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Kitzmiller v. Dover

Permanent Link: http://ufdc.ufl.edu/UFE0042513/00001

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Title: Kitzmiller v. Dover A Public Policy Analysis
Physical Description: 1 online resource (199 p.)
Language: english
Creator: Hayashi, Adam
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2010

Subjects

Subjects / Keywords: dover, intelligent, kitzmiller
Human Development and Organizational Studies in Education -- Dissertations, Academic -- UF
Genre: Higher Education Administration thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

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Abstract: Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy KITZMILLER v. DOVER: A PUBLIC POLICY ANALYSIS By Adam Hayashi December 2010 Chair: R. Craig Wood Major: Higher Education Administration The Intelligent Design Movement has attempted to infuse Intelligent Design into the curriculum of public schools ever since the Edwards decision, which ruled that creation science was a violation of the the Establishment Clause. Kitzmiller v. Dover was the first legal case to challenge the teaching of Intelligent Design in public schools. In Kitzmiller, Judge Jones ruled that Intelligent Design was not science and therefore, the only legitimate purpose of the Dover County School Board was to advance religion. Judge Jones based his decision on a belt-and suspenders approach using both the Lemon Test and the Endorsement Test in his decision. The purpose of this study was to chronicle the history of Establishment Clause ligitation leading up to Kitzmiller. It was also to examine the literature surrounding Intelligent Design and the Intelligent Design movement. Finally, this study examines the landmark case of Kitzmiller v. Dover to show the process of how Judge Jones arrived at his decision. This study also tried to offer recommendations whereby Intelligent Design might be taught in a public school setting as well as follow-ups for future research.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Adam Hayashi.
Thesis: Thesis (Ph.D.)--University of Florida, 2010.
Local: Adviser: Wood, R. Craig.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2010
System ID: UFE0042513:00001

Permanent Link: http://ufdc.ufl.edu/UFE0042513/00001

Material Information

Title: Kitzmiller v. Dover A Public Policy Analysis
Physical Description: 1 online resource (199 p.)
Language: english
Creator: Hayashi, Adam
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2010

Subjects

Subjects / Keywords: dover, intelligent, kitzmiller
Human Development and Organizational Studies in Education -- Dissertations, Academic -- UF
Genre: Higher Education Administration thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy KITZMILLER v. DOVER: A PUBLIC POLICY ANALYSIS By Adam Hayashi December 2010 Chair: R. Craig Wood Major: Higher Education Administration The Intelligent Design Movement has attempted to infuse Intelligent Design into the curriculum of public schools ever since the Edwards decision, which ruled that creation science was a violation of the the Establishment Clause. Kitzmiller v. Dover was the first legal case to challenge the teaching of Intelligent Design in public schools. In Kitzmiller, Judge Jones ruled that Intelligent Design was not science and therefore, the only legitimate purpose of the Dover County School Board was to advance religion. Judge Jones based his decision on a belt-and suspenders approach using both the Lemon Test and the Endorsement Test in his decision. The purpose of this study was to chronicle the history of Establishment Clause ligitation leading up to Kitzmiller. It was also to examine the literature surrounding Intelligent Design and the Intelligent Design movement. Finally, this study examines the landmark case of Kitzmiller v. Dover to show the process of how Judge Jones arrived at his decision. This study also tried to offer recommendations whereby Intelligent Design might be taught in a public school setting as well as follow-ups for future research.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Adam Hayashi.
Thesis: Thesis (Ph.D.)--University of Florida, 2010.
Local: Adviser: Wood, R. Craig.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2010
System ID: UFE0042513:00001


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1 KITZMILLER v. DOVER : A PUBLIC POLICY ANALYSIS By ADAM HAYASHI A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2010

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2 2010 Adam Hayashi

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3 To my wife, Alicia, and my boys George and Sammy

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4 ACKNOWLEDGMENTS I would like to thank everyone who encouraged me to complete this dissertation and not give up. I would like also like to thank my advisor, Dr. R. Craig Wood for his support and guidance. I would also like to thank my committee members Dr. David S. Honey man, Dr. Dale Campbell, and Dr. David Miller for their suggestions and comments. I especially would like to thank Dr. Campbell for going above and beyond and coming through for me in the clutch and Dr. Wood, who despite being very ill, took the time to re ad through the chapters of my dissertation and provide me with feedback. I would particularly like to thank my family for giving me the time to complete this dissertation. My wife, Alicia, has been tremendously supportive through this whole experience. My children have had to sacrifice time spent with me, while I was working on my dissertation. I am truly fortunate to have such a wonderful family.

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5 TABLE OF CONTENTS page ACKNOWLEDGMENTS ................................ ................................ ................................ .. 4 ABSTRACT ................................ ................................ ................................ ..................... 7 CHAPTER 1 INTRODUCTION ................................ ................................ ................................ ...... 8 Separation of Church and State ................................ ................................ ................ 8 In telligent Design Defined ................................ ................................ ....................... 12 Kitzmiller v. Dover ................................ ................................ ................................ ... 16 Research Que stion ................................ ................................ ................................ 17 Statement of the Problem ................................ ................................ ....................... 18 Significance of the Study ................................ ................................ ........................ 19 Method of the Study ................................ ................................ ................................ 20 Data Analysis ................................ ................................ ................................ .......... 20 The Limitations ................................ ................................ ................................ ....... 20 The Delimitations ................................ ................................ ................................ .... 21 Organization of the Study ................................ ................................ ....................... 21 2 ESTABLISHMENT CLAUE JURISPRUDENCE ................................ ...................... 23 Everson v. Board of Education ................................ ................................ ............... 27 Epperson v. Arkansas ................................ ................................ ............................. 28 Walz v. Tax Commission ................................ ................................ ........................ 32 Lemon v. Kurtzman ................................ ................................ ................................ 37 Criticism of the Lemon Test ................................ ................................ .............. 42 Edwards v. Aguillard ................................ ................................ ............................... 47 Zelman v. Si mmons Harris ................................ ................................ ..................... 55 Lower Court Cases Involving the Establishment Clause. ................................ ........ 58 Conclusion ................................ ................................ ................................ .............. 65 3 FUGITIVE LITERATURE ................................ ................................ ........................ 67 ................................ ................................ .................... 70 Darwin on Trial ................................ ................................ ................................ ........ 72 Significance of Darwin on Trial ................................ ................................ ......... 75 ........ 76 Complex Specified Information ................................ ................................ ......... 77 ................................ ................................ ........... 78 Significance of Stephen C. Meyer s Publication ................................ ............... 81 ................................ ................................ .................. 82 Crit ................................ .......................... 85 No Free Lunch ................................ ................................ ................................ ........ 89

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6 Irreducible Complexity ................................ ................................ ............................ 92 Other Peer reviewed Articles ................................ ................................ ................ 107 Us ing Protistan Examples to Dispel the Myths of Intelligent Design ............... 107 Intelligent Design: Fallacy Recapitulates Ontogeny ................................ ....... 112 Evolution Is Intelligent Design ................................ ................................ ........ 114 Evolution: Reducible Complexity The Case for Bacterial Flagella ............... 115 Belief Versus Acceptance: Why Do People Not Believe in Evolution ? ........... 117 Some Considerations about the Theory of Intelligent Design ......................... 119 Conclusion ................................ ................................ ................................ ............ 121 4 KITZMILLER V DOVER DECISION ................................ ................................ ...... 123 In troduction ................................ ................................ ................................ ........... 123 The Lemon Test As It Applies to the Dover School Board's Disclaimer. ............... 125 Baksa Meets With Faculty ................................ ................................ .............. 128 The Search for a Textbook Teaching an Alternative to Evolution ................... 129 Discussion Over Textbook Goes Public ................................ ......................... 130 Curriculum Committee Meets Science Teachers to Discuss Biology Textbook ................................ ................................ ................................ ..... 133 Buckingham Contacts the Thomas More Law Center ................................ .... 134 Buckingham Pushes for Pandas to be Adopted as a Supplement to Biology 135 ................................ ................... 137 Teachers Use Pandas as a Reference ................................ ........................... 137 Sixty Copies of Pandas are Donated ................................ .............................. 138 ....................... 139 Disclaimer to be Rea d to Students ................................ ................................ 143 ................................ ................................ ............................... 145 The Defend ................................ ................................ ................... 147 Is Intelligent Design Science? ................................ ................................ ............... 148 ................................ ................................ ........................... 160 Significance of the Case ................................ ................................ ....................... 163 5 SUMMARY, CONCLUSIONS, IMPLICATIONS, AND RECOMMENDATIONS .... 165 Summary ................................ ................................ ................................ .............. 169 Conclusions ................................ ................................ ................................ .......... 169 Implications ................................ ................................ ................................ ........... 172 Recommendations ................................ ................................ ................................ 174 Recommendations for Further Research ................................ .............................. 179 LIST OF REFERENCES ................................ ................................ ............................. 181 BIOGRAPHICAL SKETCH ................................ ................................ .......................... 199

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7 Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy KITZMILLER v. DOVER : A PUBLIC POLICY ANALYSIS By Adam Hayashi December 2010 Chair: R. Craig Wood Major: Higher Education Administration The Intelligent Design Movement has attempted to infuse Intelligent Design into the curricul u m of public schools ever since the Edwards decision, which ruled that Establishment Clause Kitzmiller v. Dover was the first legal case to challenge the teaching of Intelligent Design in public schools. In K itzmiller Judge Jones ruled that Intelligent Design was not science and therefore, the only legitimate purpose of the Dover County School Board was to advance religion. and Le mon Test and the Endorsement Test in his decision. The purpose of this study was to chronicle the history of Establishment Clause ligitation leading up to Kitzmiller It was also to examine the literature surrounding Intelligent Design and the Intelligent Design movement. Finally, this study examines the landmark case of Kitzmiller v. Dover to show the process of how Judge Jones a rrived at his decision. This study also tried to offer recommendations whereby Intelligent Design might be ta ught in a public school setting as well as follow ups for future research.

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8 CHAPTER 1 INTRODUCTION Separation of Church and State Thomas Jefferson letter written to the Danbury Baptists in 1802. Concerning the First Amendment of the Constitution, Jefferson wrote: Believing with you that religion is a matter which lies solely between M an and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church and State. 1 Jefferson was influenced by the writings of John Locke, who wrote The R easonableness of Christianity 2 and Letters on Religious Toleration 3 In fact, 4 Letter Concerning Toleration 5 of the first amendment. 6 1 Letter from Thomas Jefferson to Messrs. Nehemiah Dodge and Others, a Committee of the Danbury Baptist Association in the State of Connecticut (Jan, 1, 1802), in Thomas Jefferson: Writings 510 (Library of Am. Ed. 1984). 2 John Locke, The Reasonableness of Christianity (I. Ramsey ed. 1958) (1695). 3 John Locke, The Works of John Locke 9 (Thomas Tegg ed., London 1963) (1823)[hereinafter Works of Locke]. 4 Thomas Jefferson, A Bill for Establishing Religious Freedom (June 12, 1779), reprinted in 5 The 5 Works of Locke, supra note 3. 6 Martin E. Marty, The Virginia Statue Two Hundred Years Later in Virginia Statute for Religious Freedom, 1, 10 11 (Merrill D. Pete rson & Robert C. Vaughan eds., 1988).

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9 Locke was an advocate for religious freedom. He felt religious intolerance was incongruent with good government. 7 According to Locke, religious turmoil resulted when both religious and governmental leaders meddled in each other esteem it above all things necessary to distinguish exactly the business of civil government from that of religion, and to settle the just bounds that lie between the one 8 Therefore, Locke concluded the proper division between government interests, is confined to the care of the things of this world, and hath nothing to do with the world 9 10 Therefore, Locke not only believed in limitations for government, but also for religion. Locke also believed the government had no authority over the realm of individual conscience. The right to liberty of conscience was understood as a right to not being coerced to perform religious actions that violated one's beliefs abo ut the proper way to worship or against being prohibited from performing religious action s that one believed were appropriate for religious worship. 11 Conscience was a natural right, which could not be conceded to the government or for others to control. 12 It is impossible to grant 7 Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion 7 Harv. L. Rev. 103, 1431 1432 (1990). 8 Works of Locke, supra note 3, at 9. 9 Works of Locke, supra note 3, at 12 13. 10 Works of Locke, supra note 3, at 19. 11 Noah Feldman, The Intellectual Origins of the Establishment Clause 77, N.Y.U.L. Rev. 413 (2002). 12 State Problem and What We Should Do About It 29 (Farrar, Straus and Giroux 2005) ("It took John Locke to translate the demand for liberty of conscience into a systematic argument for distinguishing the realm of government from the realm of religion.") [hereinafter Divided by God ]

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10 13 Even if one were to allow another the power les to our 14 pay taxes to support religious institution s that held beliefs with which the citizens disagreed; their conscience would be violated. 15 Instead, conscience h ad to be the social contract were very influential in the drafting of the Establishment Clause and the Free Exercise Clause. 16 Jefferson differed from Locke in that he als o believed in religious toleration for atheists and Catholics. 17 Unlike Locke, Jefferson also did not believe in the government furnish contributions of money for the prop agation of opinions which he disbelieves and 13 John Plamenatz et al., Man and Society: P olitical and Social Theories from Machiavelli to Marx 130 33 & 133 (Longman Publishing Group 1992) (discussing Spinoza's advocacy of man's freedom to reason and liberty of conscience). 14 Religions Peace: Or a Plea for Liberty of Conscience (1646), reprint ed in Tracts on Liberty of Conscience and Persecution, at 17 18 (Edward Bean Underhill ed., London, Hadley Press 1846)("[N]o king nor bishop can, or is able to command faith .... You may force men to church against their consciences, but they will believe as they did afore, when they come there .... (footnote omitted)). 15 Robert A. Holland A Theory of Establishment Clause Adjudication: Individualism, Social Contract, and the Significance of Coercion in Identifying Threats to Religious Liberty 80 Cal. L. Rev. 1595, 1672 84 (1992) (arguing for religious liberty test to be applied by asking whether coercion has occurred and concluding that aid to religious schools is noncoercive). 16 Divided by God, supra note 12, at 29 17 Thomas Jefferson, Notes on Locke and Shaftesbury (1776) reprinted in I The Papers of Thomas Jefferson at 550 n.2. (J ulian P. Boyd ed. Princeton Univ. Press 1950).

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11 18 Finally, Jefferson differed in that he was against the 19 James Madison possessed a much different view of religion than Jefferson. 20 The exempt from the authority of the Society at large, still less can it be subject to that of the 21 In other words, Madison believed freedom of religion could include exemption from applicable laws under certain circumstances. 22 guarded as is the separation between Religion and Government in the C onstitution of Government is essential to the purity of both, and as guaranteed by the Constitution of o practice religion. Unlike Madison; however, Jefferson believed liberty of conscience meant mostly freedom from sectarian religion, rather than freedom to practice religion in whatever 18 Jefferson, supra note 4, at 77. 19 Letter from Thomas Jefferson to the Rev. Samuel Miller (Jan. 23, 1808), in II Works of Jefferson, at 7 (Paul L. Ford ed. 1905)(explaining his refusal to issue a presidential proclamation of a day of fasting and prayer). 20 Ralph L. Ketcham, James Madison and Religion: A New Hypothesis in James Madison on Religious Liberty 175 (R obert S. Alley ed., Prometheus Books 1985). 21 James Madison, Memorial and Remonstrance in 2 The Writings of James Madison at 183, 184 (Gaillard Hunt ed. 1901). 22 McConnell, supra note 7, at 7.

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12 form one chooses. 23 It is interesting to note, that modern courts hav e come to rely on the rationalist premises of Locke that Jefferson espoused, to argue for a no exemption version of religious liberty may more accurately depict the understandi ng of the free exercise provision at the time of the drafting of the Bill of Rights. 24 Intelligent Design Defined The modern day idea of intelligent design was introduced by a group of American creationists in an attempt to avoid previous court rulings that prohibited the teaching of creationism as science. 25 The origin of intelligent design can be traced back to the pivotal 1987 United States Supreme Court case of Edwards v. Aguillard 26 which dealt with the separation of church and state. 27 While the teachi alongside evolution was ultimately found to be a violation of the Establishment Clause, origins of humankind to school children might be validly done with the clear secular 28 23 McConnell, supra note 7, at 7. 24 McConnell, supra note 7, at 7. 25 Barbara Forrest, Ctr. for Inquiry, Office of Public Policy, Understanding the Intelligent Design Creationist Movement: Its True Nature and Goals (2007), http: //www.centerforinquiry.net/uploads/attachments/intelligent design.pdf 26 Edwards 482 U.S. at 580 81 27 Kitzmiller 400 F. Supp. 2d at 707, 712 28 Edwards 482 U.S. at 580 81

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13 In 1989 following the ruling in Edwards 29 the creation science textbook, Of Pandas and People 30 In fact, in some drafts the revisions were made so hastily, that instead of replacing the word 31 This textbook was originally intended for high school biology classes. 32 Of Pandas and People would be at the center of focus again in the case of Kitzmiller v. Dover Area School Di strict. In 1991, inspired by the Edwards retired legal scholar, Phillip E. Johnson, published Darwin on Trial which attempted to replace the methodological naturalism of wedge 33 Michael Behe, Stephen C. Meyer, and William Dembski joined Johnson in his attempt. By 1995, Meyer gained funding from the Discovery Institute, a political think tank, to create the Center for Renewal of Science and Culture for the promo tion of the intelligent design movement. 34 29 Edwards 482 U.S. at 580 81 30 Kitzmiller 400 F. Supp. 2d at 707, 712 31 Judgement Day: Intelligent Design on Trial (PBS television broadcast Nov., 2007) 32 Eugenie C. Scott & Gordon E. Uno, National Center for Science Education, NCSE Resource: Introduction to NCSE Bookwatch Reviews for Of Pandas and People (1989), http://ncseweb.org/creationism/analysis/bookwatch reviews pandas people 33 Phillip E. Johnson, The Wedge: Breaking the Modernist Monopoly on Science 12 Touchstone: A Journal of Mere Christianity 18 (1999), http://www.touchstonemag.com/archives/article.php?id=12 04 018 f 34 Nick Matzke, National Center for Science Education, Introduction: Of Pandas and Peo ple, the http://ncseweb.org/creationism/analysis/critique pandas people

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14 features of the universe and of living things are best explained by an intelligent cause, not an undirected process such as natural 35 It is not unlike the traditional teleological argument except that intelligent design fails to specify the identity of the designer. 36 Although proponents of intelligent design avoid naming the agent of creation, leaders within the movemen t have identified the designer as a Christian God. 37 Other assertions made by the intelligent design movement include the idea of irreducible complexity. In 1996, a biochemist from Lehigh University, Michael Behe coined the in his book According to Behe, matched interacting parts that contribute to the basic function, wherein the removal of any one of the parts causes the system 38 Behe, the mousetrap is made up of several interacting parts: the base, the catch, spring, and hammer; if any of these parts is missing th e mousetrap will not function properly. 39 Proponents of intelligent design argue that natural selection could not create 35 Discovery Institute, Top Questions, http://www.discovery.org/csc/topQuestions.php#questionsAboutIntelligentDesign 36 Ronald Numbers (2006). The Creationists Expanded Edition. Harvard University Pr ess. pp. 373, 379 380. 37 William Dembski, Touchstone Magazine, Signs of Intelligence: A Primer on the Di scernment of Intelligent Design (1999), http://touchstonemag.com/archives/issue.php?id =49 38 Michael Behe, Molecular Machines: Experimental Support for the Design Inference (1997), http://www.apologetics.org/MolecularMachines/tabid/99/Default.aspx 39 (1996).

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15 an irreducibly complex system, because natural selection only occurs when all parts are assembled. 40 Furthermore, design theorists argu e evolutionary natural selection only acts on characteristics which are functionally beneficial to the survival of an organism. 41 Therefore, the smaller nonfunctional parts of a complex structure would not be selected for and pass on through successive gene rations. 42 It is therefore, assumed that there must be a guiding force behind this non random act leading to the development of a complex structure. 43 blood clotting cascade, cilia, and the immune system are all believed to develop through irreducible complexity. 44 explain how messages were transmitted by DNA within the cell. According to Thaxton, these signals were specified by intelligence originating with an intelligent agent. 45 William Dembski built on this concept must be the product of an intelli gent cause and not the result of natural causes. without being complex. A long sentence of random letters is complex without being 40 Michael J. Behe, Evidence for Intelligent Design from Biochemistry, a speech given at the Discovery transcript available at http://www.arn.org/docs/behe/mb_idfrombiochemistry.htm ). 41 Kitzmiller 400 F. Supp. 2d at 738 739. 42 Kitzmiller 400 F. Supp. 2d at 738 739. 43 Kitzmiller 400 F. Supp. 2d at 741. 44 Kenneth Miller, The Flagellum Unspun: in Debating Design: From Darwin to DNA Black Box: The Biochemical Challenge to Evolution (William Dembski and Michael Ruse eds., Cambridge 2004). 45 Stephen C. Meyer, We Are Not Alone Eternity, Mar. 1, 1986.

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16 specified. A Shakespearean sonnet is b 46 Dembski classifies anything with less than a 1 in 1 x 10 *150 chance of occurring by chance as specified information cannot occur naturally, h is argument is a tautology. 47 Kitzmiller v. Dover The only case to specifically explore the constitutionality of intelligent design, thus far, is the Kitzmiller v. Dover 48 In his decision, Judge John Jones wrote: 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 mai ntaining 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. 49 The d ecision in Kitzmiller based on the purpose and effects prong analysis from the Lemon Test caused irreparable damage to ID's ability to enter America's classrooms. 50 To reach this conclusion, the court carefully recounted the historical foundations of the ID movement (e.g., creatio nism and creation science) and 46 William A. Dembski, Intelligent Design: The Bridge Between Science & Theology 47 (InterVarsity Press 2002). 47 Branden Fitelson, Christopher Stephens, & Elliot Sober, How Not to Detect Design: A review of William Eliminating Chance Through Small Probabilities (Cambridge University Press 1998) 48 Kitzmiller 400 F. Supp. 2d at 707, 712 49 Kitzmiller 400 F. Supp. 2d at 709. Judge Jones so ruled after a six week trial in which the Court made all findings of fact and conclusions of law after reviewing evidence presented at trial. Id. at 711.). 50 Philip Sparr Special "Effects": Kitzmiller v. Dover Area School District, 400 F Supp. 2d 707 (M.D. Pa. 2005), and the Fate of Intelligent Design in Our Public Schools 86 Neb L. Rev. 708 (2008 ).

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17 determined ID to be a non scientific, religious argument. 51 Through the thorough analysis of one of the most prominent and respected ID supporters, Michael Behe, the court's opinion struck at the hea rt of the ID movement and produced a roadmap for future courts to follow. 52 Even if ID proponents choose a less conspicuous school board policy or neglect to directly mention ID by name; given the ubiquitous nature of ID and the precedence established by t he Kitzmiller decision subsequent courts would be remiss to refuse the roadmap Kitzmiller has created 53 While Kitzmiller is not a Supreme Court or even United States Court of Appeals decision, the court's opinion will serve as persuasive authority in future debates regarding the constitutionality of teaching ID or directing students to ID and its criticism of evolution. 54 Research Question This purpose of this study was to examine intelligent design as to ascertain whether intelligent design, as it is currently operationalized, is a violation of the Establishment Clause. 55 Subsequently, is there a way in which intelligent design could be presented, whereby the courts would not see intelligent design as a violation of the Establishment Clause? 56 In order to answer these questions, cases involving evolution and creation scie nce were examined to gain a better understanding legal precedents 51 Kitzmiller 400 F. Supp. 2d at 765. ("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.") 52 Sparr, supra note 50, at 720 721. 53 Id. at 733. 54 Id. at 732. 55 U.S. CONST. amend. I. 56 U.S. CONST. amend. I.

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18 involving leading up to Kitzmiller v. Dover 57 Secondly, this research examined the various s tate statues and constitutionality of the statues in regard to the Establishment Clause standards Similarly, other landmark cases involving the Establishment Clause and other relevant cases including Kitzmiller v. Dover 58 were reviewed to better understand on what grounds intelligent design was determined to be unconstitutional. Finally, this study examined the theses of intelligent design, so as to determine whether intelligent design could be presented in such a way so as to not be in violation of the Establishment Clause. 59 Statement of the Problem The introduction of intelligent design into school curricula has reignited a national debate over whether alternatives to evolution should be taught in public schools. 60 The major challenge to intelligent design occurred in Kitzmiller v. Dover Area School District 61 At the federal district court level, i ntelligent design was found to violate the Establishment Clause Nonetheless, intelligent design has garnered support from such notable people as the President of the United States and even the Vatican. 62 In 2005, the Kansas State Board of Education voted by a 6 to 4 margin to adopt new standards which would allow for the teaching of intelligent design in public schools. 63 A year later, 57 Kitzmiller 400 F. Supp. 2d at 707, 712. 58 Kitzmiller 400 F. Supp. 2d at 707, 712. 59 U.S. CONST. amend. I. 60 Teaching Intelligent Design in Public Schools, 75 Fordham L. Rev. 1019 (2006). 61 K itzmiller 400 F. Supp. 2d at 707. 62 Bauer, supra note 60, at 1020. 63 and the 2005 Kansas Science Education Standards, 7 Minn. J. L. Sci. & Tech. 657, 689 98 (2006).

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19 a n entirely new school board promising to restore former standards was voted into the State Board of Education in Kansas. 64 There has been several legislative bills introduced which would allow the teaching of alternatives to evolution including intelligent design. Undoubtedly, these will bring similar challenges as to the c onstitutionality in the court system. The U.S. Supreme Court has yet to address the issue of intelligent design. The intelligent design movement, supported by various religious groups including the Discovery Institute, will continue to pressure state le gislatures to adopt legislation directed at introducing intelligent design into the state curriculum as long as this continues the debate over intelligent design will continue. Significance of the Study State statues designed to introduce alternatives to the teaching of evolution have meet with various legal challenges. The legal challenges center on the constitutionality of the alternatives introduced and the intent of the legislation. Kitzmiller 65 provides the only legal decision as to the constitution ality of the introduction of intelligent design into school curricula. This analysis provid es educational leaders with information needed to effectively make informed decisions based on legal precedent and avoid potential litigation regarding the teaching of alternatives to evolution such as intelligent design. 64 Monica Davey & Ralph Blumenthal, Fight over Evolution Shifts in Kansas School Board Vote, N.Y. Times, Aug. 3, 2006, at A15. 65 Kitzmiller 400 F. Supp. 2d at 707, 712

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20 Method of the Study Traditional legal research methods were employed to examine and analyze the various legal cases involving evolution and the teaching of alternatives to evolution in public school can be described as a form of historical legal research that is neither qualitative nor 66 Data Analysis In order to determine the merit for this research, a search o f all the legal issues involving intelligent design was made. After identifying the appropriate federal and state cases, inductive reasoning was used in analyzing case law. Comparative analysis was to analyze the similarities and differences in regard to the Establishment Clause Similar treatment was given to the individual state statues. First the relevant state statues pertaining to evolution or alternatives to evolution were identified. Then the statues were analyzed in regard to the Establishment Clause The Limitations The compass of this study centered on the constitutionality of intelligent design as it pertains to the Establishment Clause of the First Amendment. Only those cases in the state and federal courts found to be relevant to the det ermination of the constitutionality of intelligent design were analyzed. Furthermore, this study limited its scope to the legislation enacted, litigation resulting from such legislation, and the impact past litigation might have on educational 66 Research That Makes a Difference: Complimentary Methods For Examining Legal Issues in Education. Topeka, KS: National Organization on Legal Problems of Education, 1996, 33.

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21 leaders. Wh ere possible solutions have been put forth for the possible inclusion of intelligent design school curricula, this does not constitute an endorsement for intelligent design nor does this suggest that intelligent design be taught in public schools. These s uggestions are simply ways in which educational leaders may be able to satisfy supporters of the intelligent design movement without violating the constitution. The Delimitations The delimitation of the study was that in researching the viability of intell igent design as an alternative to teaching evolution in the public schools, no attempt was made to look at other competing theories to evolution. Additionally, no attempt was made to examine the thesis of evolution because it is currently accepted in the scientific schools. Organization of the Study Chapter 1 introduced intelligent design and presented an overview of the history surrounding the teaching of alternatives to evol ution in public schools. Also presented in the first chapter were the organization and research methods used in this legal study. Chapter 2 jurisprudence. Chapter 3 looked at the literature on intelligent design. Chapter 4 discussed Kitzmiller 67 5 the concluding chapter, summarized the legislation surrounding the Establishment Clause. The final chapter offered possible ways in which intelligent design would not 67 Kitzmiller 400 F. Supp. 2d at 707, 712

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22 violate the Establishment Clause and could be taught in schools. Finally, recommendat ions for further research were made.

