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Kitzmiller v. Dover Area School District

Decision of the Court (Concluded)

Part 1
Dover Home

F. Application of the Lemon Test to the ID Policy 

Although we have found that Defendants' conduct conveys a strong message of endorsement of the Board members' par ticular religious view, pursuant to the endorsement test, the better practice in this Circuit is for this Court to also evaluate the challenged conduct separately under the Lemon test.18 See Child Evangelism, 386 F.3d at 530-35; Modrovich, 385 F.3d at 406; Freethought, 334 F.3d at 261.

As articulated by the Supreme Court, under the Lemon test, a government-sponsored message violates the Establishment Clause of the First Amendment if: (1) it does not have a secular purpose; (2) its principal or primary effect advances or inhibits religion; or (3) it creates an excessive entanglement of the government with religion. Lemon, 403 U.S. at 612-13. As the Lemon test is disjunctive, either an improper purpose or an improper effect renders the ID Policy invalid under the Establishment Clause.19

We will therefore consider whether (1) Defendants' primary purpose was to advance religion or (2) the ID Policy has the primary effect of promoting religion.

1. Purpose Inquiry

Initially, we note that the central inquiry is whether the District has shown favoritism toward religion generally or any set of religious beliefs in particular:

The touchstone for our analysis is the principle that the 'First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.' When the government acts with the ostensible and predominant purpose of advancing religion, it violates the central Establishment Clause value of official religious neutrality, there being no neutrality when the government's ostensible object is to take sides.

McCreary, 125 S. Ct. at 2733 (quoting Epperson, 393 U.S. at 104). As the Supreme Court instructed in Edwards, Lemon's purpose prong "asks whether government's actual purpose is to endor se or disapprove of religion. A governmental intention to promote religion is clear when the State enacts a law to serve a religious purpose." Edwards, 482 U.S. at 583 (quoting Lynch, 465 U.S. at 690) (O'Connor, J., concurring).

The purpose inquiry involves consideration of the ID Policy's language, "enlightened by its context and contemporaneous legislative history[,]" including, in this case, the broader context of historical and ongoing religiously driven attempts to advance creationism while denigrating evolution.20 Selman, 390 F. Supp. 2d at 1300; Edwards, 482 U.S. at 590-92, 594-95 (in addition to "[t]he plain meaning of the [enactment's] words, enlightened by their context and the contemporaneous legislative history," Supreme Court also looks for legislative purposes in "the historical context of the [enactment], and the specific sequence of events leading to [its] passage"); see also Epperson, 393 U.S. at 98-101; McLean, 529 F. Supp. at 1263 (looking to history of Christian Fundamentalism nationally and to Arkansas' "long history of official opposition to evolution which is motivated by adherence to Fundamentalist beliefs," and holding that, "[i]n determining the legislative purpose of a statute, courts may consider evidence of the historical context of the Act, the specific sequence of events leading up to passage of Act, departures from normal procedural sequences, substantive departures from the normal, and contemporaneous statements of the legislative sponsor.") (citations omitted).

The disclaimer's plain language, the legislative history, and the historical context in which the ID Policy arose, all inevitably lead to the conclusion that Defendants consciously chose to change Dover's biology curriculum to advance religion. We have been presented with a wealth of evidence which reveals that the District's purpose was to advance creationi sm, an inherently religious view, both by introducing it directly under the label ID and by disparaging the scientific theory of evolution, so that creationism would gain credence by default as the only apparent alternative to evolution, for the reasons that follow.

We will begin the Lemon purpose inquiry by providing a detailed chronology of the events that transpired in Dover leading up to the enactment of the ID Policy at issue.

We will initially supply background information on the composition of the Board, which consists of nine seats. The nine members of the Board in 2004 were Alan Bonsell, William Buckingham, Sheila Harkins, Jane Cleaver, Heather Geesey, Angie Yingling, Noel Wenrich, Jeff Brown, and Casey Brown. Wenrich and Cleaver resigned on October 4, 2004, Casey and Jeff Brown resigned on October 18, 2004, and Yingling resigned verbally in November 2004 and in writing February 2005. (Trial Tr. vol. 34, Harkins Test., 113, Nov. 2, 2005; Cleaver Dep. at 15, June 9, 2005). During 2004, Bonsell was President of the Board and as President, he appointed Buckingham to be Chair of the Board's Curriculum Committee. (32:86-87 (Bonsell); 34:39 (Harkins)). As Board President, Bonsell also served as an ex officio member of the Curriculum Committee. (32:116 (Bonsell)).

a. Beginning in January 2002, Bonsell Made Repeated Expressions of Interest to Inject Religion into the Dover Schools

The Board held a retreat on January 9, 2002, several weeks after Bonsell joined the Board. Superintendent Nilsen's contemporaneous notes reveal that Bonsell identified "creationism" as his number one issue and "school prayer" as his number two issue. (P-21). Although Bonsell claims he cannot recall raising such subjects but does not dispute that he did, in fact, raise them, the overwhelming evidence indicates that he raised the issues of creationism and school prayer during the January 2002 Board retreat.21

The Board held another retreat the following year, on March 26, 2003, in which Bonsell again raised the issue of "creationism" as an issue of interest as reflected in Dr. Nilsen's contemporaneous notes. (35:50-53 (Baksa); P-25). For the second, consecutive time, Bonsell does not dispute that he raised the issue but his testimony indicates that he cannot recall doing so, despite the fact that Jeff Brown, Barrie Callahan, Bertha Spahr, and Assistant Superintendent Baksa testified otherwise. (32:75 (Bonsell); Trial Tr. vol. 8, J. Brown Test., 50-51, Sept. 29, 2005) (Recalled Bonsell say at the March 26, 2003 retreat that he felt creationism "belonged in biology class alongside evolution."); 3:126-27 (B. Callahan) (Her testimony and notes took during the March 26, 2003 retreat reveal that Bonsell said he wanted creationism taught 50/50 with evolution in biology class.).

In fact, Trudy Peterman, then principal of Dover High School, sent a memo to Assistant Superintendent Baksa and Science Department Chair Bertha Spahr with a copy sent to Dr. Nilsen on April 1, 2003. This memo reports that Peterman learned from Spahr that Baksa said on March 31, 2003, that an unidentified Board member "wanted fifty percent of the topic of evolution to involve the teaching of Creationism." (P-26). Although defense witnesses testified that Peterman was known to exaggerate situations, the weight of the evidence reveals that the essential content of the memo was indeed accurate.

In that regard, Barrie Callahan's testimony and handwritten notes from the March 26, 2003 retreat find corroboration in Superintendent Nilsen's contemporaneous note that Bonsell raised the issue of "creationism," as do they in the Peterman memo. Additionally, Spahr confirmed that she had a conversation with Baksa, as reported in the Peterman memo, and that Baksa told her Bonsell wanted to have creationism share equal time with evolution in the curriculum. (13:72-73 (Spahr)). Third, Baksa confirmed that he had a conversation with Spahr, as reported in the Peterman memo, in which he told her that Bonsell was looking "for a 50/50 split with Darwin and some alternative." (35:53-56 (Baksa)).

