed, objective adult member of the Do-ver community aware of the social contextin which the ID Policy arose would viewDefendants’ conduct and the challengedPolicy to be a strong endorsement of areligious view.

We have now found that both an objec-tive student and an objective adult mem-ber of the Dover community would per-ceive Defendants’ conduct to be a strongendorsement of religion pursuant to theendorsement test. Having so concluded,we find it incumbent upon the Court tofurther address an additional issue raisedby Plaintiffs, which is whether ID is sci-

13. The Supreme Court treated the letters asevidence not only of the community’s viewthat evolutionary theory should be bannedbecause of its perceived religious implica-tions, but also of the public pressures drivingthe Arkansas legislature to adopt the measure.The Court therefore viewed them as, amongother things, shedding light on the legislativepurpose underlying the anti-evolution statute.

Plaintiffs accurately submit that in Modro-vich, the Third Circuit Court of Appeals de-parted from Epperson by treating as irrelevantto the purpose inquiry letters from citizens to

county officials on the grounds that (1) theletters were not authored by official decision-makers and (2) most of the letters were re-ceived after the county made its policy deci-sion. Modrovich, 385 F.3d at 412 & n. 4.Importantly, here, Plaintiffs do not offer theletters as purpose evidence, nor will they beconsidered as such, nor do they ask the Courtto find that they prove Defendants’ religiouspurpose for changing the curriculum. In-stead, Plaintiffs offer the evidence pursuant tothe endorsement test and Lemon’s effectprong.


ence. To be sure, our answer to thisquestion can likely be predicted basedupon the foregoing analysis. While an-swering this question compels us to revisitevidence that is entirely complex, if notobtuse, after a six week trial that spannedtwenty-one days and included countlesshours of detailed expert witness presenta-tions, the Court is confident that no othertribunal in the United States is in a betterposition than are we to traipse into thiscontroversial area. Finally, we will offerour conclusion on whether ID is sciencenot just because it is essential to our hold-ing that an Establishment Clause violationhas occurred in this case, but also in thehope that it may prevent the obvious wasteof judicial and other resources whichwould be occasioned by a subsequent trialinvolving the precise question which is be-fore us.

4. Whether ID is Science

After a searching review of the recordand applicable caselaw, we find that whileID arguments may be true, a propositionon which the Court takes no position, ID isnot science. We find that ID fails on threedifferent levels, any one of which is suffi-cient to preclude a determination that IDis science. They are: (1) ID violates thecenturies-old ground rules of science byinvoking and permitting supernatural cau-sation; (2) the argument of irreduciblecomplexity, central to ID, employs thesame flawed and illogical contrived dualismthat doomed creation science in the 1980’s;and (3) ID’s negative attacks on evolutionhave been refuted by the scientific commu-nity. As we will discuss in more detailbelow, it is additionally important to notethat ID has failed to gain acceptance in thescientific community, it has not generatedpeer-reviewed publications, nor has it beenthe subject of testing and research.

Expert testimony reveals that since thescientific revolution of the 16th and 17thcenturies, science has been limited to thesearch for natural causes to explain natu-ral phenomena. (9:19–22 (Haught); 5:25–29 (Pennock); 1:62 (Miller)). This revolu-tion entailed the rejection of the appeal toauthority, and by extension, revelation, infavor of empirical evidence. (5:28 (Pen-nock)). Since that time period, science hasbeen a discipline in which testability, rath-er than any ecclesiastical authority orphilosophical coherence, has been the mea-sure of a scientific idea’s worth. (9:21–22(Haught); 1:63 (Miller)). In deliberatelyomitting theological or ‘‘ultimate’’ explana-tions for the existence or characteristics ofthe natural world, science does not consid-er issues of ‘‘meaning’’ and ‘‘purpose’’ inthe world. (9:21 (Haught); 1:64, 87 (Mil-ler)). While supernatural explanationsmay be important and have merit, they arenot part of science. (3:103 (Miller); 9:19–20 (Haught)). This self-imposed conven-tion of science, which limits inquiry totestable, natural explanations about thenatural world, is referred to by philoso-phers as ‘‘methodological naturalism’’ andis sometimes known as the scientific meth-od. (5:23, 29–30 (Pennock)). Methodologi-cal naturalism is a ‘‘ground rule’’ of sciencetoday which requires scientists to seek ex-planations in the world around us basedupon what we can observe, test, replicate,and verify. (1:59–64, 2:41–43 (Miller); 5:8,23–30 (Pennock)).

As the National Academy of Sciences(hereinafter ‘‘NAS’’) was recognized by ex-perts for both parties as the ‘‘most presti-gious’’ scientific association in this country,we will accordingly cite to its opinionwhere appropriate. (1:94, 160–61 (Miller);14:72 (Alters); 37:31 (Minnich)). NAS isin agreement that science is limited toempirical, observable and ultimately testa-ble data: ‘‘Science is a particular way ofknowing about the world. In science, ex-


planations are restricted to those that canbe inferred from the confirmable data—the results obtained through observationsand experiments that can be substantiatedby other scientists. Anything that can beobserved or measured is amenable to sci-entific investigation. Explanations thatcannot be based upon empirical evidenceare not part of science.’’ (P–649 at 27).

This rigorous attachment to ‘‘natural’’explanations is an essential attribute toscience by definition and by convention.(1:63 (Miller); 5:29–31 (Pennock)). We arein agreement with Plaintiffs’ lead expertDr. Miller, that from a practical perspec-tive, attributing unsolved problems aboutnature to causes and forces that lie outsidethe natural world is a ‘‘science stopper.’’(3:14–15 (Miller)). As Dr. Miller ex-plained, once you attribute a cause to anuntestable supernatural force, a proposi-tion that cannot be disproven, there is noreason to continue seeking natural expla-nations as we have our answer. Id.

ID is predicated on supernatural causa-tion, as we previously explained and asvarious expert testimony revealed. (17:96(Padian); 2:35–36 (Miller); 14:62 (Alters)).ID takes a natural phenomenon and, in-stead of accepting or seeking a naturalexplanation, argues that the explanation issupernatural. (5:107 (Pennock)). Furthersupport for the conclusion that ID is predi-cated on supernatural causation is found inthe ID reference book to which ninthgrade biology students are directed, Pan-das. Pandas states, in pertinent part, asfollows:

Darwinists object to the view of intelli-gent design because it does not give anatural cause explanation of how thevarious forms of life started in the firstplace. Intelligent design means thatvarious forms of life began abruptly,through an intelligent agency, with theirdistinctive features already intact—fish

with fins and scales, birds with feathers,beaks, and wings, etc.

P–11 at 99–100 (emphasis added). Statedanother way, ID posits that animals didnot evolve naturally through evolutionarymeans but were created abruptly by a non-natural, or supernatural, designer. Defen-dants’ own expert witnesses acknowledgedthis point. (21:96–100 (Behe); P–718 at696, 700) (‘‘implausible that the designer isa natural entity’’); 28:21–22 (Fuller) (‘‘TTT

ID’s rejection of naturalism and commit-ment to supernaturalism TTT’’); 38:95–96(Minnich) (ID does not exclude the possi-bility of a supernatural designer, includingdeities).

It is notable that defense experts’ ownmission, which mirrors that of the IDMitself, is to change the ground rules ofscience to allow supernatural causation ofthe natural world, which the SupremeCourt in Edwards and the court in Mc-Lean correctly recognized as an inherentlyreligious concept. Edwards, 482 U.S. at591–92, 107 S.Ct. 2573; McLean, 529F.Supp. at 1267. First, defense expertProfessor Fuller agreed that ID aspires to‘‘change the ground rules’’ of science andlead defense expert Professor Behe admit-ted that his broadened definition of sci-ence, which encompasses ID, would alsoembrace astrology. (28:26 (Fuller); 21:37–42 (Behe)). Moreover, defense expertProfessor Minnich acknowledged that forID to be considered science, the groundrules of science have to be broadened toallow consideration of supernatural forces.(38:97 (Minnich)).

Prominent IDM leaders are in agree-ment with the opinions expressed by de-fense expert witnesses that the groundrules of science must be changed for ID totake hold and prosper. William Dembski,for instance, an IDM leader, proclaimsthat science is ruled by methodologicalnaturalism and argues that this rule must


be overturned if ID is to prosper. (5:32–37 (Pennock)); P–341 at 224 (‘‘Indeed, en-tire fields of inquiry, including especially inthe human sciences, will need to be re-thought from the ground up in terms ofintelligent design.’’).

The Discovery Institute, the think tankpromoting ID whose CRSC developed theWedge Document, acknowledges as ‘‘Gov-erning Goals’’ to ‘‘defeat scientific materi-alism and its destructive moral, culturaland political legacies’’ and ‘‘replace mater-ialistic explanations with the theistic un-derstanding that nature and human beingsare created by God.’’ (P–140 at 4). Inaddition, and as previously noted, theWedge Document states in its ‘‘Five YearStrategic Plan Summary’’ that the IDM’sgoal is to replace science as currently prac-ticed with ‘‘theistic and Christian science.’’Id. at 6. The IDM accordingly seeks noth-ing less than a complete scientific revolu-tion in which ID will supplant evolutionarytheory.14

Notably, every major scientific associa-tion that has taken a position on the issueof whether ID is science has concludedthat ID is not, and cannot be considered assuch. (1:98–99 (Miller); 14:75–78 (Alters);37:25 (Minnich)). Initially, we note thatNAS, the ‘‘most prestigious’’ scientific as-

sociation in this country, views ID as fol-lows:

Creationism, intelligent design, and oth-er claims of supernatural intervention inthe origin of life or of species are notscience because they are not testable bythe methods of science. These claimssubordinate observed data to statementsbased on authority, revelation, or reli-gious belief. Documentation offered insupport of these claims is typically limit-ed to the special publications of theiradvocates. These publications do notoffer hypotheses subject to change inlight of new data, new interpretations,or demonstration of error. This con-trasts with science, where any hypothe-sis or theory always remains subject tothe possibility of rejection or modifica-tion in the light of new knowledge.

P–192 at 25. Additionally, the AmericanAssociation for the Advancement of Sci-ence (hereinafter ‘‘AAAS’’), the largest or-ganization of scientists in this country, hastaken a similar position on ID, namely,that it ‘‘has not proposed a scientific meansof testing its claims’’ and that ‘‘the lack ofscientific warrant for so-called ‘intelligentdesign theory’ makes it improper to in-clude as part of science education TTT’’ (P–198). Not a single expert witness over thecourse of the six week trial identified one

14. Further support for this proposition isfound in the Wedge Strategy, which is com-posed of three phases: Phase I is scientificresearch, writing and publicity; Phase II ispublicity and opinion-making; and Phase IIIis cultural confrontation and renewal. (P–140 at 3). In the ‘‘Five Year Strategic PlanSummary,’’ the Wedge Document explainsthat the social consequences of materialismhave been ‘‘devastating’’ and that it is neces-sary to broaden the wedge with a positivescientific alternative to materialistic scientifictheories, which has come to be called thetheory of ID. ‘‘Design theory promises to re-verse the stifling dominance of the materialistworldview, and to replace it with a scienceconsonant with Christian and theistic convic-

tions.’’ Id. at 6. Phase I of the Wedge Strate-gy is an essential component and directlyreferences ‘‘scientific revolutions.’’ Phase IIexplains that alongside a focus on influentialopinion-makers, ‘‘we also seek to build up apopular base of support among our naturalconstituency, namely, Christians. We will dothis primarily through apologetics seminars.We intend these to encourage and equip be-lievers with new scientific evidence that sup-port the faith, as well as to ‘popularize’ ourideas in the broader culture.’’ Id. Finally,Phase III includes pursuing possible legal as-sistance ‘‘in response to resistance to the inte-gration of design theory into public schoolscience curricula.’’ Id. at 7.


major scientific association, society or or-ganization that endorsed ID as science.What is more, defense experts concedethat ID is not a theory as that term isdefined by the NAS and admit that ID isat best ‘‘fringe science’’ which has achievedno acceptance in the scientific community.(21:37–38 (Behe); Fuller Dep. at 98–101,June 21, 2005; 28:47 (Fuller); MinnichDep. at 89, May 26, 2005).

It is therefore readily apparent to theCourt that ID fails to meet the essentialground rules that limit science to testable,natural explanations. (3:101–03 (Miller);14:62 (Alters)). Science cannot be defineddifferently for Dover students than it isdefined in the scientific community as anaffirmative action program, as advocatedby Professor Fuller, for a view that hasbeen unable to gain a foothold within thescientific establishment. Although ID’sfailure to meet the ground rules of scienceis sufficient for the Court to conclude thatit is not science, out of an abundance ofcaution and in the exercise of complete-ness, we will analyze additional argumentsadvanced regarding the concepts of ID andscience.

ID is at bottom premised upon a falsedichotomy, namely, that to the extent evo-lutionary theory is discredited, ID is con-firmed. (5:41 (Pennock)). This argumentis not brought to this Court anew, and infact, the same argument, termed ‘‘con-trived dualism’’ in McLean, was employedby creationists in the 1980’s to support‘‘creation science.’’ The court in McLeannoted the ‘‘fallacious pedagogy of the twomodel approach’’ and that ‘‘[i]n efforts toestablish ‘evidence’ in support of creationscience, the defendants relied upon thesame false premise as the two model ap-proach TTT all evidence which criticizedevolutionary theory was proof in supportof creation science.’’ McLean, 529 F.Supp.at 1267, 1269. We do not find this false

dichotomy any more availing to justify IDtoday than it was to justify creation sci-ence two decades ago.

