RationalWiki:Kitzmiller v. Dover annotated transcript/P003

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Day 1 (26 Sept 2005): Morning Session - Opening Statement - Patrick Gillen (for the defense)

MR. ROTHSCHILD: Good morning, Your Honor. THE COURT: Mr. Gillen, are you prepared to open? MR. GILLEN: Thank you, Your Honor. Good morning, Your Honor. THE COURT: Good morning again to you. MR. GILLEN: Patrick Gillen again from the Thomas More Law Center on behalf of the defendants in this action, the Dover Area School District and its board of directors. Again I'd like to introduce my colleagues at counsel's table, Dick Thompson and Robert Muise. Absent from the courtroom but valued collaborators in this effort, my colleagues Ed White and Julie Shotzbarger. Seated behind counsel's table, our clients, the Dover Area School District, through its board of directors, citizens elected by their constituents, represent the interests of the parents and families of the district, the students who are educated through the hard work of the board, the administration, faculty and staff of Dover Area School District.	With Mr Rothschild's opening statement for the plaintiffs over, we now hear from defense lawyer Patrick Gillen. Formalities and introductions. Gillen is from the Thomas More Law Center, a conservative Christian law firm that aims to "protect the religious freedoms of Christians"—which should really have given the game away there and then. Gillen emphasises that his clients, the school board, were elected by and represent the interests of the families of the district. It should be pointed out that this makes no difference to the constitutionality of the board policy. 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 Your Honor, it is our pleasure to appear on behalf of our clients today because I am confident that at the conclusion of these proceedings, you will find that the evidence shows that these citizens seated before you today were engaged in a legitimate exercise of their lawful authority where they enacted a modest change to the biology curriculum for the purpose of enhancing science education, for the evidence will show that the purpose and effect truly at issue in this litigation is the purpose and effect of a curriculum change that was worked out after a process of deliberation involving the board, the administration, the science faculty, and the public. And it resulted in a modest four-paragraph statement which mentions intelligent design, makes students aware of the existence of the theory, makes them aware that it's a theory of the origins of life different from Darwin's theory of evolution. It explains that there's a book in the library, Of Pandas and People, that deals with intelligent design theory or IDT. In fact, the evidence will show that the more recent statement points students to other books in the library addressing intelligent design theory and that three of those books are penned by the plaintiffs' experts and critical of the theory. This case is about free inquiry in education, not about a religious agenda.	Section 1 notes Gillen is confident that the court will find that the "modest" change to the biology curriculum is perfectly legitimate. Also "modest" is the "four-paragraph statement" that supposedly tells students that intelligent design is a thing, and that there is a textbook in the library they can use to find out more. This statement read: "The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part. Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations. Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves. With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments." [1]
Section 2 Your Honor, the evidence will also show that this four-paragraph statement is the total actual effect that the curriculum change has on science instruction in the district, because apart from that four-paragraph statement, science teachers teach evolutionary theory as required by Pennsylvania state standards. The use of texts presents the evolutionary theory. Biology by Miller and Levine, one of the coauthors, Ken Miller, is one of the plaintiffs' experts in this case. In this way, the evidence will show that while students are taught evolutionary theory, they are merely made aware of the existence of another theory, the intelligent design theory, and that while students are assigned a basal text that presents evolutionary theory, they're merely made aware of the existence of a reference text in the library that deals with intelligent design theory, if they care to check it out. And they are told that they will be tested on evolutionary theory, as required by Pennsylvania state standards. Further, the evidence will show that Superintendent Richard Nilsen, in response to concerns addressed by science faculty about the implementation of the curriculum change, issued specific guidelines that intelligent design theory would not be taught, that creationism would not be taught. Teachers would not teach their own religious beliefs.	Section 2 notes Gillen claims that the above quoted paragraphs are "the total actual effect" of the curriculum change, and that evolution was taught in the class (with a text co-authored by Ken Miller, one of the plaintiff's experts). Students are "merely made aware" of the existence of ID, and teachers have been told by the superintendent not to teach religion, creationism, or ID.