Although Baksa claims he does not recall Bonsell identifying "creationism" as the subject with which he wanted to share equal time with evolution, nor that Bonsell mentioned "creationism" at any time up until April 1, 2003, we do not find his testimony on this point to be credible. We accordingly find that Bonsell is clearly the unnamed Board member referred to in Peterman's memo who wanted fifty percent of the topic of evolution to involve the teaching of creationism.

Apart from two consecutive Board retreats, Bonsell raised the issue of creationism on numerous other occasions as well. When he ran for the Board in 2001, Bonsell told Jeff Brown he did not believe in evolution, that he wanted creationism taught side-by-side with evolution in biology class, and that taking prayer and Bible reading out of school was a mistake which he wanted reinstated in the Dover public schools. (8:48-49 (J. Brown)). Subsequently, Bonsell told Jeff Brown he wanted to be on the Board Curriculum Committee because he had concerns about teaching evolution and he wanted to see some changes in that area. (8:55 (J. Brown)). Additionally, Nilsen complained to Jeff Brown that each Board President had a new set of priorities and Bonsell's priority was that of creationism. (8:53 (J. Brown)). It is notable, and in fact incredible that Bonsell disclaimed any interest in creationism during his testimony, despite the admission by his counsel in Defendants' opening statement that Bonsell had such an interest. (1:19). Simply put, Bonsell repeatedly failed to testify in a truthful manner about this and other subjects. Finally, Bonsell not only wanted prayer in schools and creationism taught in science class, he also wanted to inject religion into the social studies curriculum, as evidenced by his statement to Baksa that he wanted students to learn more about the Founding Fathers and providing Baksa with a book entitled Myth of Separation by David Barton.22 (36:14-15, 17 (Baksa), P-179).

b. Fall 2003 – Bonsell Confronted Teachers About Evolution

Shortly after Baksa took a position with the DASD in the fall of 2002, he and Bonsell, then Chair of the Board Curriculum Committee, had discussions in which Bonsell expressed concern about the teaching of evolution, the presentation of Darwin in a biology textbook used at Dover, and felt that Darwin was presented as a fact, not a theory. (26:62-64 (Baksa); 35:55 (Baksa)). Prior to the fall of 2003, Baksa discussed Bonsell's evolu tionary concerns with the teachers, including Bonsell's problem with the teach ing of the origin of life, by which Bonsell meant how species change into other species, aspects of the theory of evolution also known as macroevolution and speciation. (35:66-68 (Baksa)).

Baksa then arranged for a meeting between Bonsell and science teachers in the fall of 2003 in which Jennifer Miller, the senior biology teacher, acted as spokesperson for the teachers. (Trial Tr. vol. 12, J. Miller, 107-09, Oct. 6, 2005; 35:68 (Baksa)). Miller testified that Bonsell was specifically concerned that the teachers conveyed information to students in opposition to what parents presented at home leaving students with the impression that "somebody is lying." (12:111 (J. Miller)). Miller explained that evolution is taught as change over time with emphasis upon origin of species, not origin of life. Bonsell left the meeting with the understanding that the "origins of life" is not taught, which pleased him because the concept of common ancestry offends his personal religious belief that God created man and other species in the forms they now exist and that the earth is only thousands of years old. (33:54-58, 115 (Bonsell)).

Prior to the fall of 2003, no Dover administrator or Board member had ever met with the biology teachers and questioned them as to how they taught evolution, or any other aspect of biology. (Trial Tr. vol. 36, Linker Test., 75, Nov. 3, 2005). The result of the unprecedented fall 2003 meeting was that it had an impact upon how biology teachers subsequently taught evolution in Dover. First, before the meeting with Bonsell, biology teacher Robert Linker had a practice of explaining that creationism was based on "Bibles, religion, [and] Biblical writings," noting that it was illegal to discuss creation in public school. (36:83 (Linker)). After the meeting, however, Linker changed his prior practice by ceasing any mention of creationism at the beginning of the evolution section, as did he stop using helpful Discovery Channel evolution videos as teaching aides. (36:82-85 (Linker)). Linker testified that he changed his practices in the classroom because the unusual meeting with Bonsell alerted him to a controversy surrounding how he taught evolution. (36:84-85 (Linker)). Linker additionally testified that Jen Miller, a senior biology teacher, changed her practice of having the students create an evolution time-line in the hallway, which addressed how various species developed over millions of years. (36:86-87 (Linker)).

Therefore, although Defendants have asserted that the ID Policy has the secular purposes of promoting critical thinking and improving science education, the opposite of such purposes occurred in fact as biology teachers had already began to omit teaching material regarding the theory of evolution in the months preceding the adoption of the ID Policy.

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 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. (29:133-143 (Buckingham); 30:9 (Buckingham)). The Discovery Institute forwarded Buckingham a DVD, videotape, and book which he provided to Nilsen to give the science teachers. (29:130-131 (Buckingham); 25:100-01 (Nilsen); 26:114-15 (Baksa)). Late in the 2003-04 school year, 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. (Trial Tr. vol. 4, B. Rehm Test., 48- 49, Sept. 27, 2005; 33:111-12 (Bonsell)).

d. June 2003 to June 2004 – Board Delayed Purchasing the Biology Textbook

In June 2003, the Board approved funds for new science textbooks, including a biology textbook, the 2002 edition of Biology written by Plaintiffs' lead expert Kenneth Miller; however, the Board did not approve the purchase of such biology textbook despite its recommendation by the faculty and administration. (3:130-31 (B. Callahan); 29:33 (Buckingham)). In fact, Buckingham testified that as of June 2004, the Board was delaying approval of Biology because of the book's treatment of evolution and the fact that it did not cover any alternatives to the theory of evolution. (29:33-34 (Buckingham)).

e. June 2004 Board Meetings – Buckingham and Other Board Members Spoke in Favor of Teaching Creationism

Plaintiffs introduced evidence that at public school board meetings held on June 7, 2004 and June 14, 2004, members of the Board spoke openly in favor of teaching creationism and disparaged the theory of evolution on religious grounds. On these important points, Plaintiffs introduced the testimony of Plaintiffs Fred and Barrie Callahan, Bryan and Christy Rehm, Beth Eveland, former school Board members Casey and Jeff Brown and William Buckingham, teachers Bertha Spahr and Jennifer Miller, and newspaper reporters Heidi Bernhard-Bubb and Joseph Maldonado. We are in agreement with Plaintiffs that with the exception of Buckingham, the testimony of these witnesses was both credible and convincing, as will be discussed below.