ID proponents primarily argue for de-sign through negative arguments againstevolution, as illustrated by ProfessorBehe’s argument that ‘‘irreducibly com-plex’’ systems cannot be produced throughDarwinian, or any natural, mechanisms.(5:38–41 (Pennock); 1:39, 2:15, 2:35–37,3:96 (Miller); 16:72–73 (Padian); 10:148(Forrest)). However, we believe that ar-guments against evolution are not argu-ments for design. Expert testimony re-vealed that just because scientists cannotexplain today how biological systemsevolved does not mean that they cannot,and will not, be able to explain them to-morrow. (2:36–37 (Miller)). As Dr. Padi-an aptly noted, ‘‘absence of evidence is notevidence of absence.’’ (17:45 (Padian)).To that end, expert testimony from Drs.Miller and Padian provided multiple exam-ples where Pandas asserted that no natu-ral explanations exist, and in some casesthat none could exist, and yet natural ex-planations have been identified in the in-tervening years. It also bears mentioningthat as Dr. Miller stated, just becausescientists cannot explain every evolution-ary detail does not undermine its validityas a scientific theory as no theory in sci-ence is fully understood. (3:102 (Miller)).

As referenced, the concept of irreduciblecomplexity is ID’s alleged scientific center-piece. Irreducible complexity is a nega-tive argument against evolution, not proofof design, a point conceded by defenseexpert Professor Minnich. (2:15 (Miller);38:82 (Minnich)) (irreducible complexity ‘‘isnot a test of intelligent design; it’s a testof evolution’’). Irreducible complexity ad-ditionally fails to make a positive scientificcase for ID, as will be elaborated uponbelow.


We initially note that irreducible com-plexity as defined by Professor Behe in hisbook Darwin’s Black Box and subsequent-ly modified in his 2001 article entitled ‘‘Re-ply to My Critics,’’ appears as follows:

By irreducibly complex I mean a singlesystem which is composed of severalwell-matched, interacting parts that con-tribute to the basic function, wherein theremoval of any one of the parts causesthe system to effectively cease function-ing. An irreducibly complex systemcannot be produced directly by slight,successive modifications of a precursorsystem, because any precursor to anirreducibly complex system that is miss-ing a part is by definition nonfunctionalTTT Since natural selection can onlychoose systems that are already work-ing, then if a biological system cannot beproduced gradually it would have toarise as an integrated unit, in one fellswoop, for natural selection to have any-thing to act on.

P–647 at 39; P–718 at 694. ProfessorBehe admitted in ‘‘Reply to My Critics’’that there was a defect in his view ofirreducible complexity because, while itpurports to be a challenge to natural selec-tion, it does not actually address ‘‘the taskfacing natural selection.’’ (P–718 at 695).Professor Behe specifically explained that‘‘[t]he current definition puts the focus onremoving a part from an already-function-ing system,’’ but ‘‘[t]he difficult task facingDarwinian evolution, however, would notbe to remove parts from sophisticated pre-existing systems; it would be to bringtogether components to make a new sys-tem in the first place.’’ Id. In that article,Professor Behe wrote that he hoped to‘‘repair this defect in future work;’’ howev-er, he has failed to do so even four yearsafter elucidating his defect. Id.; 22:61–65(Behe).

In addition to Professor Behe’s admittedfailure to properly address the very phe-nomenon that irreducible complexity pur-ports to place at issue, natural selection,Drs. Miller and Padian testified that Pro-fessor Behe’s concept of irreducible com-plexity depends on ignoring ways in whichevolution is known to occur. AlthoughProfessor Behe is adamant in his definitionof irreducible complexity when he says aprecursor ‘‘missing a part is by definitionnonfunctional,’’ what he obviously means isthat it will not function in the same waythe system functions when all the parts arepresent. For example in the case of thebacterial flagellum, removal of a part mayprevent it from acting as a rotary motor.However, Professor Behe excludes, by def-inition, the possibility that a precursor tothe bacterial flagellum functioned not as arotary motor, but in some other way, forexample as a secretory system. (19:88–95(Behe)).

As expert testimony revealed, the qual-ification on what is meant by ‘‘irreduciblecomplexity’’ renders it meaningless as acriticism of evolution. (3:40 (Miller)). Infact, the theory of evolution proffers ex-aptation as a well-recognized, well-docu-mented explanation for how systems withmultiple parts could have evolved throughnatural means. Exaptation means thatsome precursor of the subject system hada different, selectable function before ex-periencing the change or addition that re-sulted in the subject system with itspresent function (16:146–48 (Padian)).For instance, Dr. Padian identified theevolution of the mammalian middle earbones from what had been jawbones asan example of this process. (17:6–17 (Pa-dian)). By defining irreducible complexi-ty in the way that he has, Professor Beheattempts to exclude the phenomenon ofexaptation by definitional fiat, ignoring ashe does so abundant evidence which re-futes his argument.


Notably, the NAS has rejected Profes-sor Behe’s claim for irreducible complexityby using the following cogent reasoning:

[S]tructures and processes that areclaimed to be ‘‘irreducibly’’ complex typi-cally are not on closer inspection. Forexample, it is incorrect to assume that acomplex structure or biochemical pro-cess can function only if all its compo-nents are present and functioning as wesee them today. Complex biochemicalsystems can be built up from simplersystems through natural selection.Thus, the ‘‘history’’ of a protein can betraced through simpler organisms TTT

The evolution of complex molecular sys-tems can occur in several ways. Natu-ral selection can bring together parts ofa system for one function at one timeand then, at a later time, recombinethose parts with other systems of com-ponents to produce a system that has adifferent function. Genes can be dupli-cated, altered, and then amplifiedthrough natural selection. The complexbiochemical cascade resulting in bloodclotting has been explained in this fash-ion.

P–192 at 22.

As irreducible complexity is only a nega-tive argument against evolution, it is refut-able and accordingly testable, unlike ID,by showing that there are intermediatestructures with selectable functions thatcould have evolved into the allegedly irre-ducibly complex systems. (2:15–16 (Mil-ler)). Importantly, however, the fact thatthe negative argument of irreducible com-plexity is testable does not make testablethe argument for ID. (2:15 (Miller); 5:39(Pennock)). Professor Behe has appliedthe concept of irreducible complexity toonly a few select systems: (1) the bacterialflagellum; (2) the blood-clotting cascade;and (3) the immune system. Contrary toProfessor Behe’s assertions with respect to

these few biochemical systems among themyriad existing in nature, however, Dr.Miller presented evidence, based uponpeer-reviewed studies, that they are not infact irreducibly complex.

First, with regard to the bacterial flagel-lum, Dr. Miller pointed to peer-reviewedstudies that identified a possible precursorto the bacterial flagellum, a subsystemthat was fully functional, namely the Type–III Secretory System. (2:8–20 (Miller);P–854.23–854.32). Moreover, defense ex-pert Professor Minnich admitted thatthere is serious scientific research on thequestion of whether the bacterial flagellumevolved into the Type–III Secretary Sys-tem, the Type–III Secretory System intothe bacterial flagellum, or whether theyboth evolved from a common ancestor.(38:12–16 (Minnich)). None of this re-search or thinking involves ID. (38:12–16(Minnich)). In fact, Professor Minnichtestified about his research as follows:‘‘we’re looking at the function of thesesystems and how they could have beenderived one from the other. And it’s alegitimate scientific inquiry.’’ (38:16 (Min-nich)).

Second, with regard to the blood-clottingcascade, Dr. Miller demonstrated that thealleged irreducible complexity of the blood-clotting cascade has been disproven bypeer-reviewed studies dating back to 1969,which show that dolphins’ and whales’blood clots despite missing a part of thecascade, a study that was confirmed bymolecular testing in 1998. (1:122–29 (Mil-ler); P–854.17–854.22). Additionally andmore recently, scientists published studiesshowing that in puffer fish, blood clotsdespite the cascade missing not only one,but three parts. (1:128–29 (Miller)). Ac-cordingly, scientists in peer-reviewed pub-lications have refuted Professor Behe’spredication about the alleged irreduciblecomplexity of the blood-clotting cascade.


Moreover, cross-examination revealed thatProfessor Behe’s redefinition of the blood-clotting system was likely designed toavoid peer-reviewed scientific evidencethat falsifies his argument, as it was not ascientifically warranted redefinition.(20:26–28, 22:112–25 (Behe)).

The immune system is the third systemto which Professor Behe has applied thedefinition of irreducible complexity. Al-though in Darwin’s Black Box, ProfessorBehe wrote that not only were there nonatural explanations for the immune sys-tem at the time, but that natural explana-tions were impossible regarding its origin.(P–647 at 139; 2:26–27 (Miller)). Howev-er, Dr. Miller presented peer-reviewedstudies refuting Professor Behe’s claimthat the immune system was irreduciblycomplex. Between 1996 and 2002, variousstudies confirmed each element of the evo-lutionary hypothesis explaining the originof the immune system. (2:31 (Miller)). Infact, on cross-examination, Professor Behewas questioned concerning his 1996 claimthat science would never find an evolution-ary explanation for the immune system.He was presented with fifty-eight peer-reviewed publications, nine books, and sev-eral immunology textbook chapters aboutthe evolution of the immune system; how-ever, he simply insisted that this was stillnot sufficient evidence of evolution, andthat it was not ‘‘good enough.’’ (23:19(Behe)).

We find that such evidence demon-strates that the ID argument is dependentupon setting a scientifically unreasonableburden of proof for the theory of evolution.As a further example, the test for IDproposed by both Professors Behe andMinnich is to grow the bacterial flagellumin the laboratory; however, no-one insideor outside of the IDM, including those whopropose the test, has conducted it. (P–718; 18:125–27 (Behe); 22:102–06 (Behe)).

Professor Behe conceded that the pro-posed test could not approximate realworld conditions and even if it could, Pro-fessor Minnich admitted that it wouldmerely be a test of evolution, not design.(22:107–10 (Behe); 2:15 (Miller); 38:82(Minnich)).

We therefore find that Professor Behe’sclaim for irreducible complexity has beenrefuted in peer-reviewed research papersand has been rejected by the scientificcommunity at large. (17:45–46 (Padian);3:99 (Miller)). Additionally, even if irredu-cible complexity had not been rejected, itstill does not support ID as it is merely atest for evolution, not design. (2:15, 2:35–40(Miller); 28:63–66 (Fuller)).

We will now consider the purportedly‘‘positive argument’’ for design encom-passed in the phrase used numerous timesby Professors Behe and Minnich through-out their expert testimony, which is the‘‘purposeful arrangement of parts.’’ Pro-fessor Behe summarized the argument asfollows: We infer design when we seeparts that appear to be arranged for apurpose. The strength of the inference isquantitative; the more parts that are ar-ranged, the more intricately they interact,the stronger is our confidence in design.The appearance of design in aspects ofbiology is overwhelming. Since nothingother than an intelligent cause has beendemonstrated to be able to yield such astrong appearance of design, Darwinianclaims notwithstanding, the conclusion thatthe design seen in life is real design isrationally justified. (18:90–91, 18:109–10(Behe); 37:50 (Minnich)). As previouslyindicated, this argument is merely a re-statement of the Reverend William Paley’sargument applied at the cell level. Min-nich, Behe, and Paley reach the same con-clusion, that complex organisms must havebeen designed using the same reasoning,except that Professors Behe and Minnich


refuse to identify the designer, whereasPaley inferred from the presence of designthat it was God. (1:6–7 (Miller); 38:44, 57(Minnich)). Expert testimony revealedthat this inductive argument is not scienti-fic and as admitted by Professor Behe, cannever be ruled out. (2:40 (Miller); 22:101(Behe); 3:99 (Miller)).

Indeed, the assertion that design of bio-logical systems can be inferred from the‘‘purposeful arrangement of parts’’ isbased upon an analogy to human design.Because we are able to recognize design ofartifacts and objects, according to Profes-sor Behe, that same reasoning can be em-ployed to determine biological design.(18:116–17, 23:50 (Behe)). Professor Behetestified that the strength of the analogydepends upon the degree of similarity en-tailed in the two propositions; however, ifthis is the test, ID completely fails.

Unlike biological systems, human arti-facts do not live and reproduce over time.They are non-replicable, they do not un-dergo genetic recombination, and they arenot driven by natural selection. (1:131–33(Miller); 23:57–59 (Behe)). For human ar-tifacts, we know the designer’s identity,human, and the mechanism of design, aswe have experience based upon empiricalevidence that humans can make suchthings, as well as many other attributesincluding the designer’s abilities, needs,and desires. (D–251 at 176; 1:131–33(Miller); 23:63 (Behe); 5:55–58 (Pennock)).With ID, proponents assert that they re-fuse to propose hypotheses on the design-er’s identity, do not propose a mechanism,and the designer, he/she/it/they, has neverbeen seen. In that vein, defense expertProfessor Minnich agreed that in the caseof human artifacts and objects, we knowthe identity and capacities of the humandesigner, but we do not know any of thoseattributes for the designer of biologicallife. (38:44–47 (Minnich)). In addition,

Professor Behe agreed that for the designof human artifacts, we know the designerand its attributes and we have a baselinefor human design that does not exist fordesign of biological systems. (23:61–73(Behe)). Professor Behe’s only responseto these seemingly insurmountable pointsof disanalogy was that the inference stillworks in science fiction movies. (23:73(Behe)).