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23 CHAPTER 2 ESTABLISHMENT CLAUSE JURISPRUDENCE The First Amendment to the United States Constitution states that make no law respecting an establishment of religion, or prohibiting the free exercise thereof. 1 Since those words were first written over two hundred years ago, "[t]he responsibility of interpreting the First Amendment and applying it to complicated real situations has belonged ultimately to the United States Supreme Court." 2 However, the Court has not always applied the First Amendment in a consistent manner. 3 T he Supreme Court has often relied upon the intent of the Framers in interp reting the Constitution and its amendments. 4 Interpreting the Framers' intent is a difficult task. "Had the Founding Fathers possessed the foresight to predict the multitudes of interpretations we have tried to read back into their minds, they might have given us 1 U.S. Const. amend. I, 1. 2 Lynda B. Fenwick, Should the Children Pray?: A Historical, Judicial, and Political Examination of Public School Prayer 1 (Baylor University Press 1989). 3 Kristin J. Graham, The Supreme Court Comes Full Circle: Coercion as the T ouchstone of an Establishment Clause Violation 42 Buff. L. Rev. 147, 148 (1994). 4 See Davis v. Bandemer, 478 U.S. 109 (1986); Wallace v. Jaffree, 472 U.S. 38 (1985); Lynch v. Donnelly, 465 U.S. 668 (1984); South Carolina v. Regan, 465 U.S. 367 (1984); IN S v. Chadha, 462 U.S. 919 (1983); Minneapolis Star and Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); United States v. Richardson, 418 U.S. 166 (1974); Colgrove v. Battin, 413 U.S. 1 49 (1973); Gravel v. United States, 408 U.S. 606 (1972); United States v. Brewster, 408 U.S. 501 (1972); Furman v. Georgia, 408 U.S. 238 (1972); Oregon v. Mitchell, 400 U.S. 112 (1970); Williams v. Florida, 399 U.S. 78 (1970); Powell v. McCormack, 395 U.S. 486 (1969); Bell v. Maryland, 378 U.S. 226 (1964); School Dist. of Abington v. Schempp, 374 U.S. 203 (1963); Adamson v. California, 332 U.S. 46 (1947); Cramer v. United States, 325 U.S. 1 (1945); Carter v. Carter Coal Co., 298 U.S. 238 (1936); Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934); Patton v. United States, 281 U.S. 276 (1930); Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601 (1895); Legal Tender Cases, 79 U.S. (12 Wall.) 457 (1870); Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856) ; Thurlow v. Massachusetts, 46 U.S. (5 How.) 504 (1847); Waring v. Clarke, 46 U.S. (5 How.) 441 (1847); Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657 (1838); Briscoe v. Kentucky, 36 U.S. (11 Pet. 257 ) (1837); Osborn v. Bank of the United States, 22 U.S. (19 Wheat.) 738 (1824); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819); Martin v. Hunte r's Lessee, 14 U.S. (1 Wheat.) 304 (1816).

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24 carefully crafted dissertations covering everything from the nascent public schoo l movement to public Christmas displays." 5 In developing its early Establishment Clause jurisprudence t he Supreme Court examined the wr itings of Madison and Jefferson 6 The drafters of the First Amendment's Religion Clauses, 7 sought to guarantee religious freedom while maintaining a separation between church and state. 8 This separation, however, becomes problematic in the cont ext of public schools, where edu cation, state action, and individual rights combine. 9 While the metaphor of a "wall of separation" has often been used in establishment cases, the Court has recognized that "the vigilant protection of constitutional freedoms is nowhere more vital than in t he community of American schools." 10 On more than one occasion, the Supreme Court has expressed that public schools must be kept "scrupulously free" from entanglement between church and state, since they are 5 Donald L. Drakeman, Church State Constitutional Issues: Making Sense of the Establishment Clause 72 (1991). 6 Graham, supra note 3, at 154. 7 U.S. Const. amend. I, 1. 8 Everson v. Board of Education, 330 U.S. 1 government and religion exercising political supremacy became so commonplace as to shock the freedom loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment. [James Madison argued that] a true religion did not need the support of law; that the best interest of a society required that the minds of men always be wholly free; and that cruel persecutions were the inevitable result of government 9 Betsy Levin, Educating Youth for Citizenship: The Conflict Between Authority and Individual Rights in the Public School, 95 Yale L. J. 1647, 1655 67 (1986). 10 Shelton v. Tucker, 364 U.S. 479, 487 (1960).

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25 designed to serve as a powerful agency for promo ting cohesion among all citizens. 11 Accordingly, the Supreme Court has prohibited public school students from receiving religious instruction on public school premises; 12 the posting of the Ten Commandments on the wall of a public school classroom; 13 state s ponsored education for religious school students in religious schools; 14 and the state sponsored prayer in public schools. 15 Indeed, t he establishment clause has been well litigated since Lemon v. Kurtzman in 1971. 16 In twenty seven cases since Lemon the Ju stices have written nearly one hundred opinions dealing primarily with establishment of religion claims 17 T hree of the twenty seven cases had a unanimous judgment, 18 and more than one opinion was filed in two of those three cases. 19 Board of Trustees of Sc arsdale v. McCreary 20 was a summary decis ion without a written opinion. In five cases including Lemon a plurality 11 McLean v. Ark. Bd. of Educ., 529 F. Supp. 1255, 1258 (E.D. Ark. 1982). 12 McCollum v. Bd. of Educ., 333 U.S. 203, 211 12 (1948). 13 Stone v. Graham, 449 U.S. 39, 42 43 (1980). 14 Sch. Dist. v. Ball, 473 U.S. 373, 397 98 (1985). 15 Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 320 (2000); Abington Sch. Dist. v. Schempp, 374 U.S. 203, 224 26 (1963). 16 Lemon v. Kurtzman, 403 U.S. 602 (1971). 17 Julie K. Underwood, Changing Establishment Analysis Within and Outside the Context of Education 33 How. L.J. 53, 54 (1990). 18 Corporation of Presiding Bishop of t he Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327, 107 S. Ct. 2862 (1987); Witters v. Washington Dep't of Services for the Blind, 474 U.S. 481 (1986); and Board of Trustees of Scarsdale v. McCreary, 471 U.S. 83 (1985). 19 Corporation of Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327, 107 S. Ct. 2862 (1987); Witter v. Washington Dep't of Services for the Blind, 474 U.S. 481 (1986). 20 Board of Trustees of Scarsdale v. McCreary, 471 U.S. 83 (1985).

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26 rather than a majority o pinion was filed 21 Hence, the opinions are confusing and the legal theory unclear 22 Over half of the twenty seven cases concern establishment challenges involving primary and secondary education, including challenges to school aid programs benefiting private religious institutions, and to religious inf luences in the public schools. 23 Five of the cases deal with highe r education establishment challenges, including aid programs to private religious institutions and religious influences in public higher education. 24 The other cases are establishment challenges out side the context of education. 25 21 Wolman v. Walter, 433 U.S. 229 (1977); Roemer v. Board of Public Works, 426 U.S. 736 (1976); Meek v. Pittenger, 421 U.S. 349 (1975); Lemon v. Kurtzman, 403 U.S. 602 (1971); Tilton v. Richardson, 403 U.S. 672 (1971). 22 Michael W. McConnell, You Can't Tel l the Players in Church State Disputes Without a Scorecard, 10 HARV. J.L. & PUB. POL'Y 27 (1987). 23 Edwards v. Aguillard, 482 U.S. 578 (1987); Aguilar v. Felton, 473 U.S. 373(1985); School District of Grand Rapids v. Ball, 473 U.S. 373 (1985); Wallace v. J affree, 472 U.S. 38 (1985); Mueller v. Allen, 463 U.S. 388 (1983); Committee for Public Education v. Regan, 444 U.S. 644 (1980); Stone v. Graham, 449 U.S. 39 (1980); New York v. Cathedral Academy, 434 U.S. 123 (1977); Wolman v. Walter, 433 U.S. 229 (1977); Meek v. Pittinger, 421 U.S. 349 (1975); Sloan v. Lemon, 413 U.S. 825 (1973); Committee for Public Education v. Nyquist, 413 U.S. 756 (1973); Levitt v. Committee for Public Education, 413 U.S. 471 (1973); Lemon v. Kurtzman, 403 U.S. 602 (1971). 24 Witters v Washington Services for the Blind, 474 U.S. 481 (1986); Widmar v. Vincent, 454 U.S. 263 (1981); Roemer v. Board of Public Works, 426 U.S. 736 (1976); Hunt v. McNair, 413 U.S. 734 (1973); Tilton v. Richardson, 403 U.S. 672 (1971). 25 Bowen v. Kendrick, 48 7 U.S. 589, 108 S. Ct. 2562 (1988); Corporation of Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327, 107 S. Ct. 2862 (1987); Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); Lynch v. Donnelly, 465 U.S. 668 ( 1984); Marsh v. Chambers, 463 U.S. 783 (1983); Larson v. Valente, 456 U.S. 228 (1982); Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982).

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27 Everson v. Board of Education M odern Establishment Clause jurisprudence was founded in 1947 with Everson v. Board of Education 26 The New Jersey state Legislature passed a statute authorizing boards of education to reimburse parents for the cost of the transportation to and f rom school, including those parents of children going to Catholic parochial schools. 27 Everson, a district taxpayer, argued that the statute was, in effect, a "law respecting an of children attending sectarian schools. 28 The Supreme Court, in a 5 4 decision, upheld the validity of the statute. 29 Citing T homas Jefferson's concept of the First Amendment as a wall between church and he Everson Court stated the purpose of th e Establishment Clause in the proceedings. 30 In writing the majority opinion, Justice Black, analogized transportation as general welfare benefits to all citizens. 31 Justice Black also noted that the children, 26 Everson v. Board of Education, 330 U.S. 1 (1947). 27 Everson 330 U.S. at 3. 28 Everson 330 U.S. at 8. 29 Everson 330 U.S. at 16. 30 Epperson 393 U.S. 97, 101 n.8. The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining o r professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to t each or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by la w was intended to erect "a wall of separation between church and State." 31 Id. at 6.

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28 not the religion, were the actual beneficiaries of the aid. 32 secular purpose of promoting safety for children t he Court found the statue not to be a violation of the Establishment clause 33 The element of coercion was essential to the Court's analysis in Everson The Court stressed that coercion would not be tolerated either by force, influence, or punishment. Therefore, if the Court had not allowed for the transportation of children attending parochial schools by striking down the statue, the government might have b een seen as coercive to "force [students] to remain away from church against [their] will" and at the same time to punish its taxpaying citizens "for entertaining or professing religious beliefs" and "for church attendance." 34 Everson is significant because it applied the Establishment Clause to the states through the Incorporation Doctrine within the Fourteenth Amendment. 35 Everson also provided the foundation upon which future Establishment cases would be decided. Epperson v. Arkansas Nearly forty years after Scopes 36 the Court once again turned its attention to 32 Id. at 18. This legislation, as applied, does no more than provide a general program to help parents get their children, regardless of the religion, safely and expediti ously to and from accredited schools. 33 Id. at 17. 34 Everson 330 U.S. at 15 16. 35 Everson 330 U.S. at 13 15 (explaining that the Fourteenth Amendment had been interpreted as 36 Scopes v. State, 289 S.W. 363 (Tenn 1927) In Scopes v. State the Tennessee Supreme Court maintained the Anti Evolution Act did not require the teaching of anything, and therefore was not in violation of the Esta blishment Clause. In fact, one judge concluded educators could still teach parts of evolution not conflicting with the Bible. The court avowed that the exclusion of evolution's "materialistic" explanation of the origin of life was entirely permissible as an act of neutrality because evolution conflicted with the theistic beliefs held by a majority of the population.

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29 secondary school science curricula in 1968. 37 The Court stated, "courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values." 38 However, in 1968, the U.S. Supreme Court did overturn an Arkansas state law 39 40 in the major landmark case of Epperson v. Arkansas 41 The Arkansas statue prohibited "the teaching in its public schools and universities of the theory that man evolved from other species of life. The statute was a product of the upsurge of "fundamentalist' religious fervor of the twenties." 42 In 1965, newly hired, tenth grade biology teacher Susan Epperson was given a textbook containing material on evolution from the Little Rock, Arkansas School Board. 43 In order to avoid criminal charges, which could lead to her dismissal, she sought for the court to declar e the Arkansas statute unconstitutional. 44 The Court determined the statue violated the First and Fourteenth Amendments. 45 The Court determined that the law was enacted because evolution conflicted with "a 37 Kent Greenawalt, Establishing Religious Ideas: Evolution, Creationism, and Intelligent Design 17 NOTRE DAME J.L. ETHICS & PUB.POL'Y 321, 3 94 (2003)(Addressing the question of why it took so long for the Court to address evolution after Scopes v. State in 1927). 38 Epperson 393 U.S. 99 at 104. 39 Epperson 393 U.S. at 99 (referring to Ark. Stat. Ann. §§80 1627, 80 1628 (1960 Repl. Vol.) (Doc trine of ascent or descent of man from lower order of animals prohibited)). 40 Epperson 393 U.S. at 98 (The Court stated, "the Arkansas statute was an adaptation of the famous Tennessee "monkey law'... ."). 41 Epperson 393 U.S. at 97. 42 Id. at 97. 43 Id at 100. 44 Id 45 Id. at 109.

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30 particular interpretation of the Book of Genesis b y a particular religious group," and for that reason, the state tried to unconstitutionally tailor the curriculum to fit with the teachings of a particular religious viewpoint. 46 Predating Lemon 47 Justice Fortas wrote the unanimous Court opinion using what would later become the Lemon prong purpose: In the present case, there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution beca use it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man. It is clear that fundamentalist sectarian conviction was and is the law's reason for existence. 48 The history behind th e controversial legislation indicated what the legislature's evolution law, legislators drafting the Arkansas a nti evolution law sought a more low 49 Nevertheless, legislators were not cautious enough in concealing their motives. 50 For Justice Fortas found the statue disingenuous, a sham, and essentially no difference in the pur pose of the two statements. Of this, he wrote, "There is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, 'denied' the divine creation of man." 51 The Court cited evidence in support of 46 Id. at 103. 47 Lemon v. Kurtzma n, 403 U.S. 602, 612 14 (1971). 48 Epperson 393 U.S. at 107 108. 49 Id. at 108 109. 50 Id. at 98 (Justice Fortas noted, "The statute was a product of the upsurge of 'fundamentalist' religious fervor of the twenties. The Arkansas statute was an adaptation of the famous Tennessee 'monkey law' which that State adopted in 1925.") 51 Id at 109 (qu ot ing Tennessee's "monkey law").

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31 its decision including political advertisements equating evolutionary teachings with an atheistic worldview that were run to urge the adoption of the Arkansas law. 52 According to one analyst, "the Court reasoned that the antievolution statute violated the Estab lishment Clause because a state cannot restrict student access to scientific information simply to satisfy religious preferences." 53 Ultimately, the Court felt the statue "tended to hinder the quest for knowledge, restrict the freedom to learn, and restrai n the freedom to teach." 54 The significance of Epperson was that it provided the basis for what would become the "purpose prong" of the Lemon test constructed just a few years later. Epperson also reiterated the importance Establishment Clause violations in public schools: "[T]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." 55 Two cases later followed the Epperson decision: Smith v. State 56 and Wright v. Houston Independent School District 57 52 Id at 108 n.16. 53 Martha M. McCarthy, Instruction About the Origin of Humanity: Legal Controversies Evolve 20 3 Educ. L. Rep. 454 (2006). 54 Epperson 393 U.S. at 100 (quoting from Chancery Court's unpublished decision ). 55 Id at 104 (quoting Shelton v. Tuc ker, 364 U.S. 479, 487 (1960)). 56 Smith v. State 242 So. 2d 692, 693 4 (Miss. 1970) ( Smith Mississippi, which made it illegal to teach evolution in schools that were funde d in any way by tax dollars.) 57 Wright v. Houston Independent School District 486 F.2d 137 (5th Cir. 1973)(In Wright a Texas co urt The court did not agree with the tenous arguments made by students believing in creationism, who insisted that the teaching of evolution was also an endorsement of religion and therefore a violation of the Establishment Clause.)

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32 Walz v. Tax Commission In 1970, the Supreme Court developed what would eventually become another Lemon Test 58 on the landmark case of Walz v. Tax Commission of New York 59 For the purp ose of litigation, Frederick Walz, a New York attorney, purchased a vacant lot on Staten Island, New York City. 60 As a taxpayer, Mr. Walz filed a lawsuit challenging the constitutionality of the New York Real Property Tax exemption, which exempted public w elfare organizations, including religious organizations, and property used for public welfare purposes, including religious purposes from property taxes. 61 Seeking an injunction preventing the New York City Tax Commission from applying the tax exemption to property used solely for religious worship on the ground that the exemption, Walz argued in the New York courts that the exemption "constitutes an involunt ary payment by plaintiff to the aforementioned religious organizations in violation of plaintiff's right of religious freedom [and] constitutes confiscation of plaintiff's 58 Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (providing that state action violates the Establishment Clause if it lacks a secular purpose, has the primary effect of advanc ing or inhibiting religion, or results in excessive entanglement between church and state) 59 Walz v. T ax Comm'n, 397 U.S. 664 (1970). 60 Richard Severo, Church Tax Plaintiff Pays a $5.24 a Year Levy N.Y. Times, June 20, 1969, at 1, col. 3. (The propert y was described as a weed filled 22 foot by 29 foot plot near a junk yard, valued at $ 100 and taxed at the rate of $ 5.24 per year) 61 N. Y. Real Prop. Tax Law § 420, subd 1 (Supp. 1969 1970)( Real property owned by a corporation or association organized exclusively for the moral or mental improvement of men and women, or for religious, bible, tract, charitable, benevolent, missionary, hospital, infirmary, educational, public playground, scientific, literary, bar association, library, patriotic, historical or cemetery purposes, for the enforcement of laws relating to children or animals, or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes either by the owning corporation or association or by anothe r such corporation or association as hereinafter provided shall be exempt from taxation as provided in this section).

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33 property without due process of law. ." 62 Walz argued that by including ho uses of worship under the larger umbrella of tax exemption afforded to nonprofit organizations and public welfare institutions essential constituted a government subsidy of religion. 63 He based his legal arguments on the case of Everson v. Board of Educati on 64 and even quoted the opinion by Justice Black: The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one re ligion over another. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. 65 (citations omitted) A motion wa s made for summary judgment by the New York City Tax Commission and was granted by a Special Term of the New York Supreme Court on the ground that "[s]uch exemptions are granted in pursuance of long standing public policy of this State under a statute whi ch is presumptively constitutional, and which is hereby sustained." 66 It was unanimously affirmed by both the Appellate Division 67 and the Court of Appeals which added that courts throughout the country have long and consistently held 62 Walz v. Tax Commission, 397 U.S. 664 (1970) (No. 135)(If all New York real estate taxes were reduced proportionately by the amount that would be collected if exempt religious property were fully taxed at the same rate, Walz's tax bill would be reduced by 11 cents per year according to calculations of the attorneys for the Episcopal Diocese of New York.) 63 Brief for Appellant at 4 5, Wal z, 397 U.S. at 674. 64 Brief for Appellant at 6 8, Walz, 397 U.S. at 674 65 Everson, 30 U.S. at 15. 66 Walz v. Tax Commission, No. 11141 1967 (N.Y. Sup. Ct. 1968) (unpublished opinion), quoted in Brief for Appellant. 67 Walz v. Tax Commission, 30 A.D.2d 778, 292 N.Y.S.2d 35 3 (1968).

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34 that the exemp tion of such real property from taxation does not violate the Constitution of the United States. 68 Indeed, similar exemption statues have existed in different states for hundreds of years dating back to Colonial times when the established church was a pub lic agency. In fact in Walz Justice Brennan even noted that neither Thomas Jefferson nor James Madison, the architects of the Establishment Clause, were overly concerned with the separation of church and state specifically as it applies to churches' tax exemptions. 69 In other words, "the adoption of the early exemptions without controversy ... strongly suggests that they were not thought incompatible with constitutional prohibitions against involvements of church and state. 70 The New York tax exem ption was found in the New York Constitution 71 and has been in effect in since 1829. 72 Even when the church became disestablished, the Colonial practice of tax exemption continued in most states by both constitutional provision and legislative enactment. 73 Before Walz, the idea of state property tax exemptions for property owned by religious organizations was widely accepted and was based on the concept that religious organizations provided a public welfare function not because they were 68 Walz v. Tax Commission, 24 N.Y.2d 30, 31, 246 N.E.2d 517, 518 298 N.Y.S.2d 711, 712 (1969). 69 Walz 397 U.S. at 684 85. 70 Id. at 685. 71 N.Y. Const. art. 16, § 1:(Exemptions from taxation may be granted only by general l aws. Exemptions may be altered or repealed except those exempting real or personal property used exclusively for religious, educational or charitable purposes as defined by law and owned by any corporation or association organized or conducted exclusively for one or more of such purposes and not operating for profit). 72 N.Y. Rev. Stat 1829, Ch. 13, tit. I, § 4(3). 73 Arvo Van Alstyne, Tax Exemption of Church Property 20 Ohio State L.J. 461 (1959).

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35 religious. In fact, the basis for the New York State tax exemption was "[t]he social value of religion is at least equal to the social and economic values which form a basis for other permissible exemptions, such as those for charitable and educational purposes." 74 Chief Just ice Burger, writing the majority opinion for the Court, held that the New York City property tax exemption for church owned property used for public worship, was not prohibited by the Establishment Clause, although it was not constitutionally required. 75 C iting that, the inclusion, of church owned property within the general exemption category for property owned by public welfare, charitable and educational 76 Therefore, the p roperty tax exemption neither advanced nor inhibited religion in its legislative purpose. Furthermore, the statue had not singled out one particular church or religious group rather; it had granted exemption to all houses of religious worship along with a broad class of properties held by nonprofit, quasi public corporations including hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups. The State finds these groups useful, desirable, and in the public interest and considers these groups beneficial and stabilizing influences in community life. 77 74 Brief for State of New York as Amicus Curiae Supporting Respondents Walz v. Tax Commission, 397 U.S. 664 (1970) (No. 135). Governmental support for religion through the tax system long antedated the First Amendment. It became established at a time when many of the social welfare functions now take n over by the states were performed almost exclusively by the churches: care of orphans, the aged, the ill, the infirm, the destitute. Since the churches performed functions which otherwise would have had to be performed by the states, it was accepted tha t they be relieved of the burden of paying taxes out of funds which otherwise could be devoted to public welfare activities. 75 Walz, 397 U.S. at 666 680. 76 Id at 674. 77 Id at 672 73.

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36 Justice Burger, who would later write the "entanglement" prong of the Lemon test, then proceeded to add that we must also be sure that in the end -the effect -is not an ex was formed. 78 Importantly, the Court found, such exemptions ensure a "minimal and remote involvement between church and state 79 involvement with the church through tax valuations and assessments, government liens and foreclosures on church property thus creating too "excessive [an] entanglement" between church and state 80 Finally, the Court, in upholding the statue, continued the "unbroken" history that "covers our entire national existence and indeed predates it." 81 After all, the granting of exemptions began with the colonists more than two centuries ago, and were later sanctioned by Congress and state legislatures. None of which "led to an established religion" but have "operated affirmatively to help guarantee the free exercise of all forms of religious belief." 82 The Court, therefore viewed that stoppi ng a practice so "deeply embedded" in our culture and so widely accepted by "common consent" would require a more compelling case. 83 Ultimately, the Court realized "[n]o perfect or absolute separation is really possible; the very existence of the Religion Clauses is an involvement of sorts -one that seeks to 78 Id. at 674. 79 Id. at 676. 80 Id. at 675 76. 81 Id. at 678. 82 Id. 83 Id. at 676 78 (quoting Jackman v. Rosenbau m Co., 260 U.S. 22, 31 (1922)).

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37 mark boundaries to avoid excessive entanglement." 84 While the Court has come to rely at times may be blurred or in d istinct. 85 Lemon v. Kurtzman The modern test for evaluating whether the issue of funding educational programs within religiously affiliated educational institutions violates the Establishment Clause emerged in Lemon v. Kurtzman 86 Since its inception in 197 1, the Lemon Test has become the main test for determining Establishment Clause violations. 87 The Supreme Court had heard several Establishment Clause cases, but it was not until Lemon v. Kurtzman 88 that the court had a necessity for detailed test with whic h to determine the 89 In Lemon, the Court addressed the constitutionality of two different states' acts: the Rhode Island Salary Supplement Act of 1969 and Pennsylvania's Non Public Elementary and Secondary E ducation Act of 1968. 90 The Pennsylvania statute allowed for the reimbursement of pedagogical materials, te xtbooks, and supplementation of non 84 Id. at 670. In Walz the Court upheld tax exemptions for churches because, in part, the New York State tax code did not single out one particular church or religious group but granted exemptions to all houses of worship within a broad class of property owned by nonprofit corporations, incl uding hospitals and libraries. 85 Lemon v. Kurtzman 403 U.S. 602, 614 (1971). 86 Lemon 403 U.S. at 602, 614. 87 Steven G. Gey, "Under God," The Pledge of Allegiance, and Other Constitutional Trivia, 81 N.C. L. Rev. 1865, 1885 (2004) (the Lemon Test "has been the primary organizing principle of Establishment Clause decisions since the test was adopted by the Court i n the 1971 decision Lemon v. Kurtzman.") 88 Lemon 40 3 U.S. at 602, 612 14. 89 Id. 90 Id. at 606 09.

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38 public teachers' salaries to the same levels as those of public school teachers by the state provided that the subjects taught were secular in nature. 91 In a similar fashion the Rhode Island statute allowed for a f ifteen percent supplement ation in nonpublic school teachers' salaries provided the courses taught by the teachers were secular in nature and the te achers agreed not to receive a supplement when teach ing any course in religion via writing 92 The acts were designed to offset the rising salaries in public schools by allowing schools to contract with and provide financial supplement to nonpublic school t eachers teaching secular subjects. 93 The Court was concerned that teachers in parochial schools might violate the First Amendment's Establishment Clause by improperly including faith and morals in the teaching of secular subjects 94 The Court felt the sur veillance necessary by the states in order to avoid this situation would cause an excessive and enduring entanglement between church and state. 95 In making this determination the Court examined the character and purpose of the institutions benefiting from the statutes, the nature of the aid provided, and the relationship between the religious institution and the government that resulted from receiving the aid 96 For example, in the Rhode Island statute, the 91 Id at 607 09. 92 Id. 93 Lemon 403 U.S. 606 607. Under the Rhode Island statute, a teacher could be supplemented not more than fifteen percent of his or her current annual salary, if he or she taught at a nonpublic school at which the average per pupil expenditure for secular education was less than that of State's public schools. Id. at 607 608. The statute limits secular education to those subjects t aught at the State's public schools, using the same t eaching materials. Id. at 608. 94 Id. at 613. 95 Id. 96 Id. at 615.

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39 Court found that the schools, which were near chu rches, contained religious symbols such as crosses and crucifixes and were under the supervision of the Bishop of Providence, Rhode Island. 97 Futhermore, because t wo thirds of the teachers were nuns governed by an employee's handbook under the force of synodal law, the Court felt the teachers could not maintain religious neutrality while caring out their se cular duties 98 Therefore, state would be required to provide continuous surveillance of the schools in order to make sure that the mone y provided was going to secular education. 99 Further complicating matters, the statute would require the state to evaluate the percentage of total expenditures that covered secular education compared to the percentage that covered religious teaching in non public schools where average per pupil expenditures equaled or exceeded that of public schools 100 Since this created excessive entanglement the Court held the statute unconstitutional. 101 In a similar fashion the Court found that the Pennsylvania statute a lso caused excessive entanglement, since the schools were controlled by religious organizations, having the purpose of propagating and promoting a particular religious faith, and 97 Id. at 615, 617 618. 98 Id at 618 19 (Even though several teachers testified that they "did not inject religion into their secular classes." The Court reasoned that because "the teacher is employed by a religious organization, subject to the direction and discipline of religious authorities," such teachers "would find it hard to make a total separation between secular tea ching and r eligious doctrine." 99 Id at 619. The Court reasoned that a teacher would need constant supervision to ensure that the teacher is honoring the secular purp ose requirement of the statute. 100 Id at 620. 101 Id The Court stated that "this kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids."