We will now provide our findings regarding the June 7, 2004 Board meeting. First, the approval of several science textbooks appeared on the agenda for the meeting, but not approval for the biology textbook. (P-42 at 8-9). After Barrie Callahan asked whether the Board would approve the purchase of the 2002 edition of the textbook entitled Biology, Buckingham told Callahan that the book was "laced with Darwinism" and spoke in favor of purchasing a textbook that included a balance of creationism and evolution. (P-46/P-790; 35:76-78 (Baksa); 24:45-46 (Nilsen); 3:135-36 (B. Callahan); 4:51-52 (B. Rehm); 6:62-63 (C. Rehm); 7:25-26 (C. Brown)). With surprising candor considering his otherwise largely inconsistent and non-credible testimony, Buckingham did admit that he made this statement. Second, Buckingham said that the Board Curriculum Committee would look for a book that presented a balance between creationism and evolution. (P-45/P-805; Trial Tr. vol. 30, Bernhard-Bubb Test., 96, Oct. 27, 2005; P-46/P-790; Trial Tr. vol. 31, Maldonado Test., 59-60, Oct. 28, 2005). Third, Bonsell said that there were only two theories that could possibly be taught, creationism and evolution, and as long as both were taught as theories there would be no problems for the District. (P-46/P-790; 6:65 (C. Rehm)). Fourth, Buckingham spoke in favor of having a biology book that included creationism. (P-47/P-791; 8:60-61 (J. Brown); 7:33 (C. Brown); 3:137-38 (B . Callahan); 30:89-90, 105-06, 110-11 (Bernhard-Bubb); 31:60, 66 (Maldonado)). Fifth, both Wenrich and Bonsell spoke in favor of having a biology book that included creationism. (P-47/P-791; 8:60 (J. Brown); 7:33 (C. Brown); 30:89-90, 105-06, 110-11 (Bernhard-Bubb); 31:66 (Maldonado); 3:137-38 (B. Callahan)). Sixth, Superintendent Nilsen said that the District was looking for a textbook that presented "all options and theories" and never challenged the accuracy of that quotation. (25:119-20 (Nilsen)). Seventh, Buckingham testified that he had previously said the separation of church and state is a myth and not something that he supports. (P-44/P-804; P-47/P-791; 3:141-42 (B. Callahan); 7:32-33 (C. Brown); 31:66-67 (Maldonado)). Buckingham also said: "It is inexcusable to have a book that says man descended from apes with nothing to counterbalance it." (P-44/P-804; 30:77-78 (Bernhard-Bubb)). Finally, after the meeting, Buckingham stated: "This country wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity and our students should be taught as such." (P-46/P-790; 31:63 (Maldonado)).

We will now provide our findings regarding the June 14, 2004 Board meeting. Initially, we note that the subject of the biology textbook did not appear on the agenda of the meeting but members of the public made comments, and the Board continued to debate the subject of the biology textbook. Second, Buckingham's wife, Charlotte, gave a speech that exceeded the normal time protocols during the public comment section in which she explained that "evolution teaches nothing but lies," quoted from Genesis, asked "how can we allow anything else to be taught in our schools," recited gospel verses telling people to become born again Christians, and stated that evolution violated the teachings of the Bible. (P-53/P-793; 4:55-56 (B. Rehm); 6:71 (C. Rehm); 7:34-35 (C. Brown); 8:104-05 (F. Callahan); 8: 63 (J. Brown); 30:107-08 (Bernhard-Bubb); 31:76-77 (Maldonado); 33:37-43 (Bonsell); 29:82-83 (Buckingham); 12:125 (J. Miller); 13:84 (Spahr)). In her deposition, Charlotte Buckingham admitted that she made a speech at the June 14, 2004 Board meeting in which she argued that creationism as set forth in Genesis should be taught at Dover High School and that she read quotations from scripture as part of her speech. (C. Buckingham Dep. at 19-22, April 15, 2005). During this religious speech at a public Board meeting, Board members Buckingham and Geesey said "amen." (7:35 (C. Brown)). Third, Buckingham stood by his opposition to the 2002 edition of the textbook entitled Biology. Fourth, Bonsell and Wenrich said they agreed with Buckingham that creationism should be taught to balance evolution. (P-806/P-54). Fifth, Buckingham made several outwardly religious statements, which include the following remarks. "Nowhere in the Constitution does it call for a separation of church and state." He explained that this country was founded on Christianity. Buckingham concedes that he said "I challenge you (the audience) to trace your roots to the monkey you came from." He said that while growing up, his generation read from the Bible and prayed during school. He further said "liberals in black robes" were "taking away the rights of Christians" and he said words to the effect of "2,000 years ago someone died on a cross. Can't someone take a stand for him?" (P-806/P-54; 12:126 (J. Miller); 13:85 (Spahr); 30:105-07 (Bernhard-Bubb); P-793/P-53; 31:75-76, 78-79 (Maldonado); 29:71 (Buckingham); 35:81-82 (Baksa); 6:73 (C. Rehm); 4:54-55 (B. Rehm); 6:96 (Eveland); 7:26-27 (C. Brown); 8:63 (J . Brown); 8:105-06 (F. Callahan)).

Finally, although Buckingham, Bonsell, and other defense witnesses denied the reports in the news media and contradicted the great weight of the evidence about what transpired at the June 2004 Board meetings, the record reflects that these witnesses either testified inconsistently, or lied outright under oath on several occasions, and are accordingly not credible on these points.

f. June 2004 Board Curriculum Committee Meeting

Near the end of the school year in June 2004, the Board Curriculum Committee met with the teachers to discuss a list of Buckingham's concerns about the textbook Biology. (12:114-15 (J. Miller); 35:82 (Baksa); P-132). All of Buckingham's concerns related to the theory of evolution and included such objections as the reference to a species of finch known as Darwin's finch simply because it referred to Darwin and his viewpoint that the textbook did not give "balanced presentation," by which he meant that it did not include the "theory of creationism with God as creator of all life." (7:45-48 (C. Brown)).

A large part of the meeting addressed Buckingham's concern that the teachers were teaching what he referred to as "origins of life," apparently including the origin of species and common ancestry. Jen Miller reiterated that the teachers do not address origins of life, only origin of species. (12:118-120 (J. Miller)).

Also at the meeting Baksa provided those in attendance with several documents including a survey of biology books used in private religious schools in York County, a product profile of a biology textbook used at Bob Jones University, and a document entitled "Beyond the Evolution vs. Creation Debate." The second page of the "Beyond the Evolution vs. Creation Debate" document reads "Views on the Origin of the Universe and Life" and it explains the difference between "Young Earth Creationism (Creation Science)," "Progressive Creationism (Old Earth Creation)," "Evolutionary Creation (Theistic Creation)," "Deistic Evolution (Theistic Evolution)," and "Dysteleological Evolution (Atheistic Evolution)." Interestingly and notably, the example provided under the Progressive Creation (Old Earth Creation) is that of the "Intelligent Design Movement, Phillip Johnson, Michael Behe." (P-149).