It is readily apparent to the Court thatthe only attribute of design that biologicalsystems appear to share with human arti-facts is their complex appearance, i.e. if itlooks complex or designed, it must havebeen designed. (23:73 (Behe)). This in-ference to design based upon the appear-ance of a ‘‘purposeful arrangement ofparts’’ is a completely subjective proposi-tion, determined in the eye of each behold-er and his/her viewpoint concerning thecomplexity of a system. Although bothProfessors Behe and Minnich assert thatthere is a quantitative aspect to the infer-ence, on cross-examination they admittedthat there is no quantitative criteria fordetermining the degree of complexity ornumber of parts that bespeak design, rath-er than a natural process. (23:50 (Behe);38:59 (Minnich)). As Plaintiffs aptly sub-mit to the Court, throughout the entiretrial only one piece of evidence generatedby Defendants addressed the strength ofthe ID inference: the argument is lessplausible to those for whom God’s exis-tence is in question, and is much less plau-sible for those who deny God’s existence.(P–718 at 705).

Accordingly, the purported positive ar-gument for ID does not satisfy the groundrules of science which require testable hy-potheses based upon natural explanations.(3:101–03 (Miller)). ID is reliant uponforces acting outside of the natural world,forces that we cannot see, replicate, con-trol or test, which have produced changes


in this world. While we take no positionon whether such forces exist, they aresimply not testable by scientific means andtherefore cannot qualify as part of thescientific process or as a scientific theory.(3:101–02 (Miller)).

It is appropriate at this juncture to ad-dress ID’s claims against evolution. IDproponents support their assertion thatevolutionary theory cannot account forlife’s complexity by pointing to real gaps inscientific knowledge, which indisputablyexist in all scientific theories, but also bymisrepresenting well-established scientificpropositions. (1:112, 1:122, 1:136–37 (Mil-ler); 16:74–79, 17:45–46 (Padian)).

Before discussing Defendants’ claimsabout evolution, we initially note that anoverwhelming number of scientists, as re-flected by every scientific association thathas spoken on the matter, have rejectedthe ID proponents’ challenge to evolution.Moreover, Plaintiffs’ expert in biology, Dr.Miller, a widely-recognized biology profes-sor at Brown University who has writtenuniversity-level and high-school biologytextbooks used prominently throughoutthe nation, provided unrebutted testimonythat evolution, including common descentand natural selection, is ‘‘overwhelminglyaccepted’’ by the scientific community andthat every major scientific associationagrees. (1:94–100 (Miller)). As the courtin Selman explained, ‘‘evolution is morethan a theory of origin in the context ofscience. To the contrary, evolution is thedominant scientific theory of origin accept-ed by the majority of scientists.’’ Selman,390 F.Supp.2d at 1309 (emphasis in origi-nal). Despite the scientific community’soverwhelming support for evolution, De-

fendants and ID proponents insist thatevolution is unsupported by empirical evi-dence. Plaintiffs’ science experts, Drs.Miller and Padian, clearly explained howID proponents generally and Pandas spe-cifically, distort and misrepresent scientificknowledge in making their anti-evolutionargument.

In analyzing such distortion, we turnagain to Pandas, the book to which stu-dents are expressly referred in the dis-claimer. Defendants hold out Pandas asrepresentative of ID and Plaintiffs’ expertsagree in that regard. (16:83 (Padian);1:107–08 (Miller)). A series of argumentsagainst evolutionary theory found in Pan-das involve paleontology, which studies thelife of the past and the fossil record.Plaintiffs’ expert Professor Padian was theonly testifying expert witness with anyexpertise in paleontology.15 His testimonytherefore remains unrebutted. Dr. Padi-an’s demonstrative slides, prepared on thebasis of peer-reviewing scientific literature,illustrate how Pandas systematically dis-torts and misrepresents established, im-portant evolutionary principles.

We will provide several representativeexamples of this distortion. First, Pandasmisrepresents the ‘‘dominant form of un-derstanding relationships’’ between organ-isms, namely, the tree of life, representedby classification determined via the meth-od of cladistics. (16:87–97 (Padian); P–855.6–855.19). Second, Pandas misrepre-sents ‘‘homology,’’ the ‘‘central concept ofcomparative biology,’’ that allowed scien-tists to evaluate comparable parts amongorganisms for classification purposes forhundreds of years. (17:27–40 (Padian); P–855.83–855.102). Third, Pandas fails to

15. Moreover, the Court has been presentedwith no evidence that either Defendants’ testi-fying experts or any other ID proponents,including Pandas’ authors, have such paleon-tology expertise as we have been presented

with no evidence that they have publishedpeer-reviewed literature or presented such in-formation at scientific conferences on paleon-tology or the fossil record. (17:15–16 (Padi-an)).


address the well-established biological con-cept of exaptation, which involves a struc-ture changing function, such as fish finsevolving fingers and bones to become legsfor weight-bearing land animals. (16:146–48 (Padian)). Dr. Padian testified that IDproponents fail to address exaptation be-cause they deny that organisms changefunction, which is a view necessary to sup-port abrupt-appearance. Id. Finally, Dr.Padian’s unrebutted testimony demon-strates that Pandas distorts and misrepre-sents evidence in the fossil record aboutpre-Cambrian-era fossils, the evolution offish to amphibians, the evolution of smallcarnivorous dinosaurs into birds, the evolu-tion of the mammalian middle ear, and theevolution of whales from land animals.(16:107–17, 16:117–31, 16:131–45, 17:6–9,17:17–27 (Padian); P–855.25–855.33, P–855.34–855.45, P–855.46–855.55, P–855.56–866.63, P–855.64–855.82).

In addition to Dr. Padian, Dr. Milleralso testified that Pandas presents dis-credited science. Dr. Miller testified thatPandas ’ treatment of biochemical similari-ties between organisms is ‘‘inaccurate anddownright false’’ and explained how Pan-das misrepresents basic molecular biologyconcepts to advance design theory througha series of demonstrative slides. (1:112(Miller)). Consider, for example, that hetestified as to how Pandas misinformsreaders on the standard evolutionary rela-tionships between different types of ani-mals, a distortion which Professor Behe, a‘‘critical reviewer’’ of Pandas who wrote asection within the book, affirmed. (1:113–17 (Miller); P–854.9–854.16; 23:35–36(Behe)).16 In addition, Dr. Miller refutedPandas ’ claim that evolution cannot ac-count for new genetic information andpointed to more than three dozen peer-

reviewed scientific publications showingthe origin of new genetic information byevolutionary processes. (1:133–36 (Miller);P–245). In summary, Dr. Miller testifiedthat Pandas misrepresents molecular biol-ogy and genetic principles, as well as thecurrent state of scientific knowledge inthose areas in order to teach readers thatcommon descent and natural selection arenot scientifically sound. (1:139–42 (Mil-ler)).

Accordingly, the one textbook to whichthe Dover ID Policy directs students con-tains outdated concepts and badly flawedscience, as recognized by even the defenseexperts in this case.

A final indicator of how ID has failedto demonstrate scientific warrant is thecomplete absence of peer-reviewed publi-cations supporting the theory. Experttestimony revealed that the peer reviewprocess is ‘‘exquisitely important’’ in thescientific process. It is a way for scien-tists to write up their empirical researchand to share the work with fellow expertsin the field, opening up the hypotheses tostudy, testing, and criticism. (1:66–69(Miller)). In fact, defense expert Profes-sor Behe recognizes the importance ofthe peer review process and has writtenthat science must ‘‘publish or perish.’’(22:19–25 (Behe)). Peer review helps toensure that research papers are scienti-fically accurately, meet the standards ofthe scientific method, and are relevant toother scientists in the field. (1:39–40(Miller)). Moreover, peer review involvesscientists submitting a manuscript to ascientific journal in the field, journal edi-tors soliciting critical reviews from otherexperts in the field and deciding whether

16. Additionally, testimony provided by Profes-sor Behe revealed an increasing gap betweenhis portrayal of ID theory and how it is pre-sented in Pandas. Although he is a ‘‘critical

reviewer’’ of the work, he disagrees with lan-guage provided in the text, including but notlimited to the text’s very definition of ID. (P–11 at 99–100).


the scientist has followed proper researchprocedures, employed up-to-date methods,considered and cited relevant literatureand generally, whether the researcherhas employed sound science.

The evidence presented in this casedemonstrates that ID is not supported byany peer-reviewed research, data or publi-cations. Both Drs. Padian and Forresttestified that recent literature reviews ofscientific and medical-electronic databasesdisclosed no studies supporting a biologicalconcept of ID. (17:42–43 (Padian); 11:32–33 (Forrest)). On cross-examination, Pro-fessor Behe admitted that: ‘‘There are nopeer reviewed articles by anyone advocat-ing for intelligent design supported by per-tinent experiments or calculations whichprovide detailed rigorous accounts of howintelligent design of any biological systemoccurred.’’ (22:22–23 (Behe)). Additional-ly, Professor Behe conceded that there areno peer-reviewed papers supporting hisclaims that complex molecular systems,like the bacterial flagellum, the blood-clot-ting cascade, and the immune system,were intelligently designed. (21:61–62(complex molecular systems), 23:4–5 (im-mune system), and 22:124–25 (blood-clot-ting cascade) (Behe)). In that regard,there are no peer-reviewed articles sup-porting Professor Behe’s argument thatcertain complex molecular structures are‘‘irreducibly complex.’’ 17 (21:62, 22:124–25(Behe)). In addition to failing to producepapers in peer-reviewed journals, ID alsofeatures no scientific research or testing.(28:114–15 (Fuller); 18:22–23, 105–06(Behe)).

After this searching and careful reviewof ID as espoused by its proponents, aselaborated upon in submissions to theCourt, and as scrutinized over a six weektrial, we find that ID is not science andcannot be adjudged a valid, accepted scien-tific theory as it has failed to publish inpeer-reviewed journals, engage in researchand testing, and gain acceptance in thescientific community. ID, as noted, isgrounded in theology, not science. Ac-cepting for the sake of argument its propo-nents’, as well as Defendants’ argumentthat to introduce ID to students will en-courage critical thinking, it still has utterlyno place in a science curriculum. More-over, ID’s backers have sought to avoidthe scientific scrutiny which we have nowdetermined that it cannot withstand byadvocating that the controversy, but notID itself, should be taught in science class.This tactic is at best disingenuous, and atworst a canard. The goal of the IDM isnot to encourage critical thought, but tofoment a revolution which would supplantevolutionary theory with ID.

To conclude and reiterate, we express noopinion on the ultimate veracity of ID as asupernatural explanation. However, wecommend to the attention of those who areinclined to superficially consider ID to be atrue ‘‘scientific’’ alternative to evolutionwithout a true understanding of the con-cept the foregoing detailed analysis. It isour view that a reasonable, objective ob-server would, after reviewing both the vo-luminous record in this case, and our nar-rative, reach the inescapable conclusion

17. The one article referenced by both Profes-sors Behe and Minnich as supporting ID is anarticle written by Behe and Snoke entitled‘‘Simulating evolution by gene duplication ofprotein features that require multiple aminoacid residues.’’ (P–721). A review of thearticle indicates that it does not mention ei-ther irreducible complexity or ID. In fact,

Professor Behe admitted that the study whichforms the basis for the article did not rule outmany known evolutionary mechanisms andthat the research actually might support evo-lutionary pathways if a biologically realisticpopulation size were used. (22:41–45 (Behe);P–756).


that ID is an interesting theological argu-ment, but that it is not science.

F. Application of the Lemon Test tothe ID Policy

[5] Although we have found that De-fendants’ conduct conveys a strong mes-sage of endorsement of the Board mem-bers’ particular religious view, pursuant tothe endorsement test, the better practicein this Circuit is for this Court to alsoevaluate the challenged conduct separatelyunder the Lemon test.18 See Child Evan-gelism, 386 F.3d at 530–35; Modrovich,385 F.3d at 406; Freethought, 334 F.3d at261.

[6] As articulated by the SupremeCourt, under the Lemon test, a govern-ment-sponsored message violates the Es-tablishment Clause of the First Amend-ment if: (1) it does not have a secularpurpose; (2) its principal or primary effectadvances or inhibits religion; or (3) it cre-ates an excessive entanglement of the gov-ernment with religion. Lemon, 403 U.S.at 612–13, 91 S.Ct. 2125. As the Lemontest is disjunctive, either an improper pur-pose or an improper effect renders the IDPolicy invalid under the EstablishmentClause.19

We will therefore consider whether (1)Defendants’ primary purpose was to ad-vance religion or (2) the ID Policy has theprimary effect of promoting religion.

1. Purpose Inquiry

Initially, we note that the central inquiryis whether the District has shown favorit-ism toward religion generally or any set ofreligious beliefs in particular:

The touchstone for our analysis is theprinciple that the ‘‘First Amendmentmandates governmental neutrality be-tween religion and religion, and betweenreligion and nonreligion.’’ When thegovernment acts with the ostensible andpredominant purpose of advancing reli-gion, it violates the central Establish-ment Clause value of official religiousneutrality, there being no neutralitywhen the government’s ostensible objectis to take sides.

McCreary, 125 S.Ct. at 2733 (quoting Ep-person, 393 U.S. at 104, 89 S.Ct. 266). Asthe Supreme Court instructed in Edwards,Lemon’s purpose prong ‘‘asks whethergovernment’s actual purpose is to endorseor disapprove of religion. A governmentalintention to promote religion is clear whenthe State enacts a law to serve a religiouspurpose.’’ Edwards, 482 U.S. at 583, 107S.Ct. 2573 (quoting Lynch, 465 U.S. at 690,104 S.Ct. 1355) (O’Connor, J., concurring).

