Chapter 4: DARWIN ON TRIAL
Congress shall make no law respecting the establishing of religion or prohibiting the free exercise thereof ...
-- from the First Amendment to the United States Constitution
It reminds me of the schoolteacher who came out to my little town of Johnson City during the depression. The school board was divided on whether the earth was flat or round. The poor fellow needed a job so bad that when they asked him what he believed he told 'em "I can teach it either way."
-- LYNDON JOHNSON
The idea that man is the product of evolution rather than God's hands never seemed quite right to Rick Santorum. After the Supreme Court banned the teaching of the queerly oxymoronic "creation science" in the nation's public schools, Santorum started promoting "intelligent design" -- which looked suspiciously like creation science in drag. This sanitized version of creationism holds that "forms of life began abruptly through an intelligent agency, with their distinctive features already intact, fish with fins and scales, birds with feathers, beaks, and wings ..."
While he was the Christian right's U.S. senator from Pennsylvania, Santorum even drafted a deviously neutral amendment to George W. Bush's No Child Left Behind bill, encouraging the teaching of ID in public schools. His amendment didn't make the cut, but that didn't matter to intelligent design's Christian-right supporters. The defeated amendment represented the imprimatur of the U.S. Senate. Santorum even joined the advisory board of the Thomas More Law Center, American evangelicals' public-interest law firm.
So it's appropriate that the Darwin v. God confrontation in the cultural wars that began when the Reverend Jerry Falwell got into bed with President Ronald Reagan occurred in a courtroom in the state Santorum represented until voters tossed him out in November 2006.
Santorum wasn't the only marquee Republican preaching the gospel of intelligent design. President George W. Bush is a Methodist -- a denomination associated with moderation, particularly in Texas, where the loopier religious right is defined by firebreathers like San Antonio's Reverend John Hagee, who has proclaimed from his pulpit that Hurricane Katrina was proof that God was angry with homosexuals in New Orleans.
These Christian-right guys are good with hurricanes. At the Republican Party's state convention in Houston in 1988 (where George H. W. Bush was nominated for a presidency that we will remember as a Republican Camelot after eight years of George W. Bush), Reverend Pat Robertson reiterated his belief that his prayers had steered Hurricane Gloria away from his Virginia Beach headquarters, refusing to apologize for the death and destruction he and God had visited upon the Northern Atlantic states where they aimed the storm.
George W. Bush isn't John Hagee or Pat Robertson. But he found Jesus in a Men's Bible Study Group -- a Biblicist cult insinuated into mainstream denominations. Bush's BSG met in Midland, a right-wing oil patch redoubt where newcomers are universally welcomed with a warm West Texas "Howdy, where do you worship?"
So it was no surprise when W. Bush joined Rick Santorum, arguing that public school science teachers should "teach both sides of the controversy." The "controversy" is that simmering scientific debate over whether man was created by God or evolved from lower forms of life. There are two problems with this argument:
• In the scientific community, there is no controversy regarding evolution.
• Teaching religion in the public schools violates the separation clause in the First Amendment.
The Pennsylvania courtroom showdown over teaching "both sides of the controversy" pitted the defenders of teaching Darwin's scientific theory of evolution in high school biology classes against evangelical Christians who would supplement Darwin with the biblically inspired intelligent design. Or, as some in the anti-Darwin faction admitted in private during the trial, replace On the Origin of Species with the Book of Genesis.
Maybe by 2015 or 2020 Dover, Pa., pop. 1,914, will be back the way it used to be. Before school board members Alan Bonsell and Bill Buckingham decided there was too much Darwinism in the high school biology curriculum. (They had no problem with Newtonism in the physics curriculum.) Before the Dover school board voted five to four that a disclaimer must be read before any high school biology teacher could discuss evolution. Before the board fight that pitted Of Pandas and People, an "intelligent design" biology textbook published in Texas (it's always Texas), against the national publishing industry standard, Biology. Before one Christian school board member threw a chair at another for challenging his commitment to the faith that divides the twenty congregations in this Pennsylvania town.
It was in a closed meeting, when cooler heads who might have argued the practical utility of the Establishment Clause were running for the door, that chairs started flying in Dover. In a pretrial deposition, Angie Yingling described board members Noel Weinrich and Bill Buckingham's executive-session smackdown. Yingling would resign from a school board gone round the bend over the godlessness of Darwin's theory of evolution. Eric Rothschild, the Philadelphia lawyer brought in by the ACLU for the trial, questioned Yingling for her deposition.
Angie Yingling: If you don't go along with Bill he thinks you are an atheist and questions your religion. You can't do that with Noel. Noel gets violently angry. They almost went to blows with fists. And the chairs were flying because Bill says you are an atheist and you don't go along with it.
Eric Rothschild: Along with what?
Angie Yingling: With him, with intelligent design. Bill thinks you don't believe in God.
Eric Rothschild: Was this in executive session?
Angie Yingling: Yeah. Yeah. Heather and I thought we were going to get hit [we were] right in it. And the chairs were flying right over us. We thought we were going to get punched.... It's really bad.
Eric Rothschild: What do you recall Bill saying?
Angie Yingling: Do you believe in God? I remember that. Noel just went after him, "How dare you." And Bill stood his ground ... as sick as he is.
Eric Rothschild: What was the reaction of the other people?
Angie Yingling: Everybody is trying to get out the door. And me and Heather, we were caught right there. We were in the seats with them, which flew. The seats flew in the air.
Eric Rothschild: God or human lifted?