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40 carrying out operations to fulfill said purpose. 102 Further more because the s tatute allowed for the money to be provided directly to the schools, instead of the students or their parents, the statue caused an increased amount of interaction between the government and religious schools causing excessive entanglement. 103 In search of a uniform standard with which to analyze Establishment Clause issues, Chief Justice Burger devised the Lemon test, a test which all challenges to the Establishment Clause have subsequently had to pass. 104 In order to survive the Lemon First, the statu te must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion.'" 105 Any violation of one of these three prongs makes the statue unconstitutional under the Establishment Clause. 106 secular purpose for the legislation. 107 Court asks the question of whether the government action "will in part have the effect of advancing [or inhibiting] religion." 108 102 Id Since the Pennsylvania case had been dismissed for failure to state a claim, the Court asserted that the complaint's allegations must be accepted as true for purposes of the Court's review. 103 Id. at 621 (If the money had gone to the student or his or her parents, the entanglement between government and religion woul d have been le ss substantial.) 104 Lemon 403 U.S. 602, 612 613. 105 Lemon 403 U.S. 612 13. 106 Stone v. Graham 449 U.S. 39, 42 43 (1980). 107 Shahin Rezai, Note, County of Allegheny v. ACLU: Evolution of Chaos in Establishment Clause Analysis 40 AM. U. L. REV. 518 (1990). 108 Tilton v. Richardson 403 U.S. 672, 683 (1971).

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41 character and purposes of the institutions that are ben efited," (2) "the nature of the aid that the State provides," and (3) "the resulting relationship between the government and the religious authority" in order to determine whether excessive entanglement exists. 109 Subsequent applications of the test resulte d in the Court ruling that state s may not provide instructional materials to religious schools nor may they reimburse religious schools for the salaries of teachers teaching secular subjec ts 110 Furthermore, the Court held that state salary supplements to t eachers at religious schools teaching only subjects offered in public schools using materials used in public schools was a violation of the Esta blishment Clause 111 Additionally, the Court struck down grants to maintain and repair parochial school facilitie s th at served low income families, 112 as well as small (fifty dollar) tax credits for low income parents of children attending religious schools. The Court also decided that states could not pay teachers at religious schools for the preparation of state m and ated examinations 113 nor could the states provide instructional materials such as maps, films, and laboratory equipment, to religious schools. 114 Finally, the Court found it a violation to provide programs on the premises of religious schools, such as remedi al speech and hearing therapy, 115 as well as the 109 Lemon 403 U.S. at 615. 110 Id. at 606 07. 111 Early v DiCenso, 403 U.S. 602 (1971). 112 Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 798 (1973); Sloan v. Lemon, 413 U. S. 825 (1973) (reimbursements). 113 Id. 114 New York v. Cathedral Acad., 434 U.S. 125 (1977); Wolman v. Walter, 433 U.S. 229 (1977); Levitt v. Comm. for Pub. Educ. and Religiou s Liberty, 413 U.S. 476 (1973). 115 Meek v. Pittenger, 421 U.S. 349 (1975).

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42 reimbursement of bus transportation for children attending religious schools participating in educational field trips. 116 According to Chief Justice Burger, the line between church and state was not a wall, as 117 It was through the Lemon test, that the Supreme Court believed they could balance the First Amen a neutral stance toward religion. Criticism of the Lemon Test The Court continues to use the Lemon test today, more than thirty five years after its introduction; 118 however, numerous justices have critized it, 119 referring to it as 120 Lemon Test has changed with the make up of the Court over the years. Before Justice Powell and Chief Justice Burger retired, the majority of the Court supported the Lemon test five to four. 121 After they retired, taking one from each side of the argument it was split 4 3 in favor of the Lemon Test. 122 They were replaced by Justice Kennedy and Justice Scalia. 123 116 Wolman, 433 U.S. at 225. 117 Lemon v. Kurtzman, 403 U.S. 614 (1971). 118 McCreary County v. ACLU, 545 U.S. 844, 859 61 (2005) (refusing to abandon the Lemon purpose test). 119 McCreary County 545 U.S. at 889 90 (Scalia, J., dissenting); Wallace v. Jaffree, 472 U.S. 38, 110 11 (1985) (Rehnquist, J., dissenting). 120 Mueller v. Allen, 463 U.S. 388, 394 (1983) (citing Hunt v. McNair, 413 U.S. 734, 741 (1973)). 121 Jay Schlosser, The Establishment Clause and Justice Scalia: What the Future Holds for Church and State 63 Notre Dame L. Rev. 380 (1988). 122 Schlosser at 382.

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43 Like Chief Justice Rehnquist an d Justice White, Justice Scalia has been quite outspoken against the use of the Lemon test. 124 In his dissent in Edwards v. Aguillard, 125 Justice Scalia expressed his doubt whether th[e] 'purpose' requirement of Lemon is a proper int erpretation of the Constit ution and even questioned whether it should be abandoned. 126 Scalia would probably prefer a reformulation of the Lemon test rather than a complete abandonment in keeping with the status quo. 127 Scalia argued that the purpose prong ha d no basis in the history or text of the first amendment language. 128 Scalia contends, in Edwards that the statute' s secular purpose would survive the purpose prong 129 Scalia asks that judicial deference be 123 Justice Antonin Scalia was nominated by President Reagan, affirmed by the Senate, and appointed to the court in 1986. 56 U.S.L.W. 2168 (1986). 124 Schlosser at 380. 125 Edwards v. Aguillard, 482 U. S. 578 (1987)(The majority in Edwards utilized the Lemon framework to strike down a statutory requirement that creation science and evolutionary science be given equal treatment in the schools.) 126 Edwards 482 U.S. at 613 (Scalia, J., dissenting)(Justice Scalia stated in his dissent in Edwards : "In the past we have attempted to justify our embarrassing Establishment Clause jurisprudence on the ground that it 'sacrifices clarity and predictability for flexibility.' I think it time that we sacrifice so me 'flexibility' for 'clarity and predictability.' Abandoning Lemon 's purpose test would be a good place to start." Id. at 6 39 40). 127 Scalia, THE JUDGES ARE COMING reprinted in 126 Cong. Rec. at 18922, col. 1 (1980) (stating "I do not care how ana lytically consistent with analogous precedents such a holding might be, nor how socially desirable in the judge's view. If it contradicts a long and continuing understanding of society it is quite simply wrong."); Nomination of Judge Antonin Scalia: Hearings before the Committee on the Judiciary, U.S. Senate, S. Hrg. 99 1064, 99th Cong., 2nd Session 1, 1 2 (1986), at 205.(Thus, it seems he would rather declare new legislation unconstitutional than to upset the long standing trad ition of society or t he Court.) 128 Edwards at 107 S. Ct. at 2605. Justice Scalia reinforced the need to base interpretation of the Constitution on the language, history and text of the Constitution; American Trucking Association v. Scheimer, 107 S. Ct. 2829, 2851 (1987) (Scalia, J., dissenting) ("I do not believe that test can be derived from the Constitution."); Tyler Pipe Industries v. Washington Dept. of Revenue, 107 S. Ct. 2810, 2823 (1987) (Scalia, J., concurring) (stating the Court has gone as far in the commerce cl ause so as to depart from the textual meaning of the Constitution). 129 Edwards 107 S. Ct. at 2593

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44 given to the legislature when a secular purpose is articulated in the legislative history of the act. 130 Justice Scalia even goes so far as to state that as long as the legislature had "a sincere belief" that there was a secular purpose behind the act he would declare it constitutional. 131 However, rather than abandoning the purpose prong altogether, Justice O'Connor's seemed to favor a revision of the purpose prong. 132 Allowing for judicial deference would require the party challenging the statute to show the legislature's intent t o advance religion in order to prove a violation. 133 Without such evidence the Court would presume that the statute did not endorse or advance religion unconstitutionally and defer to the legislature Court, 134 because of the prohibiting nature of her test and the parallel prohibiting language of the first amendment. 135 This may assuage Justice Scalia. 130 Id at 2596. 131 Edwards 107 S. Ct. at 2593. (Scalia states he would find this "sincere belief" to be sufficient "regardless of whether that purpose is likely to be achieved by the provision they enacted.") 132 Lynch, 465 U.S. at 692 (O'Connor, J., concurring) and Wallace, 472 U.S. at 70 (O'Connor, J., concurring). 133 Schlosser at 384. 134 Wallace 472 U.S. at 69 (O'Connor, J., concurring) (stating the goal in formulating a test "should be to frame a principle for constitutional adjudication that is not only grounded in the history and language of the first amendment, but one that is also capable o f consistent application to the relevant problems.' Last Term, I proposed a refinement of the Lemon test with this goal in mind.") 135 Justice O'Connor's purpose prong states that legislatures can pass no law with the intent to endorse religion. The first amendment states Congress shall make no law respecting an establishment of religion, while the Lemon test says the legislatures must have a secular purpose in enacting a law. O'Connor's test allows the Court to focus on the endorsement or establishment o f religion and if none is found, constitutionality is presumed. The Lemon test forces the Court to find a valid motivation behind the legislative action (a secular purpose) or strike down the legislation.

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45 Justice O'Connor's second prong revision requir es that the statute convey a message endorsing religion through the eyes of an objective observer. 136 She stated that government actions should be found as endorsements if they had the effect of making "religion relevant, in reality or public perception, t o [a person's] status in the political community." 137 protect ing minority interests, 138 is advanced according to Justice Scalia Therefore, it follows that the second prong of Justice O'Connor's test would be consistent with Justice Scalia's beliefs. 139 Justice O'Connor's revisions seem to be only a slight departure from the Lemon test and even other Justices on the Court have questioned the continued use of L emon Justice O'Connor is the only Justice to put forth a viable alternative to the test. 140 However, the death of Chief Justice William Rehnquist and the retirement of Justice Sandra Day O'Connor lead one to question the future of Lemon 141 Justice O'Connor was one of the five Justices who voted to apply Lemon in McCreary County, while Chief Justice Rehnquist was one of the four Justices who declined to apply Lemon 136 Wallace 472 U.S. at 76 (O'Connor, J., concurring)(By looking at the statute through the eyes of an objective observer one can consider if nonadherents (minority religions) to a religious practice see themselves as outsiders and, in addition, if adherents (majori ty religions) to a religious practice see themselves as insiders or favored members of society). 137 465 U.S. 668 at 692(1984). 138 Scalia, THE JUDGES ARE COMING reprin ted in 126 Cong. Rec. 18920 22 at 894 95 (1980) (arguing the role of the court is "prote cting individuals and minorities against impositions of the majority" and that judicial intervention sh ould be limited to such cases). 139 Schlosser at 384. 140 Id. 141 Richard W. Stevenson, President Names Roberts as Choice for Chief Justice: Hearings Delay ed, Bush Declares His Pick Offers 'Natural Gifts as a Leader,' N.Y. Times, Sept. 6, 2005, at A1.

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46 in Van Orden 142 The confirmations of Chief Justice John Roberts and Justice Samuel Alito in lat e 2005 and early 2006, may not bode well for Lemon as both jurists share a commitment to a text based, rule of law approach to the Constitution. 143 Currently, the justices generally maintain that the Lemon test is still good law, that is at least in regard to its first two prongs (purpose and effects). 144 Furthermore, with one exception, 145 the Supreme Court has always recognized the validity of the Lemon test in Establishment Clause decisions. 146 Accordingly, most circuit courts have been inclined to follow 147 Thus, the Lemon test has not been expressly abandoned and c ourts have applied the Lemon test regularly 148 While the Supreme Court has expressed concerns about the test and the consistency with how it has been applied, 149 the Lemon standard remains the primary test for the Establishment Clause cases 150 including most major cases involving 142 Van Orden v. Perry, 125 S. Ct. 2854 (2005). 143 Julia K. Stronks, Editorial, Breyer v. Scalia: Will Alito Be An Activist or a Textualist?, Seattle Times, Ja n. 15, 2006, available at http://seattletimes.nwsource.com (stating that "[b]oth Roberts and Alito give every indication of being textualists as they examine statutes. This m akes them similar to Scalia."). 144 Stephen M. Feldman, Divided We Fall: Religion, Politics, and the Lemon Entanglements Prong 7 F irst Amend. L. Rev. 253 (2009). 145 The sole exception is the Supreme Court's decision in Marsh v. Chambers, 463 U.S. 783 (1983). 146 Lee v. Weisman, 112 S. Ct. 2649 (1992); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989). 147 North Carolina Civil Liberties Union v. Constangy, 947 F.2d 1145 (4th Cir. 1991). 148 Bowen v. Kendrick, 487 U.S. 589 (1988) (applying the Lemon test). 149 ACLU v. Capital Square Rev. & Advisory Bd., 20 F. Supp. 2d 1176 (S.D. Ohio 1998) (holding that the Ohio motto fell under an "exception" to the Lemon test). 150 Lee 112 S. Ct. at 2655 (r efusing to reconsider constitutional framework provided in Lemon ); Lynch 465 U.S. at 678 (applying test yet refusing to bind future courts to its use); Widmar v. Vincent, 454 U.S. 263, 271 (1981) (holding that student use of state university classrooms fo r religious groups constitutional under Lemon ).

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47 creationism and the teaching of evolution. The test has played a pivotal role in both Kitzmiller v. Dover 151 case involving intelligent design. In fact, since the case of Epperson v. Arkansas 152 the Lemon test has been used at least in part in determining violations of the Establishment Clause. 153 Many cases, after County of Allegheny v. ACLU 154 have also re lied upon Justice identifying violations of the Establishment Clause Edwards v. Aguillard creation decisi on in Edwards v. Aguillard 155 The Louisiana statute requiring the teaching of creation science whenever natural selection was taught, although it did not require the teaching of either. 156 The Louisiana legislatur e claimed the Act was designed to "protect academic freedom," and to advance "basic concepts of fairness" by "teaching all of the evidence." 157 Basically, t he Creationism Act gave educators and administrator s two options: ignore evolution or teach it accomp anied by "creation science," that is, "the scientific evidences for [creation 151 Kitzmiller v. Dover Area School District, 4 00 F. Supp. 2d 707, 712 (2005). 152 Epperson v Arkansas, 393 U.S. 97 (1968). 153 Edwards v. Aguillard, 482 U.S. 578, 585 (1987); Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 344 (5th Cir. 1999); Daniel v. Waters, 515 F.2d 485, 489, 491 (6th Cir. 1975); Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 714 (M.D. Pa. 2005); McLean v. Ark. Bd. of Educ., 529 F. Sup p. 1255, 1258 (E.D. Ark. 1982). 154 Co unty of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 655 57 (1989). 155 Edwards v. Aguillard, 482 U.S. 578 (1987). 156 Id at 581 (citing La. Rev. Stat. Ann. § 17:286.4A (1982)). 157 Id at 586.

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48 and evolution] and inferences from those scientific sources." 158 The law also provided certain protections and resources to teachers of creation science, while not affording the s ame protection to teachers of evolution. 159 Any instructor who cho se to support "creation science" was protected against discrimination by any school board, college board, or administrator under the statue. 160 The statute provided for curriculum to be developed by a publicly funded committee compos offering no similar compensation to "evolutionary scientists" for evolution curriculum. 161 Proponents of "creation science" relied upon religion to explain biologica l mechanisms that they believed natural selection could not have produced. 162 In one 158 Id. at 581 (citing La. Rev. Stat. Ann. § 17:286.3(2) (3) (1982)). 159 Id at 588 (citing La. Rev. Stat. Ann. § 17:286.7B (1982)). 160 The statute read in pertinent part: A. Commencing with the 1982 1983 school year, pubic schools within this state shall g ive balanced treatment to creation science and to evolution science. Balanced treatment of these two models shall be given in classroom lectures taken as a whole for each course, in text book materials taken as a whole for each course, in library materials taken as a whole for the sciences and taken as a whole for the humanities, and in other education programs in public schools, to the extent that such lectures, textbooks, library materials, or educational programs deal in any way with the subject of the o rigin of man, life, the earth, or the universe. When creation or evolution is taught, each shall be taught as a theory, rather than as proven scientific fact. B. Public schools within this state and their personnel shall not discriminate by reducing a grade of a student or by singling out and publicly criticizing any student who demonstrates a satisfactory understanding of both evolution science or creation science and who accepts or rejects either model in whole or part. C. No teacher in public elementary or secondary school or instructor in any state supported university in Louisiana, who chooses to be a creation scientist or to teach scientific data which points to creationism shall, for that reason, be discriminated against in any way by any s chool board, college board, or administrator. 161 Id at § 17:286.7. A. Each city and parish school board shall develop and provide to each public school classroom teacher in the system a curriculum guide on presentation of creation science. B. The governor shall designate seven creation scientists who shall provide resource services in the development of curriculum guides to any city or parish school board upon request. Each such creation scientist shall be designated from among the ful l time faculty members teaching in any college and university in Louisiana. These creation scientists shall serve at the pleasure of the governor and without compensation. 162 Edwards, 482 U.S. at 591.

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49 version creation scientists made reference to a catastrophe exemplified by a world wide flood which explained the diversity of flora and fauna in part by references to cata strophism as exemplified by a world wide flood 163 apparently an all usion to the biblical account of Noah's Ark The similarity between creation science and the story depicted in Genesis caught the attention of Justice Powell, who noted that a previous dr aft of the bill that eventually became the Creationism Act defined "creation science" essentially as scientific evidence for the young earth interpretation of Genesis. 164 Although evidences for the young earth view of Genesis were later removed when the bil l was amended the legislator who proposed the amendment suggested it was not intended to defeat the purpose of the bill, but because he did not want to suggest an "all inclusive list" of scientific evidences. 165 First, t he Court examined the relationship o f the Creationism Act's stated purpose and its actual purpose. 166 The Court did not see how "outlawing the teaching of evolution or ... requiring the teaching of creation science" furthered the purpose of protecting "academic freedom" on the contrary, the C ourt felt the Act was designed to restrict it by "discrediting evolution by counterbalancing its teaching at every turn with 163 Id a t 600 (Powell, J., concurring). 164 Id at 600 01 (Powell, J., concurring).(The previous draft of the bill defined creation science to include the following: the scientific evidences and related inferences that indicate (a) sudden creation of the universe, energy, and life from nothing; (b) the insuffi ciency of mutation and natural selection in bringing about development of all living kinds from a single organism; (c) changes only within fixed limits or originally created kinds of plants and animals; (d) separate ancestry for man and apes; (e) explanati on of the earth's geology by catastrophism, including the occurrence of a worldwide flood; and (f) a relatively recent inception of the earth and living kinds) 165 Id. at 601. 166 Id at 586.

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50 the teaching of creationism.'" 167 In doing so, t he Court found that the Act failed its stated purpose of "academic freedom" since i t failed to expand teachers' abilities to comprehensively present scientific information, ultimately undermining education in the sciences. 168 In its determination, the Court found three fundamental problems with Louisiana's position: (1) Teachers already enjoyed acade mic freedom in the classroom and therefore legislation was not necessary to grant or enhance this freedom; (2) although the intention of the Act was to present the two theories in a balanced and fair way, the Court found that the Act preferre d the teaching of creation science over the teaching of evolution; and (3) finally, both the timing and frequency were perfectly correlated as to when the two theories were taught 169 T he Court was in agreement with the Fifth Circuit, which had already found that "no law prohibited Louisiana public school teachers from teaching any scientific theory 170 so therefore, the Creationism Act provided teachers with no authority they did not already have, the Act's "stated p urpose is not furthered by it." 171 167 Id at 589 (quoting Aguillard v. Edwards, 765 F.2d 1251, 1257 ( 5th Cir. 1985)). 168 Id. at 587. 169 Id at 587 94. 170 Id at 587 (noting that the court of appeals found that "no law prohibited Louisiana public school teachers from teaching any scientific theory" and that the law "provides Louisiana school teachers with no new authority"). 171 Id at 587 88 (citing Wallace v. Jaffree, 472 U.S. 38, 59 (1985)).

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51 The Court then looked at the statute's historical context 172 and its legislative history, including statements by the law's prop onents 173 Especially damaging were comments made by the Act's sponsor, Senator Bill Keith, confirming his belief that "scientific evidence supporting his religious views should be included in the public school curriculum to redress the fact that the theory of evolution incidentally coincided with religious beliefs antithetical to his own." 174 T he Court also took into consideration the meaning of "creation science" based on a 1981 survey conducted by the state's Department of Education. 175 In the survey, carried out by school superintendents responsible for implementing the balanced treatment act a pproximately 75 percent of the respondents understood "creation science" to be a religious doctrine, and most of them thought it referred to "the literal interpretation of the Book of Genesis." 176 The Court noted that the record included "uncontrovert ed affidavits" from scie ntists and others attesting that "origin through abrupt appearance in complex form" was a true scientific theory; however, none of these affiants had contributed to the enactment of the law, and the Court was not persuaded as to the meaning of the Act or its alleged secular purposes. 177 Senator Keith's leading expert on 172 Id at 590 (The Court referred to the "historic and contemporaneous link between the teachings of ) 173 Id at 591 n. 12 to 593 n. 14. 174 Id at 592 93 & n.14. 175 Id at 595, 596 n.18. 176 Id at 596 n.18. 177 Id at 595 96.

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52 creation science, Edward Boudreaux, even testified at the legisl ative hearings that the theory of creation science included belief in the existence of a supernatural cr eator 178 After looking at the language of the Louisiana "Balanced Treatment" law, 179 the statements of Senator Keith 180 and other legislators and government officials, 181 as well as those who testified before the legislature on the bill, 182 the Court held that the purpose of the law favor the views of certain Christian denominations by promoting creationism 183 The Court concluded that the Act was unconstitutional because it had a religious purpose: "to advance the religious viewpoint that a supernatural being create d humankind." 184 The Court clarified : "We do not imply that a legislature could never require that scientific critiques of prevailing sci entific theories be taught... Teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction." 185 However, the Court emphasized the right of families to "entrust public schools with the education of their children" with the assurance that those schools 178 Id at 591. 179 Id at 581, 586 89. 180 Id at 587, 591 93. 181 Id at 591. 182 Id at 591 n.13. 183 Id at 592 94, 596 97. 184 Id at 591. 185 Id at 593 94.

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53 would not "advance religious views that may conflict with the private beliefs of the student and his or her family." 186 I n quoting Epperson the Court explained that the Establishment Clause "forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma." 187 ut of many possible scien ce subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects." 188 Justice Brennan's majority opinion reflected the Court's continued effort to find establishment clause violations in the context of elementary and secondary education. 189 In applying the Lemon criteria, the Court expanded on the meaning of the test's first prong burrowing from Justice O'Connor's concurrence in Lynch v. Donnelly 190 and asserted that "the purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion." 191 The majority opinion applied the Lemon test and found no secular purpose in the Louisiana legislation. 192 T he Court did not consider the second and third prongs of the test s ince the legislation failed the first prong of the Lemon test A motion was made for summary judgment based on the 186 Edwards 482 U.S. at 584 ( Edwards, focused solely on children in elementary and secondary schools). 187 Id (quoting Epperson, 393 U.S. at 106 07) (emphasis added in Edwards). 188 Id at 593. 189 Edwards, 482 U.S. at 584, 107 S. Ct. at 2578. 190 Lynch v. Donnelly, 465 U.S. 668 (1984). 191 Edwards 482 U.S. at 585 (quoting Lynch, 465 U.S. at 690 (O'Connor, J., concurring)). 192 Edwards, 482 U.S. at 584, 107 S. Ct. at 2578.

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54 language of the state statute, "the legislative history and historical context" o f the law, the "specific sequence of events" preceding the law's enactment, and a report of the state's education department that had been based upon a survey of school superintendents. 193 The Court divided 7 2 Justice Lewis Powell in his concurring opinion, recounted the long history of attacks on evolution by religious fundamenta lists, and found the purpose of the Louisiana statute was to promote sectarian beliefs about the origin and diversity of life. 194 According to Powell the principal individual s and organizations producing "creation science" literature had committed themselves to a belief in the inerrancy of the Bible. 195 He concluded "a member [at the Creation Research Society ] must accept 'that the account of origins in Genesis is a factual pres entation of simple historical truth.'" 196 193 Id at 595. 194 Edwards 482 U.S. at 590, 603. 195 Id. at 602. 196 Id. Powell also quoted three other elements of the CRS statement of belief to which members must subscribe: [i] All basic types of living things, including man, were made by direct creative acts of God during Creation We ek as described in Genesis. Whatever biological changes have occurred since Creation have accomplished only changes within the original created kinds. [ii] The great Flood described in Genesis, commonly referred to as the Noachian Deluge, was an historical event, world wide in its extent and effect. [iii] Finally, we are an organization of Christian men of science, who accept Jesus Christ as our Lord and Savior. The account of the special creation of Adam and Eve as one man and one woman, and their subseque nt Fall into sin, is the basis for our belief in the necessity of a Savior for all mankind. Therefore, salvation can come only thru [sic] accepting Jesus Christ as our Savior.

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55 Zelman v. Simmons Harris Zelman v. Simmons Harris 197 may be the most important 198 case involving public funds being allocated to religious schools. In an effort, to provide an adequate education to low income students in a failing inner city school district, Ohio created the Pilot Project Scholarship Program. 199 The program provided tuition vouchers for students in kindergarten through eighth grade redeemable at secular or religious private schools in a school district placed "under federal court order requiring supervision and operational management of the district by the state superintendent." 200 The only district eligible for the program at the time of the case was the Cleveland public school system. 201 During the 1999 2000 school year of the program, 96, of the 3,700 students, used the vouchers to attend religious schools, 202 even though the majority dismissed this finding noting, "we have recently found it irrelevant even to the constitutionality of a direct aid progra m that a vast majority of program benefits went to religious schools." 203 Plaintiffs challenged the program claiming it was a violation of the Establishment Clause since it resulted in financing attendance at religious schools. 204 197 Zelman v. Simmons Harris, 536 U.S. 639 (2002). 198 Douglas Laycock, Theology S cholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty 118 Harv. L. Rev. 155, 167 (2004). 199 Zelman 536 U.S. at 644 45 at 662 63. 200 Zelman 536 U.S. at 644 45 (quoting Ohio Rev. Code Ann. § 3313,975 (A)(West 2000)). 201 Zelman 536 U.S. at 645 (Cleveland's schools were "among the worst performing in the nation."). 202 Id at 647 (Forty six of the fifty six participating private schools had a religious affiliation.) 203 Id. at 658. 204 Id. at 648.

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56 The Cleveland public school percent of ninth graders able to pass a proficiency test and more than two thirds of high school students failing to graduate. 205 Seeing it as a way of escaping the failing urban schools, the program was str ongly supported by inner city minorities. 206 Justice Thomas was able to show that religious schools are more educationally effective than public schools in Cleveland by citing data. 207 Only 57 percent of eighth graders in public schools passed the state read ing test and 22 percent passed the math proficiency test, as compared to 95 percent in reading and 75 percent in math at the Catholic schools. 208 Not to mention, "the average [government] cost of sending a child to a religious school is considerably lower t han the cost of public school." 209 This is illustrated by the fact: "[R]eligious schools received a maximum of $ 2,250 per student in public funding, whereas public schools were allocated $ 7,746 per student." 210 In 5 4 decision to uphold the program, the majority of the Court applied a formal neutrality standard. 211 The majority identified two factors in determining whether a government program advances religion: (1) whether its benefits are available "to a 205 Id at 644. 206 Joseph P. Viteritti, Reading Zelman: The Triumph of Pluralism, and its Effects on Liberty, Equality, and Choice 76 S. Cal. L. Rev. 1105, 1173 74 (2003) (discussing the argument that most African American children are still not getting a decent education). 207 Patrick M. Garry, Liberty from On High: The Growing Reliance on a Centralized Judiciary to Protect Individual Liberty, 95 Ky. L.J. 385, 391(2006). 208 Zelman, 536 U.S. at 681 (Thomas, J., concurring). 209 Viteritti, supra note 204, at 1163. 210 Id at 1164 211 Zelman, 536 U.S. at 648 52.

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57 broad class of citizens defined without reference to religion;" 212 and (2) whether those benefits are directed to religious institutions as a result of the recipients' "genuine and independent private choice... ." 213 Accordingly, the program is neutral and does not advance religion, if those questions are an swered affirmatively. 214 The Court found the program was motivated by a secular purpose in attempting to provide better educational opportunities to the poorest students in the "demonstrably failing" 75,000 student Cleveland City School District after revie wing the program's historical context. 215 Since the program passed the first prong of the Lemon test that being a secular purpose, the only issue was whether the program had the effect of advancing religion. 216 For the effect of endorsement, the Court exam ined the program through the eyes of a reasonable observer, in this case an adult community member, and the Court stated, "any objective observer familiar with the full history and context of the Ohio program would reasonably view it as one aspect of a bro ader undertaking to assist poor children in failed schools, not as an endorsement of religious schooling in general." 217 The Ohio program satisfied the criteria set forth by the Court by providing vouchers to students irrespective of their religion, and by allowing students to the option to 212 Zelman, 536 U.S. at 651. 213 Id at 652. 214 Id. 215 Id. at 644, 649. 216 Id at 649. 217 Id. at 655 (The court mention an observer familiar with the history, which assumes a certain amount of prior knowledge).

