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Closing arguments: Dover Plaintiffs’ Counsel Speaks Loudly, Carries Small Stick

Casey Luskin

Harrisburg, PA — Yesterday I sat in the Federal Courthouse observing the Kitzmiller trial where the ACLU is trying to ban intelligent design from the science classroom. Many of the plaintiffs’ closing arguments sounded like they were taken directly from Pandamonium (click “Pandas Gallery” to hear the “objections” without playing the game). I’m actually serious: this silly, satirical game captures nearly all of the central arguments of the NCSE-assisted plaintiffs in this case.

First, Some Compliments:
But before I delve into critique, I want to say some kind things about the “opposing side” in this case. While in Harrisburg this week, I interacted with a number of very nice people from the ACLU, NCSE, and even plaintiffs’ counsel and staff (from Pepper Hamilton, LLP). I felt that all present at the trial, including all those I met from the Darwin-only side, were extremely courteous to their opponents and were generally nice people.

I am grateful to have had numerous friendly conversations with individuals from the Darwin-only side over the past few days. Wesley Elsberry (NCSE staffer) and I spent some time shooting the breeze and taking-in the spectacle together while engaging in friendly conversation outside the courthouse waiting to watch the media feeding frenzy as the attorneys walked out of the courtroom. Nick Matzke and I shook hands and joked about our recent radio debate as I consoled (and respected) him for having to spend so much time away from home in Harrisburg. Because this was a “legal thing” it was somewhat inappropriate to go out with the ACLU / NCSE folks for some Harrisburg Hefeweizen, but if there’s one thing I can say for sure, it’s that everyone on all sides of this trial genuinely cares about students and what they learn in schools. We all have different solutions for those questions, but I know we share the common denominator of care and concern for students and the quality of their science education. For this, I tip my hat with respect to the plaintiffs, their counsel, and their support staff.

Rewriting History
Within minutes of beginning their closing argument, the plaintiffs’ counsel made an incredible (and false) claim: namely, they insinuated that it was the Discovery Institute who had given the school board the advice which led to them passing a disclaimer which mentioned ID and Pandas. The truth couldn’t be further from their “facts.”

The facts: From the very beginning, Discovery counseled the Dover Area School Board to pass a policy which focused on teaching scientific strengths and weaknesses of Neo-Darwinism. We specifically encouraged them not to pass a policy which mandates the teaching of ID. One of our main reasons for this is that many teachers don’t currently understand ID, and so we should not require the teaching of a theory which many teachers misunderstand (and might also wrongly oppose). This advice was validated in that one testifying teacher demonstrated that he was unfamiliar with ID and Pandas, yet opposed its teaching anyways.

In reality, both before and after Dover passed its policy, Discovery was consistent in urging the Board not to adopt a policy which mandated teaching ID without teacher understanding or approval. Why would plaintiffs rewrite history to blame Dover’s policy on Discovery? It’s actually incredibly simple. If they can connect (with or without any evidence) Dover’s enacted policy to Discovery, then they can insinuate that it is connected to the allegedly evil “wedge strategy”. But the history of Discovery’s involvement in Dover indicates that their final policy was precisely what we suggested that they not do.

Plaintiffs then turned to their next fallacy, which was that ID is a form of creationism that appeals to God and a supernatural creator. Their evidence is based upon 2 quotes by ID proponents who are social commentators who have done essentially nothing to formulate the scientific theory if ID (Phillip Johnson and Nancy Pearcey) and a complete out-of-context usage of Dembski’s infamous (and, once properly understood, innocuous) “Logos quote”. I guess they didn’t mention a mass of ID technical literature because it doesn’t quite fit with their case-theory.

Their creationist-conspiracy-theory is also based upon a false claim that Pandas is a fundamentally creationist textbook. Never mind that all published versions of Pandas, including the one actually mentioned in Dover’s disclaimer, don’t use “creation” terminology but specifically make it clear that “if we go further, and conclude that the intelligence responsible for biological origins is outside the universe (supernatural) or within it, we do so without the help of science.” (Pandas 126-127). Never mind that the pre-publication drafts of Pandas which did use “creation” terminology also, in the same breath, said that “observable instances of information cannot tell us if the intellect behind them is natural or supernatural. This is not a question that science can answer.” This shows that the Pandas project, even in the pre-Edwards era, was already fundamentally distinct from the rule given in Edwards v. Aguillard which said that “creationism” was unconstitutional because it addressed unscientific religious questions like the existence of the “supernatural.”

Also, never mind that under the rules of statutory (or constitutional) interpretation, removing language from a draft bill (or amendment) is usually taken as evidence of precisely what the authors did NOT intend for the bill to mean. Oh yeah, and did I mention that plaintiffs’ expert Dr. Ken Miller published numerous textbooks which used religious language to promote evolution (which he removed). And finally, never mind that origin of the term intelligent design” goes back to the Greeks, and was used by late nineteenth century natural philosophers.

Plaintiffs then went on to say that the scientific (and often peer-reviewed) case for ID based upon empirical evidence documented in the references provided in this link doesn’t exist. Finally, they claimed that ID makes no positive case for ID and is just a negative argument against evolution, despite the fact that both Behe and Minnich specifically testified otherwise (see also the positive arguments from ID proponents documented here). In fact, plaintiffs’attorney Steve Harvey found it impossible to pin down Scott Minnich this morning during Minnich’s cross examination. Mr. Harvey thought he had Minnich pinned but Minnich simply proclaimed what he’d been saying all along: that we have experience that software-like codes imply a coder was at work, and purposeful arrangement of parts in a machine implies actual engineering. Finally, plaintiffs asserted that no ID proponents have done any research supporting their theory despite the fact that Dr. Minnich testified extensively about his mutagenesis experiments showing irreducible complexity in the bacterial flagellum, his published research bearing on the question of whether or not the Type Three Secretory System is a viable intermediate, and despite the fact that Behe published in Protein Science documenting his theoretical computer research bearing on the question of whether or not there is irreducible complexity in protein-protein interactions.


The Honorable Judge Jones III told the courtroom that he hoped to issue his decision before the beginning of 2006. I have great respect for the Judge as I felt that he conducted the trial in a fair manner and kept a sense-of-humor amidst some pretty boring testimony about the flagellum. But if the plaintiffs’ fallacious arguments carry the day, then I have only 2 things to say:

1) The earth still turns.
2) In this Kitzmiller case, the opponents of design will only have won their Wake Island.


Casey Luskin

Associate Director, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.



Kitzmiller v. Dover Area School DistrictNational Center for Science EducationncseNick Matzke