Angie Yingling: Both.
The question about God's hand on the folding chairs seemed like a lawyer's attempt to inject a little levity into a deposition. Until Dover Area School District superintendent Richard Nilsen took the witness stand at the October 2005 trial. Under oath Nilsen said he believes it's reasonable to teach high school biology students that the origin of life on our planet can be traced to an intelligent designer whom (or that) no one has ever seen and whom (or that) may or may not exist any longer. Or to aliens who brought some form of life here a long time ago, then returned to space or somewhere.
Nilsen had already argued in his deposition that intelligent design wasn't necessarily linked to belief in God, because aliens are another possibility that ID's proponents take into account. He admitted little knowledge about the intelligent design curriculum his board members were forcing on science teachers and said that most of his information regarding aliens came from board member Angie Yingling, who didn't subscribe to the theory but has listened to its proponents. If Yingling was Dr. Nilsen's source on aliens, he probably got something like this, as quoted from her deposition: "Just that aliens brought life forms here. In other words, there's huge universes and galaxies way bigger than ours and they finally decide to settle here. There is a name to it. I don't know the name. They have a name, the people who practice and believe that."
Superintendent Nilsen added chaos theory as another possibility but didn't elaborate. He failed to mention the "time-traveling molecular biologist" some intelligent design advocates believe introduced life to our planet.
Eric Rothschild was joking when he asked if God was tossing chairs about. Rich Nilsen was serious about aliens.
God and aliens in American high school science classes in 2004? Even in Texas, lectures about aliens bringing life to Earth are mostly relegated to late-night, local-access cable channels. That a school superintendent would take that position in a federal courtroom should give us all a greater appreciation of the wisdom of our Founding Fathers.
What mischiefs may not be dreaded?
-- JAMES MADISON
Historians debate James Madison's personal religious convictions. But he arrived in New York for the First Congress of our new republic in 1789 as a devout church-and-state separationist and advocate of a separation clause in the Bill of Rights. The record is clear. Four years earlier Madison had led the fight against a Virginia statehouse tax to fund religious teaching, staking out a clear position in the "Memorial and Remonstrance" he published: "Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence," Madison began. "The Religion then of every man must be left to the conviction and conscience of every man."
In the fifteen points that followed, he inveighed against any government support of any religion. In fact, Madison didn't exactly embrace the idea of organized religious sects. "What influence in fact have ecclesiastical establishments had on Civil Society?" he wrote. "In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people."
Madison also warned that state support could turn Christian virtue into Christian vice. "The very appearance of the Bill has transformed 'that Christian forbearance, love and charity,' which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded, should this enemy to the public quiet be armed with the force of a law?"
The country was fragmented among Baptists, Congregationalists, Quakers, Anglicans, Presbyterians, Unitarians, Universalists, some Catholics, and a scattering of Jews on the margins of society. Six state constitutions allowed for the establishment of multiple sects. In some cases, certain denominations were supported by taxation, making the salvation of souls a hot market. In Massachusetts, the dominant Congregationalists schemed to siphon tax support from Episcopalians, Baptists, and Quakers. In South Carolina, Baptists, Independents, Methodists, and Anglicans were sanctioned as "true Christian faiths." In New Hampshire, Quakers, Episcopalians, Presbyterians, Baptists, and other dissenters were exempt from paying tax to support the sanctioned Congregationalists. Anglicans in New York pointed to a Colonial-era law they claimed grandfathered them in as the exclusive established church. The early United States of America was a Tom Lehrer satire, lacking enough Jews to bind the Christians together in the spirit of ecumenical persecution.
What happened in Dover, Pennsylvania, 215 years after James Madison fought for a separation clause to keep church and state honest, is a cautionary tale, about mixing religion and public policy.
My dad calls them whacked-out religious.... They are real adamant about everybody being a Christian and doing the right thing.
-- from the deposition of Dover school board member ANGIE YINGLING
What lawyers call "the fact situation" in Tammy Kitzmiller, et al. v. Dover Area School District, et al. is straightforward enough, once you sort through fifteen file boxes of depositions, twenty-one days of testimony, and more than a thousand exhibits. Two members of the Dover school board persuaded a majority of the board to make the high school biology curriculum more compatible with fundamentalist Christian belief. They required that students be warned that evolution is not a "fact," that it includes gaps and problems, and that a Christian-friendly version of the origin of life known as "intelligent design" provides another "scientific" alternative. They tried to approve the creationist textbook Of Pandas and People as a companion to the scientific biology text. When they failed, they conspired to place sixty copies of Pandas in the library for students to use as reference books and lied about how the books got there. They dispatched their assistant superintendent, Mike Baksa, to the county's private religious schools to search for biology textbooks compatible with the Book of Genesis and to Messiah College in nearby Grantham to explore teaching techniques. They consulted Seattle's Discovery Institute regarding the teaching of intelligent design. They sought advice from a law firm that describes itself "as the sword and shield of people of faith" and its mission as "defending the religious freedom of Christians."
Then they went after the high school faculty.
Board members questioned biology teachers about how they taught human descent and the "origin of life." They compelled science teachers to show up on Saturdays to watch videos provided by the Discovery Institute -- a biblical creationist advocacy group cross-dressing as a scientific think tank. They summoned science teachers to meet with a board member who cautioned them about how evolution was taught. They warned biology teachers that one member of the board wanted a fifty-fifty split between the teaching of evolution and that of creationism. They required high school teachers to sign on to a policy that questioned the validity of the theory of evolution and to stand before their students and read a four-paragraph evolution disclaimer.