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58 choose to use the vouchers at religious schools. 218 Although as Justice O'Connor consider all reasonable educational alternatives to rel igious schools that are available to parents." 219 The Court contended that students and parents must be free from coercion and able to exercise choice when access to religious and nonreligious options with respect to public schools is offered. 220 Since the p rogram permitted "such individuals to exercise genuine choice among options public and private, secular and religious[, it] is therefore a program of true private choice," 221 and free from government coercion favoring religion, therefore the program is not c onsidered an establishment of religion. Lower Court Cases Involving the Establishment Clause After the last anti evolution statute was summarily struck down by the courts, 222 what evolution. 223 equal amount of emphasis on, the origins and creation of man and his world as t he 218 Zelman, 536 U.S. at 662 63. 219 Id at 663 (O'Connor, J., concurring). 220 Id. at 655 56. 221 Id. at 662. 222 Epperson 393 U.S. 99 at 94. 223 Martha M. McCarthy, Instruction About the Origin of Humanity: Legal Controversies Evolve 203 Educ. Law Rep. 453, 45 4 ( 2006).

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59 addressed the question of origins. 224 Additionally, a disclaimer stating evolution was only a theory was required, even though the teaching of Genesis required no disclaimer, and finally the statue prohibited occult or satanical perspectives on the question of origins. 225 In 1975, the U.S. Court of Appeals for the Sixth Circuit struck down the statue in Daniel v. Waters l 226 The legislatures of Arkansas and Louisiana passed respective evolution was taught. 227 The United States District Cou rt for the Eastern District of McLean v. Arkansas 228 After the balanced treatment acts suffered the same defeat as the anti evolution legislation that preceded them and creation science was found to be inherently religious e 224 Daniel v. Waters, 515 F.2d 485, 487 (6th Cir. 1975). 225 Daniel v. Waters, 515 F.2d 485, 487 (6th Cir. 1975). 226 Daniel v. Waters, 515 F.2d 489 (6th Cir. 1975). 227 Balanced Treatment for Creation Science and Evolution Science Act, La. Rev. Stat. Ann. §§ 17:286.1 286.7 (2001), invalidated by Edwards v. Aguillard, 482 U.S. 578 (1987); see McLean v. Ark. Bd. of Educ., 529 F. Supp. 1255, 1256 (E.D. Ark. 1982); see also Eugene C. Bjorklun, Evolution and Creationism in the Public School Curricul um: The Academic Freedom Issue, 70 West's Educ. L. Rep. 277, 279 (1992). 228 McLean v. Ark. Bd. of Educ., 529 F. Supp. 1255, 1256 (E.D. Ark. 1982).

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60 validity of evolution through the use of oral and written disclaimers. 229 Unlike the previous failed attempts of creationists, disclaimers did not prohibit the teaching of evolution nor did they require equal treatment of evolution and creation science. 230 One such resolution was enacted by the Board of Education in Tangipahoa Parish, Louisiana in 1994. It required teachers to read the following disclaimer prior to any discussion of evolution. It is hereby recognized by the Tangipahoa Board of Education, that the lesson to be presented, regarding the origin of life and matter, is known as the Scientific Theory of Evolution and should be presented to inform students of the scientific concept and not intended to influen ce or dissuade the Biblical version of Creation or any other concept. 231 Within seven months of passing, the resolution was challenged by a district court before reaching the United States Court of Appeals for the Fifth Circuit. 232 The district court relied on the legislative motivation standard in McLean and Edwards to invalidate the disclaimer under purpose prong. 233 229 Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 345 (5th Cir. 1999) (using a disclaimer to remind scho ol children "that evolution as taught in the classroom need not affect what they already know"). 230 Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 345 (5th Cir. 1999) (finding that the school's disclaimer resolution was adopted "following a failed attempt to introduce creation science into the Tangipahoa curriculum as a legitimate scientific alternative to evolution"). 231 Freiler v. Tangipahoa Parish Bd. of Educ., 975 F. Supp. 819, 821 (E.D. La. 1997), aff'd, 185 F.3d 337 (5th Cir. 1999). 232 Freiler v. Tangipahoa Parish Bd. of Educ., 975 F. Supp. 819, 821 (E.D. La. 1997), aff'd, 185 F.3d 342 (5th Cir. 1999). 233 Relying on the Supreme Court's statement in Wall ace v. Jaffree, 472 U.S. 38 (1985), that a statute is unconstitutional "'if it is entirely motivated by a purpose to advance religion,'" Freiler, 975 F. Supp. at 827 (quoting Wallace, 472 U.S. at 57), the district court concluded that the disclaimer at iss ue violated the Establishment Clause because it was "motivated" by "religious concerns." Id. at 830. In support of this conclusion, the district court pointed to statements by the resolution's sponsor that his goal in introducing the resolution was to prom ote creationism. See id. at 829.

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61 fold articulation of purpose 234 On the literal language of purpose prong, which states a provision must only have one sincere, secular purpose, the Fifth Circuit Court concluded the disclaimer met the standard. 235 However, the Fifth Circuit felt the disclaimer violated the eff conferred by the reading of the Tangipahoa disclaimer is more than indirect, remote, or 236 Accordingly, Court stated: As hard as it tries to, this Court cannot glean any secular purpose to this discla imer... If there is no clearly secular purpose to the act, the Court is left with but two conclusions: (1) the act was enacted for religious purposes ... ; or (2) the act had no purpose. In the absence of a finding that the School Board passed a meaning less or irrational resolution, the Court must find that the disclaimer was passed for religious reasons. 237 Much like in Daniels the disclaimer referred to the Bible failing to acknowledge other religious beliefs. 238 Furthermore, by having the disclaimer re ad on school grounds during school hours, the school board gave the impression that they were endorsing the religious beliefs mentioned in the disclaimer. 239 Therefore, the disclaimer was found to 234 Freiler v. Tangipahoa Parish Bd. of Educ., 1 85 F.3d 344 45 (5th Cir. 1999). 235 Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 344 (5th Cir. 1999) ("If the disclaimer furthers just one of its proffered purposes and i f that same purpose proves to be secular, then the disclaimer survives scrutiny under Lemon's first prong."). 236 Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 344 (5th Cir. 1999) In support of this conclusion, the court cited the disclaimer's juxtapo sition of its criticism of evolution with its urging students to contemplate alternate theories, its reminder that students may maintain the beliefs of their parents, and its presentation of the biblical version of creation as the only enumerated alternati ve to evolution. 237 Freiler v. Tangipahoa Parish Bd. of Educ., 975 F. Supp. at 829 (5th Cir. 1999). 238 Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 341 (5th Cir. 1999) ("Biblical version of Creation or any other concept."), with Daniel v. Waters, 51 5 F.2d 485, 487 (6th Cir. 1975) ("The origins and creation of man and his world as the same is recorded in other theories, including, but not limited to, the Genesis account in the Bible."). 239 Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 348 (5th C ir. 1999).

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62 be a violation of the Establishment Clause. It is interesti refusal of certiorari in this case despite their expressed disapproval of the Lemon test. 240 In particular, the Court disapproved of the broad interpretation of the legislative purpose in Daniels using the Lemon test. In a mo re recent case involving the Cobb County School Board in Georgia and the placement of a disclaimer on textbooks, which Selman v. Cobb County School District found the disclaimer invalid. 241 In Selman the court concluded the disclaimer satisfied the purpose prong of the Lemon test, because it had two secular purposes: 1) to foster critical thinking, and 2) to present the evolution theory in a nonhostile environment. 242 However, when the court looked at the effects prong of Lemon 240 Van Orden v. Perry, 545 U.S. 677 (2005); Tangipahoa Parish Bd. of Educ. v. Freiler, 530 U.S. 1251, 1251 (2000) (Scalia, J., dissenting from the denial of certorari); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 400 (1993) (Scalia, J., joined by Thomas, J., concurring in the judgment); County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 655 57 (1989) (Kennedy, J., concurring in part, dissenting in part); Corp. of the Presiding Bishop v. Amos, 483 U.S 327, 346 49 (1987) (O'Connor, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 107 13 (1985) (Rehnquist, J., dissenting). 241 Selman v. Cobb County School District, 390 F. Supp. 2d 1292 (N.D. Ga. 2005). 242 Selman v. Cobb County School District, 390 F. S upp. 2d 1302 (N.D. Ga. 2005). ("The Sticker in this case does not contain a reference to religion in general, any particular religion, or any religious theory. This weighs heavily in favor of upholding the Sticker as constitutional."); accord Adler v. Duva l Cty. Sch. Bd., 206 F.3d 1070, 1084 (11th Cir. 2000) ("For the most part, statutes which the Supreme Court has invalidated for lack of secular purpose have openly favored religion or demonstrated a religious purpose on their face."). The court continued t he judicial trend toward expanding the reach of the Lemon test by applying a modified version of the purpose prong. It analyzed what it deemed the "primary" purpose of the disclaimer the reduction of offense to anti evolutionist students and parents. Sel man, 390 F. Supp. 2d at 1303 04. Relying on testimony from board members, the court concluded that the board adopted the disclaimer to "placate their constituents and to communicate to them that students' personal beliefs would be respected and tolerated i n the classroom." Id. at 1303. The court acknowledged that the decision to adopt the disclaimer was "influenced by sectarian interests," but determined that the disclaimer at issue served only as an accommodation of religion and did not serve the purpose o f advancing it in violation of Lemon's purpose prong. Id. at 1304.

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63 version of the endorsement test from County of Allegheny v. ACLU Greater Pittsburgh Chapter 243 This case describes the endorsement test as prohibiting any statement that, when viewed by a reason observer fa context, conveys a message of government endorsement of religion. 244 Under that interpretation, the court found the disclaimer invalid because it sent a message that 245 The court felt that a reasonable observer would be aware of the sly motivated constituents. 246 Furthermore, the 247 issue. 248 243 Selman v. Cobb County School District, 390 F. Supp. 2d at 1305. The Selman court went on to explain that unlike the subjective analysis embodied in Lemon's purpose prong, the effects tes t inquiry is "'in large part a legal question to be answered on the basis of judicial interpretation of social facts.'" Id. at 1306 (quoting Lynch v. Donnelly, 465 U.S. 668, 693 94 (1984) (O'Connor, J., concurring)). 244 Selman v. Cobb County School Distric t, 390 F. Supp. 2d at 1305. 245 Selman v. Cobb County School District, 390 F. Supp. 2d at 1306. 246 Selman v. Cobb County School District, 390 F. Supp. 2d at 1306. 247 Selman v. Cobb County School District, 390 F. Supp. 2d at 1308 09. The court stated that t he School District, in selecting this language, violated the Establishment Clause by "appearing to take a position on questions of religious belief." Id. at 1307 (citing County of Allegheny, 492 U.S. at 593 94 (1989)). 248 Selman v. Cobb County School District, 390 F. Supp. 2d at 1308 09. The Selman court examined the social history of this issue and noted that the question of "whether evolution is referenced as a theory or fact is a loaded issue with religious under tones." Selman, 390 F. Supp. 2d at 1307. The court added that the sticker implicitly supported religious theories of origin by suggesting that evolution is problematic in the field of science, persuaded by witnesses, including those of the defendant School Board, that evolution is "the dominant scientific theory of origin accepted by the majority of scientists." Id. at 1309.

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64 omitted from t he appellate record. 249 Even though every disclaimer that has been challenged in court has been invalidated under the Establishment Clause, newer facially neutral disclaimers are being developed. This is particularly troublesome to evolutionists, because d isclaimers openly invite criticism of evolution and potential present a broader range of options for discrediting evolution. 250 However, proponents for intelligent design maintain the 251 These challenges may prove more difficult to rationally defensible grounds for preventing teachers from exposing students to well 252 Even with a broad interpretation of the legislative purpose, the Establishment Clause may be ill equipped to deal with the ever changing complexity of evolution disclaimers. 249 Selman v. Cobb County Sch. Dist., 449 F.3d 1320, 1322 (11th Cir. 2006). 250 Paul R. Gross, The State of State Science Standards 15 ( 2005), available at http://www.edexcellence.net/doc/Science%20Standards.FinalFinal.pdf (citing disclaimers as the primary means of response by anti evolutionists seeking to di scredit evolution); Rauber, supra note 17, at A1 (explaining that "the tactic that most worries supporters of evolution is the use of anti evolution disclaimers inserted into science textbooks"). 251 Martha M. McCarthy, Instruction About the Origin of Human ity: Legal Controversies Evolve, 203 Educ. Law Rep. (West) 461 (Jan. 12, 2006). Contrast this description with the idea of creation science; see Jodi Wilgoren, Politicized Scholars Put Evolution on the Defensive, N.Y. Times, Aug. 21, 2005, at A1. 252 David K. DeWolf et al., Teaching the Origins Controversy: Science, or Religion, or Speech?, 2000 Utah L. Rev. 39, 85.

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65 Conclusion Since the inception of the First Amendment over two hundred years ago, the 253 254 The Court has relied upon the ea rly writings of Madison and Jefferson in constructing Court opinions. 255 Nearly one hundred opinions involving the establishment of religion were written since Lemon 256 Amongst the most important establishment cases decided by the Supreme Court are: Everso n v. Board of Education 257 Epperson v. Arkansas 258 Walz v. Tax Commission of New York 259 Lemon v. Kurtzman 260 Edwards v. Aguillard 261 and Zelman v. Simmons Harris 262 There are also several important lower court cases involving the Establishment Clause including: Daniel v. Waters 263 McLean v. 253 Fenwick, supra note 2, at 1. 254 Graham, supra note 3, at 148. 255 Graham, supra note 3, at 154. 256 Underwood, supra note 3, at 54. 257 Everson 330 U.S. 1. 258 Epperson 393 U.S. 97. 259 Walz 397 U.S. 664. 260 Lemon, 403 U.S. 602. 261 Edwards 393 U.S. 97. 262 Zelman, 536 U.S. 639. 263 Daniel 515 F.2d 485.

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66 Arkansas 264 Freiler v. Tangipahoa Parish B oard of Education 265 and Selman v. Cobb County School District 266 All of these cases helped to form the foundation for future Establishment Clause cases. Though decisions inv olving the Establishment Clause have not always been consistent, they have provided a necessary framework for deciding other cases involving the Establishment Clause. As the Court struggles for consistency, it will turn to these pivotal cases for guidance in its decisions. 264 McLean 529 F. Supp. 1255. 265 Freiler, 975 F. Supp.819. 266 Selman 390 F. Supp. 2d.

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67 CHAPTER 3 FUGITIVE LITERATURE The concept of purposeful design in nature dates all the way back to the ancient Greeks. Within classical Greek philosophy, both Plato and Aristotle posited works containing a natural creator 1 In Timaeus Plato wrote of the creator of the cosmos as a 2 Contemporary neo Platonic design theorists, such as y a designer intrinsic to the universe. 3 Metaphysics 4 5 This is commo nly known as the teleological argument for the existence of God. In his 13 th century publication, Summa Theologiae 1 some cause, for without a cause nothing can be created. The work of the creator, whenever he looks to the unchangeable and fashions the form and nature o f his work after an unchangeable pattern, must necessarily be made fair and perfect; but when he looks to the created only, and used a created pattern, it is not fai http://www.activemind.com/Mysterious/Topics/Atlantis/timaeus_page3.html 2 some cause, for without a cause nothing can be crea ted. The work of the creator, whenever he looks to the unchangeable and fashions the form and nature of his work after an unchangeable pattern, must necessarily be made fair and perfect; but when he looks to the created only, and used a created pattern, i http://www.activemind.com/Mysterious/Topics/Atlantis/timaeus_page3.html 3 (New York: Free Press 1998); Michael J. Denton et al., The Protein Folds as Platonic Forms: New Support for the Pre Darwinian Conception of Evolution by Natura l Law 219 J Theor Biol. 219, 325 42 (2002). 4 that remains for it to attain. This perfect being, which is the prime mover of the universe, Aristotle called 1978). 5 Marcus Cicero, The Nature of the Gods (Penguin Classics 1972)

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68 design. 6 In the 19 th century, William Paley introduced the watchmaker a nalogy in Natural Theology 7 The watchmaker analogy implies that because of all the intricate moving parts and complexity, a watchmaker must have designed the watch. That complexity does not happen by random chance, but rather by design and therefore a de signer. William Paley based his beliefs on the Bible and the nature of God. For example, Paley believed structures such as the human eye, pointed directly to the nature, character and power of God. 8 Some see intelligent design as an adaptation of natu ral theory set on changing science by undermining evolution. Ironically, natural theology led Darwin to collect fossils and biological specimens, which formed the basis for his theory of the origin of species in the 19 th century. Darwin used a blended bi blical Platonic view, commonly accepted amongst natural theologians at the time, to contrast his views on immutability and biogeography. 9 There are also those who believe in theistic evolution in which evolution is compatible with a supernatural designer. The various different teleological or design based perspectives can be confusing. They have certain characteristics in common but also vary philosophically and design 6 Theologica (Sophia Institute Press 2002) 7 William Paley, Natural Theology: or, Evidences of the Existence and Attributes of the Deity (1809). (Forrest, Daily Kos 2006, Forrest, Creationisms Trojan Horse 2007, Meyer 1986, Thaxton 1988, Safire 2005) 8 Marcus Ross & Paul Nelson, A Taxonomy of Teleology: Phillip Johnson, the Intelligent Design Community and Young Earth Creationism, in Darw 269 (William A. Dembski ed., Inter Varsity Press 2006) 9 Ross & Nelson, supra note 8, at 269.

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69 explained by an intelligent cause, not an undirected process such as natural 10 nature sh 11 Furthermore, the Discovery Institute maintains that intelligent design (ID) is different from young earth creationism because: (1) ID is based on science, whereas young earth creat ionism is based on sacred texts and (2) the religious implications of ID are unconnected to ID itself. 12 William Dembski believes ID differs from young earth cause respons ible for the design in nature, nor does it prescribe in advance the 13 Members of the ID community also differ in their theological views. There are old earth creationists (e.g., Steven Meyer a nd William Dembski), theistic evolutionists (e.g., Michael Behe), and there are even young earth creationists (e.g., Paul Nelson and John Mark Reynolds), who all identify themselves with the ID community. 14 Young earth creationists assert recognition and d etectability of real design in the abiotic and biotic universe by a transcendent, theistic being who causally acted both during and after the initial formation of the earth approximately 6,000 years ago, whereas old earth 10 Discovery Institute Center for Science and Culture, Questions About Intelligent Design, www.discovery.org/csc/topQuestions.php (last visited March 22, 2009). 11 Access Research Network, What Is Intelligent Design? www.arn.org/idfaq/What%20is%20intelligent%20design.htm (last visited March 22, 2009). 12 Ross & Nelson, supra note 8, at 266. 13 William A. Dembski, Intelligent Design: The Bridge Between Science and Theology 312 (InterVarsity Press, 1999). 14 Ross & Nelso n, supra note 8, at 271.

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70 creationists believe initial forma tion of the earth to be closer to 4.5 billion years. 15 Furthermore, weak and strong theistic evolutionists differ as to the extent, to which design is empirically detectable, but agree in a continuous ancestry and that the earth is 4.5 billion years old. 16 There are even non Christian adherents, such as Michael Denton and David Berlinski, that are also members of the ID community. 17 Based on the same criteria, Ross and Nelson define intelligent design as a teleological position asserting recognition and emp irical detectability of real design in abiotic (nonliving) and/or the biotic universe. 18 There are those, like Barbara Forrest, a professor at Southeastern Louisiana University, that beli eve the intelligent design movement rea lly began with creationist and in 1984 by the religious organization, the Foundation for Thought and Ethics (FTE) founded by Jon A. Buell. 19 In it 20 This inference to design was based on the principle of uniformity propos ed by Charles Lyell in the 1830 s to explain 15 Ross & Nelson, supra note 8, at 274. 16 Ross & Nelson, supra note 8, at 273. 17 Ross & Nelson, supra note 8, at 271. 18 Ross & Nelson, supra note 8, at 274. 19 Barbara Forrest, Know Your Creationists: Know Your Allies, Daily Kos (2006), http://www.dailykos.com/story/2006/3/11/8448/52824 20 Barbara Forrest, Expert Witness Report, United States Distr ict Court for the Middle District of Pennsylvania (2007), http://www.creationismstrojanhorse.com/FORREST_EXPERT_REPORT.pdf

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71 causes we observe producing certain effects today can be counted on to have produced sim 21 We observe intelligent agents generating new information in the present. 22 23 Stephen C. M eyer in 1986, that signals sent by DNA in with an intelligence agent. 24 intelligent agents do produce large amounts of information, and since all known natural processes do not (or cannot), we can infer design as the best explanation of the origin 25 In 1988, Thaxton explained how his view of intel ligent cause was compatible with both metaphysical naturalism and supernaturalism during the Sources of Information Content in DNA conference. 26 It was the first time the term 27 The scientific claim made by intelligent design 21 Charles B. Thaxton, Walter L. Bradley, & Roger L. 211 (Lewis and Stanley 1984). 22 Jonathon Wells, The Politically Incorrect Guide to Darwinism and Intelligent Design 98 (Regnery Publishing 2006) 23 Thaxton et. Al., supra note 21, at 210 211. 24 Stephen C. Meyer, Et ernity Access Research Network, We Are Not Alone (1986). 25 Stephen C. Meyer, DNA and the Origin of Life: Information, Specification, and Explanation, in Darwinism, Design, and Public Education 223, 285 (John Angus Campell & Stephen C. Meyer ed., Michigan State University Press 2003). 26 Charles B. Thaxton, In Pursuit of Intelligent Causes: Some Historical Background, (June 23 26, 1988, revised July 1988 and May 1991), http://www.leaderu.com/offices/thaxton/docs/inpursuit.html 27 William Safire, On Language: Neo Creo, New York Times (2005), http://www.nytimes.com/2005/08/21/magazi ne/21ONLANGUAGE.html

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72 28 on th e Bible, refer to Adam and Eve and the universal Flood, or perpetuate the belief the Earth was young. 29 The next product for FTE was a 1989 high school biology textbook, Of Pandas and People written by Percival Davis and Dean Kenyon. 30 After two years of searching for a secular publisher, a small Texas press specializing in agricultural materials published the book, originally titled Biology and Origins 31 The adoption in at least two states (Idaho and Alabama) and in several school districts. Darwin on Trial Darwin on Trial was written by University of California Berkeley law professor Phillip Johnson in 1991. Reviewed in such popular publications as Scientific American ma 32 Stephen Jay Gould stated in Scientific American 33 28 Thaxton et. Al., supra note 21, at viii. 29 Eugenie C. Scott, Evolution vs. Creation: An Introduction 116 (Greenwood Press 2004). 30 Scott, supra note 29, 116. 31 Scott, supra note 29, 116. 32 Scott, supra note 29, 117. 33 Stephen Jay Gould, Impeaching a Self Appointed Judge, Scientific American, July 1992, at 118 22.

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73 In Darwin on Tri al Johnson not only criticized Darwinism for what he believed to be inconsistencies, but also referred to the evils of materialism 34 in American society. 35 According to Johnson, the scientific data supporting evolution is weak and the only reason evolution still exists is to reinforce philosophical materialism. 36 His four theses could be summarized as: 1. Biological and paleontological evidences and other scientific data, with very few exceptions, tend to falsify the Darwinian story of macroevolution and its chemical origin of life prelude. 2. Darwinian macroevolution, as a comprehensive truth claim, is ultimately grounded on the philosophical assumption of naturalism. 3. When Darwinism is brought into question, it is routinely protected by empty labels, semantic ma nipulations and faulty logic. 4. Therefore, Darwinism functions as the central cosmological myth of modern culture as the centerpiece of a quasi religious system that is known to be true a priori rather than as a scientific hypothesis that must submit to rigo rous testing. 37 involved in the process. 38 Yet, Johnson maintains that proponents of Intelligent Design do not consider themselves creationists. He distinguishes creationism from Intelligent Design by writing: 34 See also the Discovery Institute's "Wedge Document," which outlines ID's strategy for replacing science in its current form with a theistic form of science (i.e., ID)). Johnson uses the example of a wedge splitting See also The "Wedge Document": "So What?," http://www.discovery.org/scripts/viewDB/filesDB download.php?id=349 (last visited Oct. 24, 2007) (containing the full text of the "document" and the Institute's response to the controversy). 35 Scott, supra note 29, 124. 36 Scott, supra note 29, 128. 37 Thomas Woodward, Putting Darwin on Trial: Phillip Johnson Transforms the Evolutionary Narrative, in Varsity Press 2006). 38 Phillip E. Johnson, Evolution as Dogma: The Establishment o f Naturalism (Haughton 1990).

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74 who believe that the earth is billions of years old, and that simple forms of life evolved gradually to become more complex forms including humans, this process but in some meaningful sense controls it in furtherance of a purpose. 39 According to Walter Bradley, Johnson felt it important to separate questions concerning an intelligent designer from questions directed at harmonizing the Bible and science. 40 Johnson replaces the biblical genesis story with a more generalized act (creation) and an agent (the Creator). 41 Johnson asks: Why not consider the possibility that life is what so evidently seems to be, the product of creative intelligence? Science would not come to an end because the task would remain of deciphering the languages in which genetic information is communicated, and in general finding out how the whole system works What scientists would lose is not an inspiring research program, but the illusion of total ma stery of nature. They would have to face the possibility that beyond the natural world there is further reality which transcends science. 42 Johnson also argues that science should accept the idea of supernatural forces; however, controlled, repeatable expe rimentation, in which Johnson himself endorses, would not be possible without the methodological assumption that there are no supernatural forces to intervene and negate lawful regularities. 43 39 Phillip E. Johnson, Darwin on Trial 4 (Regnery Gateway 1991). 40 Walter L. Bradley, Phillip Johnson and the Intelligent Design Movement: Looking Back and Looking Forward, in Inter Varsity Press 2006). 41 Woodward, supra unity sense). 42 Johnson, Super note 38, at 14. 43 Robert T. Pennock, Tower of Babel: The Evidence Against the New Creationism 88,89 (Bradford Book/MIT Press 1999).

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75 open to empirical test. 44 Although Johnson 45 Significance of Darwin on Trial The Intelligent Design (ID) movement remained largely unnotice d after Of Pandas and People was published until Darwin on Trial was published in 1991. 46 As a professor with an endowed chair at a leading secular university, Johnson lended a lot of creditability to the ID movement, because of his prominence and connecti ons. 47 Darwin on Trial was a pivotal book for the ID movement. 48 challenges the way the courts rejected the claim that creation science is indee d science, namely by reference to how creation science violates basic constraints of scientific methodology, which requires that one appeal only to natural laws rather than to 49 While many scientists are familiar with the practice of science, most are not familiar with the philosophy of science, which ID proponents like Johnson attempt to exploit. 50 However, some critics such as Stephen Jay Gould, who are 44 Pennock, supra note 37, at 89. 45 Johnson, supra note 36, at 117 118. 46 Scott, supra note 29, 116. 47 Scott, supra note 29, 125. 48 Rober t T. Pennock, Creationism and Intelligent Design 4 Annu. Rev. Genomics Hum. Genet. 143, 155 (2003). 49 But Is It Science? The Philosophical Question in the Creation/Evolution Controversy 406 (Michael Ruse ed., Prometheus Books 1988). 50 Pennock, Supra note 48, at 156.

