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Kitzmiller v. Dover Area School District

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Kitzmiller v. Dover Area School District
400 F. Supp. 2d 707
Decided: December 20, 2005

Kitzmiller v. Dover Area School District, also known as the Dover trial, was a federal law suit brought about by Tammy Kitzmiller and 10 other plaintiffs against the Dover Area School District and its board of directors. The case ran in the U.S. District Court for the Middle District of Pennsylvania, from late September to early November 2005.


Kitzmiller originated when the Dover Area School District Board of Education in Dover, Pennsylvania voted 6-3 to "challenge" evolution, under the leadership of creationist Bill Buckingham, by adding a one paragraph disclaimer to the local high school biology curriculum[1] garbling the regular curriculum with teach the controversy and promoting the "scientific alternative" of intelligent design (ID) and using Of Pandas and People as a reference. The dissenting members of the school board resigned in protest[2] and the measure carried.

Buckingham had previously wanted to use the textbook Of Pandas and People in the classroom to teach both sides of the creation-evolution "debate", but was shot down because teaching creationism was previously ruled unconstitutional. See Edwards v. Aguillard.

Angered about being forced to teach about ID, the entire science teaching faculty of Dover High School refused to read the statement, citing a clause in the Pennsylvania code of education allowing them not to be forced to teach something they thought false. As a result, the statement was, instead, read by the assistant superintendent during what the school staff felt was a forced classroom interruption. Local parents, wary of their children being taught a false controversy surrounding evolution, filed a class-action lawsuit.

Holding of the Court[edit]

Using the Lemon v. Kurtzman test, the court found that intelligent design was primarily religious and fostered unnecessary entanglement of church and state. The court further found that intelligent design is not science.

The 'Lemon' test examines three points.

  • Does the action have a purely secular purpose?
  • Does the action promote or inhibit religion?
  • Does the action result in an entanglement of the state and religion?

A failure of any of the three conditions means it is unconstitutional under the establishment clause.

Deceit in the case[edit]

The testimony of Dover School Board members in the Kitzmiller case, who lied in affidavits and on the stand to protect the ID policy, was deceitful and an example of creationists willing to bend the truth to see their own agenda furthered.

One consistency among the Dover School Board members' testimony, which was marked by selective memories and outright lies under oath, as will be discussed in more detail below, is that they did not think they needed to be knowledgeable about ID… We disagree.
—Judge John E. Jones III[3]

One of the primary forces behind the intelligent design policy, Alan Bonsell, went above and beyond in this respect, offering testimony so suspicious and facetious that the judge took the prerogative to examine the witness himself. These two citations are but two characteristic examples.[4]

Creationists' reactions to the verdict[edit]

Creationists have also criticized the ACLU, an amicus curiae in the case, for the fact that the plaintiffs requested attorney's fees as a damages award against the school district in the case.[5] However, not only did the ACLU not have control over this (lead counsel was not the ACLU, but the private law firm, Pepper Hamilton LLP), but this is also a standard remedy.[6]

Judge John E. Jones III, the presiding judge in the case, has been pejoratively tagged as an "activist judge" for his role in the case. However, John E. Jones is a Republican and a conservative, as well as a practicing Catholic. Lead plaintiff's counsel feared that this would impact the case negatively for the anti-intelligent design side,[7] and at least one ID-proponent was confident that Jones would rule in their favor for political reasons. During the trial, DaveScot, then a co-blogger at William Dembski's Uncommon Descent blog, wrote:[8]

This is all about Judge Jones. If it were about the merits of the case we know we’d win. It’s about politics. Look at the Cobb county case. A sticker that did no more than mention a plain fact, that evolution is theory not a fact, was ruled a violation of the establishment clause. Incredible! A local school board saying evolution is a theory is, in some twisted logic that just makes me shudder, a law regarding an establishment of religion. Har har hardy har har. Right. In a pig’s ass (pardon my french). Clinton appointed Judge Clarence Cooper made a ridiculous ruling that was faithful to the left wing overlords that he serves.

Judge John E. Jones on the other hand is a good old boy brought up through the conservative ranks. He was state attorney for D.A.R.E, an Assistant Scout Master with extensively involved with local and national Boy Scouts of America, political buddy of Governor Tom Ridge (who in turn is deep in George W. Bush’s circle of power), and finally was appointed by GW hisself. Senator Rick Santorum is a Pennsylvanian in the same circles (author of the “Santorum Language” that encourages schools to teach the controversy) and last but far from least, George W. Bush hisself drove a stake in the ground saying teach the controversy. Unless Judge Jones wants to cut his career off at the knees he isn’t going to rule against the wishes of his political allies. Of course the ACLU will appeal. This won’t be over until it gets to the Supreme Court. But now we own that too.

