Editor’s note: The Kitzmiller v. Dover decision has been the subject of much media attention and many misinterpretations from pro-Darwin lobby groups. With the tenth anniversary of Kitzmiller approaching on December 20, Evolution News offers a series of ten articles debunking common myths about the case. Look here for myths 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10.

An unfortunately typical perception of the Kitzmiller v. Dover case is that it was a huge Scopes-like battle between opponents of intelligent design (ID) and the ID movement, and that the ID movement lost. But that’s not really what happened.

This was a fight between the plaintiffs — various Dover, Pennsylvania, parents who, with backing and support from pro-Darwin lobby groups, wanted to ban intelligent design — and the defendant, the Dover Area School Board. Yes, the Dover School Board lost. But neither the publisher of the pro-ID textbook at issue in the case, Of Pandas and People, nor the international hub of the ID movement, Discovery Institute, were party to the case. Indeed, leading ID groups like Discovery Institute opposed Dover’s ID policy and didn’t even want the Dover school board to fight to defend their ill-conceived policy in court.

All things considered, Dover was hardly a battle that the ID movement sought out. Despite the fact that Judge John E. Jones made many claims against the ID movement (or “IDM” as he called it) in his ruling, the ID movement’s interests were not represented at the trial. There are multiple reasons why.

The Largest ID Group Opposed Dover’s ID Policy

Judge Jones lumped Dover’s policy with the intelligent design movement, as if they were inextricably linked. But Discovery Institute, the hub of the ID movement, consistently and publicly opposed the Dover school board’s policy mandating intelligent design in the classroom. Thus, Discovery Institute did not feel it was appropriate to defend a policy we didn’t support.

The Dover school board members who voted for the policy acted on their own, apart from the policy advice of Discovery Institute. Even Judge Jones noted that they didn’t even understand what ID was: “Conspicuously, Board members who voted for the curriculum change testified at trial that they had utterly no grasp of ID.” Again, the defendants in Dover did not represent the ID movement and were acting against the direct policy advice of the ID movement’s leading group.

Before a lawsuit was even filed, Discovery Institute agreed that Dover’s policy was imprudent. And it was clear from early on in the lawsuit that the Dover School Board’s policy would probably be declared unconstitutional simply because various school board members who pushed for it had expressed clearly religious motives. If the ID movement sought a test case, this was not it. Indeed, if the ID movement had wielded any control over the Dover School Board members, the case would never have gone to trial.

What attorney would advise a client who is a government school board to go to trial when there was clear evidence of a religious motive, rendering the school board’s policy patently unconstitutional? Apparently some leaders at the Thomas More Law Center (TMLC) — the attorneys that represented the school board — did give such advice. Indeed, even Judge Jones felt much the same way as we did on this point, as he wrote in the ruling:

[T]his 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.

Discovery Institute disagreed with the judgment calls of Dover’s attorneys from the beginning. But Discovery Institute didn’t control the school board or its attorneys. The school board and attorneys were determined to bring ID to trial in this case.

Discovery Institute and other ID groups were put into a lose-lose situation: They could completely back out of a case where other parties were bent on bringing ID’s interest into the courtroom and ensure that those interests lost, or they could get fully involved and defend an unwise policy in a case with a terrible fact pattern that should not have even gone to trial.

Discovery Institute chose to let its own fellows decide what to do. Some of Discovery Institute’s fellows, such as Michael Behe and Scott Minnich, chose to testify. Others did not. The ones who did not testify chose not to largely because, as the case went on, they realized that the TMLC was not going to adequately represent their interests. And TMLC did not adequately defend ID’s interests in the case — indeed there were key peer-reviewed pro-ID papers that they failed to introduce into the record. (Note: As we’ll see later Judge Jones was made aware of these papers by Discovery Institute in its amicus brief.)

Discovery Institute explains what happened this way:

Meyer, Dembski and Campbell were all willing to testify as expert witnesses. They simply requested that they have their own counsel present at their depositions in order to protect their rights. Yet Thomas More would not permit this. Mr. Thompson has been quoted in media accounts as stating that to permit independent counsel to assert the witnesses’ rights would create a “conflict of interest” — a claim for which he can offer no legal justification. When the witnesses refused to proceed without legal counsel to protect them, Thomas More cancelled the deposition of Prof. Campbell and effectively fired all three expert witnesses. After dismissing its own witnesses, Thomas More made an 11th-hour offer to Dr. Meyer alone to allow him to have counsel after all. But Meyer declined the offer because the previous actions of Thomas More had undermined his confidence in their legal judgment.

In light of these facts, it is remarkable that the court issued a decision regarding the scientific status of intelligent design. But there’s an even more unfortunate aspect to Judge Jones’s ruling. He ruled against ID after one ID group tried to get directly involved in the lawsuit and he denied them the opportunity to do so.