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. (26:122 (Baksa)). 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. (35:93-94 (Baksa)).

In the midst of this panoply, there arose the astonishing story of an evolution mural that was taken from a classroom and destroyed in 2002 by Larry Reeser, the head of buildings and grounds for the DASD. At the June 2004 meeting, Spahr asked Buckingham where he had received a picture of the evolution mural that had been torn down and incinerated. Jen Miller testified that Buckingham responded: "I gleefully watched it burn." (12:118 (J. Miller)). Buckingham disliked the mural because he thought it advocated the theory of evolution, particularly common ancestry. (26:120 (Baksa)). Burning the evolutionary mural apparently was insufficient for Buckingham, however. Instead, he demanded that the teachers agree that there would never again be a mural depicting evolution in any of the classrooms and in exchange, Buckingham would agree to support the purchase of the biology textbook in need by the students. (36:56-57 (Baksa) (emphasis added)).

Finally, Baksa's testimony revealed that there was some mention of the words "intelligent design" at the meeting but he cannot recall who raised the subject. In fact, to the best of his knowledge at the time, ID amounted to nothing more than two words replacing one word, creationism, used by Buckingham at a Board meeting earlier that month. (35:96-98 (Baksa)). Baksa's testimony supports Plaintiffs' argument that at a point in June 2004, creationism began to morph into ID in the minds of the Board's thought leaders.

g. July 2004 – Buckingham Contacted Richard Thompson and Learned about Pandas

At some point before late July 2004, Buckingham contacted the Thomas More Law Center (hereinafter "TMLC") for the purpose of seeking legal advice and spoke with Richard Thompson, President and Chief Counsel for the TMLC. (30:10-12 (Buckingham)). The TMLC proposed to represent the Board, and Buckingham accepted the offer on the Board' s behalf. Buckingham and the Board first learned of the creationist textbook Pandas from Richard Thompson at some point before late July 2004. (29:107-08 (Buckingham); 30:10-12, 15-16 (Buckingham)).

h. July 2004 – New Edition of Biology Textbook Discovered

In July 2004, after the teachers discovered that there was a 2004 edition of the textbook Biology available, the Board agreed to defer consideration of purchasing a new textbook at its July 12, 2004 meeting until it could review the 2004 edition. (12:127 (J. Miller); 13:30 (Spahr)). In July 2004, Spahr, Miller, and Baksa met to review the 2004 edition and compared the sections on evolution with those found in the 2002 edition. They then created a document delineating the differences. (12:127-29 (J. Miller)).

i. August 2004 – Buckingham and Other Board Members Tried to Prevent Purchase of Standard Biology Textbook

On August 2, 2004 the Board met and one of the agenda items was the approval of the 2004 edition of Biology. A few days prior to this meeting, Casey Brown received a telephone call from Baksa who told her that Buckingham recommended that the District purchase Pandas as a supplemental textbook. (7:52- 53 (C. Brown); 8:64 (J. Brown)). Jeff Brown then went to Harkins' home to pick up a copy of Pandas at which point she told him that she wanted the school District to purchase the book. (8:65 (J. Brown)).

Subsequently, at the August 2, 2004 meeting, Buckingham opposed the purchase of Biology, which was recommended by the faculty and administration, unless the Board also approved the purchase of Pandas as a companion text. Only eight members of the Board were present on August 2, 2004 and the initial vote to approve the purchase of Pandas failed on a four to four vote with Buckingham, Harkins, Geesey, and Yingling voting for it. (8:68 (J. Brown); 29:105-06 (Buckingham); P-67). After Buckingham stated that he had five votes in favor of purchasing Pandas and if the Board approved the purchase of Pandas, he would release his votes to also approve the purchase of Biology, Yingling changed her vote and the motion to approve the purchase of Biology passed. (P-67; 8:68-69 (J. Brown)). At trial, Buckingham testified that at the meeting he specifically said "if he didn't get his book, the district would not get the biology book." (29:106 (Buckingham)).

j. August 26, 2004 – Solicitor's Warning to Board

On August 26, 2004, Board Solicitor Stephen S. Russell sent an email to Nilsen which indicated he spoke with Richard Thompson of the TMLC and that "[t]hey refer to the creationism issue as 'intelligent design.'" (P-70). The email proceeded to explain the following:

They [TMLC] have background knowledge and have talked to school boards in West Virginia and Michigan about possible litigation. However, nothing has come about in either state. This suggests to me that no one is adopting the textbook because, if they were, one can safely assume there would have been a legal challenge by someone somewhere . . . I guess my main concern at the moment, is that even if use of the text is purely voluntary, this may still make it very difficult to win a case. I say this because one of the common themes in some of the US Supreme Court decisions, especially dealing with silent meditation, is that even though something is voluntary, it still causes a problem because the practice, whatever it may be, was initiated for religious reasons. One of the best examples comes out of the silent meditation cases in Alabama which the court struck down because the record showed that the statute in question was enacted for religious reasons. My concern for Dover is that in the last several years there has been a lot of discussion, news print, etc. for putting religion back in the schools. In my mind this would add weight to a lawsuit seeking to enjoin whatever the practice might be.

Id. (emphasis added). Nilsen subsequently shared this email with everyone present at the Board Curriculum Committee meeting on August 30, 2004, including Buckingham, Bonsell, and Harkins. (25:135-36 (Nilsen)). Additionally, both Nilsen and Baksa admitted that they knew the email referred to the news reports of the June 2004 meetings. (25:135-36, 138-39 (Nilsen); 35:105-06, 111-12 (Baksa)).

There is no evidence that the Board heeded even one iota of the Solicitor's detailed and prudent warning. We also find the email to be persuasive, additional evidence that the Board knew that ID is considered a form of creationism.

k. August 30, 2004 – Board Curriculum Committee Forced Pandas on the Teachers as Reference Text

On August 30, 2004, the Board Curriculum Committee met with Spahr, Miller, Nilsen, Baksa, Bonsell, Buckingham, Harkins, and Casey Brown with the principal subject of discussion being Pandas and how it would be used in the classroom. (12:134 (J. Miller)). Although Spahr expressed concern that the textbook taught ID, which she equated with creationism, Buckingham wanted Pandas to be used in the classroom as a comparison text side-by-side the standard biology textbook. (12:135 (J. Miller); 29:104-05 (Buckingham)). Despite the fact that the teachers strongly opposed using Pandas as a companion text, they agreed that Pandas could be placed in the classroom as a reference text as a compromise with the Board. (29:111 (Buckingham); 12:136 (J. Miller); 13:88 (Spahr)). Baksa testified that no one could construe the teachers as having supported Pandas in any way, reference text or otherwise, which is evidenced by Jen Miller's statement that if the teachers compromised with the Board, "maybe this will go away again." (35:120 (Baksa); 12:136 (J. Miller)). It is patently evident that by this point, the teachers were both weary from the extended contention concerning the teaching of evolution, and wary of retribution in the event they persisted in opposing Buckingham and his cohorts on the Board.