The purpose inquiry involves consider-ation of the ID Policy’s language, ‘‘enlight-ened by its context and contemporaneouslegislative history[,]’’ including, in thiscase, the broader context of historical andongoing religiously driven attempts to ad-vance creationism while denigrating evolu-tion.20 Selman, 390 F.Supp.2d at 1300;

18. As previously noted, both parties concedethat the Lemon test is applicable to the casesub judice.

19. Plaintiffs are not claiming excessive entan-glement. Accordingly, Plaintiffs argue thatthe ID Policy is violative of the first twoprongs of the Lemon test, the purpose andeffect prongs.

20. We disagree with Defendants’ assertionsthat the Court must first look for the Board’s

purpose in the plain text of the challengedPolicy and may consider other indicia of pur-pose only if the Policy is ambiguous as topurpose. Similarly, we do not find that indi-vidual Board members’ statements are irrele-vant as a matter of law or that they cannot beconsidered as part of the legislative historybecause they are not statements by the fullBoard in its collective, corporate capacity.

First, as Plaintiffs submit, at the most su-perficial level, Defendants’ ‘‘look at the text


Edwards, 482 U.S. at 590–92, 594–95, 107S.Ct. 2573 (in addition to ‘‘[t]he plainmeaning of the [enactment’s] words, en-lightened by their context and the contem-poraneous legislative history,’’ SupremeCourt also looks for legislative purposes in‘‘the historical context of the [enactment],and the specific sequence of events leadingto [its] passage’’); see also Epperson, 393U.S. at 98–101, 89 S.Ct. 266; McLean, 529F.Supp. at 1263 (looking to history ofChristian Fundamentalism nationally andto Arkansas’ ‘‘long history of official oppo-sition to evolution which is motivated byadherence to Fundamentalist beliefs,’’ andholding that, ‘‘[i]n determining the legisla-tive purpose of a statute, courts may con-sider evidence of the historical context ofthe Act, the specific sequence of eventsleading up to passage of Act, departuresfrom normal procedural sequences, sub-stantive departures from the normal, andcontemporaneous statements of the legisla-tive sponsor.’’) (citations omitted).

The disclaimer’s plain language, the leg-islative history, and the historical contextin which the ID Policy arose, all inevitablylead to the conclusion that Defendants con-sciously chose to change Dover’s biologycurriculum to advance religion. We havebeen presented with a wealth of evidencewhich reveals that the District’s purposewas to advance creationism, an inherentlyreligious view, both by introducing it di-

rectly under the label ID and by disparag-ing the scientific theory of evolution, sothat creationism would gain credence bydefault as the only apparent alternative toevolution, for the reasons that follow.

We will begin the Lemon purpose inqui-ry by providing a detailed chronology ofthe events that transpired in Dover lead-ing up to the enactment of the ID Policy atissue.

We will initially supply background in-formation on the composition of the Board,which consists of nine seats. The ninemembers of the Board in 2004 were AlanBonsell, William Buckingham, Sheila Har-kins, Jane Cleaver, Heather Geesey, AngieYingling, Noel Wenrich, Jeff Brown, andCasey Brown. Wenrich and Cleaver re-signed on October 4, 2004, Casey and JeffBrown resigned on October 18, 2004, andYingling resigned verbally in November2004 and in writing February 2005. (TrialTr. vol. 34, Harkins Test., 113, Nov. 2,2005; Cleaver Dep. at 15, June 9, 2005).During 2004, Bonsell was President of theBoard and as President, he appointedBuckingham to be Chair of the Board’sCurriculum Committee. (32:86–87 (Bon-sell); 34:39 (Harkins)). As Board Presi-dent, Bonsell also served as an ex officiomember of the Curriculum Committee.(32:116 (Bonsell)).

alone’’ approach is on its face inapposite be-cause ID is not defined in the Policy. Accord-ingly, even if this Court was limited to thedisclaimer’s language, which as stated wefind that we are not, statutory interpretationcanons would require consideration of thePolicy’s legislative history and historical con-text to ascertain what is meant by the termID. Second, with regard to Defendants’ con-tention that we should exclude individualBoard members’ statements from the legisla-tive history on the ground that they are notfull pronouncements by the Board, the Su-preme Court has consistently held not onlythat legislative history can and must be con-

sidered in ascertaining legislative purpose un-der Lemon, but also that statements by ameasure’s sponsors and chief proponents arestrong indicia of such purpose. McCreary,125 S.Ct. at 2734 (although courts do notengage in ‘‘psychoanalysis of a drafter’s heartof hearts,’’ they routinely and properly look toindividual legislators’ public statements to de-termine legislative purpose); Edwards, 482U.S. at 586–88, 107 S.Ct. 2573 (reliance upona statute’s text and the detailed public com-ments of its sponsor when determining thepurpose of a state law requiring creationismto be taught alongside evolution).


a. Beginning in January 2002, Bon-sell Made Repeated Expressions ofInterest to Inject Religion into theDover Schools

The Board held a retreat on January 9,2002, several weeks after Bonsell joinedthe Board. Superintendent Nilsen’s con-temporaneous notes reveal that Bonsellidentified ‘‘creationism’’ as his number oneissue and ‘‘school prayer’’ as his numbertwo issue. (P–21). Although Bonsellclaims he cannot recall raising such sub-jects but does not dispute that he did, infact, raise them, the overwhelming evi-dence indicates that he raised the issues ofcreationism and school prayer during theJanuary 2002 Board retreat.21

The Board held another retreat the fol-lowing year, on March 26, 2003, in whichBonsell again raised the issue of ‘‘creation-ism’’ as an issue of interest as reflected inDr. Nilsen’s contemporaneous notes.(35:50–53 (Baksa); P–25). For the second,consecutive time, Bonsell does not disputethat he raised the issue but his testimonyindicates that he cannot recall doing so,despite the fact that Jeff Brown, BarrieCallahan, Bertha Spahr, and Assistant Su-perintendent Baksa testified otherwise.(32:75 (Bonsell); Trial Tr. vol. 8, J. BrownTest., 50–51, Sept. 29, 2005) (Recalled Bon-sell say at the March 26, 2003 retreat thathe felt creationism ‘‘belonged in biologyclass alongside evolution.’’); 3:126–27 (B.Callahan) (Her testimony and notes tookduring the March 26, 2003 retreat revealthat Bonsell said he wanted creationismtaught 50/50 with evolution in biologyclass.).

In fact, Trudy Peterman, then principalof Dover High School, sent a memo toAssistant Superintendent Baksa and Sci-

ence Department Chair Bertha Spahr witha copy sent to Dr. Nilsen on April 1, 2003.This memo reports that Peterman learnedfrom Spahr that Baksa said on March 31,2003, that an unidentified Board member‘‘wanted fifty percent of the topic of evolu-tion to involve the teaching of Creation-ism.’’ (P–26). Although defense wit-nesses testified that Peterman was knownto exaggerate situations, the weight of theevidence reveals that the essential contentof the memo was indeed accurate.

In that regard, Barrie Callahan’s testi-mony and handwritten notes from theMarch 26, 2003 retreat find corroborationin Superintendent Nilsen’s contemporane-ous note that Bonsell raised the issue of‘‘creationism,’’ as do they in the Petermanmemo. Additionally, Spahr confirmed thatshe had a conversation with Baksa, asreported in the Peterman memo, and thatBaksa told her Bonsell wanted to havecreationism share equal time with evolu-tion in the curriculum. (13:72–73 (Spahr)).Third, Baksa confirmed that he had a con-versation with Spahr, as reported in thePeterman memo, in which he told her thatBonsell was looking ‘‘for a 50/50 split withDarwin and some alternative.’’ (35:53–56(Baksa)).

Although Baksa claims he does not re-call Bonsell identifying ‘‘creationism’’ asthe subject with which he wanted to shareequal time with evolution, nor that Bonsellmentioned ‘‘creationism’’ at any time upuntil April 1, 2003, we do not find histestimony on this point to be credible. Weaccordingly find that Bonsell is clearly theunnamed Board member referred to inPeterman’s memo who wanted fifty per-cent of the topic of evolution to involve theteaching of creationism.

21. Consider, to illustrate, that Casey Browntestified she recalled that Bonsell ‘‘expresseda desire to look into bringing prayer and faithback into the schools,’’ that Bonsell men-

tioned the Bible and creationism, and felt‘‘there should be a fair and balanced presen-tation within the curriculum.’’ (Trial Tr. vol.7, C. Brown Test., 17–18, Sept. 29, 2005).


Apart from two consecutive Board re-treats, Bonsell raised the issue of creation-ism on numerous other occasions as well.When he ran for the Board in 2001, Bon-sell told Jeff Brown he did not believe inevolution, that he wanted creationismtaught side-by-side with evolution in biolo-gy class, and that taking prayer and Biblereading out of school was a mistake whichhe wanted reinstated in the Dover publicschools. (8:48–49 (J. Brown)). Subse-quently, Bonsell told Jeff Brown he want-ed to be on the Board Curriculum Com-mittee because he had concerns aboutteaching evolution and he wanted to seesome changes in that area. (8:55 (J.Brown)). Additionally, Nilsen complainedto Jeff Brown that each Board Presidenthad a new set of priorities and Bonsell’spriority was that of creationism. (8:53 (J.Brown)). It is notable, and in fact incredi-ble that Bonsell disclaimed any interest increationism during his testimony, despitethe admission by his counsel in Defen-dants’ opening statement that Bonsell hadsuch an interest. (1:19). Simply put, Bon-sell repeatedly failed to testify in a truth-ful manner about this and other subjects.Finally, Bonsell not only wanted prayer inschools and creationism taught in scienceclass, he also wanted to inject religion intothe social studies curriculum, as evidencedby his statement to Baksa that he wantedstudents to learn more about the FoundingFathers and providing Baksa with a bookentitled Myth of Separation by David Bar-ton.22 (36:14–15, 17 (Baksa), P–179).

b. Fall 2003—Bonsell ConfrontedTeachers About Evolution

Shortly after Baksa took a position withthe DASD in the fall of 2002, he and

Bonsell, then Chair of the Board Curricu-lum Committee, had discussions in whichBonsell expressed concern about theteaching of evolution, the presentation ofDarwin in a biology textbook used at Do-ver, and felt that Darwin was presented asa fact, not a theory. (26:62–64 (Baksa);35:55 (Baksa)). Prior to the fall of 2003,Baksa discussed Bonsell’s evolutionaryconcerns with the teachers, including Bon-sell’s problem with the teaching of theorigin of life, by which Bonsell meant howspecies change into other species, aspectsof the theory of evolution also known asmacroevolution and speciation. (35:66–68(Baksa)).

Baksa then arranged for a meeting be-tween Bonsell and science teachers in thefall of 2003 in which Jennifer Miller, thesenior biology teacher, acted as spokesper-son for the teachers. (Trial Tr. vol. 12, J.Miller, 107–09, Oct. 6, 2005; 35:68 (Bak-sa)). Miller testified that Bonsell was spe-cifically concerned that the teachers con-veyed information to students in oppositionto what parents presented at home leavingstudents with the impression that ‘‘some-body is lying.’’ (12:111 (J. Miller)). Millerexplained that evolution is taught aschange over time with emphasis upon ori-gin of species, not origin of life. Bonsellleft the meeting with the understandingthat the ‘‘origins of life’’ is not taught,which pleased him because the concept ofcommon ancestry offends his personal reli-gious belief that God created man andother species in the forms they now existand that the earth is only thousands ofyears old. (33:54–58, 115 (Bonsell)).

Prior to the fall of 2003, no Dover ad-ministrator or Board member had ever

22. Moreover, in an email to one of the socialstudies teachers on October 19, 2004, the dayafter the Board passed the resolution at issue,Baksa said: ‘‘all kidding aside, be carefulwhat you ask for. I’ve been given a copy of

the Myth of Separation by David Barton toreview from Board members. Social Studiescurriculum is next year. Feel free to borrowmy copy to get an idea where the board iscoming from.’’ (36:14 (Baksa); P–91).


met with the biology teachers and ques-tioned them as to how they taught evolu-tion, or any other aspect of biology. (TrialTr. vol. 36, Linker Test., 75, Nov. 3, 2005).The result of the unprecedented fall 2003meeting was that it had an impact uponhow biology teachers subsequently taughtevolution in Dover. First, before themeeting with Bonsell, biology teacher Rob-ert Linker had a practice of explainingthat creationism was based on ‘‘Bibles, re-ligion, [and] Biblical writings,’’ noting thatit was illegal to discuss creation in publicschool. (36:83 (Linker)). After the meet-ing, however, Linker changed his priorpractice by ceasing any mention of cre-ationism at the beginning of the evolutionsection, as did he stop using helpful Dis-covery Channel evolution videos as teach-ing aides. (36:82–85 (Linker)). Linkertestified that he changed his practices inthe classroom because the unusual meetingwith Bonsell alerted him to a controversysurrounding how he taught evolution.(36:84–85 (Linker)). Linker additionallytestified that Jen Miller, a senior biologyteacher, changed her practice of havingthe students create an evolution time-linein the hallway, which addressed how vari-ous species developed over millions ofyears. (36:86–87 (Linker)).

