Interesting Items in Dover Briefs

There are many compelling arguments made in the briefs filed by the plaintiffs in the Dover trial. I'll post a few excerpts of some of the more interesting ones. One of the keys to this trial is establishing that the board acted with the intent of promoting a religious viewpoint in adopting that policy. Under the Lemon test that the courts use to determine an establishment clause violation, a policy must have a clear secular purpose. The plaintiffs cited numerous statements by school board members testifying to their religious intent; the defense countered by arguing that there was in fact a clear secular purpose to adopting the policy, which was to improve science education. The plaintiff's response to their finding of fact clearly answers this argument:

Although defendants attempt to persuade this Court that each Board member who voted for the change to the biology curriculum did so for the secular purpose of improving science education (Defs. FF 909-14), their contentions are irreconcilable with the record evidence. For the Board took none of the steps that school officials would take if promoting science education had truly been their objective: they did not consult any scientific materials; they did not contact any scientists or scientific organizations; and they did not even listen to their own science teachers. 11 Pls. FF 289, 332. In fact, some of the Board members who voted for the change to the biology curriculum expressly admitted that they do not even know what intelligent design is. Pls.' FF 235, 240-41. The evidence thus demonstrates that the Board never attempted to develop any understanding of intelligent design beyond the fact that it is a less overtly religious - but nonetheless still inherently religious - version of the creationism that they wanted to teach.

The lines of evidence for the religious intent of the school board included numerous quotes from school board President Alan Bonsell and chair of the curriculum committee William Buckingham in which they advocated the teaching of creationism. Multiple witnesses testified that Bonsell talked openly of wanting creationism to be taught 50/50 with evolution at a school board retreat, and multiple witnesses and even a videotaped interview demonstrated that Buckingham had advocated teaching creationism prior to the adoption of the policy in question. In the face of this evidence, both men testified that they had no recollection of making such statements. But despite not remembering making those statements, once they were established on the record, the defense still tried to explain the meaning of them. That leads the plaintiffs to argue:

As for the Board's words and deeds in advocating for and implementing the curriculum change, defendants' proposed factual findings suffer from an astounding cognitive dissonance, if not pure schizophrenia. Statements and actions admitted in one paragraph are ignored, contradicted or averted in the next one.

Take Alan Bonsell's discussion of creationism at Board retreats in 2002 and 2003: Defendants admit both that Bonsell talked about "creationism" at the March 2003 board retreat (Defs.' FF 74) and that he talked about teaching "something" 50/50 with evolution at that same retreat. Defs.' FF 77. But they insist that Bonsell did not say that he wanted creationism taught 50/50 with evolution. Defs.' FF 133. This Court can put two and two (or 50 and 50) together, even if Defendants will not.

Moreover, while defendants admit that Dr. Nilsen accurately recorded Bonsell discussing creationism at the retreats, neither Bonsell nor any other witness for defendants had an independent recollection of him saying it. 9 Yet defendants blithely assert that, in "mention[ing] creationism," Bonsell was not talking about "teaching creationism." Defs' FF 133. If defendants don't remember Bonsell saying the word, how could they know what he meant by it?

Indeed. Another fascinating passage concerns how to apply the Edwards ruling in this case. The defense, and several amicus organizations, are asking the judge not to rule on the broader issue of whether ID is or is not inherently religious. Obviously, the broader the ruling in that regard, the worse the outcome for ID advocates. A ruling that explicitly tied ID to creationism or called it an inherently religious idea would do far more damage to their goals than would a narrow ruling strictly on the intent of the school board. The plaintiffs have a compelling answer to this argument:

Defendants are the parties that brought intelligent design and Pandas to Dover. In their proposed findings, they ask the Court to find as a factual matter that intelligent design is neither creationism nor a religious concept of any other sort. See Defs.' FF 641 ("ID is not inherently religious and is not religion"); Defs.' FF 643 ("ID is not Creationism."); Defs.' CL 939 ("IDT is - in fact - a scientific theory, not creationism."), and CL 941 ("IDT is not religion."). And they ask this Court to find that making Pandas available to students is good for science education. Defs.' FF 854. They cannot expect the Court to make those findings without considering the evidence most probative of intelligent design's content - namely, how the intelligent-design movement defines and describes itself in
Pandas and elsewhere. Otherwise, proponents of religious, non-scientific explanations for the origins and development of life could avoid constitutional scrutiny - and render the Edwards decision nugatory - by the simple expedient of adopting less-religious sounding labels. But surely the Supreme Court did not mean in Edwards to instruct creationists that the First Amendment would be
satisfied if they just kept trying new names - going from "creation science" to "intelligent design" to "sudden emergence" theory to "teach the controversy" to whatever follows that - until they finally found one that might fool a reviewing court.

Indeed, the evidence that defendants are asking this Court to ignore is exactly the sort that the court in McLean v. Arkansas Board of Education considered and found dispositive of the question whether creation science was a scientific view that could be taught in public schools, or a religious one that could not. Specifically, the McLean court considered writings and statements by creation-science advocates like Henry Morris and Duane Gish, as well as the activities and mission statements of creationist think-tanks like the Bible Science Association,3 the Institute for Creation Research, and the Creation Science Research Center.4 The court did not make the relevance of that evidence conditional on whether the Arkansas Board of Education knew all this information; instead, the court treated the evidence as speaking directly to the threshold question what creation science was. And, in Edwards, the Supreme Court adopted McLean's analysis of that evidence without reservation - and without any discussion of which details about creation science the defendant school board actually knew.

I'll keep posting more as I come across interesting arguments in the briefs.

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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.…
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As for the Board's words and deeds in advocating for and implementing the curriculum change, defendants' proposed factual findings suffer from an astounding cognitive dissonance, if not pure schizophrenia. Statements and actions admitted in one paragraph are ignored, contradicted or averted in the next one.

Much the same could be said of Discovery Institute style ID creationism itself...they want it taught in schools, they don't want it taught in's consistant with evolution, its not consistant...the Designer could be natural, it couldn't be natural...

Goes on and on.