Baksa testified that during this time period he researched Pandas and ID, which included directing his secretary to go to the webpage for the Institute for Creation Research. (35:113-14 (Baksa); D-35). The afore-referenced webpage states that Pandas "contains interpretations of classic evidences in harmony with the creation model" and he testified on cross-examination that he was aware of such information when he researched Pandas. (35:114-15 (Baksa)). The fact that Baksa contradicted this testimony on re-direct and stated that he had never read the webpage has an unfortunate and negative impact on his credibility in this case.

l. October 2004 – Arrangement for Donation of Sixty Copies of Pandas

The October 4, 2004 Board meeting agenda indicated that Nilsen had accepted a donation of 60 copies of the text Pandas. (P-78 at 9). There is no evidence that Bonsell, Buckingham or any other individual disclosed the source of the donation until it was finally admitted at trial, despite the fact that Larry Snook, a former Board member, inquired as to the source of the donation at a November 2004 Board meeting. (30:47 (Buckingham); 33:30 (Bonsell)).

The testimony at trial stunningly revealed that Buckingham and Bonsell tried to hide the source of the donations because it showed, at the very least, the extraordinary measures taken to ensure that students received a creationist alternative to Darwin's theory of evoluti on. To illustrate, we note that at January 3, 2005 depositions taken pursuant to an order of this Court so Plaintiffs could decide whether to seek a temporary restraining order, upon repeated questioning by Plaintiffs' counsel on this point, neither Buckingham nor Bonsell provided any information about Buckingham's involvement in the donation or about a collection he took at his church. (30:50-56 (Buckingham); 33:31-35 (Bonsell) (emphasis added)). Buckingham actually made a plea for donations to purchase Pandas at his church, the Harmony Grove Community Church, on a Sunday before services and a total of $850 was collected as a result. (30:38-40 (Buckingham)). As proof of such donation amount, Plaintiffs introduced into evidence a check in the amount of $850 indorsed to Donald Bonsell, Alan Bonsell's father, drawn on Buckingham's account jointly held with his wife, with the notation "Of Pandas and People" appearing on the check. (P-80; 30:46-47 (Buckingham)). Alan Bonsell gave the money to his father who purchased the books. (33:131-32 (Bonsell)). When Spahr received the shipment of books and began to unpack them, she discovered a catalogue from the company that sold the books listing Pandas under "Creation Science." (13:94-5 (Spahr); P-144 at 29).

When we were moved to question Bonsell regarding this sequence of events at trial, he testified that his father served as the conduit for the funds from Buckingham's church because: "He agreed to – he said that he would take it, I guess, off the table or whatever, because of seeing what was going on, and with Mrs. Callahan complaining at the Board meetings not using funds or whatever." (33:129 (Bonsell)).

As we will discuss in more detail below, the inescapable truth is that both Bonsell and Buckingham lied at their January 3, 2005 depositions about their knowledge of the source of the donation for Pandas, which likely contributed to Plaintiffs' election not to seek a temporary restraining order at that time based upon a conflicting and incomplete factual record. This mendacity was a clear and deliberate attempt to hide the source of the donations by the Board President and the Chair of the Curriculum Committee to further ensure that Dover students received a creationist alternative to Darwin's theory of evolution. We are accordingly presented with further compelling evidence that Bonsell and Buckingham sought to conceal the blatantly religious purpose behind the ID Policy.

m. October 7, 2004 – Board Curriculum Committee Drafted Curriculum Change

In September 2004, acting on instructions of the Board, Baksa prepared a change to the biology curriculum which stated: "Students will be made aware of gaps in Darwin's theory and of other theories of evolution" and contained no reference text. (P-73; 35:122 (Baksa)). The Court has been presented with no evidence that the Board asked Baksa to initiate such changes to the biology curriculum to improve science education in the Dover school system, as will be elaborated upon below.

The Board Curriculum Committee met on October 7, 2004 to discuss changing the biology curriculum, without inviting the science teachers. (35:124 (Baksa)). As Casey Brown was absent, the Board members present with Baksa were Buckingham, Bonsell, and Harkins, and the meeting involved a discussion of various positions regarding the proposed curriculum change. (P-81; 35:125 (Baksa); 29:113 (Buckingham)). The Board Curriculum Committee ultimately adopted, within a matter of minutes, Bonsell's alternative, which states: "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." (P-82; 35:125 (Baksa)). The Board Curriculum Committee's proposed change also called for Pandas to be cited as a reference text. (35:125 (Baksa)). The curriculum change proposed by the Board Curriculum Committee and the change proposed by the administration and accepted by the science faculty, were circulated to the full Board by memoranda dated October 13, 2004. (P-84A; P-84B).

n. October 18, 2004 – Curriculum Change Resolution Passed

On October 18, 2004, the Board passed by a 6-3 vote, a resolution that amended the biology curriculum as follows:

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.

In addition, the Board resolution stated that this subject is to be covered in lecture form with Pandas to be a reference book. (7:89-90 (C. Brown); P-88; P-209 at 1646; P-84C). Board members Bonsell, Buckingham, Harkins, Geesey, Cleaver, and Yingling voted for the resolution with Noel Wenrich and Casey and Jeff Brown voting against it. (7:89-90 (C. Brown); P-88).

Compelling evidence was presented at trial that in passing the resolution the Board deviated from its regular practice in important respects. "The normal procedures were not followed at all in making this change." (7:79 (C. Brown)). First, the Board typically addressed curriculum changes an entire year in advance of implementation; however, the change to the biology curriculum was initiated during the 2004-05 school year to be effective that year. (7:78-79 (C. Brown)). Second, standard Board practice dictated two meetings to be held per month, a planning meeting in which items for consideration were listed on its agenda before they were listed for resolution on the agenda at the action meeting held later in the month. The change to the biology curriculum, however, was placed on the Board's agenda for the first time during an action meeting, which several witnesses testified to be irregular. (7:24-25, 77-78 (C. Br own); 26:11 (Nilsen); 4:3-5 (B. Callahan); 29:118 (Buckingham)). Third, Board practice called for the District Curriculum Committee to meet and discuss the proposed curriculum change, which Nilsen suggested in this case; however, not surprisingly, the Board overruled that suggestion. (7:72-73 (C. Brown); 26:8-10 (Nilsen)). Although the administration did send the proposed change to the District Curriculum Committee and received feedback from two members, including an opposition and a request for the District Curriculum to meet, no evidence has been presented that either suggestion was acted upon by the Board. (P-151; D-67; 7:80-82 (C. Brown); 35:7-8 (Baksa)). Finally, the Board brazenly chose not to follow the advice of their only science- education resources as the teachers were not included in the process of drafting the language adopted by the Board Curriculum Committee. (7:82-83 (C. Brown)).