Therefore, although Defendants have as-serted that the ID Policy has the secularpurposes of promoting critical thinkingand improving science education, the oppo-site of such purposes occurred in fact asbiology teachers had already began to omitteaching material regarding the theory ofevolution in the months preceding theadoption of the ID Policy.

c. Early 2004—Buckingham’s Con-tacts with the Discovery Institute

At some point before June 2004, SethCooper, an attorney with the DiscoveryInstitute contacted Buckingham and twosubsequent calls occurred between theDiscovery Institute and Buckingham. Al-

though Buckingham testified that he onlysought legal advice which was provided inthe phone calls, for which Defendants as-serted the attorney-client privilege, Buck-ingham and Cooper discussed the legalityof teaching ID and gaps in Darwin’s theo-ry. (29:133–143 (Buckingham); 30:9(Buckingham)). The Discovery Instituteforwarded Buckingham a DVD, videotape,and book which he provided to Nilsen togive the science teachers. (29:130–131(Buckingham); 25:100–01 (Nilsen);26:114–15 (Baksa)). Late in the 2003–04school year, Baksa arranged for the sci-ence teachers to watch a video from theDiscovery Institute entitled ‘‘Icons of Evo-lution’’ and at a subsequent point, twolawyers from the Discovery Institute madea legal presentation to the Board in execu-tive session. (Trial Tr. vol. 4, B. RehmTest., 48–49, Sept. 27, 2005; 33:111–12(Bonsell)).

d. June 2003 to June 2004—BoardDelayed Purchasing the BiologyTextbook

In June 2003, the Board approved fundsfor new science textbooks, including a biol-ogy textbook, the 2002 edition of Biologywritten by Plaintiffs’ lead expert KennethMiller; however, the Board did not ap-prove the purchase of such biology text-book despite its recommendation by thefaculty and administration. (3:130–31 (B.Callahan); 29:33 (Buckingham)). In fact,Buckingham testified that as of June 2004,the Board was delaying approval of Biolo-gy because of the book’s treatment of evo-lution and the fact that it did not cover anyalternatives to the theory of evolution.(29:33–34 (Buckingham)).

e. June 2004 Board Meetings—Buck-ingham and Other Board MembersSpoke in Favor of Teaching Cre-ationism

Plaintiffs introduced evidence that atpublic school board meetings held on June


7, 2004 and June 14, 2004, members of theBoard spoke openly in favor of teachingcreationism and disparaged the theory ofevolution on religious grounds. On theseimportant points, Plaintiffs introduced thetestimony of Plaintiffs Fred and BarrieCallahan, Bryan and Christy Rehm, BethEveland, former school Board membersCasey and Jeff Brown and William Buck-ingham, teachers Bertha Spahr and Jenni-fer Miller, and newspaper reporters HeidiBernhard–Bubb and Joseph Maldonado.We are in agreement with Plaintiffs thatwith the exception of Buckingham, the tes-timony of these witnesses was both credi-ble and convincing, as will be discussedbelow.

We will now provide our findings re-garding the June 7, 2004 Board meeting.First, the approval of several science text-books appeared on the agenda for themeeting, but not approval for the biologytextbook. (P–42 at 8–9). After BarrieCallahan asked whether the Board wouldapprove the purchase of the 2002 edition ofthe textbook entitled Biology, Buckinghamtold Callahan that the book was ‘‘lacedwith Darwinism’’ and spoke in favor ofpurchasing a textbook that included a bal-ance of creationism and evolution. (P–46/P–790; 35:76–78 (Baksa); 24:45–46 (Nil-sen); 3:135–36 (B. Callahan); 4:51–52 (B.Rehm); 6:62–63 a. (Rehm); 7:25–26 a.(Brown)). With surprising candor consid-ering his otherwise largely inconsistentand non-credible testimony, Buckinghamdid admit that he made this statement.Second, Buckingham said that the BoardCurriculum Committee would look for abook that presented a balance betweencreationism and evolution. (P–45/P–805;Trial Tr. vol. 30, Bernhard–Bubb Test., 96,Oct. 27, 2005; P–46/P–790; Trial Tr. vol.31, Maldonado Test., 59–60, Oct. 28, 2005).Third, Bonsell said that there were onlytwo theories that could possibly be taught,creationism and evolution, and as long as

both were taught as theories there wouldbe no problems for the District. (P–46/P–790; 6:65 a. (Rehm)). Fourth, Bucking-ham spoke in favor of having a biologybook that included creationism. (P–47/P–791; 8:60–61 (J. Brown); 7:33 a. (Brown);3:137–38 (B. Callahan); 30:89–90, 105–06,110–11 (Bernhard–Bubb); 31:60, 66 (Mal-donado)). Fifth, both Wenrich and Bonsellspoke in favor of having a biology bookthat included creationism. (P–47/P–791;8:60 (J. Brown); 7:33 a. (Brown); 30:89–90, 105–06, 110–11 (Bernhard–Bubb);31:66 (Maldonado); 3:137–38 (B. Calla-han)). Sixth, Superintendent Nilsen saidthat the District was looking for a textbookthat presented ‘‘all options and theories’’and never challenged the accuracy of thatquotation. (25:119–20 (Nilsen)). Seventh,Buckingham testified that he had previous-ly said the separation of church and stateis a myth and not something that he sup-ports. (P–44/P–804; P–47/P–791; 3:141–42 (B. Callahan); 7:32–33 a. (Brown);31:66–67 (Maldonado)). Buckingham alsosaid: ‘‘It is inexcusable to have a book thatsays man descended from apes with noth-ing to counterbalance it.’’ (P–44/P–804;30:77–78 (Bernhard–Bubb)). Finally, afterthe meeting, Buckingham stated: ‘‘Thiscountry wasn’t founded on Muslim beliefsor evolution. This country was founded onChristianity and our students should betaught as such.’’ (P–46/P–790; 31:63 (Mal-donado)).

We will now provide our findings re-garding the June 14, 2004 Board meeting.Initially, we note that the subject of thebiology textbook did not appear on theagenda of the meeting but members of thepublic made comments, and the Board con-tinued to debate the subject of the biologytextbook. Second, Buckingham’s wife,Charlotte, gave a speech that exceeded thenormal time protocols during the publiccomment section in which she explained


that ‘‘evolution teaches nothing but lies,’’quoted from Genesis, asked ‘‘how can weallow anything else to be taught in ourschools,’’ recited gospel verses telling peo-ple to become born again Christians, andstated that evolution violated the teachingsof the Bible. (P–53/P–793; 4:55–56(B.Rehm); 6:71 a. (Rehm); 7:34–35 a.(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)). In her deposition, Char-lotte Buckingham admitted that she madea speech at the June 14, 2004 Board meet-ing in which she argued that creationismas set forth in Genesis should be taught atDover High School and that she read quo-tations from scripture as part of herspeech. a. Buckingham Dep. at 19–22,April 15, 2005. During this religiousspeech at a public Board meeting, Boardmembers Buckingham and Geesey said‘‘amen.’’ (7:35 a. (Brown)). Third, Buck-ingham stood by his opposition to the 2002edition of the textbook entitled Biology.Fourth, Bonsell and Wenrich said theyagreed with Buckingham that creationismshould be taught to balance evolution. (P–806/P–54). Fifth, Buckingham made sev-eral outwardly religious statements, whichinclude the following remarks. ‘‘Nowherein the Constitution does it call for a sepa-ration of church and state.’’ He explainedthat this country was founded on Chris-tianity. Buckingham concedes that hesaid ‘‘I challenge you (the audience) totrace your roots to the monkey you camefrom.’’ He said that while growing up, hisgeneration read from the Bible and prayedduring school. He further said ‘‘liberals inblack robes’’ were ‘‘taking away the rightsof Christians’’ and he said words to theeffect of ‘‘2,000 years ago someone died ona cross. Can’t someone take a stand forhim?’’ (P–806/P–54; 12:126 (J. Miller);13:85 (Spahr); 30:105–07 (Bernhard–

Bubb); P–793/P–53; 31:75–76, 78–79 (Mal-donado); 29:71 (Buckingham); 35:81–82(Baksa); 6:73 a. (Rehm); 4:54–55(B.Rehm); 6:96 (Eveland); 7:26–27 a.(Brown); 8:63 (J. Brown); 8:105–06(F.Callahan)).

Finally, although Buckingham, Bonsell,and other defense witnesses denied thereports in the news media and contradict-ed the great weight of the evidence aboutwhat transpired at the June 2004 Boardmeetings, the record reflects that thesewitnesses either testified inconsistently, orlied outright under oath on several occa-sions, and are accordingly not credible onthese points.

f. June 2004—Board CurriculumCommittee Meeting

Near the end of the school year in June2004, the Board Curriculum Committeemet with the teachers to discuss a list ofBuckingham’s concerns about the textbookBiology. (12:114–15 (J. Miller); 35:82(Baksa); P–132). All of Buckingham’sconcerns related to the theory of evolutionand included such objections as the refer-ence to a species of finch known as Dar-win’s finch simply because it referred toDarwin and his viewpoint that the text-book did not give ‘‘balanced presentation,’’by which he meant that it did not includethe ‘‘theory of creationism with God ascreator of all life.’’ (7:45–48 a. (Brown)).

A large part of the meeting addressedBuckingham’s concern that the teacherswere teaching what he referred to as ‘‘ori-gins of life,’’ apparently including the ori-gin of species and common ancestry. JenMiller reiterated that the teachers do notaddress origins of life, only origin of spe-cies. (12:118–120 (J. Miller)).

Also at the meeting Baksa providedthose in attendance with several docu-ments including a survey of biology books


used in private religious schools in YorkCounty, a product profile of a biology text-book used at Bob Jones University, and adocument entitled ‘‘Beyond the Evolutionvs. Creation Debate.’’ The second pageof the ‘‘Beyond the Evolution vs. CreationDebate’’ document reads ‘‘Views on theOrigin of the Universe and Life’’ and itexplains the difference between ‘‘YoungEarth Creationism (Creation Science),’’‘‘Progressive Creationism (Old Earth Cre-ation),’’ ‘‘Evolutionary Creation (TheisticCreation),’’ ‘‘Deistic Evolution (TheisticEvolution),’’ and ‘‘Dysteleological Evolu-tion (Atheistic Evolution).’’ Interestinglyand notably, the example provided underthe Progressive Creation (Old Earth Cre-ation) is that of the ‘‘Intelligent DesignMovement, Phillip Johnson, MichaelBehe.’’ (P–149).

Accordingly, as accurately submitted byPlaintiffs, we find that the Board Curricu-lum Committee knew as early as June2004 that ID was widely considered bynumerous observers to be a form of cre-ationism. We do not find it coincidentalthat based upon the previously recitedstatements and history, some form of cre-ationism was precisely what the Commit-tee wanted to inject into Dover’s scienceclassrooms.

Moreover, at the meeting, although theteachers had already watched the video‘‘Icons of Evolution’’ from the DiscoveryInstitute, at Buckingham’s insistence theyagreed to review it again and considerusing in class any portions that alignedwith their curriculum. (26:122 (Baksa)).Although Baksa believed that the teach-ers had already determined there wereno parts in the video that would be ap-propriate for use in class, the teacherscapitulated in order to secure Bucking-ham’s approval to purchase the muchneeded biology textbook. (35:93–94 (Bak-sa)).

In the midst of this panoply, there arosethe astonishing story of an evolution muralthat was taken from a classroom and de-stroyed in 2002 by Larry Reeser, the headof buildings and grounds for the DASD. Atthe June 2004 meeting, Spahr asked Buck-ingham where he had received a picture ofthe evolution mural that had been torndown and incinerated. Jen Miller testifiedthat Buckingham responded: ‘‘I gleefullywatched it burn.’’ (12:118 (J. Miller)).Buckingham disliked the mural because hethought it advocated the theory of evolu-tion, particularly common ancestry.(26:120 (Baksa)). Burning the evolution-ary mural apparently was insufficient forBuckingham, however. Instead, he de-manded that the teachers agree that therewould never again be a mural depictingevolution in any of the classrooms and inexchange, Buckingham would agree tosupport the purchase of the biology text-book in need by the students. (36:56–57(Baksa) (emphasis added)).

Finally, Baksa’s testimony revealed thatthere was some mention of the words ‘‘in-telligent design’’ at the meeting but hecannot recall who raised the subject. Infact, to the best of his knowledge at thetime, ID amounted to nothing more thantwo words replacing one word, creation-ism, used by Buckingham at a Boardmeeting earlier that month. (35:96–98(Baksa)). Baksa’s testimony supportsPlaintiffs’ argument that at a point in June2004, creationism began to morph into IDin the minds of the Board’s thought lead-ers.

g. July 2004—Buckingham Contact-ed Richard Thompson andLearned about Pandas

At some point before late July 2004,Buckingham contacted the Thomas MoreLaw Center (hereinafter ‘‘TMLC’’) for thepurpose of seeking legal advice and spoke


with Richard Thompson, President andChief Counsel for the TMLC. (30:10–12(Buckingham)). The TMLC proposed torepresent the Board, and Buckingham ac-cepted the offer on the Board’s behalf.Buckingham and the Board first learned ofthe creationist textbook Pandas fromRichard Thompson at some point beforelate July 2004. (29:107–08 (Buckingham);30:10–12, 15–16 (Buckingham)).

h. July 2004—New Edition of BiologyTextbook Discovered

In July 2004, after the teachers discov-ered that there was a 2004 edition of thetextbook Biology available, the Boardagreed to defer consideration of purchas-ing a new textbook at its July 12, 2004meeting until it could review the 2004 edi-tion. (12:127 (J. Miller); 13:30 (Spahr)).In July 2004, Spahr, Miller, and Baksa metto review the 2004 edition and comparedthe sections on evolution with those foundin the 2002 edition. They then created adocument delineating the differences.(12:127–29 (J. Miller)).

i. August 2004—Buckingham andOther Board Members Tried toPrevent Purchase of StandardBiology Textbook

On August 2, 2004 the Board met andone of the agenda items was the approvalof the 2004 edition of Biology. A few daysprior to this meeting, Casey Brown re-ceived a telephone call from Baksa whotold her that Buckingham recommendedthat the District purchase Pandas as asupplemental textbook. (7:52–53 a.(Brown); 8:64 (J. Brown)). Jeff Brownthen went to Harkins’ home to pick up acopy of Pandas at which point she toldhim that she wanted the school District topurchase the book. (8:65 (J. Brown)).