Jones Denied the Pandas Publisher the Opportunity to Defend Itself

Some ID groups recognized that whether they liked it or not, their interests were being forced into the courtroom by the parties in the case. In particular, the Dover plaintiffs sought to ban the textbook, Of Pandas and People, which was referenced in Dover’s ID disclaimer, from Dover schools. The publisher of the Pandas textbook, Foundation for Thought and Ethics (FTE), knew that their interests were directly at stake

FTE sought to intervene (i.e., become a party) in the case so that it could defend its interests directly. But Judge Jones denied FTE this opportunity. Nonetheless, Judge Jones then had the chutzpah to rule on the entire “IDM.” This is shameful for a number of reasons.

As Seth Cooper and Leonard Brown wrote:

Neither party appealed to the U.S. Court of Appeals for the Third Circuit. But Judge Jones’s ruling nonetheless represents a troubling misuse of federal judicial power. Early on, Judge Jones construed federal rules of civil procedure to block any participation in the lawsuit by the Foundation for Thought and Ethics (FTE), publisher of the pro-ID textbook, Of Pandas and People. Now Judge Jones might have followed his decision to block their participation with a final ruling in keeping with such a move: he could have limited his opinion to the actual parties in the lawsuit. Instead, having rebuffed FTE’s request to represent their own interests, Judge Jones purported to offer a decision on behalf of the entire federal judiciary, a decision that encompassed the publisher’s clear intellectual property, economic and constitutional interests and eviscerated them.

Second, Judge Jones took the Pandas textbook as if itwas highly representative of the “IDM” and its history. But this is wrong. The textbook was first published in 1989, in the earliest days of the ID movement, and did not reflect major developments in ID as it stood in 2005 when the Dover trial took place. Indeed, the textbook is so old that it predates the development of core ID concepts like “irreducible complexity” and “specified complexity,” and so, obviously, doesn’t include them. Even the FTE’s own amicus brief noted that their textbook didn’t represent modern ID:

Pandas predates most of the major works of the contemporary design movement in science, including monographs by Cambridge University Press, and technical articles in peer reviewed science and philosophy of science journals. The primary guide to the beliefs and views of intelligent design scholars today should be this record of scholarly and scientific and technical articles, not a supplementary high school textbook written more than a decade-and-a-half ago. [emphasis added]

Third, Judge Jones simply adopted the plaintiffs’ misrepresentations of and allegations against Pandas in his decision. Jones claimed that the prepublication drafts of Pandas contained “creationist” language that showed the textbook was intended to promote creationism. I’ll explain why this is both logically and factually false in another article on a Dover “myth.”

Judge Jones’s ruling clearly infringed upon the intellectual freedom of FTE. Textbook publishers should have the right to change, improve, and refine their views and ideas as time goes on, without having prepublication drafts that were thrown away compared against the published version. But Judge Jones denied FTE this right. As John G. West noted in his article, “Dover in Review“:

Plaintiffs claim that references to “creation” and “creationists” deleted from pre-publication drafts of Pandas establish the equivalence of intelligent design and creationism. Yet the first two editions of a biology textbook actually published by plaintiffs’ expert Dr. Kenneth Miller explicitly affirmed the anti-religious claim that Darwinian theory “required” belief in philosophical materialism: “Darwin knew that accepting his theory required believing in philosophical materialism, the conviction that matter is the stuff of all existence and that all mental and spiritual phenomena are its byproducts… Suddenly, humanity was reduced to just one more species in a world that cared nothing for us… Worst of all, there was no divine plan to guide us.”

Dr. Miller was quick to point out that later versions of his textbooks removed such anti-religious statements. But if unpublished drafts — never seen by the school board or students–evidence the “real meaning” of Pandas, what should be the significance of language that Dr. Miller actually published? Plaintiffs’ attempt to rely on pre-publication drafts of Pandas not only ignores the context in which the constitutional issues in this case arise, but threatens to open a floodgate to lawsuits challenging the “hidden agenda” of textbooks widely used by students today.

Kitzmiller v. Dover Area School District should have been a case merely about the constitutionality or unconstitutionality of the Dover school board’s actions. Instead, the ruling focused on something clearly outside the proper bounds of the case — the scientific status of intelligent design and the overall motives and history of the ID movement. And it did so without adequately representing the parties who would be adversely affected by such a decision. I’ll have more to say on that in a subsequent post in this series. Suffice to say, the case was not the Darwin lobby vs. the ID movement. Rather it was the Darwin lobby against an imprudent school board and a their public interest law firm who were working against the advice and interests of the ID movement.

Image credit: Ferdinand Br�tt (Kunsthaus Lempertz) [Public domain], via Wikimedia Commons.