In addition to deviating from standard Board practice in multiple respects, defense witnesses testified that the rush to bring the curriculum change to a vote occurred because the issue had been debated for the previous six months and more importantly, the Board was about to lose two Board members, Wenrich and Cleaver, who had been a part of those discussions. (26:10-12 (Nilsen); 33:113-14 (Bonsell)). The record contains no evidence of any public Board meetings in which the Board discussed ID; however, the evidence does show that the Board discussed creationism within that six month period. In fact, the evidence reveals that Buckingham wanted the Board to vote on the resolution on October 18, 2004 because he thought he had sufficient votes to pass the resolution adopted at the October 7, 2004 Board Curriculum Committee meeting. (29:113-16 (Buckingham)).

Prior to the vote at the October 18, 2004 meeting, science teachers Spahr and Miller, as well as members of the public spoke outwardly against the curriculum change. (13:41-42 (J. Miller); 13:88-93 (Spahr)). Spahr made clear in her statement to the Board that the teachers' agreement to point out "flaws/problems with Darwin's theory," not to teach origins of life, and to have Pandas available as a reference text, were all compromises with the Board Curriculum Committee, after what she described as "a long and tiresome process." (13:91-92 (Spahr)). She additionally stated that the change was being railroaded through without input from the teachers or the District Curriculum Committee, and no member of the administration or Board disagreed. (13:91-93 (Spahr); 35:126 (Baksa)). Finally, Spahr warned the full Board that ID amounted to creationism and could not be taught legally. (24:102 (Nilsen); 35:14-15 (Baksa)).

Baksa provided highly pertinent information concerning the position of the teachers throughout this process. He testified that the teachers did not support Pandas in any way, but that they made compromises to insure the purchase of the biology book entitled Biology. (35:119-20 (Baksa)). Also, he testified that any suggestion the teachers supported any part of the curriculum change must be soundly rejected. (35:20-21 (Baksa)). The unrebuted evidence reveals that the teachers had to make unnecessary sacrifices and compromises advantageous toward Board members, who were steadfastly working to inject religion in the classroom, so that their students would have a biology textbook that should have been approved as a matter of course.

Remarkably, the 6-3 vote at the October 18, 2004 meeting to approve the curriculum change occurred with absolutely no discussion of the concept of ID, no discussion of how presenting it to students would improve science education, and no justification was offered by any Board member for the curriculum change. (26:21 (Nilsen); 35:127-38 (Baksa); 8:36 (C. Brown); 8:76 (J. Brown); 12:139-40 (J. Miller); 13:102 (Spahr); 32:25-26, 40 (Cleaver); 30:23-25 (Buckingham); 31:182-83 (Geesey); 34:124-26 (Harkins); 6:105-06 (Eveland)). Furthermore, Board members somewhat candidly conceded that they lacked sufficient background in science to evaluate ID, and several of them testified with equal frankness that they failed to understand the substance of the curriculum change adopted on October 18, 2004. (31:175, 181-82 (Geesey); 32:49-50 (Cleaver); 34:117-18, 124-25 (Harkins)).

In fact, one unfortunate theme in this case is the striking ignorance concerning the concept of ID amongst Board members. Conspicuously, Board members who voted for the curriculum change testified at trial that they had utterly no grasp of ID. To illustrate, consider that Geesey testified she did not understand the substance of the curriculum change, yet she voted for it. (31:181-82 (Geesey); 29:11-12 (Buckingham); Buckingham Dep. 1:59-61, January 3, 2005; 34:48-49 (Harkins); 33:112-13 (Bonsell); 26:21 (Nilsen)). Moreover, as she indicated on multiple occasions, in voting for the curriculum change, Geesy deferred completely to Bonsell and Buckingham. (31:154-55, 161-62, 168, 184-87, 190 (Geesey)). Second, Buckingham, Chair of the Curriculum Committee at the time, admitted that he had no basis to know whether ID amounted to good science as of the time of his first deposition, which was two and a half months after the ID Policy was approved, yet he voted for the curriculum change. (30:32-33 (Buckingham)). Third, Cleaver voted for the curriculum change despite the teachers' objections, based upon assurances from Bonsell. (32:23-25 (Cleaver)). Cleaver admittedly knew nothing about ID, including the words comprising the phrase, as she consistently referred to ID as "intelligence design" throughout her testimony. In addition, Cleaver was bereft of any understanding of Pandas except that Spahr had said it was not a good science book which should not be used in high school. (32:45-46 (Cleaver)). In addition, Superintendent Nilsen's entire understanding of ID was that "evolution has a design." (26:49-50 (Nilsen)).

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. (29:109 (Buckingham)). 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, and it is clear that the purpose of these contacts was to obtain legal advice, as opposed to science education information. (33:111-12 (Bonsell); 29:130, 137-43, 30:10-14 (Buckingham)). The Board received no materials, other than Pandas, 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. (33:113 (Bonsell); 30:24-27 (Buckingham)). 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 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. (14:74-99 (Alters)).

Although the resolution passed, it was not without opposition. Both the Superintendent and Assistant Superintendent, Nilsen and Baksa, opposed the curriculum change. (35:126 (Baksa)). Baksa testified that he still feels the curriculum change was wrong. (35:127 (Baksa)). Both Casey and Jeff Brown, who voted against the resolution, resigned at the conclusion of the October 18, 2004 Board meeting. The following excerpt from Casey Brown's poignant resignation speech speaks volumes about what had occurred within the Board by that time:

There has been a slow but steady marginalization of some board members. Our opinions are no longer valued or listened to. Our contributions have been minimized or not acknowledged at all. A measure of that is the fact that I myself have been twice asked within the past year if I was 'born again.' No one has, nor should have the right, to ask that of a fellow board member. An individual's religious beliefs should have no impact on his or her ability to serve as a school board director, nor should a person's beliefs be used as a yardstick to measure the value of that service.

However, it has become increasingly evident that it is the direction the board has now chosen to go, holding a certain religious belief is of paramount importance.

7:92-93 (C. Brown).

Additionally, at the following meeting, Board member Wenrich, who opposed the expedited vote on October 18, 2004 and engaged in parliamentary measures to have the vote delayed until the community could properly debate the issue while considering the science teachers' position, resigned and stated the following:

I was referred to as unpatriotic, and my religious beliefs were questioned. I served in the U.S. Army for 11 years and six years on the board. Seventeen years of my life have been devoted to public service, and my religion is personal. It's between me, God, and my pastor.

P-810; 30:126-30 (Bernhard-Bubb); 4:11-12 (B. Callahan).