Subsequently, at the August 2, 2004meeting, Buckingham opposed the pur-

chase of Biology, which was recommendedby the faculty and administration, unlessthe Board also approved the purchase ofPandas as a companion text. Only eightmembers of the Board were present onAugust 2, 2004 and the initial vote to ap-prove the purchase of Pandas failed on afour to four vote with Buckingham, Har-kins, Geesey, and Yingling voting for it.(8:68 (J. Brown); 29:105–06 (Buckingham);P–67). After Buckingham stated that hehad five votes in favor of purchasing Pan-das and if the Board approved the pur-chase of Pandas, he would release hisvotes to also approve the purchase of Biol-ogy, Yingling changed her vote and themotion to approve the purchase of Biologypassed. (P–67; 8:68–69 (J. Brown)). Attrial, Buckingham testified that at themeeting he specifically said ‘‘if he didn’tget his book, the district would not get thebiology book.’’ (29:106 (Buckingham)).

j. August 26, 2004—Solicitor’s Warn-ing to Board

On August 26, 2004, Board Solicitor Ste-phen S. Russell sent an email to Nilsenwhich indicated he spoke with RichardThompson of the TMLC and that ‘‘[t]heyrefer to the creationism issue as ‘intelli-gent design.’ ’’ (P–70). The email pro-ceeded to explain the following:

They [TMLC] have background knowl-edge and have talked to school boards inWest Virginia and Michigan about possi-ble litigation. However, nothing hascome about in either state. This sug-gests to me that no one is adopting thetextbook because, if they were, one cansafely assume there would have been alegal challenge by someone somewhereTTT I guess my main concern at themoment, is that even if use of the text ispurely voluntary, this may still make itvery difficult to win a case. I say thisbecause one of the common themes in


some of the U.S. Supreme Court deci-sions, especially dealing with silent med-itation, is that even though something isvoluntary, it still causes a problem be-cause the practice, whatever it may be,was initiated for religious reasons. Oneof the best examples comes out of thesilent meditation cases in Alabamawhich the court struck down because therecord showed that the statute in ques-tion was enacted for religious reasons.My concern for Dover is that in the lastseveral years there has been a lot ofdiscussion, news print, etc. for puttingreligion back in the schools. In mymind this would add weight to a lawsuitseeking to enjoin whatever the practicemight be.

Id. (emphasis added). Nilsen subsequent-ly shared this email with everyone presentat the Board Curriculum Committee meet-ing on August 30, 2004, including Bucking-ham, Bonsell, and Harkins. (25:135–36(Nilsen)). Additionally, both Nilsen andBaksa admitted that they knew the emailreferred to the news reports of the June2004 meetings. (25:135–36, 138–39 (Nilsen);35:105–06, 111–12 (Baksa)).

There is no evidence that the Boardheeded even one iota of the Solicitor’sdetailed and prudent warning. We alsofind the email to be persuasive, additionalevidence that the Board knew that ID isconsidered a form of creationism.

k. August 30, 2004—Board Curricu-lum Committee Forced Pandas onthe Teachers as Reference Text

On August 30, 2004, the Board Curricu-lum Committee met with Spahr, Miller,Nilsen, Baksa, Bonsell, Buckingham, Har-kins, and Casey Brown with the principalsubject of discussion being Pandas andhow it would be used in the classroom.(12:134 (J. Miller)). Although Spahr ex-pressed concern that the textbook taught

ID, which she equated with creationism,Buckingham wanted Pandas to be used inthe classroom as a comparison text side-by-side the standard biology textbook.(12:135 (J. Miller); 29:104–05 (Bucking-ham)). Despite the fact that the teachersstrongly opposed using Pandas as a com-panion text, they agreed that Pandascould be placed in the classroom as areference text as a compromise with theBoard. (29:111 (Buckingham); 12:136 (J.Miller); 13:88 (Spahr)). Baksa testifiedthat no one could construe the teachers ashaving supported Pandas in any way, ref-erence text or otherwise, which is evi-denced by Jen Miller’s statement that ifthe teachers compromised with the Board,‘‘maybe this will go away again.’’ (35:120(Baksa); 12:136 (J. Miller)). It is patentlyevident that by this point, the teacherswere both weary from the extended con-tention concerning the teaching of evolu-tion, and wary of retribution in the eventthey persisted in opposing Buckinghamand his cohorts on the Board.

Baksa testified that during this time pe-riod he researched Pandas and ID, whichincluded directing his secretary to go tothe webpage for the Institute for CreationResearch. (35:113–14 (Baksa); D–35).The afore-referenced webpage states thatPandas ‘‘contains interpretations of classicevidences in harmony with the creationmodel’’ and he testified on cross-examina-tion that he was aware of such informationwhen he researched Pandas. (35:114–15(Baksa)). The fact that Baksa contradict-ed this testimony on re-direct and statedthat he had never read the webpage has anunfortunate and negative impact on hiscredibility in this case.

l. October 2004—Arrangement for Do-nation of Sixty Copies of Pandas

The October 4, 2004 Board meetingagenda indicated that Nilsen had accepted


a donation of 60 copies of the text Pandas.(P–78 at 9). There is no evidence thatBonsell, Buckingham or any other individ-ual disclosed the source of the donationuntil it was finally admitted at trial, de-spite the fact that Larry Snook, a formerBoard member, inquired as to the sourceof the donation at a November 2004 Boardmeeting. (30:47 (Buckingham); 33:30(Bonsell)).

The testimony at trial stunningly re-vealed that Buckingham and Bonsell triedto hide the source of the donations becauseit showed, at the very least, the extraordi-nary measures taken to ensure that stu-dents received a creationist alternative toDarwin’s theory of evolution. To illus-trate, we note that at January 3, 2005depositions taken pursuant to an order ofthis Court so Plaintiffs could decide wheth-er to seek a temporary restraining order,upon repeated questioning by Plaintiffs’counsel on this point, neither Buckinghamnor Bonsell provided any informationabout Buckingham’s involvement in thedonation or about a collection he took athis church. (30:50–56 (Buckingham);33:31–35 (Bonsell) (emphasis added)).Buckingham actually made a plea for do-nations to purchase Pandas at his church,the Harmony Grove Community Church,on a Sunday before services and a total of$850 was collected as a result. (30:38–40(Buckingham)). As proof of such donationamount, Plaintiffs introduced into evidencea check in the amount of $850 indorsed toDonald Bonsell, Alan Bonsell’s father,drawn on Buckingham’s account jointlyheld with his wife, with the notation ‘‘OfPandas and People’’ appearing on thecheck. (P–80; 30:46–47 (Buckingham)).Alan Bonsell gave the money to his fatherwho purchased the books. (33:131–32(Bonsell)). When Spahr received the ship-ment of books and began to unpack them,she discovered a catalogue from the com-pany that sold the books listing Pandas

under ‘‘Creation Science.’’ (13:94–5(Spahr); P–144 at 29).

When we were moved to question Bon-sell regarding this sequence of events attrial, he testified that his father served asthe conduit for the funds from Bucking-ham’s church because: ‘‘He agreed to—hesaid that he would take it, I guess, off thetable or whatever, because of seeing whatwas going on, and with Mrs. Callahan com-plaining at the Board meetings not usingfunds or whatever.’’ (33:129 (Bonsell)).

As we will discuss in more detail below,the inescapable truth is that both Bonselland Buckingham lied at their January 3,2005 depositions about their knowledge ofthe source of the donation for Pandas,which likely contributed to Plaintiffs’ elec-tion not to seek a temporary restrainingorder at that time based upon a conflictingand incomplete factual record. This men-dacity was a clear and deliberate attemptto hide the source of the donations by theBoard President and the Chair of the Cur-riculum Committee to further ensure thatDover students received a creationist al-ternative to Darwin’s theory of evolution.We are accordingly presented with furthercompelling evidence that Bonsell andBuckingham sought to conceal the blatant-ly religious purpose behind the ID Policy.

m. October 7, 2004—Board Curricu-lum Committee Drafted Curricu-lum Change

In September 2004, acting on instruc-tions of the Board, Baksa prepared achange to the biology curriculum whichstated: ‘‘Students will be made aware ofgaps in Darwin’s theory and of other theo-ries of evolution’’ and contained no refer-ence text. (P–73; 35:122 (Baksa)). TheCourt has been presented with no evidencethat the Board asked Baksa to initiatesuch changes to the biology curriculum to


improve science education in the Doverschool system, as will be elaborated uponbelow.

The Board Curriculum Committee meton October 7, 2004 to discuss changingthe biology curriculum, without invitingthe science teachers. (35:124 (Baksa)).As Casey Brown was absent, the Boardmembers present with Baksa were Buck-ingham, Bonsell, and Harkins, and themeeting involved a discussion of variouspositions regarding the proposed curricu-lum change. (P–81; 35:125 (Baksa);29:113 (Buckingham)). The Board Curric-ulum Committee ultimately adopted, with-in a matter of minutes, Bonsell’s alterna-tive, which states: ‘‘Students will be madeaware of gaps/problems in Darwin’s theo-ry and of other theories of evolution, in-cluding but not limited to intelligent de-sign.’’ (P–82; 35:125 (Baksa)). TheBoard Curriculum Committee’s proposedchange also called for Pandas to be citedas a reference text. (35:125 (Baksa)).The curriculum change proposed by theBoard Curriculum Committee and thechange proposed by the administrationand accepted by the science faculty, werecirculated to the full Board by memorandadated October 13, 2004. (P–84A; P–84B).

n. October 18, 2004—CurriculumChange Resolution Passed

On October 18, 2004, the Board passedby a 6–3 vote, a resolution that amendedthe biology curriculum as follows:

Students will be made aware ofgaps/problems in Darwin’s theory and ofother theories of evolution including, butnot limited to, intelligent design. Note:Origins of Life is not taught.

In addition, the Board resolution statedthat this subject is to be covered in lectureform with Pandas to be a reference book.(7:89–90 a. (Brown); P–88; P–209 at 1646;P–84C). Board members Bonsell, Buck-

ingham, Harkins, Geesey, Cleaver, andYingling voted for the resolution with NoelWenrich and Casey and Jeff Brown votingagainst it. (7:89–90 a. (Brown); P–88).

Compelling evidence was presented attrial that in passing the resolution theBoard deviated from its regular practice inimportant respects. ‘‘The normal proce-dures were not followed at all in makingthis change.’’ (7:79 a. (Brown)). First,the Board typically addressed curriculumchanges an entire year in advance of im-plementation; however, the change to thebiology curriculum was initiated during the2004–05 school year to be effective thatyear. (7:78–79 a. (Brown)). Second,standard Board practice dictated twomeetings to be held per month, a planningmeeting in which items for considerationwere listed on its agenda before they werelisted for resolution on the agenda at theaction meeting held later in the month.The change to the biology curriculum,however, was placed on the Board’s agen-da for the first time during an action meet-ing, which several witnesses testified to beirregular. (7:24–25, 77–78 a. (Brown);26:11 (Nilsen); 4:3–5 (B.Callahan); 29:118(Buckingham)). Third, Board practicecalled for the District Curriculum Commit-tee to meet and discuss the proposed cur-riculum change, which Nilsen suggested inthis case; however, not surprisingly, theBoard overruled that suggestion. (7:72–73a. (Brown); 26:8–10 (Nilsen)). Althoughthe administration did send the proposedchange to the District Curriculum Com-mittee and received feedback from twomembers, including an opposition and arequest for the District Curriculum tomeet, no evidence has been presented thateither suggestion was acted upon by theBoard. (P–151; D–67; 7:80–82 a.(Brown); 35:7–8 (Baksa)). Finally, theBoard brazenly chose not to follow theadvice of their only science-education re-


sources as the teachers were not includedin the process of drafting the languageadopted by the Board Curriculum Commit-tee. (7:82–83 a. (Brown)).

In addition to deviating from standardBoard practice in multiple respects, de-fense witnesses testified that the rush tobring the curriculum change to a vote oc-curred because the issue had been debatedfor the previous six months and more im-portantly, the Board was about to lose twoBoard members, Wenrich and Cleaver,who had been a part of those discussions.(26:10–12 (Nilsen); 33:113–14 (Bonsell)).The record contains no evidence of anypublic Board meetings in which the Boarddiscussed ID; however, the evidence doesshow that the Board discussed creationismwithin that six month period. In fact, theevidence reveals that Buckingham wantedthe Board to vote on the resolution onOctober 18, 2004 because he thought hehad sufficient votes to pass the resolutionadopted at the October 7, 2004 Board Cur-riculum Committee meeting. (29:113–16(Buckingham)).