In essence, the "Uncommon Descent" blogger hoped for an opinion motivated by Jones' (perceived) distaste with evolution, what Scalia would call a "willful judge," or one who lets personal opinion get in the way of the law. In the blogger's neoconservative opinion, an activist judge is fine, as long as he is pro-intelligent design and agrees with the Discovery Institute's agenda. Jones took issue preemptively with the "activist judge" label in his written opinion, where he wrote:[9]

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers [**173] of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

Jones' obvious anger was provoked by the same deceit noted above.

Creationists criticized Jones' opinion as being "90% copied from the ACLU's briefs"[10] (though a statistical analysis found the actual amount more like 35%).[11] Nonetheless, close examining of the similarities reveals that only the "findings of fact" in the opinion were thus transcribed, not the entire opinion as the Discovery Institute misrepresents. Incorporation of a brief in an opinion's findings of fact is standard and appropriate, and is often used by the court to avoid a duplication of effort where the argument coincides with judicial opinion.


Another common allegation is that the ruling was unfair, as it "prohibited appeal."[12] No judge can foreclose appeal. Settlements, agreed upon by the parties and signed by the judge as a formality, may foreclose appeal, but this type of agreement is by definition consensual by both parties. The fact that Kitzmiller was not appealed is telling.


The Dover Area School Board voted to pay a $1,000,000 legal fee plus a $1 settlement to each of the plaintiffs in the lawsuit. The school district and its taxpayers have paid a heavy price because a few creationism-pushing school board members thought that the Constitution did not apply to them. The plaintiffs' legal fees and expenses actually totaled more than $2 million, but their law firm, Pepper Hamilton LLP, agreed to charge only for its expenses "in recognition of the limited resources of the district and of the change in the school board's composition after the November 2005 election."[13]

In addition, several school board members lied about their activities and motives in attempting to subvert the Establishment Clause. They wanted to bring a god into the classroom, then lied about what they were trying to do and how they were going about it, apparently not only denying evolution, but also denying some of the central tenets of their religion.[14] One of them, Buckingham, then proceeded to ironically call the judge a clown.[15]

The defendants in Kitzmiller were the members of the Dover School Board, in their official capacity. They could have appealed the decision in their official capacity as a school board. However, by the time the case concluded, Dover voters had replaced the pro-creationist school board with members more in line with residents' wishes. Without a pro-creationist agenda, the new school board saw no need to appeal a decision they favored.[16][17]

The trial demonstrated even a conservative, Christian, Bush-appointed judge didn't buy the "intelligent design is not religiously motivated!" claim; worse, the pro-ID members of the Dover school board sabotaged their own cause by repeatedly bragging to friendly audiences that their real intent was getting religious indoctrination back in schools. Since then, ID advocates have mostly dropped any pretense of a secular or scientific purpose. The Discovery Institute's "Top Questions" page still includes a token protest that "the scientific theory of intelligent design is agnostic regarding the source of design and has no commitment to defending Genesis, the Bible or any other sacred text,"[18] but numerous articles on the site betray their religious agenda.[19][20][21]

See also[edit]

External links[edit]


  2. [1]
  3. John E. Jones III in Kitzmiller, 400 F. Supp. 2d 707, n.7 727.
  4. Edward Hume, "Monkey Girl," especially chapters 14-17, available here for purchase.
  5. See ACLU on CP.
  6. See 42 U.S.C. §1988, providing attorney's fees as a standard award in any § 1983 suit.
  7. See Humes, supra.
  8. Comment on Dembski's blog here.
  9. Kitzmiller, at 765.
  10. See one example here.
  11. A Conversation With Mark Mathis, Scientific American
  12. This is another one of Andrew Schlafly's odd statements, viewable here.
  13. "Intelligent design" costs Dover over $1,000,000, NCSE
  14. OUR OPINION: Investigate perjury in Dover ID case Judge Jones issued a broad, sensible ruling - finding that some board members lied.
  16. Forrest: A Brief History, Skeptical Inquirer
  17. See Humes, supra, afterword.
  18. "Top Questions", The Center for the Renewal of Science and Culture
  19. "Should Christians be Socialists?" Discovery Institute website
  20. "The Secrets of Tebow Hatred", Discovery Institute website (Yeah, thatTebow.)
  21. "Obama's 'Christian Label' and the War against Nativity Scenes", Discovery Institute website