Throughout the trial and in various submissions to the Court, Defendants vigorously argue that the reading of the statement is not “teaching” ID but instead is merely “making students aware of it.” In fact, one consistency among the Dover School Board members’ testimony, which was marked by selective memories and outright lies under oath, as will be discussed in more detail below, is that they did not think they needed to be knowledgeable about ID because it was not being taught to the students. We disagree.Jones has a lively writing style and is unafraid to cut through nonsense when it's presented to him.
Jones rightly locates the case in a context of increasingly subtle attempts by "fundamentalists" to diminish the teaching of evolution and to promote some form of special creation, a history that's well established and not disputed. The question then is the status of IDC relative to other ideas which have been ruled on.
To determine whether a government act violates the establishment clause, there are two linked tests that people apply. The first is a three-pronged "Lemon test," and Justice O'Connor has been refining an "endorsement test." Rather than picking one, Jones decided to apply each.
The [endorsement] test consists of the reviewing court determining what message a challenged governmental policy or enactment conveys to a reasonable, objective observer who knows the policy’s language, origins, and legislative history, as well as the history of the community and the broader social and historical context in which the policy arose.The strength of this analysis is that issues of fact are hard to dispute on appeal. The parties agreed to let the judge decide the issue and he is now the "reasonable, objective observer." Assuming he applied the law correctly, it's hard to oust this sort of analysis.
The first finding is that "An Objective Observer Would Know that ID and Teaching about 'Gaps' and 'Problems' in Evolutionary Theory Are Creationist, Religious Strategies that Evolved from Earlier forms of Creationism." That finding is basically the only thing we need, but that's only the start.
To draw that conclusion, Jones reviews the history of Supreme Court jurisprudence on creationism, and the evolution of creationism and laws mandating its teaching, from bans on evolution, to mandating equal time for strict creationism, to equal time for "creation science" to …
Well, to what is the issue. Intelligent Design was first advanced in this arena after a 1987 ruling forbade treating creation science as a scientific alternative to evolution. But as Jones notes, based on testimony from a theologian, the idea has a long history, going back first to Aquinas and more recently to William Paley, in 1802. He explains
The only apparent difference between the argument made by Paley and the argument for ID, as expressed by defense expert witnesses Behe and Minnich, is that ID’s “official position” does not acknowledge that the designer is God. However, as Dr. Haught testified, anyone familiar with Western religious thought would immediately make the association that the tactically unnamed designer is God, as the description of the designer in Of Pandas and People (hereinafter “Pandas”) is a “master intellect,” strongly suggesting a supernatural deity as opposed to any intelligent actor known to exist in the natural world.So Jones isn't impressed. He was impressed by Barbara Forrest's testimony and research, which showed that recent ID advocates have uniformly treated it as an argument for and an argument about Christianity. Responding to a motion to ignore this history, Jones writes:
Defendants’ argument lacks merit legally and logically.Oh, snap!
The evidence that Defendants are asking this Court to ignore is exactly the sort that the court in McLean considered and found dispositive concerning the question of whether creation science was a scientific view that could be taught in public schools, or a religious one that could not.
In my first post on the ruling, I noted that it's a bad idea to lie on the witness stand. Consider this discussion of Michael Behe's testimony on this point:
in turning to Defendants’ lead expert, Professor Behe, his testimony at trial indicated that ID is only a scientific, as opposed to a religious, project for him; however, considerable evidence was introduced to refute this claim. Consider, to illustrate, that Professor Behe remarkably and unmistakably claims that the plausibility of the argument for ID depends upon the extent to which one believes in the existence of God. (P-718 at 705) (emphasis added [by Jones]). As no evidence in the record indicates that any other scientific proposition’s validity rests on belief in God, nor is the Court aware of any such scientific propositions, Professor Behe’s assertion constitutes substantial evidence that in his view, as is commensurate with other prominent ID leaders, ID is a religious and not a scientific proposition.But it doesn't end there. Previous rulings on creationism treated the presence of a supernatural component as evidence that the thing was not science.
Reviewing the evidence:
Professor Behe has written that by ID he means “not designed by the laws of nature,” and that it is “implausible that the designer is a natural entity.” (P-647 at 193; P-718 at 696, 700). Second, Professor Minnich testified that for ID to be considered science, the ground rules of science have to be broadened so that supernatural forces can be considered. (38:97 (Minnich)). Third, Professor Steven William Fuller testified that it is ID’s project to change the ground rules of science to include the supernatural.Similar testimony was offered at the hearings preceding the revisions to the Kansas science standards in which "natural explanations" were broadened to "adequate explanations," putting those revisions on shaky ground, given that Jones finds this dispositive of a religious intent.
On top of that,
It is notable that not one defense expert was able to explain how the supernatural action suggested by ID could be anything other than an inherently religious proposition. Accordingly, we find that ID’s religious nature would be further evident to our objective observer because it directly involves a supernatural designer.I'll skip through the discussion of Pandas, since it isn't at issue in Kansas. One part of the disclaimer is relevant, since a similar passage occurs in the revised Kansas science standards. The chunk is:
Gaps in the Theory exist for which there is no evidence.Jones writes:
Immediately after students are told that “Darwin’s Theory” is a theory and that it continues to be tested, they are told that “gaps” exist within evolutionary theory without any indication that other scientific theories might suffer the same supposed weakness. As Dr. Alters explained this paragraph is both misleading and creates misconceptions in students about evolutionary theory by misrepresenting the scientific status of evolution and by telling students that they should regard it as singularly unreliable, or on shaky ground. Additionally and as pointed out by Plaintiffs, it is indeed telling that even defense expert Professor Fuller agreed with this conclusion by stating that in his own expert opinion the disclaimer is misleading. Dr. Padian bluntly and effectively stated that in confusing students about science generally and evolution in particular, the disclaimer makes students “stupid.”My emphasis. There is no similar disclaimer in Kansas (no thanks to Phill Kline), similar language exists in the revised Kansas standards and those will no doubt play a role in whatever happen in Kansas.
While the details of the newsletter the Board sent out are not legally relevant in Kansas, the fact that the newsletter was relevant in Pennsylvania indicates that Connie Morris's newsletter and other public statements by Board members would be relevant in any Kansas litigation.
Furthermore, he concludes that the "rigorous attachment to “natural” explanations is an essential attribute to science by definition and by convention." While the specific discussions of Intelligent Design Creationism are not germane to Kansas, the issue of the natural versus the supernatural is, since the Board chose to redefine science to remove "natural explanations" and since so much time was spent opposing methodological naturalism last spring.
Jones's ruling clearly marks the teaching of the supernatural as beyond the scope of science, and attempts to present the supernatural in science classes are inherently religious, and violate the Establishment clause.
The attempts to single out gaps or problems with evolution, and not similar gaps and problems in other sciences are equally clear evidence of a religious intent on the part of the Board.
Now, the Kansas situation is complicated, because the Kansas Board didn't get into ID in any written policy. Jones's ruling would be a lot thinner without the discussion of IDC. The Board also does not recommend text books, so the sections on Pandas are of limited relevance here (unless a local school board chooses to buy Pandas).
Some parts of that analysis are relevant, such as this comment
ID’s backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID.That same intent motivated the changes in Kansas, and it will be trivial to show that in court.
Apologies for the length of this piece, I'm trying to glean insights about Kansas from a very long document that doesn't specifically bear on Kansas.
More on the political issues here anon.