Prior to the vote at the October 18, 2004meeting, science teachers Spahr and Mil-ler, as well as members of the public spokeoutwardly against the curriculum change.(13:41–42 (J. Miller); 13:88–93 (Spahr)).Spahr made clear in her statement to theBoard that the teachers’ agreement topoint out ‘‘flaws/problems with Darwin’stheory,’’ not to teach origins of life, and tohave Pandas available as a reference text,were all compromises with the Board Cur-riculum Committee, after what she de-scribed as ‘‘a long and tiresome process.’’(13:91–92 (Spahr)). She additionally stat-ed that the change was being railroadedthrough without input from the teachers orthe District Curriculum Committee, and nomember of the administration or Boarddisagreed. (13:91–93 (Spahr); 35:126(Baksa)). Finally, Spahr warned the full

Board that ID amounted to creationismand could not be taught legally. (24:102(Nilsen); 35:14–15 (Baksa)).

Baksa provided highly pertinent infor-mation concerning the position of theteachers throughout this process. He tes-tified that the teachers did not supportPandas in any way, but that they madecompromises to insure the purchase of thebiology book entitled Biology. (35:119–20(Baksa)). Also, he testified that any sug-gestion the teachers supported any part ofthe curriculum change must be soundlyrejected. (35:20–21 (Baksa)). The unre-buted evidence reveals that the teachershad to make unnecessary sacrifices andcompromises advantageous toward Boardmembers, who were steadfastly working toinject religion in the classroom, so thattheir students would have a biology text-book that should have been approved as amatter of course.

Remarkably, the 6–3 vote at the October18, 2004 meeting to approve the curricu-lum change occurred with absolutely nodiscussion of the concept of ID, no discus-sion of how presenting it to students wouldimprove science education, and no justifi-cation was offered by any Board memberfor the curriculum change. (26:21 (Nil-sen); 35:127–38 (Baksa); 8:36 a. (Brown);8:76 (J. Brown); 12:139–40 (J. Miller);13:102 (Spahr); 32:25–26, 40 (Cleaver);30:23–25 (Buckingham); 31:182–83 (Gees-ey); 34:124–26 (Harkins); 6:105–06 (Eve-land)). Furthermore, Board memberssomewhat candidly conceded that theylacked sufficient background in science toevaluate ID, and several of them testifiedwith equal frankness that they failed tounderstand the substance of the curricu-lum change adopted on October 18, 2004.(31:175, 181–82 (Geesey); 32:49–50 (Cleav-er); 34:117–18, 124–25 (Harkins)).

In fact, one unfortunate theme in thiscase is the striking ignorance concerning


the concept of ID amongst Board mem-bers. Conspicuously, Board members whovoted for the curriculum change testified attrial that they had utterly no grasp of ID.To illustrate, consider that Geesey testifiedshe did not understand the substance ofthe curriculum change, yet she voted for it.(31:181–82 (Geesey); 29:11–12 (Bucking-ham); Buckingham Dep. 1:59–61, January3, 2005; 34:48–49 (Harkins); 33:112–13(Bonsell); 26:21 (Nilsen)). Moreover, asshe indicated on multiple occasions, in vot-ing for the curriculum change, Geesy de-ferred completely to Bonsell and Bucking-ham. (31:154–55, 161–62, 168, 184–87, 190(Geesey)). Second, Buckingham, Chair ofthe Curriculum Committee at the time,admitted that he had no basis to knowwhether ID amounted to good science asof the time of his first deposition, whichwas two and a half months after the IDPolicy was approved, yet he voted for thecurriculum change. (30:32–33 (Bucking-ham)). Third, Cleaver voted for the cur-riculum change despite the teachers’ objec-tions, based upon assurances from Bonsell.(32:23–25 (Cleaver)). Cleaver admittedlyknew nothing about ID, including thewords comprising the phrase, as she con-sistently referred to ID as ‘‘intelligencedesign’’ throughout her testimony. In ad-dition, Cleaver was bereft of any under-standing of Pandas except that Spahr hadsaid it was not a good science book whichshould not be used in high school. (32:45–46 (Cleaver)). In addition, SuperintendentNilsen’s entire understanding of ID wasthat ‘‘evolution has a design.’’ (26:49–50(Nilsen)).

Despite this collective failure to under-stand the concept of ID, which six Boardmembers nonetheless felt was appropriateto add to ninth grade biology class toimprove science education, the Board nev-er heard from any person or organizationwith scientific expertise about the curricu-lum change, save for consistent but unwel-

come advices from the District’s scienceteachers who uniformly opposed thechange. (29:109 (Buckingham)). In disre-garding the teachers’ views, the Board ig-nored undeviating opposition to the curric-ulum change by the one resource withscientific expertise immediately at its dis-posal. The only outside organizationswhich the Board consulted prior to thevote were the Discovery Institute andTMLC, and it is clear that the purpose ofthese contacts was to obtain legal advice,as opposed to science education informa-tion. (33:111–12 (Bonsell); 29:130, 137–43,30:10–14 (Buckingham)). The Board re-ceived no materials, other than Pandas, toassist them in making their vote. Nor didanyone on the Board or in the administra-tion ever contact the NAS, the AAAS, theNational Science Teachers’ Association,the National Association of Biology Teach-ers, or any other organization for informa-tion about ID or science education beforeor after voting for the curriculum change.(33:113 (Bonsell); 30:24–27 (Buckingham)).While there is no requirement that aschool board contact any of the afore-ref-erenced organizations prior to enacting acurriculum change, in this case a simpleglance at any one of their websites foradditional information about ID and anypotential it may have to improve scienceeducation would have provided helpful in-formation to Board members who admit-tedly had no comprehension whatsoever ofID. As Dr. Alters’ expert testimony dem-onstrated, all of these organizations haveinformation about teaching evolution readi-ly available on the internet and they in-clude statements opposing the teaching ofID. (14:74–99 (Alters)).

Although the resolution passed, it wasnot without opposition. Both the Superin-tendent and Assistant Superintendent, Nil-sen and Baksa, opposed the curriculumchange. (35:126 (Baksa)). Baksa testified


that he still feels the curriculum changewas wrong. (35:127 (Baksa)). Both Caseyand Jeff Brown, who voted against theresolution, resigned at the conclusion ofthe October 18, 2004 Board meeting. Thefollowing excerpt from Casey Brown’s poi-gnant resignation speech speaks volumesabout what had occurred within the Boardby that time:

There has been a slow but steady mar-ginalization of some board members.Our opinions are no longer valued orlistened to. Our contributions havebeen minimized or not acknowledged atall. A measure of that is the fact that Imyself have been twice asked within thepast year if I was ‘‘born again.’’ No onehas, nor should have the right, to askthat of a fellow board member. Anindividual’s religious beliefs should haveno impact on his or her ability to serveas a school board director, nor should aperson’s beliefs be used as a yardstick tomeasure the value of that service.However, it has become increasingly evi-dent that it is the direction the boardhas now chosen to go, holding a certainreligious belief is of paramount impor-tance.

7:92–93 a. (Brown).

Additionally, at the following meeting,Board member Wenrich, who opposed theexpedited vote on October 18, 2004 andengaged in parliamentary measures tohave the vote delayed until the communitycould properly debate the issue while con-sidering the science teachers’ position, re-signed and stated the following:

I was referred to as unpatriotic, and myreligious beliefs were questioned. Iserved in the U.S. Army for 11 yearsand six years on the board. Seventeenyears of my life have been devoted topublic service, and my religion is person-al. It’s between me, God, and my pas-tor.

P–810; 30:126–30 (Bernhard–Bubb); 4:11–12 (B.Callahan).

The evidence clearly reveals that Boardmembers who voted in favor of the curric-ulum change blindly adopted the recom-mendations of the architects of the IDPolicy, Bonsell and Buckingham, with re-spect to their decision to incorporate it aspart of the high school biology curriculum,while disregarding opposition by the sci-ence teachers and administration.(31:154–68 (Geesey)).

o. Development of Statement to beRead to Students

After the curriculum was changed, Bak-sa was given the task of preparing a state-ment to be read to students before theevolution unit in biology commenced. Thepersuasive evidence presented at trialdemonstrates that the final version of thestatement communicated a very differentmessage about the theory of evolution thanthe language that Baksa and senior scienceteacher Jen Miller proposed. (36:27 (Bak-sa)).

First, Baksa’s initial draft of the state-ment described Darwin’s theory of evolu-tion as the ‘‘dominant scientific theory; ’’however, the Board removed such lan-guage from the final version. (D–91;36:22–24 (Baksa)). Second, Baksa’s draftstated that ‘‘there are gaps in Darwin’stheory for which there is yet no evidence;’’however, the Board selectively edited outthe word ‘‘yet’’ so that the statement isread in a considerably different light to be‘‘there are gaps in Darwin’s theory forwhich there is no evidence.’’ (D–91;36:26–28 (Baksa)). Third, after Jen Millerreviewed the statement at Baksa’s sugges-tion, she suggested that language be addedthat there is a ‘‘significant amount of evi-dence’’ supporting Darwin’s theory. Al-though Baksa felt this was an accuratestatement about the scientific theory of


evolution, he removed such language be-cause he understood that the Board wouldnot approve it as written. (D–91; 36:24–26 (Baksa)).

As previously noted, the final version ofthe statement prepared by Defendants tobe read to students in ninth grade biologyclass states, as follows:

The Pennsylvania Academic Standardsrequire students to learn about Darwin’sTheory of Evolution and eventually totake a standardized test of which evolu-tion is a part.

Because Darwin’s Theory is a theory, itcontinues to be tested as new evidence isdiscovered. The Theory is not a fact.Gaps in the Theory exist for which thereis no evidence. A theory is defined as awell-tested explanation that unifies abroad range of observations.

Intelligent Design is an explanation ofthe origin of life that differs from Dar-win’s view. The reference book, Of Pan-das and People, is available for studentswho might be interested in gaining anunderstanding of what Intelligent De-sign actually involves.

With respect to any theory, students areencouraged to keep an open mind. Theschool leaves the discussion of the Ori-gins of Life to individual students andtheir families. As a Standards-drivendistrict, class instruction focuses uponpreparing students to achieve proficien-cy on Standards-based assessments.

P–124.

Subsequently, on January 6, 2005, theteachers sent a memo to the Board re-questing that they be released from anyobligation to read the statement. (36:97(Linker)). The memo provides, in relevantpart, as follows:

You have indicated that students may‘‘opt-out’’ of this portion [the statementread to students at the beginning of the

biology evolution unit] of the class andthat they will be excused and monitoredby an administrator. We respectfullyexercise our right to ‘‘opt-out’’ of thestatement portion of the class. We willrelinquish the classroom to an adminis-trator and we will monitor our own stu-dents. This request is based upon ourconsidered opinion that reading thestatement violates our responsibilities asprofessional educators as set forth in theCode of Professional Practice and Con-duct for Educators[.]

INTELLIGENT DESIGN IS NOTSCIENCE. INTELLIGENT DESIGNIS NOT BIOLOGY. INTELLIGENTDESIGN IS NOT AN ACCEPTEDSCIENTIFIC THEORY.

I believe that if I as the classroomteacher read the required statement, mystudents will inevitably (and under-standably ) believe that Intelligent De-sign is a valid scientific theory, perhapson par with the theory of evolution.That is not true. To refer the studentsto ‘‘Of Pandas and People’’ as if it is ascientific resource breaches my ethicalobligation to provide them with scientificknowledge that is supported by recog-nized scientific proof or theory.

P–121 (emphasis in original).

Administrators were thus compelled toread the statement to ninth graders atDover High School in January 2005 be-cause of the refusal by the teachers to doso. (25:56–57 (Nilsen); 35:38 (Baksa)).The administrators read the statementagain in June 2005. By that time, Defen-dants had modified the statement to referto other, unnamed books in the librarythat relate to ID; however Pandas re-mains the only book identified by name inthe statement. Defendants offered no evi-dence concerning whether the other bookscan be found in the library, including


whether they are placed near Pandas.(P–131; 35:40, 42–43 (Baksa)).

p. Newsletter Published by theBoard

As we previously explained in detail, theBoard mailed a newsletter to the entireDover community in February 2005, whichwas prepared in conjunction with theTMLC. (P–127). Additionally, on April 23,2005, lead defense expert Professor Behemade a presentation on ID to Dover citi-zens at the Board’s request. (Joint Stip.of Fact ¶ 11).

q. Effect of Board’s Actions on Plain-tiffs

Plaintiffs provided compelling testimonyas to the harm caused by the Board’s IDPolicy on their children, families, andthemselves in consistent, but personalways. Plaintiffs believe that ID is an in-herently religious concept and that its in-clusion in the District’s science curriculuminterferes with their rights to teach theirchildren about religion. (3:118–19 (Kitz-miller); 4:13–15 (B.Callahan); 6:77–78 a.(Rehm); 6:106 (Eveland); 16:26, 30(Stough); 17:147–48 (Leib)). Plaintiffs ad-ditionally testified that their children con-front challenges to their religious beliefs atschool because of the Board’s actions, thatthe Board’s actions have caused conflictwithin the family unit, and that there isdiscord in the community. (6:77–78(Rehm); 6:38–39 (Smith); 17:146–47(Leib)).

The testimony of Joel Leib, whose fami-ly has lived in Dover for generations, isrepresentative of the Plaintiffs’ harmcaused by the Board’s actions in enactingthe ID Policy.

Well, it’s driven a wedge where therehasn’t been a wedge before. People areafraid to talk to people for fear, andthat’s happened to me. They’re afraid

to talk to me because I’m on the wrongside of the fence.

17:146–47 (Leib).