When we asked a minister on the school board what is appropriate for biology teachers to teach about the origin of life, he responded with a question: "What are the first five words in the Old Testament?"
That would be: "In the beginning God created."
There were warnings that religious fervor threatened to displace reason. One incident in 2002 suggested how bad things would become. In 1998, a graduating senior donated his class project to the high school. It was a mural depicting the ascent of man, step by step, panel by panel, walking out of his stooped hominid past into his erect Homo sapiens present. Custodians refused teachers' requests to hang the mural on the wall, so it sat orphaned on the chalk rail under a blackboard at the back of a biology classroom. The last weekend of summer in 2002, district grounds supervisor Larry Reeser dragged the mural to the trash pile for a private auto-da-fe. Bill Buckingham, who attended Harmony Grove Community Church with Reeser, joined him and "gleefully watched" as it burned. Buckingham's appointment to a vacant school board seat six months later would turn the board of education into a board of censors.
Bill Buckingham swore he knew nothing about the mural until after it was burned. But as we say in East Texas: "His mouth ain't a prayer book." He later showed board members a photo of the "ape genitals" he said he never wanted his grandkids to see. The genitals were a sore spot for the grounds superintendent, too. "Did you see the monkey's genitals hanging out there?" Reeser asked a York Daily Record reporter.
Science Department chair Bertha "Bert" Spahr is one of several genuine heroes in Dover's church-state fight. When she learned what had happened to her former student's work, she went to the superintendent. Dr. Rich Nilsen said he knew where the mural ended up but it was none of Bert's business -- an early sign that the superintendent was in congregation with the religious extremists on the board.
Bill Buckingham's appointment to the school board occurred in February 2003. Another evangelical Christian was appointed along with him, and the board achieved a critical mass of what Angie Yingling's father had described as "whacked-out religious." Six of the nine board members belonged to fundamentalist congregations. More important, Buckingham joined Alan Bonsell, the owner of a radiator repair shop who seemed to devote most of his waking hours to campaigning against the biblical heresy of evolution and the absence of God in the teaching of American history.
Bonsell is an imposing man with the cocky look and demeanor of a minor-league baseball player -- including the close-cropped hair, goatee, and addiction to chewing gum. His father, another devout evangelical, is also a local businessman who had previously served on the school board. Bonsell's selection by his fellow board members as president provided him additional muscle. He used it, usually behind the scenes, while Bill Buckingham openly intimidated other board members.
Bonsell had met with science teachers in the fall of 2003. They were aware that his daughter would be enrolling in biology the following semester, that he wanted a fifty-fifty split between evolution and creationism, and that he was a "young earth creationist." Young earth creationists reject scientific proof that the earth is billions of years old. Based on calculations of events in the Book of Genesis, they have determined the earth is from five to ten thousand years old. They reject radiocarbon dating and the geologic fossil record. (A local Baptist preacher monitoring the trial explained that the fossil record was put in place by God to trick us and test our faith.)
Bonsell told the science teachers he was concerned that what students were taught in Dover High School's biology classes would contradict what they were taught by their parents. He didn't want teachers "caught in the middle," with students thinking "somebody is lying." It was a chilling message. To accommodate Bonsell's daughter and the children of other biblical literalists, science teachers would have to avoid certain topics.
This was like nothing the Dover science faculty had ever seen. They were already working in a circumscribed space. They reassured Bonsell that they taught nothing about the origins of life. They limited teaching of evolution to speciation within birds, studying the finches Darwin had studied on the Galapagos Islands. No primate-related topic was ever taught: Students asking questions about origins of life -- or any "monkey to man" questions -- were told to explore those issues with their parents or their pastors.
Bonsell gave the teachers his blessing, and the science faculty had dodged the bullet. Science Department chair Bert Spahr told them to continue teaching biology as they had been. They were free to teach evolution -- or at least the cramped version authorized by their board, with no mention of man's common ancestry with primates. They did so through the end of the school year.
Then they heard from Bill Buckingham.
In 2004, Dover High School was overdue for a new biology textbook. In April, the science faculty settled on Biology by Kenneth Miller and Joseph Levine. It was a new edition of the same text Dover High teachers had used for seven years. And it's used in 35 percent of high school biology classes in the United States. The board needed to move quickly so the books would be available when the 2004-5 school year began.
Bill Buckingham said no.
As a member of the school board's Curriculum Committee, Buckingham sent teachers his list of concerns with the biology book -- which he later admitted he hadn't read. He complained that the text was "laced with Darwinism." The contents of this book -- and the mural he told a group of teachers he had "gleefully watched" burn -- made him wonder what science teachers were teaching.
Biology teacher Jen Miller described Buckingham's concerns. "Most of the discussion was focused around, you know, again, I thought you didn't teach origins of life, how can this mural be in the back of a classroom if you don't teach that? What message does that send to the students if you're not teaching it but this mural is in the back? And, again disagreeing with the whole idea, that man evolved, I guess, or came from monkeys."
When the biology textbook was on the agenda again at the June 14, 2004, board meeting, the apeshit hit the fan. Not since the firing of the high school football coach had so many concerned citizens turned out for a school board meeting in Dover. Bill Buckingham and his wife, Charlotte, were fuming over a textbook that mentioned monkeys in the context of evolution. Bill invoked Christ on the cross, asked a former board member to name the monkey who was his grandfather, and told a Dover High graduate attending Penn State that he'd lost his values at a university where he was encouraged to study evolution. Charlotte read from Genesis for fifteen minutes, telling board members and teachers this is the only truth and this is all you can teach. Board member Heather Geesey joined Bill Buckingham in a chorus of "amens" to his wife's sermon, then said that any teacher who talked to a lawyer should be fired. Spectators in the packed room shouted. One teacher raced to the mike and challenged Geesey.
