RationalWiki:Kitzmiller v. Dover annotated transcript/P002

← Previous page

Next page →

Day 1 (26 Sept 2005): Morning Session - Opening proceedings

The first day of the trial took place on September 26, 2005 in Harrisburg, PA. In this portion the lawyer for the plaintiffs, Eric Rothschild, makes his opening statement.

THE COURT: Good morning to all. Counsel, would you enter your appearances starting with counsel for the plaintiffs. MR. ROTHSCHILD: Good morning, Your Honor. Eric Rothschild from Pepper Hamilton, L.L.P., for the plaintiffs. MR. HARVEY: Good morning, Your Honor. Steve Harvey, Pepper Hamilton, for the plaintiffs. MR. WALCZAK: Your Honor, Witold Walczak, American Civil Liberties Union of Pennsylvania, for the plaintiffs. THE COURT: All right. MR. GILLEN: Good morning, Your Honor. Patrick Gillen from the Thomas More Law Center for the defendants. MR. THOMPSON: Good morning, Your Honor. Richard Thompson of the Thomas More Law Center for the defendants. MR. MUISE: Good morning, Your Honor. Robert Muise from the Thomas More Law Center for the defendants. THE COURT: And good morning to all of you. Are you prepared to open? MR. ROTHSCHILD: Yes, I am. THE COURT: You may do so.

Standard formalities for the start of any court case - we meet all of the lawyers. In case you've never watched a television in your entire life, everyone calls the Judge "Your Honor", and the judge addresses lawyers as "counsel".

Day 1 (26 Sept 2005): Morning Session - Opening statement by Eric Rothschild (for the plaintiff)