Moreover, Board members and teachersopposing the curriculum change and itsimplementation have been confronted di-rectly. First, Casey Brown testified thatfollowing her opposition to the curriculumchange on October 18, 2004, Buckinghamcalled her an atheist and Bonsell told herthat she would go to hell. (7:94–95; 8:32 a.(Brown)). Second, Angie Yingling wascoerced into voting for the curriculumchange by Board members accusing her ofbeing an atheist and un-Christian. (15:95–97 (Sneath)). In addition, both BryanRehm and Fred Callahan have been con-fronted in similarly hostile ways, as haveteachers in the DASD. (4:93–96 (B.Rehm);8:115–16 (F.Callahan); 14:34–35 (Spahr)).

r. Defendants Presented No Convinc-ing Evidence that They were Mo-tived by Any Valid Secular Pur-pose

Although Defendants attempt to per-suade this Court that each Board memberwho voted for the biology curriculumchange did so for the secular purpose ofimproving science education and to exer-cise critical thinking skills, their conten-tions are simply irreconcilable with therecord evidence. Their asserted purposesare a sham, and they are accordingly una-vailing, for the reasons that follow.

We initially note that the SupremeCourt has instructed that while courts are‘‘normally deferential to a State’s articula-tion of a secular purpose, it is requiredthat the statement of such purpose besincere and not a sham.’’ Edwards, 482U.S. at 586–87, 107 S.Ct. 2573 (citing Wal-lace, 472 U.S. at 64, 105 S.Ct. 2479)(Powell,J., concurring); id. at 75, 105 S.Ct. 2479(O’Connor, J., concurring in judgment).


Although as noted Defendants have consis-tently asserted that the ID Policy wasenacted for the secular purposes of im-proving science education and encouragingstudents to exercise critical thinking skills,the Board took none of the steps thatschool officials would take if these statedgoals had truly been their objective. TheBoard consulted no scientific materials.The Board contacted no scientists or scien-tific organizations. The Board failed toconsider the views of the District’s scienceteachers. The Board relied solely on legaladvice from two organizations with demon-strably religious, cultural, and legal mis-sions, the Discovery Institute and theTMLC. Moreover, Defendants’ assertedsecular purpose of improving science edu-cation is belied by the fact that most if notall of the Board members who voted infavor of the biology curriculum changeconceded that they still do not know, norhave they ever known, precisely what IDis. To assert a secular purpose againstthis backdrop is ludicrous.

Finally, although Defendants have un-ceasingly attempted in vain to distancethemselves from their own actions andstatements, which culminated in repeti-tious, untruthful testimony, such a strate-gy constitutes additional strong evidenceof improper purpose under the first prongof the Lemon test. As exhaustively de-tailed herein, the thought leaders on theBoard made it their considered purpose toinject some form of creationism into thescience classrooms, and by the dint of theirpersonalities and persistence they wereable to pull the majority of the Boardalong in their collective wake.

Any asserted secular purposes by theBoard are a sham and are merely second-ary to a religious objective. McCreary,125 S.Ct. at 2735; accord, e.g., Santa Fe,530 U.S. at 308, 120 S.Ct. 2266 (‘‘it is TTT

the duty of the courts to ‘distinguish a

sham secular purpose from a sincereone.’ ’’ (citation omitted)); Edwards, 482U.S. at 586–87, 107 S.Ct. 2573 (‘‘While theCourt is normally deferential to a State’sarticulation of a secular purpose, it is re-quired that the statement of such purposebe sincere and not a sham.’’). Defendants’previously referenced flagrant and insult-ing falsehoods to the Court provide suffi-cient and compelling evidence for us todeduce that any allegedly secular purposesthat have been offered in support of theID Policy are equally insincere.

Accordingly, we find that the secularpurposes claimed by the Board amount toa pretext for the Board’s real purpose,which was to promote religion in the publicschool classroom, in violation of the Estab-lishment Clause.

2. Effect Inquiry

Although Defendants’ actions have failedto pass constitutional muster under theendorsement test and pursuant to the pur-pose prong of Lemon, thus making furtherinquiry unnecessary, we will briefly ad-dress the final Lemon prong relevant toour inquiry, which is effect, in the interestof completeness. The Supreme Court hasinstructed the following with regard to theLemon effect prong:

The core notion animating the require-ment that TTT [an official act’s] ‘‘princi-pal or primary effect TTT be one thatneither advances nor inhibits religion,’’is not only that government may not beovertly hostile to religion but also that itmay not place its prestige, coercive au-thority, or resources behind a single reli-gious faith or behind religious belief ingeneral, compelling nonadherents tosupport the practices or proselytizing offavored religious organizations and con-veying the message that those who donot contribute gladly are less than fullmembers of the community.


Texas Monthly, Inc. v. Bullock, 489 U.S. 1,9, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989)(plu-rality op.)(internal citations omitted).

While the Third Circuit formally treatsthe endorsement test and the Lemon testas distinct inquiries to be treated in suc-cession, it has continued to recognize therelationship between the two. Moreover,because the Lemon effect test largely cov-ers the same ground as the endorsementtest, we will incorporate our extensive fac-tual findings and legal conclusions madeunder the endorsement analysis by refer-ence here, in accordance with Third Cir-cuit practice. Freethought, 334 F.3d at269 (The court noted that ‘‘effect under theLemon test is cognate to endorsement,’’and hence the court did not hesitate simplyto ‘‘incorporate [its] discussion of endorse-ment’’ into the effect analysis.).

To briefly reiterate, we first note thatsince ID is not science, the conclusion isinescapable that the only real effect of theID Policy is the advancement of religion.See McLean, 529 F.Supp. at 1272. Sec-ond, the disclaimer read to students ‘‘hasthe effect of implicitly bolstering alterna-tive religious theories of origin by suggest-ing that evolution is a problematic theoryeven in the field of science.’’ Selman, 390F.Supp.2d at 1308–09. Third, reading thedisclaimer not only disavows endorsementof educational materials but also ‘‘juxtapos-es that disavowal with an urging to con-template alternative religious concepts im-plies School Board approval of religiousprinciples.’’ Freiler, 185 F.3d at 348.

The effect of Defendants’ actions inadopting the curriculum change was toimpose a religious view of biological originsinto the biology course, in violation of theEstablishment Clause.

G. Challenge under PennsylvaniaConstitution

[7] In addition to the EstablishmentClause challenge, Plaintiffs assert that De-fendants’ actions in enacting the ID Policyviolate their rights under the PennsylvaniaConstitution, specifically Art. I, § 3.23 Arti-cle I, § 3 of the Pennsylvania Constitutionstates the following:

All men have a natural and indefeasibleright to worship Almighty God accord-ing to the dictates of their own con-sciences; no man can of right be com-pelled to attend, erect or support anyplace of worship, or to maintain anyministry against his consent; no humanauthority can, in any case whatever, con-trol or interfere with the rights of con-science, and no preference shall ever begiven by law to any religious establish-ments or modes of worship.

Pa. Const. Art. I, § 3 (2005).

As we explained in our March 10, 2005Order, the Pennsylvania Supreme Courthas opined in Springfield Sch. Dist. v.Commonwealth of Pa., 483 Pa. 539, 397A.2d 1154, 1170 (1979), that the provisionsof Art. I, § 3 do not exceed the limitationsin the First Amendment’s EstablishmentClause. See also Wiest v. Mt. LebanonSch. Dist., 457 Pa. 166, 320 A.2d 362, 366(1974), cert. denied, 419 U.S. 967, 95 S.Ct.231, 42 L.Ed.2d 183 (1974). In discussingthe provisions of Art. I, § 3, the Pennsyl-vania Supreme Court explained:

The principles enunciated in this part ofour Constitution reflected a concern forthe protection of the religious freedomsof Pennsylvanians long before the firstamendment to the United States Consti-

23. Although Plaintiffs’ complaint asserts vio-lations of their constitutional rights under Art.I, § 3, as well as Art. III, §§ 15 and 29,Plaintiffs’ post-trial submissions only refer-

ence Art. I, § 3. We will accordingly considerwhether Plaintiffs’ rights were violated pursu-ant to Art. I, § 3 of the Pennsylvania Constitu-tion.


tution was made applicable to the statesthrough the fourteenth amendment TTT

The protection of rights and freedomssecured by this section of our Constitu-tion, however, does not transcend theprotection of the first amendment of theUnited States Constitution.

Wiest, 320 A.2d at 366.

Consequently, our discussion of the is-sues raised under the federal constitutionapplies with equal vigor to the issuesraised by Plaintiffs that are grounded inour state constitution. In light of thisCourt’s prior ruling that the ID Policyviolates the Establishment Clause of theFirst Amendment, the Court likewise con-cludes that the ID Policy is violative ofPlaintiffs’ rights under the PennsylvaniaConstitution.

H. Conclusion

The proper application of both the en-dorsement and Lemon tests to the facts ofthis case makes it abundantly clear thatthe Board’s ID Policy violates the Estab-lishment Clause. In making this determi-nation, we have addressed the seminalquestion of whether ID is science. Wehave concluded that it is not, and moreoverthat ID cannot uncouple itself from itscreationist, and thus religious, antecedents.

Both Defendants and many of the lead-ing proponents of ID make a bedrock as-sumption which is utterly false. Theirpresupposition is that evolutionary theoryis antithetical to a belief in the existence ofa supreme being and to religion in gener-al. Repeatedly in this trial, Plaintiffs’ sci-entific experts testified that the theory ofevolution represents good science, is over-whelmingly accepted by the scientific com-munity, and that it in no way conflictswith, nor does it deny, the existence of adivine creator.

To be sure, Darwin’s theory of evolutionis imperfect. However, the fact that a

scientific theory cannot yet render an ex-planation on every point should not beused as a pretext to thrust an untestablealternative hypothesis grounded in religioninto the science classroom or to misrepre-sent well-established scientific proposi-tions.

The citizens of the Dover area werepoorly served by the members of theBoard who voted for the ID Policy. It isironic that several of these individuals, whoso staunchly and proudly touted their reli-gious convictions in public, would time andagain lie to cover their tracks and disguisethe real purpose behind the ID Policy.

[8] With that said, we do not questionthat many of the leading advocates of IDhave bona fide and deeply held beliefswhich drive their scholarly endeavors.Nor do we controvert that ID should con-tinue to be studied, debated, and dis-cussed. As stated, our conclusion today isthat it is unconstitutional to teach ID as analternative to evolution in a public schoolscience classroom.

Those who disagree with our holdingwill likely mark it as the product of anactivist judge. If so, they will have erredas this is manifestly not an activist Court.Rather, this case came to us as the resultof the activism of an ill-informed faction ona school board, aided by a national publicinterest law firm eager to find a constitu-tional test case on ID, who in combinationdrove the Board to adopt an imprudentand ultimately unconstitutional policy.The breathtaking inanity of the Board’sdecision is evident when consideredagainst the factual backdrop which hasnow been fully revealed through this trial.The students, parents, and teachers of theDover Area School District deserved bet-ter than to be dragged into this legalmaelstrom, with its resulting utter wasteof monetary and personal resources.


To preserve the separation of churchand state mandated by the EstablishmentClause of the First Amendment to theUnited States Constitution, and Art. I, § 3of the Pennsylvania Constitution, we willenter an order permanently enjoining De-fendants from maintaining the ID Policy inany school within the Dover Area SchoolDistrict, from requiring teachers to deni-grate or disparage the scientific theory ofevolution, and from requiring teachers torefer to a religious, alternative theoryknown as ID. We will also issue a declara-tory judgment that Plaintiffs’ rights underthe Constitutions of the United States andthe Commonwealth of Pennsylvania havebeen violated by Defendants’ actions. De-fendants’ actions in violation of Plaintiffs’civil rights as guaranteed to them by theConstitution of the United States and 42U.S.C. § 1983 subject Defendants to liabil-ity with respect to injunctive and declara-tory relief, but also for nominal damagesand the reasonable value of Plaintiffs’ at-torneys’ services and costs incurred in vin-dicating Plaintiffs’ constitutional rights.

NOW, THEREFORE, IT IS OR-DERED THAT:

1. A declaratory judgment is herebyissued in favor of Plaintiffs pursuantto 28 U.S.C. §§ 2201, 2202, and 42U.S.C. § 1983 such that Defendants’ID Policy violates the EstablishmentClause of the First Amendment ofthe Constitution of the UnitedStates and Art. I, § 3 of the Consti-tution of the Commonwealth ofPennsylvania.

2. Pursuant to Fed.R.Civ.P. 65, Defen-dants are permanently enjoinedfrom maintaining the ID Policy inany school within the Dover AreaSchool District.

3. Because Plaintiffs seek nominaldamages, Plaintiffs shall file with theCourt and serve on Defendants,

their claim for damages and a veri-fied statement of any fees and/orcosts to which they claim entitle-ment. Defendants shall have theright to object to any such fees andcosts to the extent provided in theapplicable statutes and court rules.

,

Sharon OAKES

v.

Jo Anne B. BARNHART, Commis-sioner of the Social Security

Administration

No. Civ.A. 04–5072.

United States District Court,E.D. Pennsylvania.

Oct. 18, 2005.

Background: Claimant filed action seek-ing judicial review of final decision ofCommissioner of Social Security Adminis-tration (SSA) to deny her eligibility fordisability insurance benefits (DIB). Partiescross-moved for summary judgment. TheDistrict Court, Jacob Hart, United StatesMagistrate Judge, recommended thatclaimant’s motion by granted in part andthe matter be remanded.

Holdings: Declining to adopt magistratejudge’s report and recommendation, theDistrict Court, O’Neill, J., held that:

(1) testing modifications to disability de-termination procedures overturnedSSA’s longstanding policy that ALJ’sequivalence determination had to beinformed by specific medical opinion,and

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