Yet a few weeks after the June board meeting, something miraculous happened in Dover. The textbook standoff was resolved, the board's feelings calmed, a compromise made possible, and critics of the biology text disarmed.
All because of a public policy decision made in Texas.
Texas and California are the two largest single-adoption textbook markets in the country, where texts are adopted statewide rather than by individual school districts. California is known for its occasional flirtation with bad public policy. In Texas we've been wedded to it for decades. On church and state issues, for almost a century. It was Governor Ma Ferguson who settled a dispute about foreign language teaching in public schools by pointing to her King James Bible and saying, "If English was good enough for Jesus Christ, it's good enough for the schoolchildren of Texas." Much of our worst policy is made by the popularly elected Texas State Board of Education, which seems to honor Governor Ferguson every time it meets. Christian censors, vigilante patriots, flat-earthers, and Holocaust deniers all know there is no better forum for textbook editing than the Texas state board. Publishers genuflect before TSBOE board members, rewriting entire textbooks to accommodate them. And because it's too costly to print separate versions, textbooks vetted and edited in Texas are the textbooks sold to public schools in the other forty-nine states.
An example of why you don't want our state deciding your child's textbook content is the Great State's recent "Battle of the Bulge." The call to arms in 2002 came from a social studies teacher reviewing a sample copy of an eighth-grade textbook. She was bothered by a bulge between General Washington's legs, as depicted in Emanuel Leutze's Washington Crossing the Delaware. The vigilant teacher looked at review copies sent by two other publishers, found the same painting and the same bothersome bulge. She began to worry that eighth graders looking at the nineteenth- century masterpiece might conclude that the nation's founding father had a penis. (Perhaps he did, but the bulge in Leutze's painting is a watch fob.)
Publishers responded by electronically emasculating our Founding Father. McGraw-Hill, for example, darkened the area around Washington's crotch. Holt substituted a bulge-free knockoff of the same painting by a Leutze understudy. Only in Prentice Hall's The American Nation does George Washington Crossing the Delaware appear exactly as he hangs in the Metropolitan Museum of Art in New York.
It was Dover's good fortune that Prentice Hall wasn't so resolute in its defense of Miller and Levine's 2004 edition of Biology. Responding to the Texas board, in the book's new edition the publisher had already softened its content -- predictably, regarding Darwin's diabolical theory of evolution. For the beleaguered science faculty at Dover High School, the Texas dumb-down of Biology was a godsend. Dover's curriculum committee reviewed the new edition and realized that the publisher had produced a book that would pass Bill Buckingham's religious test.
They were mistaken.
Bill Buckingham had already found a textbook that replaces Darwin's process of natural selection with an intelligent designer most readers will recognize as God. Of Pandas and People is published by the Foundation for Thought and Ethics, based in Fort Worth, Texas. The FTE was founded in 1983 to promote the teaching of creationism. A lawyer from the Thomas More Law Center steered Buckingham toward Pandas and assured him that Thomas More would defend Dover schools pro bono if anyone sued. He suggested that "intelligent design" was a better choice of words than "creationism" -- and put Buckingham in touch with the Discovery Institute in Seattle, where intelligent design is packaged, wrapped, and sold to school districts across the country.
The Thomas More Law Center, named in honor of the pious chancellor of England beheaded by Henry VIII in 1535 and canonized by the Roman Catholic Church in 1935, is not your father's law firm. Founded by Domino's Pizza magnate Tom Monaghan, who also founded Ave Maria University and Ave Maria School of Law in Michigan, the TMLC takes the extreme Christian right's cultural wars to the courthouse. Tom Monaghan isn't a typical Christian philanthropist. He is considering, for example, moving the Ave Maria law school to his planned Ave Maria Town, a religious utopia in Florida. He explains: "You won't be able to buy a Playboy or Hustler in Ave Maria Town. We're going to control the cable television that comes in the area. There is not going to be any pornographic television in Ave Maria Town. If you go to the drugstore and you want to buy the pill or the condoms or contraception, you won't be able to get that in Ave Maria Town."
The Discovery Institute promotes intelligent design and other right-wing favorites, such as bioethics (opposition to stem cell research and physician-assisted suicide) and climate science (opposition to methods to curb global warming). Thomas More defends the principles of Christian faith in court. Once Bill Buckingham teamed up with Tom Monaghan's lawyers and the Discovery Institute, history was about to happen in Dover. Buckingham rounded up enough board votes to block the adoption of Biology unless Pandas was adopted as a companion text. He wasn't concerned that the small, financially strapped school district didn't have the funds to purchase both textbooks. He was holding the secular biology (there's a concept) text hostage.
Angie Yingling moved the board back into equilibrium. Torn between a commitment of support she'd made to Buckingham and the interests of the schoolchildren she was elected to serve, Yingling changed her vote and joined the four board members who had moved to approve Prentice Hall's Biology at an August 2004 board meeting.
She said she wanted to help Buckingham out: "He wants kids to understand that you might not be descended from apes, you know, something against Darwin's theory." But she didn't want to be responsible for biology students starting the next school year without textbooks.