MR. ROTHSCHILD: Good morning, Your Honor.	Enjoy this excellent opening. Please note: the "Sections" laid out below were created by RW to make for easier commentary. They are not part of the original transcript.
Section 1 My co-counsel and I represent eleven parents who are challenging the Dover Area School District's change to its biology curriculum. That change to the biology curriculum, which is displayed on your monitor and on the screen, singles out the scientific theory of evolution, among all the scientific concepts taught to Dover High School students, as being suspect and promotes the religious proposition of intelligent design as a competing scientific theory.	Section 1 notes The Dover Area School District changed it's biology curriculum to say that: "Students will be made aware of gaps/problems in Darwin's theory and of other theories of evolution including, but not limited to, intelligent design." You will note that this doesn't say that the "gaps/problems" in ID should also be pointed out. In the post-Dover world this overt endorsement of what Rothschild calls the "religious proposition of intelligent design" looks far too blatant to ever be proposed, but the gaps language has morphed into the "strengths and weaknesses" meme of more recent creationist legislation.
Section 2 Eighteen years ago, the United States Supreme Court, in Edwards versus Aguillard, held that public schools could not teach students creation science because that proposition's core concept of a supernatural creator is religious, not scientific, and therefore violates the establishment clause of the First Amendment to the United States Constitution. The Court recognized that the teaching of creation science was motivated by a religious and cultural agenda, not the improvement of scientific education. What we will prove at this trial is that the Dover board policy has the same characteristics and the same constitutional defects as the creation science policy struck down in Edwards. You will hear testimony from members of the Dover community, these parents, teachers, administrators, and board members, about how this change to the curriculum came to be. Board members announced their interest in the topic of evolution in starkly religious terms. They looked for a book that could provide a religious alternative to evolution, and they found one in Of Pandas and People.	Section 2 notes Edwards v. Aguillard made teaching creationism illegal in US public schools on the grounds that it constituted the government endorsement of religion, thus violating the establishment clause. Rothschild argues that the Dover policy is basically the same as that which was struck down in the earlier case. This section contains the first mention of the infamous textbook, Of Pandas and People, however Rothschild does not elaborate at this point.
Section 3 They changed the science curriculum to advance a specific religious viewpoint, and in doing so, they ignored accepted scientific knowledge, failed to avail themselves of the advice of established scientific organizations, and ignored their own science teachers who opposed the change to the science curriculum. They did everything you would do if you wanted to incorporate a religious topic in science class and cared nothing about its scientific validity. And we will show that the members of the school board that passed this policy expressed their desire to teach creationism over and over and over again. That's their word, "creationism."	Section 3 notes While the defence may be insisting now that their curriculum change had nothing to do with religion and creationism, Rothschild claims that the board very much intended to teach creationism and said as much when they made their decision.
Section 4 As Your Honor will recall, in January, you permitted expedited discovery so these plaintiffs could decide whether to move for a temporary restraining order. We deposed Alan Bonsell and Sheila Harkins, the last two board presidents, William Buckingham, the head of the curriculum committee when the curriculum change was approved, and Dr. Richard Nilsen, the Dover Area School District's superintendent. All of them denied media reports that the board had spoken openly about creationism at board meetings leading up to the curriculum change. And they and other witnesses continued to deny such statements in depositions throughout this litigation. Faced with what appeared to be surprisingly contradictory evidence about what the board members actually said, plaintiffs decided not to seek a temporary restraining order so that this Court could decide this case on a more complete record. Now we have that record.	Section 4 notes But members of the board "denied media reports that the board had spoken openly about creationism at board meetings." Reports of what happened at meetings were therefore contradictory, so the plaintiffs waited until they had the information they needed.
Section 5 Matt, could you pull up Exhibit 21. This is superintendent Nilsen's record of what board members said at a board retreat on January 9th, 2002. Matt, could you highlight Item C. Dr. Nilsen reported that Alan Bonsell talked about creationism and prayer at this board retreat. Could you pull up Exhibit 25. This is Dr. Nilsen's record of what board members said at a board retreat on March 26, 2003. And could you highlight Section D, again, under Mr. Bonsell. Again, Dr. Nilsen reported Mr. Bonsell as talking about creationism. Could you pull up Exhibit 26, please. This is Plaintiffs' Exhibit 26. This is a memorandum received by Mr. Michael Baksa, the assistant superintendent for the district, and copied to Dr. Nilsen, the superintendent, reflecting what Mr. Baksa told Bertha Spahr, the head of the Dover High School Science Department, about a board member's views on teaching evolution. Matt, could you highlight the last sentence of the first paragraph. A board member wanted 50 percent of the topic of evolution to involve the teaching of creationism. Could you pull up Exhibit 60, please. This is a letter that Board Member Heather Geesey wrote to the York Sunday News on June 27th, 2004. Could you highlight the last paragraph, please. You can teach creationism. Could you pull up Exhibit 662. This is a draft change to the Dover biology curriculum prepared by Assistant Superintendent Michael Baksa. Could you highlight the bottom section, please, Matt. Creationism. And if you look at the text of this draft change to the curriculum, it's remarkably similar to the change that was actually approved, though the final version had intelligent design, not creationism. And the entire Dover community is aware of what Mr. William Buckingham, the chair of the curriculum committee when this curriculum change was passed, has said on this subject. (Tape played.) "Such as creationism." Defendants refusal to admit their advocacy of creationism in the face of overwhelming evidence says everything about their true motives.	