The evidence clearly reveals that Board members who voted in favor of the curriculum change blindly adopted the recommendations of the architects of the ID Policy, Bonsell and Buckingham, with respect to their decision to incorporate it as part of the high school biology curriculum, while disregarding opposition by the science teachers and administration. (31:154-68 (Geesey)).

o. Development of Statement to be Read to Students

After the curriculum was changed, Baksa was given the task of preparing a statement to be read to students before the evolution unit in biology commenced. The persuasive evidence presented at trial demonstrates that the final version of the statement communicated a very different message about the theory of evolution than the language that Baksa and senior science teacher Jen Miller proposed. (36:27 (Baksa)).

First, Baksa's initial draft of the statement described Darwin's theory of evolution as the "dominant scientific theory;" however, the Board removed such language from the final version. (D-91; 36:22-24 (Baksa)). Second, Baksa's draft stated that "there are gaps in Darwin's theory for which there is yet no evidence;" however, the Board selectively edited out the word "yet" so that the statement is read in a considerably different light to be "there are gaps in Darwin's theory for which there is no evidence." (D-91; 36:26-28 (Baksa)). Third, after Jen Miller reviewed the statement at Baksa's sugge stion, she suggested that language be added that there is a "significant amount of evidence" supporting Darwin's theory. Although Baksa felt this was an accurate statement about the scientific theory of evolution, he removed such language because he understood that the Board would not approve it as written. (D-91; 36:24-26 (Baksa)).

As previously noted, the final version of the statement prepared by Defendants to be read to students in ninth grade biology class states, as follows:

The Pennsylvania Academic Standards require students to learn about Darwin's Theory of Evolution and eventually to take a standardized test of which evolution is a part.

Because Darwin's Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

Intelligent Design is an explanation of the origin of life that differs from Darwin's view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.


Subsequently, on January 6, 2005, the teachers sent a memo to the Board requesting that they be released from any obligation to read the statement. (36:97 (Linker)). The memo provides, in relevant part, as follows:

You have indicated that students may 'opt-out' of this portion [the statement read to students at the beginning of the biology evolution unit] of the class and that they will be excused and monitored by an administrator. We respectfully exercise our right to 'opt-out' of the statement portion of the class. We will relinquish the classroom to an administrator and we will monitor our own students. This request is based upon our considered opinion that reading the statement violates our responsibilities as professional educators as set forth in the Code of Professional Practice and Conduct for Educators[.]


I believe that if I as the classroom teacher read the required statement, my students will inevitably (and understandably) believe that Intelligent Design is a valid scientific theory, perhaps on par with the theory of evolution. That is not true. To refer the students to 'Of Pandas and People' as if it is a scientific resource breaches my ethical obligation to provide them with scientific knowledge that is supported by recognized scientific proof or theory.

P-121 (emphasis in original).

Administrators were thus compelled to read the statement to ninth graders at Dover High School in January 2005 because of the refusal by the teachers to do so. (25:56-57 (Nilsen); 35:38 (Baksa)). The administrators read the statement again in June 2005. By that time, Defendants had modified the statement to refer to other, unnamed books in the library that relate to ID; however Pandas remains the only book identified by name in the statement. Defendants offered no evidence concerning whether the other books can be found in the library, including whether they are placed near Pandas. (P-131; 35:40, 42-43 (Baksa)).

p. Newsletter Published by the Board

As we previously explained in detail, the Board mailed a newsletter to the entire Dover community in February 2005, which was prepared in conjunction with the TMLC. (P-127). Additionally, on April 23, 2005, lead defense expert Professor Behe made a presentation on ID to Dover citizens at the Board's request. (Joint Stip. of Fact ¶ 11).

q. Effect of Board's Actions on Plaintiffs

Plaintiffs provided compelling testimony as to the harm caused by the Board's ID Policy on their children, fam ilies, and themselves in consistent, but personal ways. Plaintiffs believe that ID is an inherently religious concept and that its inclusion in the District's science curriculum interferes with their rights to teach their children about religion. (3:118-19 (Kitzmiller); 4:13-15 (B. Callahan); 6:77- 78 (C. Rehm); 6:106 (Eveland); 16:26, 30 (Stough); 17:147-48 (Leib)). Plaintiffs additionally testified that their children confront challenges to their religious beliefs at school because of the Board' s actions, that the Board's actions have caused conflict within the family unit, and that there is discord in the community. (6:77-78 (Rehm); 6:38-39 (Smith); 17:146-47 (Leib)).

The testimony of Joel Leib, whose family has lived in Dover for generations, is representative of the Plaintiffs' harm caused by the Board's actions in enacting the ID Policy.

Well, it's driven a wedge where there hasn't been a wedge before. People are afraid to talk to people for fear, and that's happened to me. They're afraid to talk to me because I'm on the wrong side of the fence.

17:146-47 (Leib).

Moreover, Board members and teachers opposing the curriculum change and its implementation have been confronted directly. First, Casey Brown testified that following her opposition to the curriculum change on October 18, 2004, Buckingham called her an atheist and Bonsell told her that she would go to hell. (7:94-95; 8:32 (C. Brown)). Second, Angie Yingling was coerced into voting for the curriculum change by Board members accusing her of being an atheist and un-Christian. (15:95-97 (Sneath)). In addition, both Bryan Rehm and Fred Callahan have been confronted in similarly hostile ways, as have teachers in the DASD. (4:93-96 (B. Rehm); 8:115-16 (F. Callahan); 14:34-35 (Spahr)).

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. 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.

2. Effect Inquiry

Although Defendants' actions have failed to pass constitutional muster under the endorsement test and pursuant to the purpose prong of Lemon, thus making further inquiry unnecessary, we will briefly address the final Lemon prong relevant to our inquiry, which is effect, in the interest of completeness. The Supreme Court has instructed the following with regard to the Lemon effect prong:

The core notion animating the requirement that . . . [an official act's] 'principal or primary effect . . . be one that neither advances nor inhibits religion,' is not only that government may not be overtly hostile to religion but also that it may not place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general, compelling nonadherents to support the practices or proselytizing of favored religious organizations and conveying the message that those who do not contribute gladly are less than full members of the community.

Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 9 (1989)(plurality op.)(internal citations omitted).

While the Third Circuit formally treats the endorsement test and the Lemon test as distinct inquiries to be treated in succession, it has continued to recognize the relationship between the two. Moreover, because the Lemon effect test largely covers the same ground as the endorsement test, we will incorporate our extensive factual findings and legal conclusions made under the endorsement analysis by reference here, in accordance with Third Circuit practice. Freethought, 334 F.3d at 269 (The court noted that "effect under the Lemon test is cognate to endorsement," and hence the court did not hesitate simply to "incorporate [its] discussion of endorsement" into the effect analysis.).

To briefly reiterate, we first note that since ID is not science, the conclusion is inescapable that the only real effect of the ID Policy is the advancement of religion. See McLean, 529 F. Supp. at 1272. Second, the disclaimer read to students "has the effect of implicitly bolstering alternative religious theories of origin by suggesting that evolution is a problematic theory even in the field of science." Selman, 390 F. Supp. 2d at 1308-09. Third, reading the disclaimer not only disavows endorsement of educational materials but also "juxtaposes that disavowal with an urging to contemplate alternative religious concepts implies School Board approval of religious principles." Freiler, 185 F.3d at 348.

