Guest Column: Looking Over the Cliffs of Dover

Ed. note: This is a guest post on the ACLU lawsuit filed against the school board in Dover, Pennsylvania by Dan Ray. Dan is an attorney and the director of the Paralegal Studies Program at Eastern Michigan University. He studied in law school under the esteemed Jack Balkin of the Yale Law School.

Like all those who are interested in science, education, and the separation of church and state, I've been watching the developments in Dover very closely over the past several months. It has been fascinating on many different levels: religious and secular interests, science versus pseudoscience, and legal and constitutional issues all colliding in one place. On some of the blogs I regularly follow, the discussion has been optimistic, though appropriately guarded. I think there is reason for both hope and concern. I know what the outcome should be, but litigation is a risky business and the end result can rarely be predicted with a high degree of confidence. Of course, I hasten to preface this by saying that I'm not in much of a position to do any armchair quarterbacking here: I know nothing of the evidence, or what is likely to be the evidence, beyond what is generally available on the Internet. With that said, here are some of the things I'll be looking at as events unfold in the Dover case.

Cases tend not to make it to the United States Supreme Court by accident. When constitutional issues are at play, smart litigants choose their battles wisely. Is this the case, with the issues and the facts, which we want to groom for a decision by the United States Supreme Court? Most often the answer is no. Each side, hoping to establish a new constitutional principle or affirm an existing principle, decides to live to fight another day.

This, I strongly suspect, is why the Discovery Institute has done what it can to discourage the Dover School Board. The DI leaders know that the Dover policy is not the result of a carefully planned and coordinated effort; rather, it is the end product of a campaign by handful of determined but misguided zealots to interject Christian religion into the science classroom. While this is the object of ID generally, the DI strongly prefers that attempts to implement ID be disassociated from Christianity - the "hide the ball" strategy must be part of the implementation. Because the folks in Dover have tipped their hand on the ties between ID and religion, the DI must distance itself, to the extent it is able, from the Dover creationists. On a deeper level, I also think that those in charge at the DI recognize that the Wedge Strategy is not yet sufficiently developed (leaving aside, of course, the issue of whether it can be sufficiently developed) to test ID in the courts.

The DI's protests notwithstanding, the Dover School Board has decided to go cliff diving, or at least the School Board wants the world to think so. It may be that this is part of a larger strategy to get ID to the educational front burner nationwide, but that there is no real intent on the part of the School Board or its handlers to push this case all the way to the Supreme Court. Having gained a great deal of national attention, the School Board may choose to back down and play the religious persecution card. The School Board creationists can then claim to have "fought the good fight" as "soldiers for Christ," encouraging their fellow travelers to do the same.

Americans United and the ACLU have decided to challenge Dover in federal court. While the desire to fight is understandable, the challenge does not have to come right here, right now. If what is happening in Dover is unconstitutional, it will be equally unconstitutional when it happens in the next Dover. There are no doubt many people who think this is the case to take on ID; on balance, I tend to agree that the facts here are probably as good as we might reasonably hope to come along. The case is not a slam-dunk, but a constitutional test case is, by its very nature, one where each sides sees a decent chance of getting the outcome it wants.

Here, a bit of legal background may be helpful. For the time being, controlling law is found in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). There, the Supreme Court announced the 3-part purpose, effect, and entanglement test. For state action to pass Establishment Clause muster, it must (1) have a secular legislative purpose; (2) have as its principal or primary effect one that neither advances nor inhibits religion; and (3) not result in excessive entanglement between the government and religion. The Supreme Court has had much more to say about the Establishment Clause both before and since Lemon. For example, the state cannot endorse a particular religious viewpoint, see, e.g., County of Allegheny v. ACLU, 492 U.S. 573, 601 (1989) (county display of a crèche "endors[es] a patently Christian message"), and the state cannot coerce people into participating in religious activities. See, e.g., Lee v. Weisman 505 U.S. 577, 592-96 (1992) (discussing coercive effect of "voluntary" and "nondenominational" prayer at high school graduation ceremony).