"How could you be so stupid!" Buckingham screamed at her after the meeting. He then impugned the faith of board members, including Alan Bonsell. Miller and Levine's Biology was approved and would be delivered just before students arrived in September 2004.
Bill Buckingham then turned his attention to curriculum.
By October 2004, he and Bonsell were ready to vote on a four-paragraph anti-evolution disclaimer. They knew the new policy might well result in a lawsuit. But Buckingham had told his colleagues on the board he was ready to go to court. Intelligent design was a wedge and Dover a local front in a national campaign to change the law of the land -- so that someday American kids would again read the Bible and pray in school. Buckingham wanted to take the new biology curriculum to court. To the U.S. Supreme Court if necessary. A lawsuit would be an opportunity to confront the "liberals in black robes." Buckingham, in fact, was part of a national movement advanced by Discovery Institute propagandists and Thomas More litigators and supported by thousands of Christian-right congregations that George Bush recognized as the Republican Party's base.
To protect Christian students in Dover, before evolution was discussed in biology class, teachers would read a brief statement:
he 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 not evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.
Intelligent Design is an explanation of the origins of life that differs from Darwin's view. The reference book Of Pandas and People is available in the library with other resources for students who might be interested in gaining an understanding of what Intelligent Design actually involves.
With respect to any theory, students are required 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 on preparing students to achieve proficiency on Standards-based assessments.
As the board prepared to vote on the statement, Science Department chair Bert Spahr stood up and read from a typed page. It was unlike anything she had done during her forty years teaching in the Dover schools. She told board members they were placing two "of my young untenured teachers" in an impossible position. State standards required science teachers to teach evolution. The board was requiring them to make a statement about intelligent design that would undermine the evolution content mandated by the state.
Spahr pleaded with the board to reconsider:
The science department, including all of its members, vehemently oppose the board curriculum committee's draft that includes the words intelligent design in our curriculum. It has been deemed unlawful, illegal, and unconstitutional to teach intelligent design, which we thought was a synonym for creationism and/or creation science, along with evolution....
The inclusion will open the district and possibly its teachers to lawsuits which we feel will be a blatant misuse of the taxpayers' dollars. We further feel that our many years of professional training and science, education has not been considered and [it] appears Mr. Buckingham is only concerned with his own personal agenda....
Mr. Buckingham, are you going to direct my teachers to teach intelligent design if it appears on the written curriculum?
Spahr mentioned the 1987 U.S. Supreme Court decision that held the teaching of creationism is violation of the Establishment Clause in the First Amendment.
Buckingham stopped her. "Where," he asked, "did you get your law degree?"
Bertha Spahr is a pillar of education in the small community, one of those public school teachers who are an institution within an institution. After an entire career teaching chemistry, she had taught or known almost everyone who graduated from Dover High School. Buckingham treated her as if she were beneath contempt.
His conduct, followed by the five to four vote requiring the reading of an evolution disclaimer, opened up a religious schism unlike anything this small Pennsylvania town had ever seen. Three board members resigned. Angie Yingling said the pressure became too much to bear. Driving to work, she was stopped by a man who stood in front of her car, arms folded, staring at her and challenging her vote against the Pandas text. Carol "Casey" Brown, a member of the Curriculum Committee who had read and critiqued every page of every sample text, resigned after Buckingham told her she would burn in hell because she is an Episcopalian. Her husband, Jeff, who admitted he had consulted God before voting on the disclaimer, also resigned. Their departure strengthened the evangelicals' grip on the board, as they appointed interim members who supported their views.
On the Friday before the evolution disclaimer was to be read to students, the biology teachers refused to distribute the written notice informing parents their children could opt out of the reading of the disclaimer. The teachers also advised the board that they would not read the disclaimer. Biology teacher Jennifer Miller, the daughter of a Church of Christ minister, explained why:
By reading the statement to our students it essentially was -- it was going to be very contradictory to the students by saying, number one, that intelligent design is science, which we didn't believe it was, and that would be misrepresenting the subject matter.
And number two, if I'm telling the students that I'm going to teach evolution, which is very important and they are going to be tested on it, but yet ask them to go and read Of Pandas and People, which says that evolution didn't occur, to me that's confusing for the students.... For them to be tested on evolution but yet say evolution didn't occur confused our students and would misrepresent how important evolutionary theory is to the students.
Citing their ethical obligation to teach the truth, and Section 235.10 of the Pennsylvania Teaching Act, which "provides that the professional educator may not knowingly and intentionally misrepresent subject matter or curriculum," the science faculty at Dover High, men and women of genuine courage, told their board and their superintendent to shove it.
So Superintendent Rich Nilsen and his deputy, Mike Baksa, stood before Dover High's biology classes and read the four-paragraph statement. And a small group of parents began talking about going to court.
Bonsell not only wanted prayer in schools and creationism taught in science class, he also wanted to inject religion into the social studies curriculum, as evidenced by his statement to Baksa that he wanted students to learn more about the Founding Fathers and providing Baksa with a book entitled Myth of Separation by David Barton.
-- JUDGE JOHN E. JONES III
Dover's science teachers were first on the front line to defend the separation of church and state. "We were watching the situation in the media," said Pennsylvania's ACLU legal director, Witold Walczak. "Then we began to hear from teachers in Dover." Teachers were followed by parents, who contacted the ACLU because they were concerned about the Pandas text, the religious subtext in the evolution disclaimer, and the overt religious nature of board meetings.