Section 5 notes Exhibit A 21: the superintendent's record shows that Bonsell (mentioned above as a former board president, who had denied that creationism had been mentioned at meetings) discussed creationism and prayer at a board retreat. #25 shows the same thing happened the following year. Exhibit 26 is a memorandum that says that an unnamed board member wanted half the evolution topic to actually be about creationism—equal time, in other words, an idea that was defeated in Daniel v. Waters in 1975. Exhibit 60: The York Sunday News is the Sunday paper of the York Daily Record. Unfortunately, this paper does not make the full text of its archives freely avaliable. From what can be read, Geesey began her letter in defense of using Pandas by claiming that "our country was founded on Christian beliefs and principles," and it no-doubt gets worse from there. Exhibit 662 is reminiscent of the "cdesign proponentsists" situation with the textbook: an early proposed draft of the curriculum change was almost identical to the change that was made, except that it said "creationism" rather than "intelligent design." These exhibits, Rothschild says, show that the board is committed to teaching creationism and their denial of this only means that they are being deceptive.
Section 6 What the board did was add creationism to the biology curriculum under its new name, intelligent design. You will hear from Barbara Forrest, an expert on the history of intelligent design. She will describe how the textbook Of Pandas and People that the school district directs its students to was conceived and developed as a creationist book and changed the name of the concept it was promoting to intelligent design after the Edwards decision held that creation science could not be taught. Indeed, the very definition of intelligent design found in the Pandas book used in Dover is identical to the definition of creationism found in earlier drafts of that book. The publisher of Pandas, like the Dover Area School Board, employed semantics, wordplay, to obscure its clear religious creationist project. Dr. Forrest will also describe how the leaders of the intelligent design movement are carrying out a strategy, what they call the Wedge strategy, to overturn the rules of modern science so that you can include supernatural activity, so that science can be Christian and theistic. You will also hear from John Haught, a theologian, who will explain that intelligent design is not new science. It is old theology, the argument for the existence of God that has been around for centuries. He will also explain that it is not a universal religious view, but rather a particular one accepted by many people of faith but inconsistent with the beliefs of many others.	Section 6 notes Rothschild talks about what his witnesses will say. Barbara Forrest is to talk about Pandas, particularly how the definition of creationism in early drafts was the same is that of intelligent design in the published version. Forrest is also going to discuss the "wedge strategy," which aims to "overturn the rules of modern science" to allow religious explanations. Also to speak is a theologian, John Haught, who will explain that ID is unoriginal theology. Importantly, he is to say that this theology is not shared among all Christians.
Section 7 Intelligent design is not identical in every respect to the creation science previously addressed by the Supreme Court in Edwards and other courts, but in all essential aspects, it is the same. Intelligent design really is a perfect example of evolution. Throughout this century, religious opponents of evolution, concerned that evolution contradicts a literal reading of the Bible and promotes cultural decay, have employed varying tactics to denigrate or eliminate the theory of evolution in the minds of young students. They have tried forbidding the teaching of evolution, promoting creationism or creation science as an alternative to evolution, and singling out evolution for special criticism. Each of those tactics have been found unconstitutional by courts. Confronted with that inhospitable legal environment, creationists have adapted to create intelligent design, creationism with the words "God" and "Bible" left out. They have promoted a book, Of Pandas and People, that invokes a master intellect that shapes clay into living form and then says, we're not referring to anyone in particular. This clever tactical repackaging of creationism does not warrant different treatment under the Constitution. The intelligent design movement has argued and we expect you will hear defendants argue in this courtroom that intelligent design has improved on creationism by developing a scientific argument for design. Defendants' own experts call it science in its infancy, and if this is true, there is no educational purpose in test-driving it with high school students.	Section 7 notes ID is not identical to the creationist ideas that had been seen before, Rothschild points out, but it is essentially the same. This section includes a classic example to the observation that creationism—and especially the legislation that seeks to have it be taught in schools—has itself undergone evolution. He argues that just because Pandas claims it's "not referring to anyone in particular" when it talks about the creation of life by a "master intellect" doesn't mean it should be allowed to get around the constitutional prohibition on the teaching of religion. Also, why should a supposed "science in its infancy" be taught to high school students?