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76 familiar with the philosophy of science, have been able to avoid this potential p itfall. 51 Nevertheless, Darwin on Trial helped to inspire and align members of the ID movement. The Origin of Biological Information and the Higher Taxonomic Categories r reviewed journal Proceedings of the Biological Society of Washington after it was sent to three reviewers, all of whom were evolutionary and molecular biologists, and it was substantially re vised in accordance with their recommendations. 52 The publishing of the article was very controversial. 53 of the Biological Society of Washington and he found that peer review had bee n the scientific standards of the Proceedings 54 In his article, Meyer argues that neo Darwinism and random mutation cannot account for the amount of diverse species foun d during the Cambrian explosion. He proceeds to debunk other competing theories that attempted to explain the diverse body 51 Pennock, Supra note 48, at 156. See also Gould, Supra note 33, at 118 122. 52 See http://www.rstern berg.net/publication_details.htm 53 Wells, Supra note 22, at 105. E of Science Education (NCSE) to officials of the Smithsonian (SI) loosely affiliated with the Biological Society of Washington (BSW). Richard Sternberg, the editor of the Proceedings of the Biological Society of Washington lodged a complaint with the U.S. Office of Special Counsel (OSC) to investigate the harassment he was receiving. In August 2005, the OSC sent Ster of NCSE worked closely with SI and NMNH members in outlining a strategy to have you investigated and specimens and violating Proceedings of the Biological Society of Washington policies in the publication of 54 Richard Monastersky, Biology Journal Says It Mistakenly Published Paper that Attacks Darwinian Evolution Chronicle of Higher Education Dail y News, Sept. 10, 2004; Statement from the Council of the Biological Society of Washington (Oct. 4, 2004), http://web.archive.org/web/20070926214521/http:/ /www.biolsocwash.org/id_statement.html

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77 forms and the discontinuous increase in complex specified information (CSI) found during the Cambrian explosion. Complex Specified Information information in a system is inversely related to the probability of the arrangement of the characters or constituents in a system along a communication channel. 55 A ccording to Shannon, the more improbable (or complex) the arrangement, the more information a system possesses. 56 DNA represents a communication channel because it contains the assembly instructions for building proteins. 57 Furthermore, DNA conveys the inf ormation in specifically arranged sequences of nucleotide bases. Molecular biologists such as Francis Crick have likened information not only to complexity but also 58 Meyer then asks how d originate. 59 55 Claude Elwood Shannon, A Mathematical Theory of Communication 27 Bell Syst. Tech. J. (1948). 56 Steven C. Meyer, The Origin of Biological Information and the Higher Taxonomic Categories, in Varsity Press 2006) 57 H.P. Yockey, Information Theory and Molecular Biology 110 (Cambridge University Press 1992). 58 Francis Crick, On Protein Synthesis 12 Symp. for Soc. Exp. Biol. 144, 153 (19 58); Susanta Sarkar, Biological Information: A Skeptical Look at Some Central Dogmas of Molecular Biology, in The Philosophy and History of Molecular Biology: New Perspectives 191 (Susanta Sarkar ed., Kluwer precise 59 Meyer, Supra note 32, at 179.

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78 di stinguish the functional biological information from Shannon information or simply mere complexity. 60 Given the deficiencies of neo Darwinism and other current theories as al systems after the Cambrian explosion, the possibility of design as an explanation seems logical. 61 Meyer writes, such as the structure of a chambered nautilus, the organization of a trilobite, the functional integration of parts in an eye or molecular machine attract our attention in part because the organized complexity of such systems 62 Meyer argues that the presence of CSI in living organisms, as well as t he discontinuous increases of CSI seen in events such as the Cambrian explosion, suggests design. 63 Here again, Meyer is basing his hypothesis appearances of design, including 64 60 William A. Dembski, No Free Lunch: Why Specified Complexity Cannot Be Purchased Without Intelligence (Rowman & Littlefield 2002). 61 Meyer, Supra note 32, at 198. 62 Meyer, Supra note 32, at 199. 63 Meyer, Supra note 32, at 199. 64 Meyer, Supra note 32, at 199.

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79 Meyer goes on to explain that many scientific theories, especially in the historic al sciences, were based on inferences to the best explanation. 65 In the historical sciences, uniformitarian method suggests that casual adequacy can be derived from our present knowledge of cause and effect relationships. 66 eated experience of rational and conscious agents in particular ourselves generating or causing increases in complex specified information, both in the form of sequence 67 in virtue of their rationality and consciousness have demonstrated the power to produce information in the form of linear sequence specific arrangements of characters. Indeed, experience affirms that 68 Meyer also believes genes require specified arrangements of nucleotide bases, proteins require specified arrangements of amino acids, and body plans require specialized arran gements of cell types and organs. 69 possessing purposive intelligence and rationality have the ability to produce information rich hierarchies in which both individual modules and the arrangements of 65 Peter Lipton, Inference to the Best Explanation 32 88 (Rou tledge 1991); Stephen G. Brush, Prediction and Theory Evaluation: The Case of Light Bending 246 Science 1124 29 (1989); Elliott Sober, The Philosophy of Biology, 2 nd Ed. 44 (Westview Press, 2000). 66 Stephen J. Gould, Is Uniformitarianism Necessary? 263 American Journal of Science (1965); G. Simpson, Uniformitarianism: An Inquiry into Principle, Theory, and Method in Geohistory and Biohistory, in Essays in Evolution and Genetics in Honor of Theodosius Dobzbansky (M.K. Hecht & W.C. Steered eds., Appleton Century Crofts 1970). 67 Meyer, Supra note 32, at 200. 68 Meyer, Supra note 32, at 200. 69 Meyer, Supra note 32, at 201.

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80 the modules exhibit co 70 He cites transistors, resistors and ve good reason to doubt th at mutation and selection, self organizational processes or laws of nature, c an produce the information rich components, systems and body plans necessar y to explain the origination of morphological novelty such as that which arise 71 In his final argument for design, Meyer points out that natural selection lacks the purposeful goal directed design that intelligent selection (design) provides. 72 Stephen Meyer, Marcus Ross, Paul Nelson, and Paul Chien point o experience that intelligent agents often conceive of plans prior to the material instantiation of the systems that conform to the plans that is, the intelligent design of a blueprint often precedes the assembly of parts in accord with a b lueprint or 73 He uses language as an example: improbable linguistic sequences to convey an intended or pre conceived idea. In the process of thought, function al objectives precede and constrain the selection of words, sounds and symbols to generate functional (and indeed meaningful) sequences from among a vast ensemble of meaningless alternative combinations of sound or symbol. 74 70 Meyer, Supra note 32, at 201. 71 Meyer, Supra note 32, at 201. 72 Meyer, Supra note 32, at 202. 73 Stephen C. Meyer et al., The Darwinism, Design, and Public Education 386 (John A. Campbell and Stephen C. Meyer eds., Michigan State Press 2003). 74 Michael Denton, Evolution: A Theory in Crisis 309 311 (Adler & Adler 1986).

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8 1 Based on this evidence and the lack of other adequate casual hypotheses, Meyer infers that intelligent design is the most causally adequate explanation for the origin of the novel forms of animals found after the Cambrian explosion. 75 Significance of Stephen C. Meyers Publication Intelligent design is often criticized for its scant amount of peer reviewed literature. The Origin of Biological Information and the Higher Taxonomic Categories reviewed li Science and Culture, was one of the earliest leaders in the ID movement and helped to 76 Meyer has adapted the classic information theory of Shannon to fit ID. 77 specification, Meyer makes for e xample consciousness, computers, and language. Meyer uses what he calls a data and then compares those inferences to disprove rival theories. 78 This is called evidence, but must also take into account the relation of competing theories to the 75 Meyer, Supra note 32, at 203. 76 Stephen C. Meyer, The Return of the God Hypothesis 11 J. Interdiscip. Stud. 1 38 (1999). 77 Juan E. Carreo et. al, Some Considerations About the Theory of Intelligent Design 42 Biol. Res. 223, 229 (2009). 78 Michael Behe, William Dembski, & Stephen C. Meyer, Science and Evidence for Design in the Universe, (Ignatius Press 2002).

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82 evidence. Inference is a matter of choosing among alternative theories, and we choose according to which one provides the best explanation. 79 shown that 80 when we disagree with the response of Meyer, we believe that his treatment of the 81 something did not originate by chance. It is only when a pattern cannot plausibly be attributed either to chance or to natural regularity that we infer design. 82 Dembski wrote, explanation. These are regularity chance and design is to say that it cannot reasonably be referred to either regularity or chance ruling out re gularity, and then ruling out chance 83 Dembski differentiated between regularity, chance, and design as follows: To attribute an event to a law is to say that the event will almost always happen given certain antecedent c ircumstances. To attribute an event to chance is to say that its occurrence is characterized by some (perhaps not fully specified) probability distribution according to which the event might 79 Paul Thagard, Inference to the Best Explanation: Criteria for Theory Choice 75 J. of Philo. 76 92 (1978). 80 Stephen C. Meyer, DNA and Other Designs F irst Things, Apr. 1, 2000, http://www.arn.org/docs/meyer/sm_dnaotherdesigns.htm 81 Carreo et. al., Supra note 77, at 231. 82 Wells, Supra note 22, at 84. 83 William A. Dembski, The D esign Inference: Eliminating Chance Through Small Probabilites 19, 36 (Cambridge University Press 1998).

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83 equally well not have happened. To attribute an event to design is to say that it cannot plausibly be referred to either law or chance. 84 Dembski outlined his logic in what he called the explanatory filter. Dembski wrote, regularity, chance and design are automatically precluded. Similarly, chance is always the second line of defense. If we cannot explain by means of a regularity, but we can explain by means of chance, then design is automatically precluded. There is an order of pri ority to explanation. Within this order regularity has top priority, chance second, 85 Dembski gives as an example several dozen letters of the alphabet randomly lined up, if one were to find two letter words, it would more than likely b e by chance. In other words, the words found were not due to natural regularities, but not complex enough to 86 Yet, this pattern would 87 88 However, if the twenty HINKS IT IS LIKE 84 William A. Dembski et al., Mere Creation: Science, Faith & Intelligent Design 98 (InterVarsity Press 1998). 85 Dembski, Supra note 52, at 38. 86 Jay W. Richards, Why Are We Here?, in Intelligent Design 101 131, 151 (H. Wayne House ed., 2008). 87 Wells, Supra note 22, at 85. 88 Dembski, Supra note 52, at 3.

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84 Hamlet 89 According to Dembski, it is both complex and specified 90 Dembski believes the 91 Dembski maintains there is no free lunch, that when we see specified complexity in nature it must be due to an intelligent ag ent because our human experience tell us so. 92 design is straightforward and easily intelligible: namely, there are natural systems that cannot be adequately explained in terms of undirected natura l forces and that exhibit 93 create novel information and, in particular specified complexit 94 However, as does not claim that living things came together suddenly in their present form through 95 Furthermore, Dembski nowhere attempts to identify the intelligent cause responsible for the design in nature, no r does it prescribe in advance the sequence of events by which this intelligent case 89 Wells, Supra note 22, at 85. 90 Wells, Supra note 22, at 85. 91 William A. Dembski, The D esign Inference: Eliminating Chance Through Small Probabilities 66 (Cambridge University Press 1998). 92 William A. Dembski, No Free Lunch: Why Specified Complexity Cannot Be Purchased Without Intelligence (Rowman & Littlefield 2002). 93 William A. Dembski, The Design Revolution: Answering the Toughest Questions About Intelligent Design 27 (InterVarsity Press 2004). 94 Dembski, Supra note 91, at xiv. 95 Dembski, Supra note 91, at 314.

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85 96 might have front loaded everything in the universe in the big bang all the irreducibly complex structures are merely 97 principal characteristic of intelligent agency is directed c ontingency, or what we call 98 Dembski concluded an event was contingent if it is one of several 99 rence is not the first argument to be made against evolution using probability as its basis. 100 three ways in which to explain phenomena: regularity, chance, and design. In essence, this is a statistica l filter, much like a P value for estimating the probability of a given structure arising by chance. 101 While some events with very low probability may occur probability events that are not due t o law or chance must be attributed to intelligent design. 102 filter, high 96 William A. Dembski, Intelligent Design: The Bridge Between Science and Theology 312 (InterVarsity Press 1999). 97 Dembski, Supra note 91, at 314. 98 Dembski, Supra note 83, at 62. 99 William A. Dembski et al., Supra note 83. 100 Duane T. Gish, Origin of Life: Critique of Early Stage Chemical Evolution Theories in Acts and Facts (Institute for Creation Research Impact Series No. 31, 1976); Henry Morris, Scientific Creationism (Henry Morris ed., Creation Life Publishers 1974); James Perloff, Tornado In a Junkyard: The Relentless Myth of Darwinism (Refug e Books 1999). 101 Richard Monatersky, Seeking the Deity in the Details Chron. Higher Educ. Dec. 21, 2001, at A10. 102 Scott, supra note 29, 120.

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86 events are attributed to chance, and only low, specified probability events are attribut ed to intelligent design. 103 nature, and that they rely heavily on subjective judgments that are skewed towards finding intelligent agents in the universe. 104 Observations made a bout complex information sequences, or the nature and source patterns of information, appear to be so wide open that they could almost be engineered to support any conclusion. 105 Some critics also believe there is fourth category to explain phenomena: Self organizing things exhibiting patterns or design that are produced through non regular natural processes. 106 If this is true, then non intelligent forces can produce design in nature and Dembski's entire "process of elimination" logic is invalid. 107 According is attributed to design because of missing or unknown information at the first, natural 108 103 Scott, supra note 29, 121. 104 Jeffrey Shallit and Wesley Elsberry, Playing Games with Probability: Dembski' s Complex Specified Information, in W hy Intelligent Design Fails: A Scientific Critique of the New Creationism 121, 130 32 (Matt Young and Taner Edis eds., Rutgers 2004) (criticizing Dembski's "pseudomathematical" arguments as being calculated to reach the desired results). 105 Id. 106 Massimo Pigliucci, Denying Evolution: Creationism, Scientism, and the Nature of Science 59 64 (Sinauer Associates Inc. 2002)(discussing organization or design in natural phenomena resulting from non intelligent processes); Mark Perakh, The Dream World of William Dembski's Creationism Talk Reason Aug. 19, 2005, http://www.talkreason.org/articles/Skeptic_paper.cfm (last visited Nov. 2, 2008) (discussing the r are occurrence of triangular snowflakes as a natural phenomenon that occurs under very rare circumstances) (on file with the Washington and Lee Law Review). These snowflakes could produce a false positive using Dembski's mathematical formula 107 Pigliucci, supra note 105, at 59 64. 108 Scott, supra note 29, 122.

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87 her point. If one living in the 800s were to find a symmetrical ring of mushrooms had suddenly sprung up overnight, they would probably not assume regularity, as it does not y 109 This rground network of filaments radiating out from a central point, and not due to the popular belief 110 According to ic knowledge of the 111 Michael Ruse argues that to infer design from empirical data, we must thoroughly in the explanatory filter. Just because it is not possible to examine every scenario, does not mean that design constitutes a valid scientific explanation. According to Ruse, it is an argument from ignorance and misconception that will eventually be rep laced by the new knowledge that science will provide. 112 flawed, because it attempts define intelligent design negatively as the result of a 109 Scott, supra note 29, 122. 110 Scott, supra note 29, 122. 111 Scott, supra note 29, 122. 112 Michael Ruse, But It Is Science? The Philosophical Questions in the Creation/Evolution Controversy 13 38 (Prometheus Books 1988).

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88 process of elimination. 113 They insist Science 114 Dembski eye repeatedly or the Search for Extraterrestrial Life (SETI) in movie Contact as illustrations of specified complexity. In the movie, Contact SETI as tronomers searched the skies for a radio signal from intelligent extraterrestrials. 115 According to Seth Shostak, a senior astronomer for the SETI Institute, the signals produced by intelligent agents would differ from those 116 However Milner and Maestro believe thing more than red herrings, because they depend on a prior understanding of human intellect and motivation, and that of relevant causal processes. 117 were searching for in the mo vie, Contact ; Dembski cannot prove that genetic patterns 118 Ultimately, Dembski's nebulous hypothesis of design provides little that is testable, and once supernatural processes are added in it loses any ch ance of testability. 119 113 Richard Milner and Vittorio Maestro, Intelligent Design? (Special Report) 111 Nat. Hist., April 2002, at 79. 114 Milner, Supra note 108, at 79. 115 David K. DeWolf, John G. West, and Casey Luskin, Intelligent Design Will Survive K itzmiller v. Dover 68 Mont. L. Rev. 7, 14 (2007). 116 Seth Shostak, SETI and Intelligent Design http://www.seti.org/Page.aspx?pid=1011 (Dec. 1, 2005). 117 Milner, Supra note 108, at 79. 118 Milner, Supra note 108, at 79. 119 Milner, Supra note 108, at 80.

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89 neither mutually exclusive nor jointly exhaustive. 120 Further, Pennock states that theoretic 121 Pennock also goes on to say information as Dembski claims. 122 Pennock points to several examples where CSI can be explained by Darwinian mechanisms. 123 Philosopher of science, Peter Godfrey 124 No Free Lunch No Free Lunch 125 Dembski tries to apply No Free Lunch theorems (NFL) to Darwinism. NFL theorems compare the effectiveness of to get to the highest place on unfamiliar terrain in the dark, in the steepest possible direction; if no direction uphill is available, take a couple of 120 Pennock, Supra note 48, at 154. 121 Pennock, Supra note 48, at 154. 122 Pennock, Supra note 48, at 154. 123 See also Pennock, Supra note 43, at 429; Robert T. Pennock, The Wizards of ID: Reply to Dembski in Intelligent Design Creationism and Its Critics: Philosophical, Theological and Scientific Perspectives (Robert T. Pennock ed., MIT Press 2001); Robert T. Pennock, Mystery Science Theater: The Case of the Secret Agent 111(3) Nat. Hist. 77 (2002). 124 Pe ter Godfrey Smith, Information and the Argument from Design, in Intelligent Design Creationism and Its Critics: Philosophical, Theological and Scientific Perspectives (Robert T. Pennock ed., MIT Press 2001). 125 Dembski, Supra note 92.

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90 126 127 Surprisingly, when averaged over all terrains, nei ther search algorithm is better. 128 Dembski tries to apply this to Darwinism by saying that because Darwinism is a random unaided process it fares no better at producing elaborate machines than any other algorithm. Any attempts to control the challenges fa ced by organisms, to favor evolution implies contingency. This is what Dembski calls the displacement problem. He uses the NFL theorems and the problem of displacement to suggest that the only reasonable explanation for the design we see in organisms is intelligence. No Free Lunch for what he saw as mathematical difficulties, grandiose claims, equivocation, poor writing, misrepresentations, and poor scholarship. 129 David Wolpert, mathematician and author of the or genomes do not search the same fixed fitness space but coevolve. 130 126 David Wolpert, Math. Rev. Feb. 2003 127 Wolpert, Supra note 118. 128 Wolpert, Supra note 118. 129 Jeff Shallit, William Dembski, No Free Lunch 66 Biosystems 93 99 (2002). 130 Wolpert, Supra Note 1 14.

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91 Several others have 131 Allen Orr reminds us, 132 If complex structures, such as the eye, lead to more offspring, they may evolve; however, when they prove unnecessary, such as in caves, they may degenerate. 133 Furthermore, recent evidence shows NFL theorems do not hold true, when two species evolve in response to one another (co evolution). 134 Which is most often the case for organisms; they are constantly cha llenged by rapidly evolving viruses, parasites, predators, and prey. 135 biological it is bought and paid for, because random genetic variation is subjected to natural selection by the environment, which itself is already structure d. 136 More discussion about Dembski by his critics takes place on the internet. 137 131 See H. Allen Orr No Free Lunch: Why Specified Complexity Cannot Be Purchased Without Intelligence 27 Boston Rev., (2002), http://bostonreview.net/BR27.3/orr.html ; Howard J. Van Till, E. Coli A t the No (2002), http://www.aaas.org/spp/dser/03_Areas/evolution/perspectives/van tillecoli_2002.pdf ; Howard J. Van Till, American Association for the Advancement of Science, Dialogue on Science, Ethics, and Religion, (2002), http://www.aaas.org/spp/dser/03_Areas/evolution/perspectives/vantillresponse_2002.pdf 132 H. Allen Orr, The New Yorker, May 30, 2005, (Magazine), at 44. 133 H. Allen Orr, Supra Note 118, at 45. 134 H. Allen Orr, Supra Note 118, at 45. 135 H. Allen Orr, Supra Note 118, at 45. 136 Milner, Supra note 108, at 80. 137 See Wesley Elsberry, The AntiEvolutionists: William A. Dembski (2 003), http://www.antievolution.org/people/dembski_wa/wadembski.html

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92 Irreducible Complexity In his 1996 primer for intelligent design, Darwin's Black Box: The Biochemical Ch allenge to Evolution 138 Michael Behe argues that neo Darwinism is no longer adequate because of scientific advances that have occurred since Darwin's death. 139 Behe explains that the neo Darwinian evolutionary mechanism of natural selection suggests random g enetic mutations in an individual cause anatomical changes which are passed on to his or her progeny, and eventually a wider population, if they provide reproductive advantages or enhance the survival of the organisms. 140 Over time, these accumulated change s lead to the creation of a new species. 141 Behe, however, believes by such a process. 142 While Behe rejects the idea that natural selection led to the creation of new sp ecies, he does not propose a specific, systematic mechanism in its place. 143 Behe explains how some life forms with interacting parts do not function without all of those parts are in place to operate together similar to a mousetrap. 144 As separate parts, the y have no function or value to the survival of the organism just like a typical 138 1996). 139 Behe, supra note 138, at 10. 140 Peter J. Bowler, Evolution, in T he History of Science and Religion in the Western Tradition, 458, 459 (2000). 141 Behe, supra note 138, at 26. 142 Barry P. McDonald, Government Regulation or Other "Abridgements" of Scientific Research: The Proper Scope of Judicial Review Under the First Amendment 54 EMORY L.J. 990, 990 92 (2005). 143 Laurie Goodstein, Witness Defends Broad Definition of Science N.Y. T imes Oct. 19, 2 005, at A15 144 B ehe supra note 1 38 at 42.

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93 mousetrap; therefore, they could not have developed under a natural selection mechanism 145 since "natural selection can only act on systems that perform functions that help organ isms survive." 146 Behe believes that many complex organisms or biochemical processes cannot evolve under natural selection, when the parts are non functional apart from each other and have to be assembled together before they can function. 147 Behe defines th is as irreducible complexity: [By irreducibly complex I mean] a single system composed of several well matched, interacting parts that contribute to the basic function, wherein the removal of any one of the parts causes the system to effectively cease fun ctioning. An irreducibly complex system cannot be produced directly (that is, by continuously improving the initial function, which continues to work by the same mechanism) by slight, successive modifications of a precursor system, because any precursor to an irreducibly complex system that is missing a part is by definition nonfunctional. 148 Behe states that advances in biochemistry during the 1950s have allowed scientists to study organisms at the molecular level, and that the cell is an example of an irred ucibly complex organism requiring all of its components to function. 149 The best explanation for their origins, accordingly to Behe, is an intelligent designer, 150 who created the first irreducibly complex organism, a bacterium cell, packed with genes that 145 B ehe supra note 1 38 at 46 47. 146 Michael J. Behe et al., Science and Evidence for Design in the Universe 9 Proc. Of Wethersfield Inst. 13 (1999). 147 Behe, supra note 138, at 204 05 (suggesting cilium, the blood clotting system, and intracellular transport systems as examples of complex systems inferring design). 148 Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707, 712 (2005). 149 Behe, supra note 138, at X. 150 Behe, supra note 138, at 193 ("The conclusion of intelligent design flows naturally from the data itself -not from sacred books or sectarian beliefs.").

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94 wo uld not become active for billions of years but were genetically predestined to lead to all subsequent life forms. 151 Behe explains: Suppose that nearly four billion years ago the designer made the first cell, already containing all of the irreducibly compl ex biochemical systems discussed here and many other. (One can postulate that the designs for systems that were to be used later, such as blood clotting, were present but day organisms plenty of genes are turned off for a whil e, sometimes for generations, to be turned on at a later time.) 152 for all the irreducibly complex systems needed for life into a primordial cell, absurd. 153 Fuytura calls B divergent, duplicate hemoglobin requires us to postulate a special intervention by the 154 According to Behe, we infer design of a component part if (1) its complexity is such that it could not have arisen spontaneously and (2) it is too interconnected and/or streamlined to function in a simpler form; if component parts satisfy these two criteria they are said to be "irreducibly complex." 155 For if, removal of any part ma kes the organism nonfunctional and there is no identifiable "precursor" to the part in any other 151 Evolution 162 (Harper Perennial 1999)(quoting Behe, supra note 138, at 227 28)(In other words, the genetic code for all of the rest of the organisms that have e ver and will ever exist was packed into the first bacterium). 152 Behe, supra note 138, at 228. 153 Kenneth Miller, 16 Creat./Evol. 36 (1996). 154 Douglas J. Futuyma, Miracles and Molecules, in Evolution vs. Creationism 182, 182 (Eugenie C. Scott 2004). 155 Behe, supra note 138, at 194 96. The most famous example of an irreducibly complex system is the household mousetrap, which consists of a board, a spring, a lever arm and a latch. If the mousetrap evolved in a manner analogous to natura listic evolution, it must have arisen from very simple, initially unconnected component parts (maybe a board, an unbent wire, etc.) to the more complex form. Behe believes this is unlikely, because the components by themselves are useless for trapping mic e; only a complete mousetrap, constructed of the components arranged in a very specific manner, is useful for the intended purpose.

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95 form, then, according to Behe, Darwin's theory of natural selection must be wrong, and the only logical alternative is intelligent design. 156 According to his v iew, finding an irreducibly complex biological system would present a "powerful challenge to Darwinian evolution. Since natural selection can only choose systems that are already working, then if a biological system cannot be produced gradually it would ha ve to arise as an integrated unit, in one fell swoop, for natural selection to have anything to act on." 157 Therefore, an irreducibly complex system with all the parts arranged purposely together may "better" by described as the act of some "unnamed intelli gent agent." 158 According to Behe, "life is too complex to have developed through evolution, implying a higher power must have had a hand." 159 To illustrate this point further, Behe describes intelligent design as: an elephant in the roomful of scientists who are trying to explain the development of life. The elephant is labeled "intelligent design." To a person who does not feel obligated to restrict his search to unintelligent causes, the straightforward conclusion i s that many biochemical systems were designed. They were designed not by the laws of nature, not by chance and necessity; rather they were planned. The designer knew what the systems would look like when they were completed, then took steps to bring the sy stems about. Life on earth at its most fundamental level, in its most critical components, is the product of intelligent activity. 160 156 Peter Irons, Disaster in Dover: The Trials (and Tribulations) of Intelligent Design 68 Mont. L. Rev. 59, 69. 157 Michael J. Behe, Evidence for Intelligent Design from Biochemistry, Address at Discovery Institute's God & Culture Conference (Aug. 10, 1996)( http://www.arn.org/docs/behe/mb_idfrombiochemistry.htm ). 158 Lisa Anderson, Evolution of Intelligent Design Chicago Tribune, Oct. 30, 2005. 159 Ondrej Hejma, 'Intelligent Design' Supporters Gather, Associated Press, Oct. 24, 2005, http://www.discovery.org/scripts/viewDB/index.php?command=view&program=CSC%20 %20Views%20and%20News&id=2974 160 Behe, supra note 138, at 193.

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96 Proponents of Intelligent Design report to be able to empirically detect evidence of design by identifying the function of a biological structure, examining the relationship between the function of the structure's parts and the structure's overall function, and organization of the structure. 161 A s tructure is believed to be complex, because "the absence of any one of [their parts] would result in the complete loss of motor function." 162 According to ID proponents, if they do not function, they have been proven to be irreducibly complex, and such a sy stem could not have evolved directly through natural selection, so long as there is no apparent lesser function seen in more simplistic systems (in other words, nothing to select for at that earlier stage of development). 163 Behe cites several examples of su pposed irreducibly complex systems from the realm of biology including the human eye, 164 bacterial cilia and flagella, 165 the blood coagulation cascade, 166 antibodies, 167 and AMP biosynthesis 168 all of which appear to 161 Behe, supra note 138, at 193 194. 162 David K. DeWolf, Stephen C. Meyer, & Mark E. DeForrest, Teaching the Origins Controversy: Science, or Religion, or Speech? 39 Utah L. Rev. 60, 62 (2000). 163 William Dembski & Jonathon Wells, The Design of Life: Discovering Signs of Intelligence in Biologi cal Systems 148 (Foundation for Thought and Ethics 2008)( Dembski concedes that not all parts are necessary, only those that make up a part of what he calls the "irreducible core." ) 164 Behe, supra note 138, at 39. 165 Behe, supra note 138, at 51 73. 166 Behe, supra note 138, at 74 97. 167 Behe, supra note 138, at 117 39. 168 Behe, supra note 138, at 140 61.