Tammy Kitzmiller, the mother of an independent-minded daughter, would be the name plaintiff in a challenge to the board policy. Once a group of parents said they were ready to participate in a lawsuit, Walczak called Eric Rothschild in Philadelphia and asked him to serve as a cooperating attorney. Suddenly, eleven parents in Dover had the backing of Pepper Hamilton, a 450-lawyer firm with an international reach. Rothschild would be assisted by co-counsel from the ACLU and Americans United for Separation of Church and State.
Bill Buckingham was finally getting the lawsuit he wanted.
To write that the faith-based litigators from Thomas More were outmatched is to again demonstrate our grasp of the obvious. The plaintiffs' team usually had more paralegals in court than Thomas More had attorneys. But that's just being outnumbered, a separate issue. The quality of counsel probably had something to do with Darwin's natural selection process, by which the best and the brightest rise to the top. In his late thirties, Pepper Hamilton partner Eric Rothschild had a client list that included the American Nuclear Insurers in a Three Mile Island nuclear plant case; the Commonwealth of Pennsylvania in a $22.5 million insurance case; and an American computer vendor sued for fraud by a bank in the Czech Republic. Rothschild, whose direct and cross-examination of witnesses was a mix of relentlessness and good cheer, was representative of the team of lawyers he led into Judge Jones's courtroom.
The lawyers from Thomas More were men out of time. The last time their side had prevailed in a big evolution lawsuit, William Jennings Bryan was sitting in with the prosecution. They are devout Christian men dedicated to the fight against abortion, gay rights, stem cell research, the teaching of evolution, and the separation of church and state. They also go to court to defend the installation of Ten Commandments monuments on government property and the right to pray silently in school. Their narrow range of experience ensured that they would be outmatched by Rothschild and his team. They were also outmatched because they just weren't as smart as the lawyers representing the plaintiffs. (If you're an insurance underwriter about to lose $20 million, you don't call the Thomas More Law Center.)
The "not smart" factor was evident before the case went to trial. The ACLU had only intended to ask for an injunction to stop the anti-evolution policy. Then Buckingham, Bonsell, Nilsen, and board member Sheila Harkins met with the lawyers from Thomas More. On the following day, in depositions, all four defendants told the same story, one that omitted all the overt religious comments heard by hundreds of others and reported in the local media.
"They met with [Thomas More Law Center director Richard] Thompson, ... on the evening of January 2, and on January 3 they all came in with a unique story that defied the historical record," said Walczak. (Have you ever heard a lawyer so elegantly say "the defendants are a bunch of liars"?) "They created a dispute of material fact, which laid the groundwork for a mega-trial."
Once it was evident that the evangelicals on the Dover school board were lying and collaborating to hide their religious motivation, the ACLU could more easily put the concept of intelligent design on trial.
The defendants were their own worst enemies (unless that distinction belongs to their lawyers). Since they had denied their religious comments, they couldn't defend and explain them in court. "It was an open field for us to run through," said Rothschild. The plaintiffs' lawyers were free to explain the religious motives of the defendants, then prove that intelligent design was religion masquerading as science. Once Judge Jones admitted ACLU witnesses from the fields of molecular biology, paleontology, philosophy of science, and theology, it was evident that something far larger than a policy decision made by a school board was on trial in Harrisburg, Pennsylvania.
I'm a taxpayer in Dover. I'm a citizen of Dover. I'm a citizen of this country. This is just thinly veiled religion. ... If you were to substitute where it says "intelligent design" the word "creationism" there would be no question that this would he a violation of the First Amendment. I've come to accept the fact that we're in the minority view on this. You know, I've read the polls. ... A lot of people think that it doesn't cross the line. There are a lot of people that don't care. But I care. It crosses my line. ... There have been letters written about the plaintiffs. We've been called atheists, but we're not. I don't think it matters to the Court, but we're not. We're said to be intolerant of other views. Well, what am I supposed to tolerate? A small encroachment on my First Amendment rights? Well, I'm not going to. I think this is clear what these people have done. And it outrages me.
-- from the testimony of Dover High School parent FRED CALLAHAN
If they had paid attention to the Establishment Clause James Madison had written for them two hundred years earlier, the evangelical Christians on Dover's school board might have avoided their day in court and the quiet moral authority of Fred Callahan and ten other plaintiffs. But Buckingham, Bonsell, and their lead counsel from Thomas More consider the separation of church and state "a myth."
They didn't buy it.
They should have.
The fight over the biology curriculum and the lawsuit that followed took a terrible toll on this small Pennsylvania community. It was particularly hard on the evangelical Christian board members who decided to mix religion and public policy. Once they cut themselves loose from the moorings the Constitution provides, they seemed to lose sight of their Christian values. The first casualty was the Ninth Commandment -- the one that prohibits bearing "false witness against your neighbor." The defendants knew they could prevail only if they could prove that their policy decisions were not influenced by their religious beliefs.
That was a problem.
Journalists who covered the board meetings where the biology curriculum and textbooks were discussed had published accounts of board members openly advocating "creationism." Several quotes by Buckingham suggested a clear religious motivation. Two local papers reported that, at a 2004 board meeting, Buckingham said: "Two thousand years ago someone died on a cross. Can't someone take a stand for him?" The two local newspapers also reported that Buckingham said at one board meeting: "This country wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity, and our students should be taught as such."
If members of the school board openly discussed the religious beliefs that shaped their policy, they were in violation of Supreme Court guidelines that require that public policy (1) must have a secular legislative purpose, (2) can neither advance nor inhibit religion, and (3) must not encourage excessive government entanglement with religion.
