Kitzmiller v. Dover: The Role of The Discovery Institute

This is the fourth in a series of short articles discussing the excellently written and superbly reasoned opinion, issued on 20 December 2005, by Judge John E. Jones III in the case of Kitzmiller et al. v Dover Area School District et al. (that link is to an unofficial text version of the opinion).

This post will deal with the limited issue of the Role of The Discovery Institute in this sordid adventure. As will be seen, their participation helped to convince the court that the School Board’s policy was religious and not secular, and thus unconstitutional. This is their website: the Discovery Institute.

The immediately preceding article in this series is: Kitzmiller v. Dover: What’s the Wedge Document? Few will read this entire series in one sitting, so we’ll repeat the following introductory paragraphs:

No excerpts can substitute for the overpowering impression to be gained by reading the entire opinion, which we highly recommend. The court’s website with the 139 page opinion (pdf file) is here: TAMMY KITZMILLER, et al., Plaintiffs, v. DOVER AREA SCHOOL DISTRICT, et al., Defendants. There is also a Wikipedia article about the case, with a great deal of worthwhile background information.

We will be quoting extensively from the court’s opinion. To make this more readable, we won’t use the blockquote feature, which puts quoted material in italics (unless the court itself quotes something, or for the text of relevant footnotes).

In order not to interrupt the narrative, where the judge’s opinion makes references to the trial transcript of witnesses’ testimony, we will replace such clutter with [transcript reference] or something similar. Text appearing in red was colored by us for emphasis. Sometimes we will define a term by placing the definition in brackets. Lettered section titles in bold are from the court’s opinion. We’re also putting Discovery Institute in bold so it can be easily noticed. With those obvious exceptions, everything following this paragraph is quoted from the court’s opinion:

The trial commenced September 26, 2005 and continued through November 4, 2005. This Memorandum Opinion constitutes the Court’s findings of fact and conclusions of law which are based upon the Court’s review of the evidence presented at trial, the testimony of the witnesses at trial, the parties’ proposed findings of fact and conclusions of law with supporting briefs, other documents and evidence in the record, and applicable law.3

[Footnote 3:] The Court has received numerous letters, amicus briefs, and other forms of correspondence pertaining to this case. The only documents submitted by third parties the Court has considered, however, are those that have become an official part of the record. Consistent with the foregoing, the Court has taken under consideration the following: (1) Brief of Amici Curiae Biologists and Other Scientists in Support of Defendants (doc. 245); (2) Revised Brief of Amicus Curiae, the Discovery Institute (doc. 301); (3) Brief of Amicus Curiae the Foundation for Thought and Ethics (doc. 309); and (4) Brief for Amicus Curiae Scipolicy Journal of Science and Health Policy (doc. 312).

The Court accordingly grants the outstanding Motions for Leave to File Amicus Briefs, namely the Motion for Leave to File a Revised Amicus Brief by The Discovery Institute (doc. 301), the Motion for Leave to File Amicus Brief by The Foundation for Thought and Ethics (doc. 309), and the Petition for Leave to File Amicus Curiae Brief by Scipolicy Journal of Science and Health Policy (doc. 312).


Dramatic evidence of ID’s religious nature and aspirations is found in what is referred to as the “Wedge Document.” The Wedge Document, developed by the Discovery Institute’s Center for Renewal of Science and Culture … [For details on that topic, see one of the earlier threads in this series: Kitzmiller v. Dover: What’s the Wedge Document?]


c. Early 2004 – Buckingham’s Contacts with the Discovery Institute

At some point before June 2004, Seth Cooper, an attorney with the Discovery Institute contacted Buckingham [member of the Dover School Board and Chairman of the Board’s Curriculum Committee] and two subsequent calls occurred between the Discovery Institute and Buckingham. Although Buckingham testified that he only sought legal advice which was provided in the phone calls, for which Defendants asserted the attorney-client privilege, Buckingham and Cooper discussed the legality of teaching ID and gaps in Darwin’s theory. [transcript references].

The Discovery Institute forwarded Buckingham a DVD, videotape, and book which he provided to [Superintendent] Nilsen to give the science teachers. [transcript references]. Late in the 2003-04 school year, [Assistant Superintendent] Baksa arranged for the science teachers to watch a video from the Discovery Institute entitled “Icons of Evolution” and at a subsequent point, two lawyers from the Discovery Institute made a legal presentation to the Board in executive session. [transcript references].


June 2004 – Board Curriculum Committee Meeting


Accordingly, as accurately submitted by Plaintiffs, we find that the Board Curriculum Committee knew as early as June 2004 that ID was widely considered by numerous observers to be a form of creationism. We do not find it coincidental that based upon the previously recited statements and history, some form of creationism was precisely what the Committee wanted to inject into Dover’s science classrooms.