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97 be designed. 169 Behe believes that such comple x biological mechanisms look designed because they are designed. 170 Behe cites the "acid powered rotary engines that turn the whiplike flagella of certain bacteria" and intrinsically complicated mechanism of human blood clotting as examples of irreducibly co mplex systems. 171 Behe maintains that it is highly unlikely that a bacterial flagellum, with over 50 proteins and enzymes, could be assembled sequentially by chance or that there would be a selective advantage to each addition. 172 However, scientists have off ered explanation of how both systems can be brought about by evolutionary forces and are therefore, not irreducibly complex as Behe suggests. 173 Russell Doolittle, a biochemist from the University of California at San Diego considered an expert on blood clo entire ensemble of [clotting] proteins is not 174 Behe answered his critics in 2007 with other arguments for intelligent design based on his study of sickle cells and the malaria p arasites. 175 169 Behe, supra note 138, at 187 208. 170 Michael Behe, The Challenge of Irreducible Complexity Natural History Magazine, Apr. 2002, at 74. 171 DeWolf, Supra note 159, at 62. 172 Scott, Supra note 29, at 118. 173 Miller, Supra note 151, at 129 64; see also H. Allen Orr, Darwin vs. Intelligent Design (again), Boston Rev. http://bostonreview.net/BR21.6/orr.html ; Pennock, Supra note 43, at 429; Shanks & Karl H. Joplin, Redundant Complexity: A Critical Analysi of Intelligent Design in Biochemistry 66 Phil. Of Sci. 268, 268 82 (1999). 174 Russell F. Doolittle, A Delicate Balance Boston Review (Feb./Mar. 1997)(Dool itte referred to an experiment in which a gene for clotting factor was knocked out in one group of mice and a different gene the mice la 175 Michael J. Behe, The Edge of Evolution: The Search for the Limits of Darwinism 320 (Free Press 2007).

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98 Some evolutionists have attacked Behe's criticisms of the evidence for natural selection, 176 while other biochemists have accepted them. James Shapiro, a biochemist from the University of Chicago, acknowledged, "there are no detailed Darwinian ac counts for the evolution of any fundamental biochemical or cellular system, only a variety of wishful speculations." 177 Similarly, biochemist Franklin Harold published a monograph five years after admitting, "we must concede that there ar e presently no detailed Darwinian accounts of the evolution of any biochemical or cellular system, only a variety of wishful speculations" even though he opposes ID. 178 There have also been others, which have cited Behe's ideas in their own scientific publi cations. 179 theory depends for its claims of scientific legitimacy. 180 Critics, however, have criticized Behe for the logical and biological fallacy found in his arguments. 181 Behe even sta tes, "I quite agree that my argument against Darwinism does not add up to a logical proof," although he continues to believe that Darwinian paths to irreducible complexity are exceedingly unlikely. 182 Robert Dorit claims to have 176 Tom Cavalier Smith, The Blind Biochemist 12 Trends in Ecol. and Evol. 162, 162 63 (1997); Niall Shanks, Supra note 172, at 268 98; Christoph Adami, Reducible Complexity 311 Science 61 (2006). 177 James A. Shapiro, 48 Natl. Rev. 62, 64 (Sept. 16, 1996). 178 Franklin M. Harold, The Way of the Cell: Molecules, Organisms and the Order of Life 205 (Oxford U. Press 2001). 179 Heinz Albert Becker & Wolf Ekkehard Lonnig, Transposons : Eukaryotic, in Encyclopedia of Life Sciences vol. 18, 529, 538 (Nat. Publg. Group 2002); Evelyn Fox Keller, Developmental Robustness 981 Annals N.Y. Acad. Sci. 189, 1 89 90, 199 (2002); Richard A. Watson, Compositional Evolution 277 (MIT Press 2006). 180 Irons, Supra note 153, at 69. 181 Pennock, Supra note 43, at 267 68. 182 Orr, Supra note 132, at 42.

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99 found six major fallacies in 183 For instance, Robert Pennock explains, if one removes a part (or parts) of a mousetrap it may no longer function as a mousetrap, but the other parts will still function for other purposes. 184 In fact, Brown University Biology Professor Kenneth Miller even demonstrated, in the courtroom, that one could remove the catch and metal bar and still have a fully functional tie clip or paper clip. 185 Alternatively, one could remove the wooden base, and the mousetrap would still work if it were att ached to the floor. 186 The point being that one might still have a functioning device even if one removes a part from the mousetrap. 187 Even in nature, it has been shown that a function in complex organisms may evolve for one purpose, but eventually may come to serve another through the process of natural selection. 188 In fact, the scientific evidence against irreducible complexity is overwhelming. 189 Opponents argue that elements of an irreducibly complex system could have separate individual purposes and have other functions when combined through natural 183 Robert Dorit, Molecular Evolution and Scientific Inquiry, Misperceived 85 Am. Sci. 474 75. 184 Id. 185 Kenneth R. Miller, The Flaw in the Mousetrap Nat. Hist. at 75 (April 2002); Kenneth R. Miller, The Mousetrap Analogy or Trapped by Design, h ttp://www.millerandlevine.com/km/evol/DI/Mousetrap.html (last visited May 5, 2010). 186 Keith Robison, Darwin's Black Box Irreducible Complexity or Irreproducible Irreducibil ity? http://www.tal korigins.org/faqs/behe/review.html (last visited May 5, 2010 ). 187 See Supra notes 176 178. 188 See Supra notes 176 178. 189 Pennock, Supra note 43, at 263 272.

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100 selection. 190 Kenneth Miller has suggested that the flagellum components originally had separate nonmotor functions, such as a proto flagellum that injects a toxin as in the bubonic plague bacterium. 191 In Kitzmi ller 192 Judge Jones pointed to Kenneth Miller's testimony about the Type III Secretory System (T3SS) as one possible explanation for the evolution of the bacterial flagellum: "With regard to the bacterial flagellum, Dr. Miller pointed to peer reviewed studi es that identified a possible precursor to the bacterial flagellum, a subsystem that was fully functional, namely the Type III Secretory System." 193 However, there are biologists that believe the T3SS was not a precursor to the flagellum. 194 The evolution of the human eye has also been explained in a similar incremental process. 195 196 Jerry A. Coyne, an evolutionary biologist from the University of Chicago, addressed Behe species to see if one could find functional but less complex eyes that were not only useful, but also could be strung together into a hypothetical sequence show how a 190 Scott, supra note 29, 118. 191 Richard Monastersky, Seeking the Deity in the Details Chron. Higher Educ. (Wash., D.C.), Dec. 21, 2001, at A10. 192 Kitzmiller 400 F. Supp. 2d at 707 193 Id. at 740. 194 Milton H. Saier, Jr., Evolution of Bacterial Type III Protein Secretion Systems 12 Trends in Microbiology 113 (2004)(The lack of a fossil record for biological molecules makes it difficult to even assess this question.); Uri Gophnaa, Eliora Z. Rona & Dan Graur, Bacterial Type III Secretion Systems Are Ancient and Evolved by Multiple Horizontal Transfer Events 312 Gene 151 (2003). 195 Monastersky, Supra note 182, at A10. 196 Jerry A. Coyne, God in the Details 383 Nature 227 28 (1996).

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101 camera eye might evolve. If this could done and it can then the argument for 197 Behe challenged his critics by stating, In Darwin's Black Box (Behe 1996) I claimed that the bacterial flagellum was irreducibly complex and so required deliberate intelligent design. The flip side of this claim is that the flagellum can't be produced by natural selection acting on random mutation, or any other unintelligent process. To falsify such a claim, a scientist could go into the laboratory, place a bacterial species la cking a flagellum under some selective pressure (for mobility, say), grow it for ten thousand generations, and see if a flagellum or any equally complex system was produced. If that happened, my claims would be neatly disproven. 198 Strictly speaking, irreducible complexity would be considered unscientific because it cannot be falsified by experimentation. 199 However, if we assume a bacterial flagellum developed through exaptation from a secretory organ, as Kenneth Miller proposes, we conditions believed to cause that exaptation. 200 If successful, we may conclude that irreducible complexity theory is falsified. Nevertheless, proponents of ID could still argue that t he flagellum was the product of an intelligent agent acting in the test tube. 201 What is more, in creating the precise conditions we believe will lead to the formation of 197 Jerry A. Coyne, The Case Against Intelligent Design: The Faith That Dare Not Speak Its Name New R epublic, August 22, 2005. 198 Michael Behe, Philosophical Objections to Intelligent Design: Response to Critics, Discovery Institute, http://www.trueorigin.org/behe06.asp#b1 (accessed May 5, 2010 ). 199 David Crump, Natural Selection, Irreducible Complexity, and the Bacterial Flagellum: A Contrarian Approach to the Intelligent Design Debate 36 Pepp. L. Rev. 1, 10 (2008). 200 Access Research Network Molecular Machines Museum, The Bacterial Flagellum, http://www.arn.org/docs/mm/flagellum_all.htm (last visited May 5, 2010 ) (describing the views of Michael Behe, including support for theories of irreducible complexity); Ian Musgrave, Evolution of th e Bacte rial Flagella, (Mar. 17, 2000), http://health.adelaide.edu.au/Pharm/Musgrave/essays/flagella.htm (providing a theory, instead, of evolution). 201 Anne Marie Lofaso, Does C hanging the Definition of Science Solve the Establishment Clause Problem for Teaching Intelligent Design as Science in Public Schools? Doing an End Run Around the Constitution 4 Pierce L. Rev. 219, 2 37 (2006).

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102 a flagellum, we will not have simulated the random means by which we believe the flage llum developed. 202 Besides, there are many other potential complex systems, which could exist. Even if we were to discover the pathway leading to the formation of the bacterial flagellum, it does not mean that other examples are not irreducibly complex. I n other words, this test does not falsify the actions of an intelligent agent. 203 Still, Behe conceded that there were no peer reviewed publications that showed complex molecular systems were intelligently designed. 204 So, it must be assumed that ID's irredu cible complexity is an argument of mere assertion, lacking in evidentiary support. 205 William Dembski 206 on the non functionality of sub parts, is inaccurate, and that through irreducible compl exity Behe is assessing the plausibility of the entire functional system to assemble in a step wise fashion, regardless of whether the sub parts can have functions outside 202 Crump, Supra note 188, at 10. 203 William S aletan, Grow Some Testables: Intelligent Design Ducks the Rigors of Science, Sept. 29, 2005, http://www.slate.com/id/2127052 (accessed May 5, 2010 ). 204 Kitzmiller 400 F. Supp. 2d at 745. 205 Philip Sparr, Speci 2005), and the Fate of Intelligent Design in Our Public Schools 86 Neb. L. Rev. 708, 714 (2008). 206 Judge Jones ruled that a pile of fifty eight papers dumped upon the w itness stand during Behe's cross examination refuted the claim that "science would never find an evolutionary explanation for the immune system." Kitzmiller v. Dover Area Sch. Dist, 400 F. Supp. 2d 707, 741 (M.D. Pa. 2005) Judge Jones provided no reference for that claim. Behe merely requested a reasonable standard of evolutionary proof of "detailed rigorous models for the evolution of the immune system by ra ndom mutation and natural selection." Transcr. of Procs. Afternoon Sess. at 23 (Oct. 19, 2005), Kitzmiller, 400 F. Supp. 2d 707. (Dembski similarly felt Judge Jones was wrong to claim Behe had been refuted regarding the origin of the immune system).

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103 of the final system. 207 According to Dembski, Behe never argued that sub parts could have no function outside of the final system in a irreducible complex system. 208 However, it is important to note that Behe, under cross examination in Kitzmiller 209 admitted "a defect in his view of irreducible complexity" because it focuses on "removing a part from an already functioning system" rather than on explaining the process as evolutionary biologists attempt to do of "bringing together components to make a new system in the first place." 210 Judge Jones also pointed out, in Kitzmiller that even though Behe promised to 'repair this defect in future work' ... he has failed to do so even four years after elucidating this defect." 211 Behe recently admitted 212 that a counterexample 213 undermines his argument and that he hoped to revise his original defini tion. Despite this, proponents of ID argue the "leap" involved in going from one functional sub part to the entire functional system shows the level of irreducible 207 Casey Luskin, International Society for Complexity, Information, and Desgin Archives, Do Car Complexity for the Bacterial Flagellum http://www.iscid.org/papers/Luskin_EngineLugnuts_042706.pdf ( last visited May 5, 2010 ). 208 Behe, Supra Note 138, at 40, 65 67. 209 Kitzmiller 400 F. Supp. 2d at 745. 210 Id. at 739. 211 Id. 212 Michael J. Behe, Rep Challenge to Evolution 16 Biol. Philos. 685 709. 213 Pennock, Supra note 43, at 429.

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104 complexity in a system. 214 Scott Minnich explains that even if Miller's scenario were true, i t would not be enough to allow for a Darwinian explanation to the origin of the flagellum since there is a huge leap in complexity from a T3SS to a flagellum. 215 However, Behe is wrong in assuming that anything that fails to support evolution necessarily su pports intelligent design. 216 Arguments against evolution are not automatically arguments for intelligent design. 217 Some scientists consider this an natural explanation is lacking. 218 The lack of an immediate evolutionary explanation for a single bacterial flagellum does not take away all credibility from the theory of evolution nor necessitate a leap to a supernatural designer. 219 As an article in Nature Reviews Microbiolo gy admits "the flagellar research community has scarcely begun to consider how these systems have evolved." 220 Robert Pennock contends, in his book Tower of Babel: The Evidence Against the New Creationism 221 214 Michael J. Behe, A Response to Critics of Darwin's Black Box 17, http://www.iscid.org/papers/Behe_ReplyToCritics_121201.pdf ( last visited May 5, 2010 ). 215 Transcr. of Proc. Afternoon Sess. at 112:13 25 (Nov. 3, 2005), Kitzmiller, 400 F. Supp. 2d 707. 216 Behe, Supra note 207. 217 McLean v. Ark. Bd. of Educ., 529 F. Supp. 1255, 1266 69 (E.D. Ark. 1982) (rejecting exactly this "contrived dualism"). 218 Neil W. Blackstone, Challen ge to Evolution 72 Quarterly Review of Biology 445, 445 47 (1997). 219 Monastersky, supra note 182 220 Mark J. Pallen & Nicholas J. Matzke, From The Origin of Species to the Origin of Bacterial Flagella, 4 Nat. Revs. Microbiology 784, 788 (Nat. Pblg. Group 2006). 221 Pennock, Supra note 43.

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105 222 Pennock claims Behe adds no new science to the criticism of evolution and that intelligent design fails to "resolve recognized problems, paradoxes, and/or anomalies irresolvable on the basis of pre existing scientific theories." 223 Furthermore, Pennock asserts intelligent design is not empirically testable and leads to no predictions or retrodictions, which can be verified. 224 Another Biology Professor John Moore has stated, "explanations that involve supernatural forces ... can never be studied by the basic approaches of science, which are observation and experiment. We are here in the realm of belief, not rational science." 225 Behe is very clea r in stating, By "intelligent design' I mean to imply design beyond the laws of nature." 226 For this reason, Moore believes intelligent design more likely an old religious argument for the existence of God dating back to Thomas Aquinas in the thirteenth Ce ntury than any a new scientific argument. 227 222 Behe, Supra Note 138, at 110 113; Id. at 263 272. 223 Robert Root Bernstein, On Defining a Scientific Theory: Creationism Considered, in Science and Creationism 64, 67 (Ashley Montagu ed., 1984). 224 Theresa Wilson, Evolution, Creation, and Naturally Selecting Intelligent Design out of the Public Scho ols, 34 U. Tol. L. Rev. 203, 233 (2003). 225 John A. Moore, Science as a Way of Knowing: The Foundations of Modern Biology 22 (1993). The National Association of Biology T eachers also confirms that "explanations or ways of knowing that invoke non natur a listic or supernatural events or beings, whether called "creation science,' "scientific creationism,' "intelligent design theory,' "young earth theory,' or similar designatio ns, are outside the realm of science." Nat'l Ass'n of Biology Teachers, Statement on Teaching Evolution (2004), http://www.nabt.org/websites/institution/index.php?p=92 226 Behe, Supra note 203, at 33. 227 Kitzmiller 400 F. Supp. 2d at 718.

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106 Michael Behe is the only leader in the ID movement with an academic degree in biology. 228 Despite being the most touted ID argument, Michael Behe has no scientific publications on ID or any description of ID resear ch on either the Discovery Institute or 229 very poor scholarship. He has oversimplified evolutionary theory, made implausible assumptions, committed errors in logic, ignored t he relevant literature, and neglected 230 Behe even admitted to "sloppy prose" and said he did not mean to imply that irreducibly complex systems "by definition" could not evolve gradually. 231 As a final note, Richard Lenski and his c olleagues were able to demonstrate how complex features could be produced by the Darwinian mechanism. 232 Proponents of natural selection have argued that alleged irreducibility of such systems will be reduced by the advance of science, which will provide m ore reasonable explanations than design. 233 been explained through alternative explanations. 234 Francis Collins, leader of the like 228 A. Cornish Bowden & ML Crdenas, The Threat from Creationism to the Rational Teaching of Biology 40 Biol. Res. 113 122 (2007). 229 Pennock, Supra note 48, at 149. 230 Blackstone, Supra note 211, 445 47. 231 Orr, Supra note, at 42. 232 Richard Lenski et. al., The Evolutionary Origin of Complex Features 423 Nature 139 44 (2003). 233 A. Cornish Bowden, The Pursuit of Perfection (Oxford U. Press 2004). 234 WF Doolittle & O Zhaxybayeva, Evolution: Reducible Complexity the Case for Bacterial Flagella 17 Curr. Biol. R510 512.

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107 the clotting system. 235 Behe maintains that designed biological systems could have undergone gradual changes over time through natural selection and mutation. 236 This is mostly to answer critics, who feel ID does not adequately explain such things as v estigial organs and pseudo genes in which evolution seems more plausible. Accordingly, Behe concedes many of these structures are the evolution of a primitive 237 Behe and his ID proponent s now say that irreducibly complex systems can in principle evolve, but they still feel biologists cannot reconstruct in convincing detail just how any such system did evolve. 238 Other Peer reviewed Articles Using Protistan Examples to Dispel the Myths of Intelligent Design The Edge of Evolution 239 published in 2007 discusses the eukaryotic cilium and chloroquine resistance in the apicomplexan parasite Plasmodium falciparum both of which Behe cites as examples of irreducibly complexity. O thers have criticized evolution based on the lack or irrelevance of transitional fossils, 240 the sudden radiation of biological forms in the Cambrian, 241 or that speciation has not been 235 Francis Collins, The Language of God, 186 199 (Free Press 2006). 236 Michael J. Behe & DW Snoke, Simulating Evolution by Gene Duplication of Protein Features that R equire Multiple Amino Acid Residues 13 Protein Sci. 2651 2664 (2004). 237 Behe, Supra note 138. 238 Orr, Supra note 132, at 43. 239 Behe, Supra note 175 at 320. 240 http://www.evolutionnews.org/2009/04/_why_evolution_is_false.html (Apr. 27, 2009). 241 Stephen C. Meyer, The Origin of Biological Information and the Higher Taxonomic Categories 117 Proc. Biol. Soc. Wash. 213 39 (2004).

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108 observed or documented. 242 Protistan biology, with its larger population si zes, shorter generation times, and easy laboratory manipulation, provides counterexamples to these arguments. 243 While much is made of bacteria dominating the planet before the Cambrian, ma n y forget the fact that protists, which were more morphologically and genetically diverse than bacteria, had been evolving for approximately one billion years before multicellular organisms first appeared in the fossil record. 244 At first it may appear as if Darwinian evolution could not account for the rapid radiation se en in the Cambrian, but a single innovation has been known to cause a greatly accelerated rate of evolution, giving rise 245 Morphologically complex protists and jellyfish are believed to existed before the Cambrian. 246 The evolution of a triploblastic body would have allowed for a tremendous diversification of body types. 247 Most of the Precambrian organisms are missing in the fossil record, or are represented by trace fossils. 248 Some trace fossils from nearly 400 million yea rs before the Cambrian, 249 may 242 Philip S. Skell, The Dangers of Overselling Evolution, Available at http://www.forbes.com/2009 /02/23//evolution creation debate biology opinions contributors_darwin.html (Feb. 23, 2009). 243 Mark A. Farmer & Andrea Habura, Using Protistan Examples to Dispel the Myths of Intelligent Design 57 J. Eukaryot. Microbiol. 3 10 (2010). 244 Id. 245 Niles Eldr edge & Stephen J. Gould, Punctuated Equilibria: An Alternative to Phyletic Gradualism, in Models in Paleobiology 82 115 (Thomas J. M. Schopf ed., Cooper & Co. 1972). 246 Sean B. Carroll, Jennifer Grenier, & Scott Weatherbee, From DNA to Diversity: Molecula r Genetics and the Evolution of Animal Design 3 (Wiley Blackwell 2001). 247 Jun Yuan Chen et al., Small Bilaterian Fossils from 40 to 55 Million Years Before the Cambrian 305 Science 218 222 (2004). 248 Stefan Bengtson et al., The a Billion Years Older 106 Proc. Natl. Acad. Sci. USA 7729 7734 (2009).

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109 indicate a highly diverse assemblage of protists. The current theory is that there was an explosive radiation of diverse protistan forms 250 which makes the array of body plans found in Cambrian metazoan pale in comparison. It also seems likely that if simple events made the radiation of the protists possible, then simple changes, not involving supernatural explanations, probably underlie the Cambrian explosion. 251 but generally, a sp ecies has some morphological or other physical criteria that make it distinguishable from another species. 252 It seems reasonable that we have not seen more species in the last 150 years; given the fact that it takes many generations of genetic isolation un der strong isolation pressures to produce a new species. Furthermore, the generation times of most multicellular organisms is measured in months or even years, so it is not surprising there are few examples that have been documented. In the 1960s, a new species of Amoeba proteus called xD amoebae, was discovered after a culture of strain D Amoeba proteus became infected by the bacteria Legionella jeonii 253 The new amoebae formed a symbiosis with the accompanying bacteria, such that antibiotics 249 Mary L. Droser, Sren Jensen, & James G. Gehling, Trace Fossils and Substrates of the Terminal Proterozoic C ambrian Transition: Implications for the Record of Early Bilaterians and Sediment Mixing 99 Proc. Natl. Acad. Sci. USA 12572 12576 (2002); Adolf Seilacher, Pradip K. Bose, & Friedrich Pflger, Triploblastic Animals More Than 1 Billion Years Ago: Trace Fos sil Evidence From India 282 Science 80 83 (1999). 250 Sina M. Adl et al., Diversity, Nomenclature, and Taxonomy of Protists 56 Sys. Biol. 684 689 (2007). 251 Id. 252 Richard Mayden, On Biological Species, Species Concepts and Individuation In the Natural Wor ld 3 Fish Fisheries 171 196 (2002). 253 Kwang W. Jeon & I. Joan Lorch, Unusual Intra Cellular Bacterial Infection in Large, Free Living Amoebae 48 Exp. Cell. Res. 236 240 (1967).

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110 designed t o kill the bacteria would also kill the amoebae. 254 This shows that symbiosis plays an important role in the evolution of eukaryotes even today. The fossil record shows many detailed evolutionary branching points, which is ion. 255 Many protists produce morphologically complex fossilized structures out of silica or calcium carbonate. 256 Through DNA analysis and observed ability to interbreed in living species, it has been shown that morphological details correspond well with ta xon boundaries, 257 so it makes sense that similar differences in the fossil examples represent differences between the organisms that made them. With the abundance and diversity of microfossils found, it would be surprising if the examples of protistan tran sition species did not exist. Finally, in the book The Edge of Evolution: The Search for the Limits of Darwinism 258 Behe claims that drug resistance in the malarial parasite Plasmodium falciparum is too complex to have arisen through natural evolutionary pr ocesses. Chloroquine is a drug that has been used since the 1940s to treat malaria. The chloroquine forms a complex with Fe(II) protoporphyrin IX disrupting the food vacuole of the parasite eventually killing it. In the 1950s, four species of Plasmodium were found to be resistant to chloroquine. 259 A mutation in a gene coding for a 49 kDa protein, 254 Id. 255 Wells, Supra note 237. 256 Alexander R. Schmidt et al., A Microworld in Triassic Amber 444 Nature 835 (2006). 257 Michael J. Benton & Paul N. Pearson, Speciation in the Fossil Record 16 Trends Ecol. Evol. 405 411 (2001). 258 Behe, Supra note 236. 259 John F. Hyde, Drug Resistant Malaria An Insight 274 FEBS J. 4688 4698 ( 2007 ).

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111 known as P. falciparum chloroquine resistance transporter (PfCRT), has been found to convey a resistance to chloroquine. Behe believed two mutations in pfcrt were required in order to cause resistance. 260 According to Behe, the likelihood of two simultaneous mutations needed to form a Chloroquine Complexity Cluster (CCC) would be in the neighborhood of 1 x 10 *20 261 According to Behe, On average, for humans to a chieve a mutation like this by chance, we would need to wait a hundred million times ten million years. Since that is following: No mutation that is of the same complexity as chloroquine resistance in malaria arose by Darwinian evolution in the line leading to humans in the past ten million years. 262 The Edge of Evolution was published. 263 As opposed to two simultaneous m utations being necessary to convey resistance, it was shown that a single amino acid substitution was sufficient to convey resistance to chloroquine. 264 Thus the idea that two simultaneous mutations were necessary to produce chloroquine resistance was simp ly not true. In fact, since mixed infections involving more than one resistant strain would be fairly common in areas with a 260 Behe, Supra note 236. 261 Id. 262 Id. 263 Viswanathan Lakshmanan et al., A Critical Role for PfCRT K76T in Plasmodium falciparum Verapamil Reversible Chloroquine Resistance 24 EMBO J. 2294 305 (2005). 264 Hongying Jiang et al., Genome Wide Compensatory Changes Accompany Drug Selected Mutations in Plasmodium falciparum crt Gene 3 PloS ONE e2484 (2008)(available at doi:10.1371/journal.pone.0002484.

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112 high incidence of malaria, it would not be surprising if strains containing multiple protective mutations did not arise in relativ ely short periods of time. Behe represents a credentialed scientist, who exhibits extraordinarily bad scholarship. 265 Even though he is a professor of biochemistry, he has avoided peer reviewed publications and rigorous research. Flaws in arguments have be en pointed out by other scientists, 266 yet he fails to acknowledge examples of step wise drug resistance in Plasmodium published nearly a decade before his book. 267 Intelligent Design: Fallacy Recapitulates Ontogeny Scientists claim intelligent design is another attempt by creationists to bypass previously failed attempts to teach creationism as part of science education in the United States. 268 However, intelligent design is really a repeat of 17 th and 18 th century ideas in developmental biology. 269 In 1694, Dutch inventor, Nicolas Hartsoeker, depicted preformationism (the unfolding and increase in size of an organism that pre existed within germ cells) in a drawing of a miniature human within a sperm cell. 270 In the 18 th century, German physiologist, Friedric h 265 Barbara C. Forrest & Paul R. Gross, Biochemistry by Design 32 Trends Biochem. Sci. 301 310 (2007). 266 Se an B. Carroll, God As A Genetic Engineer 317 Science 196 (2007); Sean B. Carroll, Response 318 Science 196 (2007); Rick Durrett & Deena Schmidt, Waiting for Two Mutations: With Applications to Regulatory Sequence Evolution and the Limits of Darwinian Evo lution 180 Genetics 1501 1509 (2008). 267 Worachart Sirawaraporn et al., Antifolate Resistant Mutants of Plasmodium falciparum Dihydrofolate Reductase 94 Proc. Natl. Acad. Sci. USA 1124 1129 (1997). 268 Frederick Grinnell, Intelligent Design: Fallacy Recapitulates Ontogeny 20 FASEB J. 410 11 (2006). 269 Id. 270 Id.

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113 Wolff, was able to show that development gave rise to new tissues and organs, but he still claimed an organizational force called vis essentialis accounted for his observations. 271 Similarly, proponents of intelligent design believe an unexplained organi zing force has lead to the diversity of life forms in the world. Irreducible complexity claims that the structures and functions of some biological structures and biochemical pathways could not have arisen through evolution, but only through an unknown fo rce outside laws of nature. 272 In science, discovery means learning new things about the world and credibility means convincing others that those findings are correct. Science is based on testable hypotheses, which with proper analysis by the scientific com munity leads to credibility. 273 In this sense, irreducible complexity is a claim, whose credibility has yet to be established. 274 Many see falsifiability as a clear demarcation of what is science and faith. However, past examples were not so clear, such as t he result of the 19 th century Michelson Morley experiment, 275 were argued well into the 20 th century. 276 So, falsifiability is more of a goal in science. Yet, proponents of irreducible complexity feel quite content with their solution, so as not to challenge it. 271 Id. 272 Id. 273 Id. 274 Id. 275 Id. (Refutation of invisible ether by 19 th century physics.) 276 Id.