The board members settled on a straightforward litigation strategy. They would impugn the integrity of two local reporters.
The board members claimed the reporters "lied," "misquoted," and "made up" their reports. They allowed that Bill Buckingham might have said, "Two thousand years ago someone died on a cross." But if he said it, he said it in November 2003, when the board debated filing an amicus brief in a Supreme Court case regarding the phrase "under God" in the Pledge of Allegiance. Yet no news outlet reported Buckingham's "died on the cross" quote in November 2003, and at least two reported it immediately after the June 14, 2004, board meeting.
The attorneys from Thomas More subpoenaed the two reporters whose published accounts of school board meetings included religious comments by Buckingham, Bonsell, and others on the board. They planned to question the reporters about their political affiliations, religious beliefs, and professional histories, apparently to establish a bias against Buckingham.
Print journalists make mistakes in reporting. But as the title of Dan Rather's autobiography reminds us, "the camera never blinks." Not even the Fox News camera. A June 14, 2004, Fox TV news clip on which Bill Buckingham discusses creationism made the defendants' story hard to believe. As did the fact that only the evangelical Christians on the board failed to hear religious comments.
The two reporters refused to sit for such broad-ranging depositions and instead prepared to go to jail. Perhaps because testimony of a dozen other fact witnesses supported the accounts of the subpoenaed reporters, the judge worked out an agreement that kept them out of jail. The defendants and their attorneys from Thomas More had seemed unconcerned that one of the reporters they threatened to send to jail was a mother nursing a four-month-old baby.
It was not Christianity's finest moment.
The effect of Defendants' actions in adopting the curriculum change was to impose a religious view of biological origins into the biology course. -- JUDGE JOHN E. JONES III
Federal district judge John E. Jones III isn't one of the "liberals in black robes" Bill Buckingham believes is eroding the nation's moral foundation. Jones had worked on Pennsylvania governor Tom Ridge's campaign and transition team in 1994 and was appointed to chair the state liquor commission. In his seven years as a commissioner, Jones was best known for banning the sale of Bad Frog Beer -- not because of alcoholic content but because the frog on the label, as Amy Worden wrote in The Philadelphia Inquirer, was "flipping the bird." (A wise usage, as a frog has no middle finger.) George W. Bush appointed Jones to the federal bench in 2002, a year after he named Ridge secretary of homeland security. The only Bill of Rights case on Jones's docket before the Dover suit involved College Republicans from Shippensburg University who claimed their First Amendment rights were violated by an administration that stopped them from hanging anti-Osama bin Laden posters on campus. Jones ruled that the university violated the students' constitutional right to free speech. The attorney representing the students described the judge as "meticulously prepared" and "mindful of precedent." When the Dover case ended up on Jones's docket, Tom Ridge said the judge was perfectly suited to decide it: "He has an inquisitive mind, a penetrating intellect, and an incredible sense of humor."
With an intense, interested, and sometimes bemused look on his face, Jones presided over a year of pretrial hearings and twenty-one days of testimony, objections, hairsplitting arguments, and attorneys' sidebars. It's what judges are supposed to do, and here is one instance where it's evident that G.W. Bush got it right.
A Paramount movie scout at the trial was hoping Tom Hanks would portray Jones in the movie. Hanks will have to turn his genial Everyman sincerity into quiet (and occasionally goodhumored) gravitas. The simple dispute between the Dover school board and parents who objected to the religious turn the board was taking could have been settled in state district court. Judge Jones decided to address something much larger. Since that 1987 Supreme Court decision ruled the teaching of "creation science" a violation of the Establishment Clause, fundamentalist Christian extremists have looked for a Trojan horse to introduce their biblical version of the origin of life into the nation's science classes.
"Intelligent design" was that Trojan horse. The judge decided to meet it head-on.
There is broad, deep, and well-financed institutional support for reintroducing religion into the public schools, and the Discovery Institute is a big institutional player. The institute markets itself as a think tank focused on the teaching of science and free-market economics and never mentions religion. It's been unmasked as a pack of religious anti-moderns who would just as soon see the current pope take another whack at Galileo. Discovery's "Wedge Strategy" document, leaked to the public in 1999, begins with a statement about the erosion of the "bedrock principle ... that man is created in the image of God" and lays out a program to replace "materialistic explanations with the theistic understanding that nature and human beings are created by God." Founded by former Reagan White House official Bruce Chapman, Discovery got $1.5 million in startup funding from Howard Ahmanson. Ahmanson, heir to a California savings and loan fortune, also invested in Christian Reconstructionist groups advancing the teachings of the late Rousas J. Rushdoony, whose theology is so toxic that even the most batshit American evangelicals disavow him. (The execution of adulterers, homosexuals, witches, and incorrigible children can be a hard sell.)
At times it seemed as if all the country's religious whack jobs were on the school board Rolodex in Dover. The WallBuilders is an advocacy ministry founded by David Barton, the former vice chair of the Texas Republican Party who was hired by the Republican National Committee to work the Christian base in the 2004 elections. The WallBuilders' campaign to return God to his central place in social studies and American history curricula was the next big thing coming to Dover. Once he got his intelligent design curriculum in place, Alan Bonsell intended to use WallBuilders texts and programs to fix Dover's social studies curriculum.
Discovery, Thomas More, and the WallBuilders are part of a broad national movement determined to return the country to its theocentric roots. All are connected to the Republican Party at the state and national levels. All have ties to Republican congressional leaders. And all have strong financial backing.
Yet eleven parents, a few teachers, the ACLU, and Americans United for Separation of Church and State stood squarely in their way.