Section 3 Now, there's no question, Your Honor, that this final result was worked out through a contentious policy-making process that has led some to liken making legislation to making sausage, a process that involved, at times, heated argument by members of the public, members of the board, false charges and intemperate remarks. But the evidence will show that the consistent goal of the board, as a whole, was to pursue what they believed to be a legitimate educational purpose and to comply with the law. Alan Bonsell is a perfect example. He came to the board without any background in education of the law, just a sincere desire to serve his fellow citizens. By virtue of his personal reading, he was aware of intelligent design theory and that 300 or so scientists had signed a statement indicating that biologists were exaggerating claims for the theory. He had read about the famous Piltdown man hoax. He had an interest in creationism. He wondered whether it could be discussed in the classroom. Those questions are not evidence of unconstitutional conduct, Your Honor. They were quite legitimate. In fact, the evidence will show that on the very day of the March 26th, 2003 board retreat, the assistant superintendent of the district, Mike Baksa, attended a seminar sponsored by the Pennsylvania School Boards Association given by a presenter with a law degree from Harvard, a facilitator who was a professor with a Ph.D. in the history of philosophy of science. They discussed the issue because it was a legitimate issue. During that seminar, Mike Baksa heard the view expressed that it would be useful and good science education to at least introduce a discussion of creationism into the biology curriculum. More importantly, Your Honor, the evidence will show that nothing came of those questions.	Section 3 notes He concedes that the decision making process was "contentious," but continues to insist that it was all proper. The paragraph about Bonsell references the "A Scientific Dissent From Darwinism" petition, however that statement does not actually charge that "biologists [are] exaggerating claims" about evolution—instead it claims that "there is scientific dissent from Darwinism [which] deserves to be heard." Meanwhile, the hint that Bonsell might be basing his opinions in part on the Piltdown Man hoax doesn't inspire confidence. Incredibly, Bonsell in his testimony later denies remembering saying anything about creationism - despite it being noted in writing and recalled by others at the time, and now used as part of the opening address by his own counsel. Gillen says here that (at least) two board members investigated teaching creationism, but "nothing came of those questions." Nothing, of course, unless you count the changing of the terminology to ID and the later adoption of the curriculum change.
Section 4 During his tenure as board curriculum committee chair, Alan Bonsell never asked for any change to the biology curriculum, the text or instruction. He met with the science teachers in the fall of 2003 and learned that they didn't teach origins. It was too problematic. They focused on change within species. They mentioned creationism, but they didn't teach it, that's what they told him, because they thought it would be illegal. And that was the end of the matter. He asked legitimate questions. He got legitimate answers. That was the end. When Bill Buckingham tried to hold up the purchase of the basal text in August of 2004, the text authored by one of the plaintiffs' experts, Bonsell voted against that because he believed the students should have the book recommended by the science faculty, quite apart from whether the board approved the use of Pandas and People. And on the night, the very night that the board approved the curriculum change at issue here, when the science faculty expressed concerns that the inclusion of the mention of intelligent design in the curriculum would require them to teach it, although they did not teach origins, it was Bonsell who appended the note to the curriculum which made it clear that they would not be required to teach intelligent design theory. He did that because he understood they did not teach origins, and they understood that intelligent design theory, as indicated by the subtitle of the book, Of Pandas and People, deals with the question of biological origins.	Section 4 notes Back to Bonsell: Gillen says that as committee chair Bonsell "never asked for any change to the biology curriculum." He voted in favour the adoption of Miller's aforementioned textbook, against the motion of Bill Buckingham. He was also responsible for a note saying that teachers would not be forced to teach ID, similar to the "shall not be construed as an endorsement of religion" clauses tacked on to the end of modern creationist bills. We also have the issue that teachers weren't teaching "origins" as it was too contentious, which is mentioned repeatedly by Gillen.
Section 5 Your Honor, the evidence will show something very critical in this case, that Bill Buckingham did not exercise a determinative impact on this policy-making process. Not at all. In fact, the evidence will show that the board listened to the science faculty more than it listened to Bill Buckingham. Bill Buckingham wanted the text, Of Pandas and People, approved with the basal text. He wanted it purchased with school money. He wanted it used in the classroom. He wanted the intelligent design theory presented side by side with evolutionary theory as if in dialogue. The teachers objected, and the board agreed with the teachers. Now, it's true at the end of the day the board didn't agree with everything the teachers said. The board believed that intelligent design was not creationism. They knew what that was, the Book of Genesis. They concluded that intelligent design was science. They looked at the text of Pandas and People. That's not the Book of Genesis. They believed it was a legitimate educational goal to make students aware of the existence of another scientific theory, but they agreed with the teachers' objections that for practical reasons, students shouldn't be taught intelligent design theory. Your Honor, the evidence will also demonstrate that the board quite rightly concluded that its modest curriculum change would, in fact, enhance the biology curriculum and that the primary effect of their policy would be to advance science education, not religion.	Section 5 notes According to Gillen, Buckingham wanted to bring in the Pandas text but the teachers objected. The board apparently didn't think that ID was creationism, but agreed that it shouldn't be taught for "practical reasons." Placing the book in the library and making it known to the students is being framed as some kind of compromise, though not one that makes a lot of sense. For one, what were these "practical reasons" if not the fact that teaching ID would be equivalent to teaching creationism and therefore unconstitutional? How does this square with the reports of board members being very enthusiastic about teaching creationism/ID? Gillen says that the change was intended to enhance the science curriculum, but how so? Gillen also seems to be stating that because Of Pandas and People didn't present a line-by-line recap of the events outlined in Genesis, the board concluded it must therefore be science.