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114 In science, one sometimes sacrifices their hypothesis for credibility. However, supporters of intelligent design seem to have given up credibility for their beliefs. 277 Scientists have long since discredited controversial discovery claims, such as N r ays or polywater. 278 Frederick Grinnell believes that maybe irreducible complexity should be taught in schools like another controversial claim, made in 6 th century BCE by astronomers, that the world was flat. 279 Evolution Is Intelligent Design It has been whole groups of organisms. 280 281 Cultural change is als o an evolutionary process. 282 An interdependent set of world an ecological context can define a culture. 283 277 Id. 278 Id. 279 Id. 280 David S. Wilson & E.O. Wilson, Rethinking the Theoretical Foundation of Sociobiology 82 Q. Rev. Biol. 327 348 (2007). 281 Robert Costanza, Evolution Is Intelligent Design 24 Trends Ecol. Evol. 414 415 (2009). 282 Robert Boyd & Peter J. Richerson, The Origins and Evolution of Cultures, 4 (Oxford University Press 2005). 283 Rachael Beddoe et al., Overcoming Systemic Roadblocks to Sustainability: The Evolutionary Redesign of Worldviews, Institutions, and Technologies 106 Proc. Natl. Acad. Sci. USA 2483 2489 (2009).

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115 Robert Costanza contends evolution, working in multilevel sys tems, designs those systems to function well and survive. 284 Furthermore, Costanza believes evolution is intelligent because it can learn from experience and improve. 285 The result of this intelligent and adaptive learning process according to Costanza is de sign. 286 Using random mutation, sexual reproduction, conscious creation of new cultural variants, and selection processes, evolution cuts down alternatives like a conscious designer. 287 Only, natural selection does this without an all seeing and all knowing intelligent agent directing it. Evolution: Reducible Complexity The Case for Bacterial Flagella The argument over whether a bacterial flagellum could assemble in a systematic fashion factored into the 2005 trial in Dover, Pennsylvania over the teaching of intelligent design. 288 Despite Judge Jones ruling in that case, there still remains scientific interest in the origin of the bacterial flagella. Pallen and Matzke inferred that hook filament complex has clearly evolved by multiple rounds of gene duplication and subsequent diversification, starting from just two proteins (a proto flagellin and a proto 289 flagellar genes ancestral to all flagellated bacteria arose through successi ve 284 Costanza Supra note 278. 285 Id. 286 Id. 287 Id. 288 W. Ford Doolittle & Olga Zhaxybayeva, Evolution: Reducible Complexity The Case for Bacterial Flagella 17 Curr. Biol. R152 (2007). 289 Mark J. Pallen & Nicholas J. Matzke, From the Origin of Species to the Origin of Bacterial Flagella 4 Nat. Rev. Microbiol. 784 790 (2006).

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116 duplications and diversifications from a single ancestor and that lateral gene transfer (LGT) played only a minor role. 290 Matzke feels Liu and Ochman were mislead by faulty BLAST (Basic Local Alignment Search Tool) 291 defaults and therefore misinterpreted homologies. 292 nd Ochman do not provide. 293 design for explaining adaptation. Darwinian explanations are even accepted by proponents of ID for adaptations seen as less than irreducibly complex. 294 According to Doolittle and Zhaxybayeva, evolutionists do not need to take on the impossible task of figuring out every detail of flagellar evolution. 295 Rather, evolu tionists just need to show that such a development is possible with the processes and constituents we already know. 296 by step explanation, for a single purpose complex 290 Renyi Liu & Howard Ochman, Stepwise Formation of the Bacterial Flagellar System 104 Proc. Natl. Acad. Sci. USA 7116 7121 (2007). 291 BLAST is a program in bioinformatics that is used to find statistically significant matches between two sequences (amino acid or DNA). Homology is similarity due to common ancestry. In proteins and DNA, this is typically sequence similarity. 292 Nick Matke, Flagellum Evolution Kerfluffle Continued http://pandasthumb.org/archives/2007/04/flagellum evolu 3.html#more 293 Doolittle, Supra note 285 at R511. 294 Id. at R512. 295 Id. 296 Id.

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117 structure using only gene duplication and divergence with a single genomic lineage, seems burdensome and prone to misinterpretation by those who see evolution as purposive. 297 Other explanations involving LGT, and the combination of parts with separate origins and other original functions could allow for the evolution of a complex structure without the need for a supernatural force. 298 Belief Versus Acceptance: Why Do People Not Believe in Evolution? Evolution has been challenged in the USA with intelligent design being touted as viable scientific alternative and appeals bei 299 The creationist community wants to distinguish between the old guard that wants to push creation science and the new guard which is trying to distance itself for religion by advancing a whol ly scientific approach, intelligent design. 300 In 1809, William Paley 301 wrote that if w e found a pocket watch on a hea th we needs no maker. How then could a complex animal (e.g. a human) be the result of natural processes and not the intentional result of a designer? This is the basis of the intelligent design creationism. 297 Id. 298 Id. 299 Anya Plutynski, Should Intelligent Design Be Taught in Public School Science Classrooms? 19 Sci. Educ. 779 795 (2008) DOI: 10.1007/s11191 008 9169 z 300 James D. Williams, Belief Versus Acceptance: Why Do People Not Believe in Evolution? 21 BioEssays 1255 1262 (2009). 301 William Paley, Supra note 7

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118 Given the counterintuitive nature of evolution along with the bias toward ms contends the supernatural, designer led interpretation becomes more likely. 302 counter and may be reinforced by friends, family or social attachments, e.g. to evangelical religious communiti 303 How has intelligent design gained public acceptance? The intelligent design (ID) which targets State education boards and the American public at large with a large political and public relations campaign 304 The ID movement proposes a scientific alternative to evolution. However, the movement has failed to produce any scientific data to support their claim let alone establish a research program. 305 Despite this, public polls show interest for intelligent d esign, even though the scientific community rejects intelligent design. 306 Another problem is the use of design oriented language in peer reviewed, scientific journals. This design language only serves to perpetuate the intelligent design erence to design The use of design language by scientists to translate technical science for the lay audience can encourage and reinforce misconceptions. For example, a paper, on the structure and function of the Mller cells, published by the 302 Williams, Supra note 296, at 1257. 303 Id. 304 (Oxford University Press 2004). 305 Id. 306 Alan Leshner, Scientific Achievements Less Prominent Than a Decade Ago: Public Praises Science; Scientists Fault Public, Media Washington, DC: American Association for the Advancement of Science/The Pew Research Center for The People and the Press (2009)( available at http://people press.org/reports/pdf/528.pdf ).

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119 Proceedi increasing refractive index together with their funnel shape at nearly constant light 307 Even though the author was n ot trying to imply a designer, the creationist community seized upon 308 Creationism is not going to disappear. Creationist misconceptions implanted or naturally occurring in primary age children are going t o be difficult, if not impossible to change later. 309 While we cannot prevent the publication of creationist books and comics aimed at children, scientists and science educators can prevent creationist ideas misconceptions from taking hold. 310 Scientists must also avoid inappropriate or imprecise language in their publications from Some Considerations about the Theory of Intelligent Design The so called theory of intelligent design (ID) burst on the scene in 1991 under the leadership of Phillip Johnson, whose book Darwin on Trial laid out the ID position. 311 ID complexity. 312 Accordingly, the gradual process proposed by Darwinism could not 307 Kristian Franze ET. al, Mller Cells Are Living Optical Fibers in the Vertebrate Retina, 104 Proc. Natl. Acad. Sci. USA 8287 8292 (2007) 308 Truth In Science, New Design Feature Discovered in Vertebrate Eye http://www.truthinscience.org.uk/site/content/view/241/63 (last visited Aug. 29, 2010). 309 Williams, Supra note 296, at 1261. 310 Id. 311 Collins, Supra note 232, at 186 199. 312 Id.

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120 account for the complexity of living, natural beings. 313 Therefore, proponents of ID believe that the existence of design seen in nature, through scientific analysis, points to a designer. 314 ID has become the subject of public discussion regarding the teaching of ID as an alternative to evolution in educational institutions. 315 Opponents of ID claim examples of design are better explained by chance, or by laws that are not well described. 316 Some feel ID is nothing more than an effort to dress antiquated attitudes and religious beliefs with the prestigious cloth of science. 317 remains a need for a deep consideration about the epistemological status and scientific validity of th 318 Carreo et al. also feels ID could coexist with the theory of evolution by natural selection if natural selection were only to apply to microevolution. 319 butes design and the underlying causal history is known, it turns out that design is present. 320 313 Francisco Ayala, Designer 104 Proc. Natl. Acad. Sci. USA 8567 8573 (2007). 314 Johnson, Supra note 39. 315 Michael Ruse, Darwinism Defended: A Guide to the Evolution Controversies, (Addison Wesley 1982); Graeme Gooday et al., Does Science Education Need the History of Science? 99 Isis 322 330 (2008). 316 Richard Dawkins, River Out of Eden, (Basic Books 1995); Richard Dawkins, The God Delusion, (Bantam Press 2006). 317 David L. Hull & Michael Ruse, The Philosophy of Biology, (Oxford University Press 1997); Richard Dawkins, The Blind Watchmaker, (W.W. Norton 1985). 318 Carreo, Supra note 77, at 224. 319 Id. 320 Id.

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121 acts, it chooses from a range of competing possibilities. 321 ID is a historical interpretation that uses supposed effects in the present to infer causal events in the past; a methodology like this cannot be regarded as scientific. 322 Perhaps a better question is whether ID can be taken as a valid historical interpretation. 323 various forms of evolutionary theories that are postulated today in paleontology and 324 ID does not pr ovide anything that could make it a plausible epistemological model. 325 Conclusio n The intelligent design movement has a long and storied past. Its roots can be traced back to Greek and Rome times. Phillip Johnson initiated the modern day movement with the publication of Darwin on Trial 326 While the amount of supporting peer reviewed articles is lacking, there is a steady stream of books and internet articles published by the leaders of the intelligent design movement. Some proponents of intelligent design, like William Dembski, publish a prolific amount of material on 321 Id. 322 Id. 323 Id. 324 Id. 325 Id. 326 Johnson, Supra note 39.

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122 intelligent de sign. The key concepts behind intelligent design are the design inference, specified complexity, the explanatory filter, and irreducible complexity. Opponents of intelligent design have criticized each concept. There have been several commentaries writt en in peer reviewed journals reviewing intelligent design. Overall, intelligent design is not accepted by the scientific community. Proponents of intelligent design contend that there is a bias against intelligent design that prevents the publishing of articles on intelligent design in peer reviewed journals. 327 One editor wrote Michael Behe: As you no doubt know, our journal has supported and demonstrated a strong evolutionary position from the very beginning, and believes that evolutionary explanations of all structures and phenomena of life are appropriate for our pages. 328 23 eer 329 So whether intelligent design is not worthy of publication in peer reviewed journals or it is being deliberately kept out of peer reviewed journals, there are still very few peer reviewed articles involving intelligent design. 327 Wells, Supra note 22. 328 Michael J. Behe, Correspondence with Science Journals: Response to Critics Concerning Peer Review Discovery Institute, Aug. 2, 2000, http://www.discovery.org/scripts/viewDB/index.php?command=view&id=450 329 Jonathon Wells, Catch 23 Research News & Opportunities in Science and Theology, July/August 2002, http://www.discovery.org/scripts/viewDB/index.php?command=view&id=1212

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123 CHAPTER 4 KITZMILLER V DOVER DECISION Introduction Public high school teachers 1 school board members, 2 parents, 3 the community 4 and policymakers 5 were clearly divided over the reading of a disclaimer in a high school classroom, which discredited evolution and offered intelligent design as an alternate theory. The plaintiffs, who were opposed to the reading of the disclaimer, believed that the disclaimer violated their rights under the Establishment Clause. 6 Proponents of the intelligent design policy believe that disclaimers about the fallacies of evolution are an academic effort to "teach the controversy." 7 1 Associated Press, Teacher Refuses "Intelligent Design" Statement (Oct. 7, 2005), available at http://www.msnbc.msn.com/id/9620585 (Dover High School science teachers refused to read the statement criticizing evolution and crediting intelligent design as an alternative theory). 2 Complaint at 1, Kitzm iller v. Dover Area Sch. Dist., No. 4:CV 04 2688 (M.D. Pa. Dec. 14, 2004), available at 2004 WL 3008270[hereinafter ACLU complaint](The Dover School Board passed by a 6 3 vote a resolution that it would make students aware of gaps and problems in Darwin's theory of evolution). 3 Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707, 708 710 (2005). (Eleven local parents, represented by the American Civil Liberties Union (ACLU) of Pennsylvania, filed suit against the school district and its board). 4 Jason Zengerle, Dover Soul, NEW REPUBLIC, Nov. 14, 2005, at 10; see also Robert Little, God's Not Scorned, and All's Quiet: Dover, Pa., Gets a Respite From the Spotlight Over Intelligent Design, BALT. SUN, Nov. 11, 2005, at A1 (noting how intelligent de sign "divided this community, neighbor against neighbor"). 5 Chris Mooney, The Republican War on Science 182 183 (2005)(Senator Rick Santorum (R Pa.) has a mendment for the No Child Left Behind Act)(quoting from a Santorum op ed in the Washington Times ). 6 ACLU Complaint, supra note 2, at 49 (The ACLU asserts in the complaint it filed in Kitzmiller that the plaintiffs are entitled to "relief under 42 U.S.C. § S 1983 because defendants, acting under the color of law, subjected plaintiffs to a deprivation of their rights under the Establishment Clause of the First Amendment of the Constitution of the United States, as applied to the states by the Fourteenth Ame ndment. 7 Martha M. McCarthy, Instruction About the Origin of Humanity: Legal Controversies Evolve 20 3 Educ. Law Rep. (West) 453, 461 (Jan. 12, 200 6); Jodi Wilgoren, Politicized Scholars Put Evolution on the Defensive N.Y. Times, Aug. 21, 2005, at A1.

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124 According to a joint st atement released by the ACLU: Constitutionally, schools may teach a variety of explanations about life on earth -including religious ones -in comparative religion classes. In science classes, however, teachers may only present genuinely scientific the ories and scientific critiques of theories. It is unlawful for schools to teach religious explanations of life on earth -such as creationism -or refuse to teach evolution because it is inconsistent with a religious explanation. 8 A federal district cour t in Kitzmiller v. Dover Area School District 9 held that the Dover science class that intelligent design is an alternative theory to explain the origins of life violates the Establishment Clause. 10 assertion that the disclaimer had a secular purpose of improving science education and encouraging students to exercise critical thinking skills. 11 assert the ex istence of a secular purpose in light of all the evidence revealing the origin and development of the ID Policy. 12 conclusion is inescapable that the only real effect of the ID policy is the advancement of re 13 Kitzmiller was the testimony from leading philosophers of science, 14 biologists, 15 and ID proponents. 16 After evaluating 8 ACLU, Joint Statement of Current Law on Religion in the Public Schools (Apr. 12, 1995) [hereinafter ACLU Joint Statement], available at http://www.aclu.org/ReligiousLib erty/ReligiousLiberty.cfm?ID=9007&c=139 9 400 F. Supp. 2d 707 (M.D. Pa. 2005). 10 Id. at 765. 11 Id. at 762 763. 12 Id. 13 Id. at 764. 14 Id. at 719, 721, 735 36.

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125 manuscripts of an ID textbook, which was virtually the same as a creation science text listening to all the testimony, the court decided that ID wa s not science and wa s instead a religiously based theory. 17 The Lemon The Dover School Board consisted of nine members: Sheila Harkins, Jane Cleaver, Heather Geesey, Angie Yingling, Noel Wenrich, Jeff Brown, and Case y Brown. Alan Bonsell, who was elected to the Dover School Board in 2001 and Bill Buckingham joined the Board in 2003. As a consequence of the Dover School Board policy involving intelligent design, Wenrich and Cleaver resigned on October 4, 2004. Casey and Jeff Brown later resigned on October 18, 2004 and Yingling submitted a written resignation in February 2005. (Trial Tr. Vol. 34, Harkins Test., 113, Nov. 2, 2005; Cleaver Dep. at 15, June 9, 2005). Alan Bonsell, as the President of the Board, appoin ted Bill Buckingham, Chair of the Curriculum Committee in 2004. (Trial Tr. vol. 32, Bonsell Test., 86 87, Oct. 31, 2005; Trial Tr. vol. 34, Harkins Test., 39, Nov. 2, 2005). According to Superintendent Richard Nilsen, Bonsell began talking about 18 Alan Bonsell found it disgusting that children were being taught that humans evolved from apes in science class. 19 He 15 Id. at 724 25, 727 29, 737 38, 740, 743 44. 16 Id. at 718 23, 735 45. 17 Id. at 735 746. 18 18, Sept. 29, 2005) 19 Lauri Lebo, The Devil in Dover: An Insid Town America 12 (New Press 2008).

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126 believed the decline in Christian values was due to the absence of God in the classroom. 20 W hen Bill Buckingham joined the board in 2003, Bonsell and Buckingham began talking about plans to teach creationism alongside evolution. 21 During the March 26, 2003 Board retreat, Bonsell said to the other administrators and board members that he wanted a evolution. 22 school district superintendent, Richard Nilsen. 23 Buckingham complained about a list of things incl uding a picture of Charles Darwin in the ninth grade biology textbook. 24 They decided to send assistant superintendent, Mike Baksa, to a Christian college sponsored conference to find out more about teaching creationism. 25 Bonsell talked with Baksa about creationist claims against evolution, such as gaps in the fossil record. 26 Bonsell said he was concerned about the teaching of evolution and the biology textbook used at Baksa Test., 62 64, Oct. 21, 2005, Trial Tr. vol. 35, Baksa Test., 55, November 2, 20 Id. 21 Id. at 16. 22 Lebo, Supra note 19 at 16 See also Barrie Callahan said in her testimony that Bonsell wanted creationism taught 50/50 with evolution in biology class. (Callahan Test. 3:126 127); Bonsell testified that others testimony says he did. (Bonsell test. 32:75; Trial Tr. vol. 8, J. Brown Test., 50 51, Sept. 29, 2005). 23 Id. 24 Id. 25 Id. 26 Id. at 19.

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127 2005). He wanted biology teachers to teach the claims, even though the scientific community did not support them. 27 In response to the rumors, Trudy Peterman, then princip al of Dover High School, sent a memo to Nilsen on April 1, 2003 stating that she had heard from Science Department Chair, Bertha Spahr, that Baksa said on March 31, 2003, an unidentified ve the teaching of 28 In her testimony, Spahr confirmed the conversation with Baksa 73, Oct. 6, 2005). Baksa admitted to having the conversation with Spahr, in which he told he r Bonsell 56). In his t estimony, Jeff Brown said Bonsell told him 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 out of school was a mistake back when he ran for the Board in 2001 (Trial Tr. vol. 8, Brown Test., 48 49, Sept. 29, 2005). What is more, Jeff Brown testified that Nilsen had complained to him that each Board President had a set of wanted creationism taught in science class, but according to Baksa, he also wanted religion taught in social studies classes. (Baksa Test. 36:14 15, 17). He even gave 27 Id. 28 Id. at 20.

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128 Baksa a book entitled Myth of Separation so students could learn more about the Foundin g Fathers. 29 Baksa Meets With Faculty Prior to the fall of 2003, Baska met with science teachers, Jen Miller, Rob 30 Baksa told them speciation (how species change into other species). (Baksa Test. 35:66 68). Bonsell eventually met with the teachers himself. (Trial Tr. vol. 12, J. M iller, 107 09, Oct. 6, 2005; Baksa Test. 35:68). No Dover administrator or Board member had ever met with biology teachers prior to the fall of 2003. (Trial Tr. vol. 36, Linker Test., 75, Nov. 3, 2005). Jen Miller, a senior biology teacher, explained tha t she only covered origin of life, but rather the origin of species in her class. 31 This was a relief for Bonsell, whose daughter would be taking biology that year, to taught, because the concept of common ancestry offended his personal religious beliefs that God created man and other species in their current forms and that the earth was only thousands of years old. (Bonsell Test. 33:54 5 8, 115). Bonsell also told them they 29 In an e Myth of Separation by David Bar ton to review from Board members. Social Studies curriculum is next year. Feel free to borrow my copy to get an idea 30 Lebo, Supra note 19 at 20 31 Id.

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129 could be accused of lying if they taught students something that contradicted their faith. 32 As a result of the meeting with Bonsell, biology teacher Robert Linker, who had previous explained creationism as being based creationism altogether as well as his use of Discovery Channel videos on evolution due to the controversy surrounding it. (Linker Tes t. 36:83). Linker also testified that Jen Miller even stopped having students create an evolution time line, which highlighted the development of species over millions of years. (Linker Test. 36:86 alleged secular purpose of promoting cr itical thinking and improving science education actually had the opposite effect of causing science teachers to rethink their teaching of evolution and omit anything controversial. The Search for a Textbook Teaching an Alternative to Evolution For the ne xt few months, board members spoke privately about introducing creationism into science class, and rarely revealed their religious motives in public. 33 Unhappy with current biology book, Buckingham, acting as the Chair of the Curriculum Committee, and Bons ell, an ex officio member began to look at purchasing a new biology book. 34 The Discovery Institute, an organization that advocates for intelligent design, called Buckingham twice before June 2004. Buckingham said he was seeking legal advice 32 Id. at 21; see also Miller testified Bonsell was concerned students might have the impression at home. (12:111 (J. Miller)). 33 Id. 34 Id.

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130 about teaching Discovery Institute. (Trial Tr. vol. 29, Buckingham Test., 133 143, Oct. 27, 2005). Buckingham received a DVD from the Discovery Institute called, Icons of Evolution in which Jonathon Wells criticized many aspects of evolutionary theory, including natural selection. 35 He also received a video entitled, Unlocking the Mystery of Life in which creationist Dean Kenyon makes the case for intelligent design. (Buckingham Test. 29:130 131). He gave both of these videos and a book he received from the Discovery Institute to Superintendent Nilsen to present to the science teachers. (Trial Tr. vol. 25, Nilsen Test., 100 01, Oct. 21, 2005; Baksa Test. 26:114 15). After teachers watched the Icons of Evolution video, late in the 2003 2004 school year, a presentation was made by lawyers from the Discovery Institute in an executive session of the Board. (Trial Tr. vol. 4, B. Rehm Test., 48 49, Sept. 27; Bonsell Test. 33:111 12). Even though the teac appropriate, they agreed to watch it again and try to use it in their classrooms in order 94). Disc ussion Over Textbook Goes Public Two public meetings were held in June 2004 to discuss the biology textbook. The Board had approved the funds for the purchase of a new biology textbook. At the June 7 meeting, Callahan asked when the ninth grade students would receive the new biology textbooks. 36 Buckingham said the Board refused to approve the purchase of the new textbook, Biology 35 Id. 36 Id. at 22.

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131 37 despite being recommended by the faculty and administration (Callahan Test. 3:130 31; Buckingham Test. 29:33). In his testimony, Buckingham admitted the Board had delayed the approval of Biology because it did not provide any alternatives to evolution. (Buckingham Test. 29:33 this is about 38 Buckingham said they would look for a book that would have a balance between creationism and evolution. (Trial Tr. vol. 30, Bernhard Bubb Test., 96, Oct. 27, 2005; Trial Tr. vol. 31, Maldonado Test., 59 60, Oct. 28, 2005). Bo nsell added there were only two theories that could be taught, creationism and evolution, and as long as both were taught, the District would have no problem. (Trial Tr. vol. 6, Rehm Test., 65, Sept. 28, 2005). Buckingham supported the idea of a biology b ook that included creationism. (Brown Test. 8:60 61; Trial Tr. vol. 7, Carol Brown Test., 33, Sept. 29, 2005; Trial Tr. vol. 3, Aralene Callahan Test., 137 138, Sept. 27, 2005; 30:89 90, 105 06, 110 11 (Bernhard Bubb); Maldonado Test. 31:60, 66). Jeff Br own waited for Bonsell to point out that teaching creationism wa s inappropriate in science class, but instead Bonsell and Noel Wenrich supported it, arguing it was possible to teach creationism without it being religion. 39 Nilsen stated the district was lo 25:119 20). As to the issue of separation of church and state, Buckingham testified to having said it was a myth and not something, he supported. (Callahan Test. 3:141 42; 37 Id. see also (Baksa Test. 35:76 78; 24:45 46 (Nilsen); Callahan Test. 3:135 36; 4:51 52 (B. Rehm); 6:62 63 C. Rehm; 7:25 26 C. Brown)). 38 Id. 39 Id. at 23; see also (8:60 (J. Brown); 7:33 Brown); 30:89 90, 105 06, 110 11 (Bernhard Bubb); 31: 66 (Maldonado); Callahan Test. 3:137 38).

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132 C. Br own Test. 7:32 33; 31: Maldonado Test. 66 inexcusable to have a book that says man descended from apes with nothing to Bubb Test. 30:77 78). After the meeting, Buckingham 31:63). At the June 14, 2004 meeting, the elementary school cafeteria was filled with people concerned afte r what they read in the newspaper concerning the teaching of creationism. 40 Buckingham began with an apology that quickly turned into a declaration 41 56; Rehm Test. 6:71; Brown Test. 7:34 35; Trial Tr. vol. 8, Freder ick Callahan Test., 104 05, Sept. 29, 2005; J. Brown Test 8:63; Bernhard Bubb Test. 30:107 08; Maldonado Test. 31:76 77; Bonsell Test. 33:37 43; Buckingham Test. 29:82 83; J. Miller Test. 12:125; Spahr Test. 13:84). Charlotte Buckingham acknowledged makin g the speech in her deposition which included the reading of scripture, and making the case for the teaching of Genesis in high school. (Buckingham Dep. at 19 5). Additionally, Bill Buckingham accused 40 Id. at 24. 41 Id.

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133 Test. 12:126; Spahr Test. 13:85; Bernh ard Bubb Test 30:105 07; Maldonado Test. 31; 75 76, 78 79; Buckingham Test. 29:71; Baksa Test. 35:81 82; Rehm Test 6:73; B. Rehm 4:54 55; Trial Tr. vol. 6, Beth Eveland Test., 96, Sept. 28, 2005; Brown Test. 7:26 27; J. Brown Test. 8:63; F. Callahan 8:105 06). With all the inherently religious statements made, Casey Brown felt like her fellow board members were hosting a tent revival. 42 Curriculum Committee Meets Science Teachers to Discuss Biology Textbook The Board Curriculum Committee met in June 2004 t concerns about the textbook Biology (J. Miller Test. 12:114 15; Baksa Test. 35:82) Bertha Spahr said teachers had recommended the textbook Biology because it was sensitive to creationist views. 43 12:118 120). Baska gave attendees a survey of biology books used in priva te religious schools, a profile of a biology textbook used at Bob Jones University, and a document called nism (Old Earth 42 Id. 43 Id.

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134 out, that the example s were 44 Therefore, the Board Curriculum Committee knew ID was considered a form of creationism as early as June 2004. Given the courtroom testimony, Judge Jones concluded that the Committee w anted to introduce creationism into the science classroom. Buckingham insisted that the teachers agree that there would never be another mural depicting evolution in the classrooms, and in exchange, he would support the purchase of the biology textbook. (Baksa Test. 36:56 57). Buckingham Contacts the Thomas More Law Center Richard Thompson of the Thomas More Law Center (TMLC) was looking for an intelligent design case his law firm could argue before the U.S. Supreme Court. 45 Whenever an evolution controversy started somewhere in the country, Robert Muise, an atto rney with the law firm, would visit the school board and try to persuade the board to adopt intelligent design. 46 Muise would assure school boards that intelligent design was not a religious concept, and that it was based on sound empirical evidence. 47 Nev ertheless, he assured schools; they would be sued and in exchange for their participation, the Thomas More Law Center would defend them for free. 48 49 44 Kitzmiller 400 F. Supp. 2d at 149 45 Lebo, Supra note 19 at 27. 46 Id. 47 Id. 48 Id. at 28.