Judge Jones could have ruled that the Dover school board violated the Establishment Clause and stopped there. He went far beyond that, ruling that intelligent design is not science but "an untestable alternative hypothesis grounded in religion [and thrust] into the science classroom to misrepresent well-established propositions." It is, therefore, "unconstitutional to teach ID as an alternative to evolution in public school classrooms."
In a thorough and sometimes angry opinion, the judge referred to the blatantly dishonest editing of Of Pandas and People, which occurred immediately after the Supreme Court banned teaching creationism in public schools. "Cognates of the word creation (creationism and creationist), which appeared approximately 150 times were deliberately and systemically replaced with the phrase ID." Jones cited the five-year plan in the Discovery Institute's wedge document, whose goal it is to "replace science as currently practiced with a 'theistic and Christian science.'" He observed that fundamentalist organizations were formed precisely to promote the idea that the "Book of Genesis was supported by scientific data." He documented the "long history of Fundamentalism's attack on the scientific theory of evolution." And he quoted one of the plaintiffs' expert witnesses who testified that to teach students that intelligent design is science is to "make them stupid."
Closer to home, Judge Jones excoriated the Christian activists on the school board who for hidden religious purposes had divided their community and violated the separation clause in the First Amendment. "The citizens of Dover were poorly served by the members of the Board who voted for the ID policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy."
Jones also quoted the "poignant speech" that Carol Brown made when she resigned from the board:
There has been a slow but steady marginalization of some board members. Our opinions are no longer valued or listened to. Our contributions have been minimized or not acknowledged at all. A measure of that is the fact that I myself have been twice asked within the past year if I was "born again." No one has, nor should have the right, to ask that of a fellow board member. An individual's religious beliefs should have no impact on his or her ability to serve as a school board director, nor should a person's beliefs be used as a yardstick to measure the value of that service. However, it has become increasingly evident that it is the direction the board has now chosen to go, holding a certain religious belief is of paramount importance.
The judge also incorporated into his opinion a short passage from the resignation speech of board member Noel Weinrich: "I was referred to as unpatriotic, and my religious beliefs were questioned. I served in the U.S. Army for eleven years and six years on the board. Seventeen years of my life have been devoted to public service, and my religion is personal. It's between me, God, and my pastor."
Judge Jones's 139-page opinion, said ACLU lawyer Walczak, "is a playbook for any citizen fighting intelligent design in a public school classroom." It is binding only on the Middle District of Pennsylvania, but its judicial craftsmanship and methodical application of precedent make it a road map for any federal judge adjudicating religion in the public schools.
Few school board members across the country will want to see themselves described as Judge Jones described the extremist majority that controlled the Dover board:
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 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.
There were financial consequences. Before filing suit, Eric Rothschild wrote a letter to the board, warning them of substantial legal fees if the plaintiffs prevailed. The tab for the lawsuit exceeded $3 million. Plaintiffs' attorneys waived all but $1 million, the total out-of-pocket expenses, such as hotels, airfare, photocopying, and stenography, incurred in the yearlong process -- and offered the district a discount for early payoff. They asked Judge Jones to enter $2 million in legal fees into the public record, so other school districts considering intelligent design policy would be aware of the consequences.
"Pennsatucky" is the regional pejorative that snooty cultural cartographers use to point the way to Dogpatch, Pennsylvania. Dover ain't exactly Dogpatch, but it's a hundred miles and a hundred years from Philadelphia. It's the northern extension of Appalachia, 98 percent white, 70 percent Republican, devoutly religious, and predominantly Protestant. Everyone, it seems, goes to church. It is as unlikely a place as any in the country for such a resounding court victory vindicating the First Amendment.
After plaintiff and parent Fred Callahan concluded his breathtaking courtroom soliloquy, asking, "What am I supposed to tolerate? A small encroachment on my First Amendment rights? Well, I'm not going to," an absolute hush fell over the courtroom. In the jury box, where the press was seated, the silence was broken by a British reporter who leaned toward his American colleagues and said sotto voce:
"You know, I think the people we're looking at here are the very best of your country."
Dover finally had enough of Alan Bonsell and Bill Buckingham imposing their beliefs on the faculty and students. A week after the trial concluded, and a month before Judge Jones handed down his decision, voters swept all eight incumbents out of office, replacing them with a reform slate opposed to the intelligent design curriculum. The two most vocal advocates of the ID policy got the fewest votes. Superintendent Nilsen's contract for the following school year was not renewed.
Televangelist Pat Robertson warned of the loss of God's grace. Ten years earlier he'd threatened Orlando with "earthquakes, tornadoes, and possibly a meteor" after a gay day at Disney World, but nothing materialized. He hedged his bets on Dover: "I'd just like to say to the good citizens of Dover, if there is a disaster in your area, don't turn to God. You just rejected Him from your city. And don't wonder why He hasn't helped you when problems begin, if they begin. I'm not saying they will, but if they do, just remember, you just voted God out of your city."
Since Judge Jones ruled in the Kitzmiller case, no school board in the nation has succeeded in adopting an intelligent design biology curriculum. In fact, they are backing away from unconstitutional policy. A year after Kitzmiller was decided, the Cobb County, Georgia, school board settled with a group of parents in the district, agreeing to remove anti-evolution warning stickers from biology textbooks. They also agreed, in negotiations with Americans United for Separation of Church and State and attorney Eric Rothschild, to refrain from any and all acts of interference with the teaching of evolution in biology classes.