The effect of Defendants' actions in adopting the curriculum change was to impose a religious view of biological origins into the biology course, in violation of the Establishment Clause.

G. Challenge under Pennsylvania Constitution

In addition to the Establishment Clause challenge, Plaintiffs assert that Defendants' actions in enacting the ID Policy violate their rights under the Pennsylvania Constitution, specifically Art. I, § 3.23 Article I, § 3 of the Pennsylvania Constitution states the following:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.

Pa. Const. Art. I, § 3 (2005).

As we explained in our March 10, 2005 Order, the Pennsylvania Supreme Court has opined in Springfield Sch. Dist. v. Commonwealth of Pa., 397 A.2d 1154, 1170 (Pa. 1979), that the provisions of Art. I, § 3 do not exceed the limitations in the First Amendment's Establishment Clause. See also Wiest v. Mt. Lebanon Sch. Dist., 320 A.2d 362, 366 (Pa. 1974), cert. denied, 419 U.S. 967 (1974). In discussing the provisions of Art. I, § 3, the Pennsylvania Supreme Court explained:

The principles enunciated in this part of our Constitution reflected a concern for the protection of the religious freedoms of Pennsylvanians long before the first amendment to the United States Constitution was made applicable to the states through the fourteenth amendment . . . The protection of rights and freedoms secured by this section of our Constitution, however, does not transcend the protection of the first amendment of the United States Constitution.

Wiest, 320 A.2d at 366.

Consequently, our discussion of the issues raised under the federal constitution applies with equal vigor to the issues raised by Plaintiffs that are grounded in our state constitution. In light of this Court's prior ruling that the ID Policy violates the Establishment Clause of the First Amendment, the Court likewise concludes that the ID Policy is violative of Plaintiffs' rights under the Pennsylvania Constitution.

H. Conclusion

The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board's ID Policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents.

Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs' scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator.

To be sure, Darwin's theory of evolution is imperfect. However, the fact that a scientific theory cannot yet render an explanation on every point should not be used as a pretext to thrust an untestable alternative hypothesis grounded in religion into the science classroom or to misrepresent well-established scientific propositions.

The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy.

With that said, we do not question that many of the leading advocates of ID have bona fide and deeply held beliefs which drive their scholarly endeavors. Nor do we controvert that ID should continue to be studied, debated, and discussed. As stated, our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom.

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this 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. The breathtaking inanity of the Board's decision is evident when consid ered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment to the United States Constitution, and Art. I, § 3 of the Pennsylvania Constitution, we will enter an order permanently enjoining Defendants from maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID. We will also issue a declaratory judgment that Plaintiffs' rights under the Constitutions of the United States and the Commonwealth of Pennsylvania have been violated by Defendants' actions. Defendants' actions in violation of Plaintiffs' civil rights as guaranteed to them by the Constitution of the United States and 42 U.S.C. § 1983 subject Defendants to liability with respect to injunctive and declaratory relief, but also for nominal damages and the reasonable value of Plaintiffs' attorneys' services and costs incurred in vindicating Plaintiffs' constitutional rights.


  1. A declaratory judgment is hereby issued in favor of Plaintiffs pursuant to 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 1983 such that Defendants' ID Policy violates the Establishment Clause of the First Amendment of the Constitution of the United States and Art. I, § 3 of the Constitution of the Commonwealth of Pennsylvania.
  2. Pursuant to Fed.R.Civ.P. 65, Defendants are permanently enjoined from maintaining the ID Policy in any school within the Dover Area School District.
  3. Because Plaintiffs seek nominal damages, Plaintiffs shall file with the Court and serve on Defendants, their claim for damages and a verified statement of any fees and/or costs to which they claim entitlement. Defendants shall have the right to object to any such fees and costs to the extent provided in the applicable statutes and court rules

s/John E. Jones III
John E. Jones III
United States District Judge

Part 1
Dover Home

18As previously noted, both parties concede that the Lemon test is applicable to the case sub judice. [return]

19Plaintiffs are not claiming excessive entanglement. Accordingly, Plaintiffs argue that the ID Policy is violative of the first two prongs of the Lemon test, the purpose and effect prongs. [return]

20We disagree with Defendants' assertions that the Court must first look for the Board's purpose in the plain text of the challenged Policy and may consider other indicia of purpose only if the Policy is ambiguous as to purpose. Similarly, we do not find that individual Board members' statements are irrelevant as a matter of law or that they cannot be considered as part of the legislative history because they are not statements by the full Board in its collective, corporate capacity.

First, as Plaintiffs submit, at the most superficial level, Defendants' "look at the text alone" approach is on its face inapposite because ID is not defined in the Policy. Accordingly, even if this Court was limited to the disclaimer's language, which as stated we find that we are not, statutory interpretation canons would require consideration of the Policy's legislative history and historical context to ascertain what is meant by the term ID. Second, with regard to Defendants' contention that we should exclude i ndividual Board members' statements from the legislative history on the ground that they are not full pronouncements by the Board, the Supreme Court has consistently held not only that legislative history can and must be considered in ascertaining legislative purpose under Lemon, but also that statements by a measure's sponsors and chief proponents are strong indicia of such purpose. McCreary, 125 S. Ct. at 2734 (although courts do not engage in "psychoanalysis of a drafter's heart of hearts," they routinely and properly look to individual legislators' public statements to determine legislative purpose); Edwards, 482 U.S. at 586-88 (reliance upon a statute's text and the detailed public comments of its sponsor when determining the purpose of a state law requiring creationism to be taught alongside evolution). [return]

21Consider, to illustrate, that Casey Brown testified she recalled that Bonsell "expressed a desire to look into bringing prayer and faith back into the schools," that Bonsell mentioned the Bible and creationism, and felt "there should be a fair and balanced presentation within the curriculum." (Trial Tr. vol. 7, C. Brown Test., 17-18, Sept. 29, 2005). [return]

22Moreover, in an email to one of the social studies teachers on October 19, 2004, the day after the Board passed the resolution at issue, Baksa said: "all kidding aside, be careful what you ask for. I've been given a copy of the Myth of Separation by David Barton to review from Board members. Social Studies curriculum is next year. Feel free to borrow my copy to get an idea where the board is coming from." (36:14 (Baksa); P-91). [return]

23Although Plaintiffs' complaint asserts violations of their constitutional rights under Art. I, § 3, as well as Art. III, §§ 15 and 29, Plaintiffs' post-trial submissions only reference Art. I, § 3. We will accordingly consider whether Plaintiffs' rights were violated pursuant to Art. I, § 3 of the Pennsylvania Constitution. [return]

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