Section 6 Defendants' expert will show this Court that intelligent design theory, IDT, is science, a theory that's advanced in terms of empirical evidence and technical knowledge proper to scientific and academic specialties. It is not religion. This expert testimony will also demonstrate that making students aware of gaps and problems in evolutionary theory is good science education. It's good liberal education. Dr. Michael Behe will offer you his opinion in this case. He will explain the basis for his opinion that the insights into the biochemical complexity of the cell, made possible by modern microbiology, have undermined the claims made for natural selection, the mechanism at the center of evolutionary theory. Likewise, Dr. Behe will explain that evolutionary theory does have gaps and problems and that it's good science education to make students aware of those gaps and problems, make them aware of the intelligent design theory. The evidence will show that Dr. Behe takes these positions and posits his thesis of irreducible complexity pointing to design not because evolutionary theory is inconsistent with his religious beliefs. It's not. Not because he believes in creationism. He doesn't. And as he'll explain, creationism and intelligent design are two very different things. Dr. Behe takes these positions because the empirical evidence points in that direction.	Section 6 notes Despite claiming that ID was not taught, the defence is still going to try to prove that it's science. Spoilers: they don't manage it. Dr Michael Behe is the first witness mentioned by the defence. He is to talk about irreducible complexity, and how evolution has "gaps."
Section 7 You will also hear testimony from Dr. Scott Minnich. Dr. Minnich received his Ph.D. from Iowa State University in 1981. He was a post-doctoral fellow at Purdue and then Princeton. Since 1987, he has taught microbiology extensively at the undergraduate and graduate, including medical school, levels. Dr. Minnich will testify that IDT is science, not religion. He will explain that design principle, design theory, drives his sophisticated research in the lab. He will testify that Of Pandas and People is a good text, a little dated, but one that asks critical questions about the mechanism of natural selection, which is a centerpiece of evolutionary theory, that it makes students aware of gaps and problems in the theory. Dr. Minnich will testify that this is good science education and it's good for science. Dr. Dick Carpenter will also provide testimony. He's an assistant professor in educational leadership at the University of Colorado. He's an expert in educational policy and practice. He will testify that DASD's curriculum policy advances legitimate secular educational goals, promotes critical thinking, gives students a fuller understanding of evolutionary theory, including its strengths and weaknesses, something that's mentioned in the basal text authored by the plaintiffs' expert. In this way, he'll show that Dover's modest curriculum change actually brings it more into line with Pennsylvania's academic standards, which require that students be able to critically assess the status of existing theories, and, insofar as it helps students grasp the controversy that can surround science, points to a goal that's included in the Santorum amendment, the No Child Left Behind Act.	Section 7 notes Dr Scott Minnich is to make a similar case, and will also try to defend Pandas. He also apparently does actual research, which he is to talk about. Dr Dick Carpenter, meanwhile, is going to claim that the policy is good in an educational. The reference to the Santorum Amendment is a little strange given that it was never actually adopted, and the "Santorum language" that did make it out of the committee was non-binding.
Section 8 Dr. Steven Fuller will also testify for the defendants. He has a master's in philosophy and history of science from Cambridge University, a Ph.D. in the philosophy of science from the University of Pittsburgh. He's the author of eleven books, over 200 articles and chapters and books that have been peer-reviewed. He was the first post-doctoral fellow in the history of philosophy of science at the United States National Science Foundation, the first research fellow in the Public Understanding of Science at the United Kingdom's Council for Economic and Social Research. His works have been translated into 15 languages. He has been a visiting professor in the United States, Sweden, Denmark, the Netherlands, Israel, and Japan. Dr. Fuller will testify that intelligent design is science, not religion, that the convention of methodological naturalism, which some would use to disqualify intelligent design theory from science, is by no means a necessary feature of scientific inquiry, and that scientific progress has taken place without any commitment to methodological naturalism. He will also testify that efforts to disqualify IDT from science based upon causation or testability or other so-called demarcation criteria, including so-called methodological naturalism, are inherently flawed. Dr. Fuller will explain that intelligent design theory is not creationism. It is not inherently religious. He will also explain, for that matter, that any number of phenomena we now understand, whether it's gravity or the wave-particle duality of quantum mechanics, were once thought to be supernatural.	Section 8 notes Dr. Steven Fuller's argument is apparently that you don't need methodological naturalism for science. In addition, just because ID is non-falsifiable that doesn't make it pseudoscience, which sounds rather like special pleading. Saying that other phenomena were once thought of as supernatural makes for a poor argument. It's true that in some places and times it was thought that the lightning was caused by Thor, for example, and that modern science has a non-supernatural explanation. ID, however, is the equivalent of claiming that an unknown and non-specific power is responsible, based on the inability of science to explain every detail in the system.