Moreover, at the meeting, although the teachers had already watched the video “Icons of Evolution” from the Discovery Institute, at Buckingham’s insistence they agreed to review it again and consider using in class any portions that aligned with their curriculum. [transcript reference]. Although Baksa believed that the teachers had already determined there were no parts in the video that would be appropriate for use in class, the teachers capitulated in order to secure Buckingham’s approval to purchase the much needed biology textbook [Kenneth Miller’s text]. [transcript references].


Despite this collective failure to understand the concept of ID, which six Board members nonetheless felt was appropriate to add to ninth grade biology class to improve science education, the Board never heard from any person or organization with scientific expertise about the curriculum change, save for consistent but unwelcome advices from the District’s science teachers who uniformly opposed the change. [transcript reference]. In disregarding the teachers’ views, the Board ignored undeviating opposition to the curriculum change by the one resource with scientific expertise immediately at its disposal.

The only outside organizations which the Board consulted prior to the vote were the Discovery Institute and TMLC [the Thomas More Law Center], and it is clear that the purpose of these contacts was to obtain legal advice, as opposed to science education information. [transcript references].

The Board received no materials, other than Pandas [a creationist text], to assist them in making their vote. Nor did anyone on the Board or in the administration ever contact the NAS, the AAAS, the National Science Teachers’ Association, the National Association of Biology Teachers, or any other organization for information about ID or science education before or after voting for the curriculum change. [transcript references].

While there is no requirement that a school board contact any of the afore-referenced organizations prior to enacting a curriculum change, in this case a simple glance at any one of their websites for additional information about ID and any potential it may have to improve science education would have provided helpful information to Board members who admittedly had no comprehension whatsoever of ID. As [Plaintiffs’ science education expert] Dr. Alters’ expert testimony demonstrated, all of these organizations have information about teaching evolution readily available on the internet and they include statements opposing the teaching of ID. [transcript reference].


r. Defendants Presented No Convincing Evidence that They were Motived by Any Valid Secular Purpose

Although Defendants attempt to persuade this Court that each Board member who voted for the biology curriculum change did so for the secular purposed of improving science education and to exercise critical thinking skills, their contentions are simply irreconcilable with the record evidence. Their asserted purposes are a sham, and they are accordingly unavailing, for the reasons that follow.

We initially note that the Supreme Court has instructed that while courts are “normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.” Edwards, 482 U.S. at 586-87 (citing Wallace, 472 U.S. at 64)(Powell, J., concurring); id. at 75 (O’Connor, J., concurring in judgment). Although as noted Defendants have consistently asserted that the ID Policy was enacted for the secular purposes of improving science education and encouraging students to exercise critical thinking skills, the Board took none of the steps that school officials would take if these stated goals had truly been their objective.

The Board consulted no scientific materials. The Board contacted no scientists or scientific organizations. The Board failed to consider the views of the District’s science teachers. The Board relied solely on legal advice from two organizations with demonstrably religious, cultural, and legal missions, the Discovery Institute and the TMLC. Moreover, Defendants’ asserted secular purpose of improving science education is belied by the fact that most if not all of the Board members who voted in favor of the biology curriculum change conceded that they still do not know, nor have they ever known, precisely what ID is. To assert a secular purpose against this backdrop is ludicrous.

Finally, although Defendants have unceasingly attempted in vain to distance themselves from their own actions and statements, which culminated in repetitious, untruthful testimony, such a strategy constitutes additional strong evidence of improper purpose under the first prong of the Lemon test. [That is, the statute or government action must have a secular legislative purpose.] As exhaustively detailed herein, the thought leaders on the Board made it their considered purpose to inject some form of creationism into the science classrooms, and by the dint of their personalities and persistence they were able to pull the majority of the Board along in their collective wake.

Any asserted secular purposes by the Board are a sham and are merely secondary to a religious objective. McCreary, 125 S. Ct. at 2735; accord, e.g., Santa Fe, 530 U.S. at 308 (“it is . . . the duty of the courts to ‘distinguish a sham secular purpose from a sincere one.’” (citation omitted)); Edwards, 482 U.S. at 586-87 (“While the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.”). Defendants’ previously referenced flagrant and insulting falsehoods to the Court provide sufficient and compelling evidence for us to deduce that any allegedly secular purposes that have been offered in support of the ID Policy are equally insincere.

Accordingly, we find that the secular purposes claimed by the Board amount to a pretext for the Board’s real purpose, which was to promote religion in the public school classroom, in violation of the Establishment Clause.

[The next article in this series is: Kitzmiller v. Dover: Michael Behe’s Testimony]

Copyright © 2009. The Sensuous Curmudgeon. All rights reserved.

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