We all know that creationism failed the Lemon test in Edwards v. Aguillard, 482 U.S. 578 (1987), where Justice Brennan rejected Louisiana's stated secular purpose (to promote academic freedom) and refused to be "blind[ed]…to the legislature's preeminent religious purpose in enacting" Louisiana's creationism law. Id. at 590. Less famously, the Fifth Circuit decided a creationist disclaimer case in Freiler v. Tangipahoa Parish Board of Education, 185 F.3d 337 (5th Cir. 1999), cert. denied 530 U.S. 1251 (2000). There, the Parish Board required that an evolution disclaimer be read to students whenever the theory of evolution was presented. The disclaimer specifically said that the theory of evolution was not intended "to influence or dissuade the Biblical version of Creation or any other concept." Id. at 341. The Parish Board articulated three purposes for the disclaimer: "(1) to encourage informed freedom of belief, (2) to disclaim any orthodoxy of belief that could be inferred from the exclusive placement of evolution in the curriculum, and (3) to reduce offense to the sensibilities and sensitivities of any student or parent caused by the teaching of evolution." Id. at 344.

The court found that the Parish Board's action served legitimate secular purposes - to disclaim orthodoxy of belief and to avoid offending parents and students who were offended by the teaching of evolution. Id. at 345. But the disclaimer's primary effect was to "protect and maintain a particular religious viewpoint, namely belief in the Biblical version of creation." Id. at 346. As such, the disclaimer failed the second prong of the Lemon test. Id. at 348. For more in-depth analysis of Edwards and Freiler, have a look at this post by Timothy Sandefur.

At the same time, the United States Supreme Court has recognized, more than once, that state and local school boards have considerable latitude in designing curricula and teaching students. See, e.g., Edwards, 482 U.S. at 583 (state and local boards enjoy "considerable discretion in operating public schools."). As Mr. Sandefur has correctly pointed out, there is nothing constitutionally actionable about teaching students bad science, or even teaching something called science that isn't really science. The legal issue, then - at least as it has been framed in the Dover suit - is not whether the School Board has adopted a bad science policy, but whether it has adopted a policy that runs afoul of the Establishment Clause.

In terms of case strategy, where does this leave the Dover plaintiffs? The natural temptation is to argue that ID isn't science. For example, Professor Michael Dorf of Columbia Law School has advanced this argument. He claims that if ID is not science, "then the inference is almost inescapable that the state is impermissibly acting for the purpose of fostering a religious viewpoint." We may understand this to be so, and I agree that the religion inference is permissible, but I disagree that the inference is "almost inescapable." Professor Dorf's argument is a version of the same sort of "gap" argument that we accuse the creationists of making: not X, therefore Y. ID is not science, therefore it must be religion. Proving that ID isn't science is useful, and I think even necessary, but it does not preclude the creationists from moving the goalposts, as they are already trying to do in Dover (see below). The creationists can concede the "ID isn't science" argument for now, but still claim that ID belongs in the science classroom because it is probative of the history of science, or the philosophy of science, or that it merely demonstrates the shortcomings of science. Let me be clear: I think that the "ID isn't science" argument is necessary, but I don't think that it is sufficient to seal the deal in Dover.

Stated a bit differently, I don't think it is enough for the Dover plaintiffs to show what ID is not. In order to win the battle, they must also show what ID is: nothing more than a version of creationism, grounded in Christian religious beliefs, masquerading as something else. Attorneys with the Thomas More Law Center, which has taken on the defense of the Dover School Board pro bono, have recognized that this is their soft underbelly. One school board member in particular, William Buckingham, has not been shy about his religious motivations. "Two thousand years ago, someone died on a cross. Can't someone take a stand for him?" Buckingham said. At a June 2004 School Board meeting, Buckingham asserted that "This country was founded on Christianity and our students should be taught as such." My guess is that Buckingham will start to fade into the background, as the Thomas More folks have no doubt told him to shut up and disappear for awhile.