Section 9 Finally, Dr. Warren Nord will testify for the defendants. Dr. Nord is a professor in the philosophy of education and philosophy of religion at the University of North Carolina Chapel Hill. Nord will testify that intelligent design theory is not religion. He will explain that efforts to exclude intelligent design theory from science based on so-called methodological naturalism actually result from a philosophical naturalism which is, itself, a nonscientific principle. He will also explain that from the standpoint of the philosophy of education, liberal education, the thesis posited by intelligent design theorists gains greater strength when seen in a larger context, whether the fine-tuning of the universe which physicists looked at so statistically improbable but so necessary to support life on earth or work in the area of phenomena such as the mind. Dr. Nord will also explain the basis for his opinion that the board's modest curriculum change is a step in the right direction for science education and consistent with national science education standards precisely because it makes students aware that there are scientific disputes over claims advanced by rival theories, something students should know in order to have a realistic sense of this critical dimension of scientific progress.	Section 9 notes Philosophical naturalism is the logical conclusion of methodological naturalism, but Dr Warren Nord is to argue that the former is both unscientific and the true basis of the rejection of ID as non-science. He is also to talk about fine-tuning. Nord is the last expert mentioned by Gillen. You may have noticed an interesting contrast between how the plaintiffs and the defence have introduced their witnesses: while Mr Gillen has always stated straight off the bat that his experts are all doctors (of science or philosophy), Mr Rothschild often doesn't bother. This may well be because the creationists need to combat a perception that they are all uneducated hicks without supporting scientists, while it can be taken as read that the plaintiffs would have had no shortage of trained experts to chose from.
Section 10 Taken together, this expert testimony will confirm the defendants' judgment by showing that intelligent design theory is not creationism. Indeed, it does not even require the action of a supernatural creator, that intelligent design is not religion or inherently religious, that intelligent design theory is science. It's a theoretical argument advanced in terms of empirical evidence, technical knowledge proper to scientific and academic specialties. Indeed, the evidence will further show that intelligent design theory is really science in its purest form, the refusal to foreclose possible explanations based on the claims of the dominant theory or the conventions of the day, to proceed from the same sort of perspective that led Newton to explore and ultimately explicate gravity. It shares the attitude of those who worked in the field of quantum mechanics, who posited the wave-particle duality, despite the fact that to some it smacked of the supernatural. It shares the determination of scientists who this very day will look at paranormal phenomena or phenomena that defy our current understanding such as the mind. For just these reasons, the defendants' expert testimony will show that Dover's modest curriculum change embodies the essence of liberal education, an education that frees the mind from the confines, the constraints, the conventions of the day, and, in so doing, promotes the curiosity, the critical thinking, the quest for knowledge that has served our country so well.	Section 10 notes To summarise, the defendants wish to show the following: ID is not creationism ID does not require "the action of a supernatural creator" ID is not inherently religious ID is in the spirit of scientific discovery such as wave-particle duality and gravity The "design proponents" are the good guys here
Section 11 In conclusion, Your Honor, I respectfully submit that the evidence will show that the primary purpose and primary effect of Dover's modest but plainly significant curriculum change is to advance the very sort of legitimate educational goal which the United States Supreme Court recognized in Edwards versus Aguillard, what the Supreme Court of the United States acknowledged, with approval, that school boards could quite properly require the teaching, never mind mention, about the theories of origin for legitimate secular educational purposes. Your Honor, we look forward to presenting a defense in this case. Thank you. THE COURT: All right. Thank you, Mr. Gillen.	Section 11 notes As part of Edwards v. Aguillard it was noted that "teaching a variety of scientific theories about the origins of humankind to school children might be validly done with the clear secular intent of enhancing the effectiveness of science instruction." Gillen wants to show that this is what the board was doing.

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