We should also be grateful to George W. Bush for appointing Judge John E. Jones III to the federal bench in Pennsylvania. Jones got the case challenging the Dover policy; he declared it unconstitutional. I seldom recommend a 139-page legal opinion as must reading, but this one is judicial poetry.
On Oct. 18, 2004, the Dover School Board passed the following resolution: "Students will be made aware of gaps/problems in Darwin's theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of Life is not taught."
This was followed with a press release that teachers would be required to read a four-paragraph disclaimer to the ninth-grade biology class at Dover High School, informing students, among other things, that Darwin's theory of evolution was just a theory, full of gaps, and that intelligent design was a different explanation of the origin of life, with a reference book available.
The teachers refused to read the disclaimer, so school administrators had to go to science classes to do it. Ultimately, a lawsuit was filed over it.
Jones presided over this five-week trial without a jury. He gave the Dover policy an "F" in history, an "F" in the First Amendment and an "F" in science. After looking at all the evidence, the judge concluded the "disclaimer singles out the theory of evolution for special treatment, misrepresents its status in the scientific community, causes students to doubt its validity without scientific justification, presents students with a religious alternative masquerading as a scientific theory, directs them to consult a creationist text as if it were a science resource and instructs students to forego scientific inquiry ..."
Years ago the U.S. Supreme Court struck down a state law that required public schools to teach creation science along with evolution.
After his history lesson, Jones moved on to a more formal review of the fundamental constitutional question in the case: Does the Dover policy violate the Establishment Clause of the First Amendment to the U.S. Constitution or the equivalent provision in the Pennsylvania Constitution?
The Supreme Court's religion jurisprudence, also applied in this case to the Pennsylvania Establishment Clause, could charitably be characterized as messy. So Jones used what he describes as a "belt and suspenders" approach, meaning he used more than one Supreme Court test to analyze the religion issues. Central to this decision was his conclusion that ID is religion, not science. He found, "Overwhelming evidence at trial established that intelligent design is a religious view."
Government action is impermissible if it creates a perception in the mind of a reasonable observer that the government either endorses or disapproves of religion -- the endorsement test. Jones found the board's policy endorsed religion and that the "religious nature of intelligent design would be readily apparent to an objective observer, adult or child."
A state-sponsored message violates the Establishment Clause if it doesn't have a secular purpose, its principal or primary effect advances or inhibits religion or it creates excessive government entanglement with religion.
After a detailed set of findings about the development of the policy, the judge found any claim of a secular purpose a pretext to promoting religion in the classroom. He found the district's purpose was "to advance creationism, an inherently religious view, both by introducing it directly under the label 'intelligent design' and by disparaging the scientific theory of evolution so that creationism would gain credence by default."
This also had the effect of imposing a religious view of biological origins into the biology course, in violation of the Establishment Clause.
The last "F" went to the claim that ID is science. The judge found that it isn't, because it "has failed to publish in peer-reviewed journals, engage in research and testing and gain acceptance in the scientific community." Rather, "the goal of the intelligent design movement is to foment a revolution and would supplant evolutionary theory with ID."
Jones said he offered the conclusion that ID is not science "in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us." I guess our "education" Gov. Bob Taft read this, because after this decision came out he urged a review of the Ohio School Board's model lesson plan, "Critical Analysis of Evolution."
ID got into Ohio's science standards and model curriculum under the pseudonym "critical analysis." It was tucked deep into the curricular detail, into what are called benchmarks and indicators. Benchmarks are the specific components of what students should know. Indicators are the checkpoints that monitor progress toward the benchmarks.
In 2002 this new statement was added to Benchmark H and indicator 23 of the 10th-grade standard for life sciences: "Describe how scientists continue to investigate and critically analyze aspects of evolutionary theory." A model-less plan, "Critical Analysis of Evolution," was added to supplement these changes.
At its Feb. 14 meeting, by a vote of 11-4, the Ohio Board of Education eliminated the benchmark, the indicator and the lesson plan. The repeal was led by Republican Martha Wise, an elected board member from Avon. In a Cincinnati Enquirer op-ed piece, she described herself as a believer in "God the creator." But she believes "it is deeply unfair to the children of this state to mislead them about the nature of science." Amen!
Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.