Attorneys for the School Board are responding on two levels. First, they are denying religious motivation at every opportunity. In court on Tuesday, December 21st, one of the School Board's attorneys said, "Creationism is not going to be taught. Religion is not going to be taught." Doing damage control in response to Buckingham's "died on the cross" statement, Richard Thompson, lead counsel for Thomas More, said, "You cannot shackle the rest of the school board with that one statement." Anticipating an uphill climb with these implausible denials, the School Board's attorneys are also arguing that a religious purpose is not fatal, so long as the School Board's action has a legitimate secular purpose. "[T]here is nothing wrong with having a religious intent with legislation having a secular purpose," Thompson said. The secular purpose for the School Board's action has not been clearly articulated, but it likely will be that the School Board simply wants students to be "aware" of Intelligent Design and other alternatives to evolutionary theory, and to understand the "gaps" in evolutionary theory.

In brief summary, I think the Dover plaintiffs must pursue a one-two punch strategy. Jab with the "ID isn't science" argument, and punch with the "ID is religion" argument. This strategy gives the best chance of putting ID on the canvas for the count.

I'll be very interested to see the evidence come in as discovery (the formal process used by each side to learn about facts and theories) moves forward. While we all know that ID is creationism "dressed up in a cheap tuxedo" (as I saw it described, I think, in one of the threads on Panda's Thumb), proving what ID is and is not, in court, will come down to the evidence. I hope that ACLU or AU will post the deposition transcripts and other discovery material as they become available. As things stand now, Buckingham will be among the first to be deposed (if he hasn't been already); I'd pay good money to be the attorney deposing the School Board creationists.

The critical issue, from an evidentiary standpoint, will be finding proof that: (1) the Dover School Board was motivated by a religious purpose and not a legitimate secular purpose; or (2) the effect of the School Board's policy is to endorse Christianity; or (3) the School Board's policy will excessively entangle the state and religion. While what the 5th Circuit did in Freiler is not binding on the 3rd Circuit (where an appeal from the Middle District of Pennsylvania will be heard), you can bet that the Thomas More attorneys have taken a page from Freiler and have been coaching the School Board members to testify about legitimate secular purposes. Buckingham's "died on the cross" and similar statements will end up on the record, but the School Board's attorneys will argue that: (1) they were expressions of Buckingham's personal opinions, not his views as a School Board member; and (2) those statements cannot be attributed to other School Board members, or to the School Board as a whole (we've already seen this argument).

Unlike Edwards, the Dover case does not involve legislation. Thus, there is no legislative history that can be used as proof of a religious or secular purpose. Statements by School Board members that may be used as evidence of purpose or intent exist here and there, but it looks as if the Dover School Board destroys the audio recording of its meetings once minutes have been prepared and approved. Outside of statements that have been memorialized in the minutes and elsewhere, the School Board and its attorneys will be free to construct ex post legitimate secular purposes for Dover's ID policy.

As Professor Dorf has pointed out, Edwards is subject to criticism on the ground that the decision turned on determining the subjective purpose of the legislation's chief sponsor. Justice Scalia voiced this criticism in his Edwards dissent. The problems here are apparent. How do we determine the subjective intent of each legislator? Sometimes statements of intent are ambiguous. And even if we can determine the subjective intent of each legislator, how do we translate that into an intent on the part of the collective legislature? Even under the best of circumstances, determining a legislature's purpose or intent is somewhat a guessing game. If the Dover case comes down to determining subjective intent, it will depend on what statements the School Board members have made that can be used as evidence. Here, Buckingham has pretty well hung himself, but I have not seen similar statements attributed to the other School Board members who voted in favor of the Dover ID policy.