Section 8 But intelligent design is not science in its infancy, it's not science at all. You will hear from Kenneth Miller, a biologist; Kevin Padian, a paleontologist; Robert Pennock, a scientific philosopher; and Brian Alters, an expert on teaching science. They will testify about how science is practiced and taught, why evolution is overwhelmingly accepted as a scientific theory, and why intelligent design has no validity as a scientific concept. There is no data or laboratory work demonstrating intelligent design. It is not a testable hypothesis. It misrepresents established scientific knowledge. Let's be perfectly clear, there is no controversy in the scientific community about the soundness of evolution and that intelligent design is not a scientific topic at all. Intelligent design has arguments with fancy names like "irreducible complexity" and "specified complexity," but these arguments are not a positive case for intelligent design, just negative attacks on evolution. And even those arguments have not been advanced in the way that real working scientists do every day, by publishing original data in peer-reviewed scientific journals. In fact, intelligent design admits that it is not science at all unless science is completely redefined to include the supernatural.	Section 8 notes More speakers: Kenneth Miller, Kevin Padian, Robert Pennock, and Brian Alters are to lecture about how science actually works, and why ID doesn't fit the definition. There is no controversy, Rothschild says, at least not among scientists. Fancy words don't change this, especially when they are all negative attacks on evolution and not positive arguments for the ID position. ID even admits that it can only be science if you redefine science to include the supernatural.
Section 9 At this trial, you will hear the parties use the term "methodological naturalism." Methodological naturalism is the term used to describe science as self-imposed limitation, that it will only consider natural causes for natural phenomena. Science does not consider supernatural explanations because it has no way of observing, measuring, repeating, or testing supernatural events. It doesn't mean that supernatural events, including divine miracles, have not happened, just that science cannot properly make any statements about them. But intelligent design will not accept the well-established boundaries of science and openly rejects methodological naturalism, the way science has been practiced for centuries. Why? Because it has to. In the end, no matter how many stones intelligent design throws at the theory of evolution, the only alternative it presents for the development and diversity of life, the only explanation for how a bacterial flagellum or the human eye came to be is a miracle, an abrupt appearance, an act of supernatural creation. That, by itself, establishes intelligent design as a religious argument, not a scientific argument, for the creation of biological life that cannot be taught to public school students. The district will argue that any constitutional problem with its policy may be ignored because the statement read to students is brief and because it has promised not to teach intelligent design or even allow students to ask questions about it. This limitation, of course, raises the question, what's the point? What possible secular educational purpose could the policy have? Plaintiffs' scientific and teaching experts will explain that there is none. Worse yet, the statement denigrates the theory of evolution in a way that one of defendants' own experts describes as misleading.	Section 9 notes We continue with why ID is not science: it rejects methodological naturalism. Science cannot test the supernatural, but ID demands it be invoked. The board promised not to teach ID "or even allow students to ask questions about it." Rothschild asks what the point of the policy is in this case: he claims there isn't one.
Section 10 Of course, there is no such thing as a little constitutional violation, and this policy surely isn't one. The Dover board has imposed its particular religious viewpoint on the students at Dover High School and through a newsletter to the entire Dover community. Viewed in the context of the public statements and actions by the board in developing and implementing the policy, it can only be viewed by the Dover High School students and Dover community as an expression of the board's religious viewpoint and as favoring a religious view about creation. In the Edwards decision, the Supreme Court underscored that it must be particularly vigilant in monitoring compliance with the establishment clause in elementary and secondary schools. Families entrust public schools with the education of their children but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the students and his or her family. The Dover School Board has violated these parents' trust by imposing its own religious agenda on Dover High School students and the Dover community. And it has clearly divided the Dover community, which could not help but conclude that its high school curriculum now includes a religious proposition, the 21st Century version of creationism. The evidence that I have described this morning and much more evidence that you will hear during the course of this trial will demonstrate that the board had the purpose of promoting religion and that its policy had that effect. For those reasons, at the end of trial, we will request that the Court enter an order finding that the Dover School Board's change to its high school biology curriculum is unconstitutional and ask you to permanently enjoin the district from implementing that curriculum change. Thank you, Your Honor.	Section 10 notes Rothschild concludes by saying that the Dover policy is more than just a "little" constitutional violation, and that the board has violated the trust of the parents of Dover High School by imposing a religious agenda. He adds that his aim is for the court to find the curriculum change unconstitutional, and to prevent it from being made.

THE COURT: All right. Thank you, Mr. Rothschild.

← Previous page

Next page →