I agree with Professor Dorf that the better standard is an objective one: what would a reasonable person viewing the Dover ID policy understand it to have as its purpose? In the world of judicial interpretation, this sort of objective view is what animates an interpretive methodology that is sometimes called "original understanding." A judge called upon to interpret a constitutional provision, or a statute, or as in this case, an enacted policy, looks to what the community understood it to mean at the time it was enacted or adopted. The inquiry is not into the subjective intent of each legislator, but what the community reasonably understood to be the purpose of the act. Of course, this objective standard is itself subject to attack. Who decides what a "reasonable person" would understand, and why? Are we speaking of a reasonable person who understands science and ID, or a reasonable person who does not? Reasonableness is inherently ambiguous. And any attempt to rely solely on an originalist method of interpretation is subject to attack on many levels.

The advantage of an objective standard in the Dover case is that it allows the Dover plaintiffs to put ID into perspective. There is abundant evidence that ID is simply a response to the legal defeat of creationism. There is also ample evidence that ID is rooted in the Christian creation story, despite efforts to distance ID's designer from God. Once again, I think this line of argument is critical to the strategy that seeks to put an end to ID in the science classroom.

I know nothing about the Middle District of Pennsylvania or the judge to whom the Dover case is assigned. Nor do I know anything about the 3rd Circuit's Establishment Clause jurisprudence. Those courts are, of course, bound by the Supreme Court's pronouncements in Lemon, Edwards, and other cases on point. But precedent can be a slippery thing. If a lower court is determined to find the Dover ID policy constitutional, it can find ways to do so.

Putting aside what the lower courts may do, will this case make it to the United States Supreme Court? And if the case does get past the 3rd Circuit and the Supreme Court grants certiorari, what might that Supreme Court look like? The Supreme Court denied certiorari in Freiler, probably because the facts in that case made it a fairly easy call. There, the Parish Board's policy made explicit reference to the "Biblical version of Creation," a mistake that the Dover creationists have avoided. Given the significance of the issue, and the impact that any decision on the Dover ID policy is likely to have across the country, the Dover case may be one the Supreme Court can't pass on.

Of equal concern is what the Supreme Court will look like two years from now when the Dover case, if it gets that far, is decided by the Court. Today's Court bears little resemblance to the Court that decided Edwards. A conservative bloc of justices - Rehnquist, Scalia, and Thomas - is often joined by "swing votes" O'Connor and Kennedy to form a five-vote majority. Two years hence, the Supreme Court will look even less like the Edwards Court, having at least a five-vote conservative majority that need not be concerned with swing votes. A carefully framed ID policy might survive a Lemon challenge (if Lemon remains the law) before such a Court.

The Dover case is probably a good test case for ID opponents. The facts have been driven, up to now, by creationists who have no idea how a case like this one must be built from the ground up. At this early stage, the facts that are available provide some evidence of an impermissible religious motivation. We can certainly expect efforts to revise history, or at the very least, to spin the facts, by the School Board's attorneys. Likewise, as we've already seen, they are busy crafting and shoring up evidence of legitimate secular purposes on the School Board's part.

In my view, a successful strategy by the Dover plaintiffs entails proof that ID isn't science, and that it is simply the latest incarnation of creationism. The former without the latter gives the creationists too much room to maneuver. I am not so naïve as to think that defeating ID will bring the creationists' efforts to an end. As they have in the past, they will regroup and dress their dogma up in a new suit. But putting an end to ID, or at the very least taking much of the bite out of its bark, will set the creationists back several years.

I will not be surprised if this case never makes it to a judicial decision, because the Dover School Board and its attorneys are getting, and will continue to get, tremendous pressure to shut it down. An adverse ruling on any level could be devastating to ID. It seems that ID proponents everywhere, except in Dover, see the potential train wreck coming. Those who hope for an end to ID in the science classroom must, however, continue to be vigilant. The Dover School Board is represented by capable legal counsel who have been itching for this fight. If their intent truly is to fight, we can expect a heated battle.