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135 At some point after the June board meetings Buckingham spoke with Richard Thompson, President and Chief Counsel for the Thomas More Law Center. (Buckingham Test. 30:10 s behalf. 50 Thompson told Buckingham of a textbook called Of Pandas and People 51 which talked about a so used in place of Biology in the science classroom (Buckingham Test. 29 : 107 108; Buckingham Test. 30:10 12, 15 16). Buckingham Pushes for Pandas to be Adopted as a Supplement to Biology The July 2004 school board meeting saw a shift in conversation about creationism to intelligent design. 52 Joe Maldo lot less Christian and a lot more scientific sounding. They were no longer talking about 53 Publicly the board members spoke of improving education and challenging children to think critically, but Jeff and Casey Brown remembered them speaking of leading a Christian revolution in executive sessions. 54 49 Id. 50 Id. at 29. 51 Percival Davis & Dean H. Kenyon, Of Pandas and People: The Central Question of Biological Origins, (Haughton Publishing Company 1989)[hereinafter referred to as exhibit P 11]. 52 Lebo, Supra note 19 at 30; see also (Baksa Test. 35:96 98) (Baksa stated someone mentioned 53 Id. 54 Id. at 33.

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136 A new edition of Biology by Kenneth Miller had been published in 2004, and the Board decided to postp one the decision of purchasing the new edition until July 12, 2004 so they could review the changes made in the 2004 edition. (J. Miller Test. 12:127; Spahr Test. 13:30). Buckingham suggested adopting Pandas as a supplemental textbook to the 2004 edition of Biology (Brown Test. 7:52 53; J. Brown Test. 8:64). Jeff Brown picked up Of Pandas and People: The Central Question of Biological Origins which was written by creationists Percival Davis and Dean H. Kenyon and published by the Texas based Foundation to purchase the book. (J. Brown Test. 8:65). Touted as the first pro intelligent design sc ience in Edwards v. Aquillard 55 At the August 2, 2004 meeting, Buckingham threatened to block the purchase of Biology unless the other board members agreed to buy Pandas 56 Initially the vote to purchase Pandas failed with eight members locked in a 4 4 tie (J. Brown Test. 8:68; Buckingham Test. 29:105 06). However, after Buckingham stated he had lined up five votes in favor of Pandas and assured the other members he would lend his votes to approving the purchase of Biology Yingling changed her vote so st udents would have their copies of Biology in time for the new school year (J. Brown Test. 8:68 69). 55 Id. at 33. 56 Id.

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137 School Distric mail on August 26, 2004 warning Dover officials of the mistake they were making in their religious pursuit. 57 Russell told them that they had already spoken openly of their intentions to get God in science class. 58 He told them that if they persisted with their intelligent design policy; they would most likely be sued and they would lose. 59 Russell told Nilsen t hat he spoke 60 Even though the Board was aware of the e mail, they chose to do nothing and this further suggests the Board knew ID was considered a fo rm of creationism. 61 Teachers Use Pandas as a Reference Buckingham wanted Pandas used along with the standard biology textbook, but Spahr felt that ID was essentially creationism and was concerned about using Pandas (J. Miller Test. 12:135; Buckingham Test 29:104 05). Nonetheless, the teachers allowed Pandas to be used as a reference text in the classroom. (Buckingham Test. 29:111; J. Miller Test. 12:136; Spahr Test. 13:88). According to Baska, this did not mean that the teachers supported having Pandas in the classroom, rather it was simply Miller said. (Baksa Test. 35:120; J. Miller Test. 12:136). 57 Id. at 34. 58 Id. 59 Id. 60 Kitzmiller 400 F. Supp. 2d at 70. 61 Lebo, Supra note 19 at 34.

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138 Baksa told the court that he had researched Pandas on the Institute for Cr eation Research website, which states that Pandas 14). He testified that he knew this when he research ed Pandas ; however, his credibility came into que stion when on re direct he contradicted his testimony by saying he had never read the webpage. (Baksa Test. 35:114 15). Sixty Copies of Pandas are Donated At the October 4, 2004 Board meeting, Superintendent Nilsen announced that an anonymous donor had do nated sixty copies of Pandas 62 The public wanted to know where the books came from, but the donor would remain anonymous until the trial. (Buckingham Test. 30:47; Bonsell Test. 33:20). At trial it was revealed, that Buckingham had asked for donations to purchase the textbooks at his church, the Harmony Grove Community Church, and as a result he received $850. (Buckingham 30:38 written on the check. (Buckingham Test 30:46 books with the money he gave him. (Bonsell Test. 33:131 32). Bonsell and Buckingham went to great extents not to reveal the source of the donated bo oks containing a creationist alternative to evolution including being untruthful at their [Donald Bonsell] agreed to he said that he would take it, I guess, off the table or 62 Id. at 44.

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139 whatever, because of seeing what was going on, and with Mrs. Callahan complaining at Bertha Spahr found a catalogue as she unpacked her books, and Pandas was 5). This evidence along with Bonsell and belief that the Board was trying to hide the obvious religious intent behind the ID Policy. Board Curricu The Board instructed Baksa in September 2004 to prepare a statement, which nce teachers present, the Board Curriculum Committee met to discuss changing the biology curriculum on October 7, 35:125). The Board Curriculum Committee also called for Pandas to be cited as a reference text. (Baksa 35:125). The proposed changes were passed 6 3 by the Board on October 18, 2004. Test. 7:79). Normally, curriculum changes were addressed a year before they were implemented, but the biology curriculum chang e took place during the 2004 05 school year in which it was effective. (Brown Test. 7:78 79). Standard practice required two meetings a month to be held; one for planning and the other for voting on items for consideration. However, in the case of the bi ology curriculum change it appeared and was voted on at the same meeting without the typical first meeting for consideration.

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140 (Brown Test. 7:24 25, 77 78; Nilsen 26:11; B. Callahan 4:3 5; Buckingham 29:118). The District Curriculum Committee usually meet to discuss any proposed curriculum 7:72 73; Nilsen 26:8 10). Although the District Curriculum Committee was contacted and while one member requested a meeting and another opposed; there is nothing to suggest the Board acted upon the requests. (Brown Test. 7:80 82; Baksa Test. 35:7 8). Finally, the Board decide not to include the teachers in the process of drafting the curriculum change. (Brown Test. 7:82 83). At trial, occurred in part because the topic had been discussed for six months prior to the vote and the Board was about to lose Wenrich and Cleaver, who had participated in those discussions (Nilsen Test. 26:10 12; Bonsell 33:113 114). Although the record does not show any prior discussion of ID, it is worth noting that Buckingham wanted the Board to vote on October 18, 2004, because he felt he had enough votes to pass the resolution from t he October 7, 2004 meeting. (Buckingham Test. 29:113 16). Spahr and Miller openly objected to the curriculum change. (J. Miller Test. 13:41 42; Spahr Test. 13:88 93). In fact, Spahr went so far as to say the agreement to and the use of Pandas as a reference text, were all compromises made with the Board 92). Spahr also testified that the decision was made without any input from teachers or the District Curriculum Committee, and no administrator or Board member disagreed with the change. (Spahr Test. 13:91 93; Baksa 35:126). Spahr concluded with a

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141 warning telling the Board that ID was cre ationism and therefore could not legally be taught. (Nilsen Test. 24:102; Baksa Test. 35:14 15). Baksa added that the teachers neither supported Pandas nor the curriculum change, and only went along with it, so that the Board would purchase Biology (Bak sa Test 35:20 21, 119 20) ID was not mentioned at the October 18, 2004 meeting nor was there any discussion on how ID would improve science education, and no justification was given by the Board for the change in curriculum. (Nilsen Test. 26:21; Baksa T est. 35:127 38; Brown Test. 8:36; J. Brown Test. 8:76; J. Miller Test. 12:139 40; Spahr Test. 13:102; Cleaver Test. 32:25 26, 40; Buckingham Test. 30:23 25; Trial Tr. vol. 31, Heather Geesey Test., 182 83, Oct. 28, 2005; Harkins Test. 34:124 26; Eveland Te st. 6:105 06). Several Board members also testified that they did not understand the basis of the curriculum change, nor did they possess the background in science to evaluate ID sufficiently. (Geesey Test. 31:175, 181 82; Cleaver Test. 32:49 50; Harkins Test. 34:117 18, 124 25). For example, Geesey admitted, in her testimony, to not understanding the basis of the curriculum change and deferring to Bonsell and Buckingham on multiple occasions; however, she still voted in favor of it. (Geesey Test. 31:154 55, 161 62, 168, 181 82, 184 87, 190; Buckingham Test. 29:11 12; Buckingham Dep. 1:59 61, January 3, 2005; Harkins Test. 34:48 49; Bonsell Test. 33:112 13; Nilsen Test. 26:21). Buckingham even admitted, he had no way to telling whether ID was good science at his deposition, still he voted for the curriculum change. (Buckingham Test. 30:32 sai d Pandas was not a good science book. (Cleaver Test. 32:23 25, 45 46). What is

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142 more, the Board never heard from any person, outside of the District science teachers, with scientific expertise before making the decision to change the curriculum. (Buckingha m Test. 29:109). Not only did the Board ignore the testimony of its own other scient ific organization to find out more about ID before voting. (Bonsell Test. 33:113; Buckingham Test. 30:24 27). In fact, the only organizations consulted prior to the decision were the Discovery Institute and TMLC, which was for the purpose of soliciting le gal advice. (Bonsell Test. 33:111 12; Buckingham Test. 29:130, 137 43, 30:10 14). Despite the passage of the resolution, both Superintendent Nilsen and Assistant Superintendent Baksa opposed the curriculum change. (Baksa Test. 35:126). After voting agains t the proposed curriculum change, both Casey and Jeff Brown resigned. Wenrich resigned at the next meeting following the vote after previous attempts to postpone the decision and allow for the community to properly debate the issue had failed. It appears obvious that Bonsell and Buckingham, the main architects of the ID Policy, persuaded the other Board members to vote in favor of the curriculum change in spite of the opposition by science teachers and administration. (Geesey Test. 31:154 68). On November 19, 2004, the School District issued a press release announcing that the District's new policy was to "treat intelligent design as a bona fide scientific theory competing with the scientific theory of evolution. 63 The release went on to explain th at 63 ACLU complaint, Supra note 2 at 40.

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143 an effort was being made to create a "balanced" science curriculum, and copies of Pandas would be made available for students. 64 Furthermore, an explanatory statement would be read prior to teaching any chapters related to evolution. 65 Disclaimer to be Read to Students After the vote, Baksa was asked to prepare a statement to be read to students in science classes before the unit on evolution. There were several revisions in the draft minant scientific yet for which there is no 24, 26 however, Baksa removed it fearing the Board would not approve i t. (Baksa 36:24 26). The final version read: The Pennsylvania Academic Standards require students to learn about which evolution is a part. 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 a n explanation of the origin of life that differs from students who might be interested in gaining an understanding of what Intelligent Design actually involves. 64 Id. 65 Id.

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144 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 proficie ncy on Standards based assessments. 66 However, Dover High School science teachers refused to read the statement. 67 They felt that reading the statement violated Pennsylvania's professional standards and practices code for teachers 68 The teachers sent a memo to the Board on January 6, 2005 asking that they be released from reading the statement to their classes. (Linker Test. 36:97). The memo read as follows: ement 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 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[.] INTELLIGENT DESIGN IS NOT SCIENCE INTELLIGENT DESIGN IS NOT BIOLOGY INTELLIGENT DESIGN IS NOT AN ACCEPTED SCIENTIFIC THEORY 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 scientific resource breaches my ethical oblig ation to provide them with 66 Kitzmiller 400 F. Supp. 2d at 124. 67 Associated Press, Teacher Refuses "Intelligent Design" Statement (Oct. 7, 2005), available at http://www.msnbc.msn.com/id/9620585 68 Bill Toland, Intelligent Design: Is It Just Creationism Lite?, Pittsburgh Post Gazette, Jan. 9, 2005, at A1.

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145 scientific knowledge that is supported by recognized scientific proof or theory. 69 Teachers felt that what they were being asked to do amounted to "teaching intelligent design, a theory that was inherently religious and not scient 70 One teacher envisioned "the first question students will ask is, 'Well, who's the designer. Do you 71 forced to read the statement to ninth graders in Januar y 2005 and again in June 2005. (Nilsen Test. 25:56 57; Baksa Test. 35:38). The Board also sent out a newsletter to the Dover community in February 2005 with the help of the TMLC, 72 and even invited Professor Behe to make a presentation on ID to the Dover c itizens on April 23, 2005. (Joint Stip. of Fact 11). applied violate the 73 Instead of a secular purpose described by the defendants, the purpose of the policy is to "advance and endorse the specific religious viewpoint and beliefs encompassed by the assertion or argument of intelligent 69 Kitzmiller 400 F. Supp. 2d at 121. 70 Neela Banerjee, An Alternative to Evolution Splits a Pennsylvania Town, N.Y. TIMES, Jan. 16, 2005, § 1 (citing a November 2004 CBS poll). 71 Id. 72 Id. at 127. 73 ACLU complaint, Supra note 2 at 50.

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146 74 Moreove r, the policy "conveys a governmental message that students should subscribe to the religious views reflected in the assertion or argument of intelligent 75 The effect of this endorsement and promotion of religious views makes plaintiffs feel "harm 76 Finally, the result of the intelligent design policy is an "excessive entanglement of government and religion, coerced religious instruction, and an endorsement by the state of religion over non religion and of one relig 77 Additionally, the policy causes "excessive entanglement of government and religion because the Dover Area School District will have to monitor the classroom behavior of its teachers to prevent them from identifying God 78 caused to their children, families, and themselves. In their argument, the plaintiffs claimed that ID be ing an inherently religious concept interfered with their rights to teach their children about religion with its inclusion in the science curriculum. (Trial Tr. vol. 3, Tammy Kitzmiller Test., 118 19, Sept. 27, 2005; B. Callahan Test. 4:13 15; Rehm Test. 6 :77 78; Eveland Test. 6:106; Trial Tr. vol. 16, Steven Stough Test., 26, 30, Oct. 14, 2005; Trial Tr. vol. 17, Joel Leib Test., 147 48, Oct. 14, 2005). Additionally the plaintiffs testified to conflict at home and within the community due to the actions o f the Board. 74 Id. 75 Id. 76 Id. 77 Id. at 52. 78 Id. at 52.

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147 (Rehm Test. 6:77 78; Trial Tr. vol. 6, Julie Smith Test., 38 39, Sept. 28, 2005; Leib Test. 17:146 47). Casey Brown also testified that, after voting against the curriculum change on October, 18, 2004, Buckingham called her an atheist and Bons ell told her she would go to hell. (C. Brown Test. 7:94 95; 8:32). Similarly, Angie Yingling felt coerced into voting for the curriculum change after being accused of being an atheist and un Christian. (Trial Tr. vol. 15, Cynthia Sneath Test., 95 97, Oct. 12, 2005). The defendants essentially argued that intelligent des ign was a scientific theory and therefore it was added it to the Dover High School biology curriculum to improve science education. 79 The defense argued that because of its secular purpose, the court should discount evidence of board members' religious aims as being only a secondary or incidental religious purpose for the intelligent design policy. 80 Ultimately, the court had to determ court followed the precedent established in Stone 81 to determine if the School District's asserted secular purposes for altering the biology curriculum could be reconciled with the con tent of the policy adopted by the Board. 82 This required determining what 79 Richard B. Katskee, Religion in the Public Schools: Article: Why It Mattered to Dover that Intelligent 5 First Amend. L. Rev. 112 (2006). 80 Id. see also Edwards v. Aguillard, 482 U.S. 578, 593 94 (1987)(referencing Stone which addre ssed the possibility of valid secular uses even for inherently religious Ten Commandments). 81 Stone v. Graham 449 U.S. 39 (1980). 82 See McCreary County v. ACLU of Ky., 125 S. Ct. 2722, 2734 35 (2005).

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148 intelligent design is, what the Board members knew about it, and what they reasonably understood it to be. 83 Is Intelligent Design Science? Since the 16 th and 17 th centuries, science has been limited to the search for natural causes to explain natural phenomena. ( Trial Tr. vol. 9, John Haught Test., 19 22, Sept. 30, 2005; Trial Tr. vol. 5, Robert Pennock Test., 25 29, Sept. 28, 2005 ; Trial Tr. vol. 1, Kenneth Miller Test., 62, Sept. 26, 2005 ). Science is based on empirical evidence, which is testable, rather than succumbing to ecclesiastical authority or philosophical coherence to determine a scientific idea's worth. (Pennock Test. 5:28; Haught Test. 9:21 22; Miller Test. 1:63). Science avoids theological or "ultimate" explanations and does not look for the "meaning" and "purpose" in the world. (Haught Test. 9:21; Miller Test. 1:64, 87). Ultimately, supernatural explanations are not part of science not that they ar e without merit. (Miller Test. 3:103; Haught Test. 9:19 20). The scientific method requires testable, natural explanations about the natural world; philosophers sometimes 30). Methodologi cal naturalism requires scientists to find explanations based upon what we can observe, test, replicate, and verify. (Miller Test. 1:59 64, 2:41 43; Pennock Test. 5:8, 23 30). The National Academy of Sciences (NAS), the "most prestigious" scientific associ ation in the country, agrees that science is limited to empirical, observable and ultimately testable data: "Science is a particular way of knowing about the world. In science, explanations are restricted to those that can be inferred from the confirmable 83 Katskee, Supra note 7 9 (Without asking whether intelligent design is science, the court would never have been able to conduct the proper analysis required under the effect and endorsement tests. For instance, if intelligent design were genuine science, as the School District w as contending, one could argue that the effect of teaching it would be to enhance biology lessons rather than to advance religion).

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149 data the results obtained through observations and experiments that can be substantiated by other scientists. Anything that can be observed or measured is amenable to scientific investigation. Explanations that cannot be based upon empirical evidence are not part of science." 84 (Miller Test. 1:94, 160 61; Trial Tr. vol. 14, Brian Alters Test., 72, Oct. 12, 2005 ; Trial Tr. vol. 37, Scott Minnich Test., 31, Nov. 3, 2005 ). science, but also the attribution of unsolved problems to causes and forces that lie outside the natural world is a "science stopper," because once you attribute a cause to an untestable supernatural force, that cannot be disproven, there is no reason to c ontinue seeking natural explanations. (Miller Test. 1:63, 3:14 15; Pennock Test. 5:29 31). ID is based on supernatural causation instead of accepting or seeking a natural causation. ( Trial Tr. vol. 17, Kevin Padian Test., 96, Oct. 12, 2005 ; Miller Test. 2: 35 36; Alters Test. 14:62; Pennock Test. 5:107). Pandas further reinforces this by stating: because it does not give a natural cause explanation of how the various forms of life started in the first pla ce. Intelligent design means that various forms of life began abruptly, through an intelligent agency, with their distinctive features already intact fish with fins and scales, birds with 85 imony does not refute that ID suggests animals did not evolve through natural means but were instead created by a supernatural designer. (Behe Test. 21:96 84 National Academy of Sciences, Teaching About Evolution and the Nature of Science, 27 (National Academy Press 1998).[herei nafter referred to as exhibit p 649]. 85 Davis & Kenyon, Supra note 51 at 99 100.

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150 86 ); Trial Tr. vol. 28, Steven Fuller Test., 2 1 22, Oct. 24, 2005 (". ID's rejection of naturalism and commitment to supernaturalism ."); Minnich Test. 38:95 96 (ID does not exclude the possibility of a supernatural designer, including deities). Fuller admitted that ID requires science to "cha nge the ground rules" 87 and according to Behe broaden the definition of science to allow for ideas such as ID and astrology. (Fuller Test. 28:26; Behe Test. 21:37 42). Finally, defense expert Professor Minnich stated that for ID to be considered science, th e ground rules of science have to be broadened to allow for supernatural forces. (Minnich Test. 38:97). The intelligent design movement agrees the rules must change for ID to prosper. One such member of the movement, William Dembski, even argues that the rules must be overturned instead of science being ruled by methodological naturalism. (Pennock Test. 5:32 37) Dembski states, "Indeed, entire fields of inquiry, including especially in the human sciences, will need to be rethought from the ground up in te rms of intelligent design." 88 The Discovery Institute, a home for the ID movement whose Center for the Renewal of Science and Culture (CRSC) developed the Wedge Document even states as "Governing Goals" to "defeat scientific materialism and its destructive moral, cultural and political legacies" and "replace materialistic explanations with the theistic 86 Michael J. Behe, Challenge to Evolution 16 Biol. Philos. 685 709. [hereinafter referred to as exhibit p 718]. 87 It is worth noting, that in both Edwards and McLean the Supreme Court viewed such changes to the rules of science to allow for supernatural causation as inherently religious. Edwards v. Aguillard 482 U.S. at 591 92; McLean v. Arkansas Board of Education 529 F. Supp. at 1267. 88 William A. Dembski, Intelligent Design: The Bridge Betw een Science & Theology, 224 (IVP Academic 2002).[hereinafter referred to as exhibit p 341]

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151 understanding that nature and human beings are created by God." 89 The Wedge Docume goal is to replace science as currently practiced with "theistic and Christian science." 90 Furthermore, it is worth noting, that every major scientific association has concluded t hat ID is not science. (Miller Test. 1:98 99; Alters Test. 14:75 78; Minnich Test. 37:25). The NAS had this to say about ID: Creationism, intelligent design, and other claims of supernatural intervention in the origin of life or of species are not science because they are not testable by the methods of science. These claims subordinate observed data to statements based on authority, revelation, or religious belief. Documentation offered in support of these claims is typically limited to the special publica tions of their advocates. These publications do not offer hypotheses subject to change in light of new data, new interpretations, or demonstration of error. This contrasts with science, where any hypothesis or theory always remains subject to the possibili ty of rejection or modification in the light of new knowledge. 91 The American Association for the Advancement of Science (AAAS), the largest organization of scientists in this country, added the ID movement "has not proposed a scientific means of testing its claims" and that "the lack of scientific warrant for so called 'intelligent design theory' makes it improper to include as part of science education. 92 Again, it is worth noting, that not one expert witness could identify one major scientific 89 See also the Discovery Institute's "Wedge Document," which outlines ID's strategy for replacing science in its current form with a theistic form of science (i.e., ID)). Johnson uses the example of a wedge splitting http://www.antievolution.org/features/wedge.html [he reinafter referred to as Exhibit p 140]. 90 Id. at 4. 91 National Academy of Sciences, Science and Creationism: A View from the National Academy of Sciences, Second Edition, 25 (The National Academies Press 1999). [hereinafter referred to as Exhibit p 192] 92 American Association for the Advancement of Science, AAAS Board Resolution on Intelligent Design Theory(2002), available at http://www.aaas.org/news/releases/2002/1106id2.shtml [hereina fter referred to as Exhibit p 198].

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152 associati on, society or organization that endorsed ID as science. Defense experts were forced to concede that ID is at best "fringe science" which has gained no acceptance in the scientific community. (Behe Test. 21:37 38; Fuller Dep. at 98 101, June 21, 2005; Ful ler Test. 28:47; Minnich Dep. at 89, May 26, 2005). It is clear that ID fails to achieve the essential ground rules limiting science to testable, natural explanations. (Miller Test. 3:101 03; Alters Test. 14:62). After all, science cannot be defined differ ently for Dover students than for the general scientific community as a whole. ID is based upon a false dichotomy, 93 that being if evolutionary theory is invalid, ID is valid. (Pennock Test. 5:41). ID proponents support design by trying to negate evolutio n, for example Behe's argues that "irreducibly complex" systems cannot be produced through Darwinian, or any natural, mechanisms. (Pennock Test. 5:38 41; Miller Test. 1:39, 2:15, 2:35 37, 3:96; Padian Test. 16:72 73; Forrest Test. 10:148). Here again, thi s argument is built upon a false dichotomy, that arguments against evolution are not arguments for design. Furthermore, experts testified that just because scientists cannot explain today how biological systems evolved does not mean that they cannot, and will not, be able to explain in the future. (Miller Test. 2:36 37). Dr. Miller also noted that just because scientists cannot explain every evolutionary detail, it does not undermine the validity of evolution as a scientific theory, as no theory in scienc e is fully understood. (Miller Test. 3:102). 93 This is not a new argument. The term "contrived dualism" was used in McLean by creationists in the 1980's to support "creation science." The court realized the "fallacious pedagogy of the two model approach" then and that "[i]n efforts to establish 'evidence' in support of creation science, the defendants relied upon the same false premise as the two model approach all evidence which criticize d evolutionary theory was proof in support of creation science." McLean 529 F. Supp. at 1267, 1269.

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153 As Minnich points out, irreducible complexity "is not a test of intelligent design; it's a test of evolution." (Miller Test. 2:15; Minnich 38:82) Professor Behe says a precursor "missing a part is by definition nonfunctional," but what he really means is that it will not function in the same way as when all the parts are present. For example, if any part is removed from the bacterial flagellum it may stop acting as a rotary motor, but what Behe fails to include is that the flagellum may function in some other way, for example as a secretory system. (Behe 19:88 95). In nature, exaptation offers an explanation as to how systems with multiple parts can evolve through natural means. Exaptation means that a subject system had a different, selectable function prior to experiencing a change or addition that resulted in its present function (Padian Test. 16:146 48). Dr. Padian cited the mammalian middle ear bones, which evolved from jawbones as an example. (Padian Test 17:6 17). What is more, the NAS has rejected Professor Behe's claim of irreducible complexity by stating: [S]tructures and processes that are claimed to be 'irreducibly' complex typically are not on closer inspection. For example, it is incorrect to ass ume that a complex structure or biochemical process can function only if all its components are present and functioning as we see them today. Complex biochemical systems can be built up from simpler systems through natural selection. Thus, the 'history' of a protein can be traced through simpler organisms The evolution of complex molecular systems can occur in several ways. Natural selection can bring together parts of a system for one function at one time and then, at a later time, recombine those pa rts with other systems of components to produce a system that has a different function. Genes can be duplicated, altered, and then amplified through natural selection. The complex biochemical cascade resulting in blood clotting has been explained in this f ashion. 94 Unlike ID, irreducible complexity is refutable and can be tested by showing that there are functioning intermediate structures that could have evolved into irreducibly complex 94 Exhibit p 192, Supra note 91 at 22.

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154 systems. (Miller Test. 2:15 16). It is important to make clear, that even though irreducible complexity is testable that does not mean ID is testable. (Miller Test. 2:15; Pennock Test. 5:39). The examples of irreducible complexity Professor Behe uses in clude: (1) the bacterial flagellum; (2) the blood clotting cascade; and (3) the immune system. In each case, Dr. Miller was able to present evidence, based upon peer reviewed studies, that they are not in fact irreducibly complex. 95 To offer a valid hypoth esis as to the origin of the bacterial flagellum, Dr. Miller referred to peer reviewed studies indentifying a possible precursor to the bacterial flagellum called a Type III Secretory System. (Miller Test. 2:8 20). Professor Minnich, an expert for the def looking at the function of these systems and how they could have been derived one from the other. And it's a legitimate scientific inquiry." (Minnich Test. 38:12 16). Importantly, none of the research involves ID. (Minnich Test. 38:12 16). As far as the blood clotting cascade, Dr. Miller pointed out that scientists have known the blood clotting casade was not irreducibly complex as far back as 1969 when peer reviewed studies showed that do lphins' and whales' blood clots despite missing a part of the cascade, this that was later confirmed by molecular testing in 1998. 96 (Miller Test. 1:122 29). Studies that are more recent show that in puffer fish, blood clots despite the cascade missing not only one, but three parts. (Miller Test. 1:128 29). Other reviewed journals maybe that is why 95 Kitzmiller v. Dover Area Sch. Dist. No. 04cv2 688 (M.D. Pa. Dec. 20 2005), available at http://www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf 96 Umeko Semba et. al., Whale Hageman Factor (Factor XII): Prevented Production D ue to Pseudogene Conversion 90, 31 37, Thromb Res. (1998).

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155 Behe redefined the blood clotting system so as to avoid peer reviewed scientific evidence that falsifies his ar gument as was revealed upon cross examination. (Behe Test. 20:26 28, 22:112 25). Professor Behe wrote, in Darwin's Black Box 97 that there were no natural explanations for the immune system, and that it was impossible for it to originate through natural cau ses. (Miller 2:26 27). Dr. Miller produced various peer reviewed studies taken from between 1996 and 2002 which refuted Behe's claim of irreducible complexity and supported an evolutionary hypothesis for the origin of the immune system. (Miller Test. 2:31 ). Even upon cross examination, when he was presented with 58 peer reviewed publications, 9 textbooks, and several chapters involving the evolution of the immune system, Behe stood by his 1996 claim, that there would never be an evolutionary explanation f or the immune system, stating there still is not sufficient evidence of evolution, and that it was not "good enough." (Behe Test. 23:19). Judge Jones found this to be an unreasonable burden of proof for the theory of evolution. Furthermore, Judge Jones fo und that there was sufficient evidence in peer reviewed papers to refute Behe's claim for irreducible complexity not to mention its rejection by the scientific community at large. (Padian Test. 17:45 46; Miller Test. 3:99). Nonetheless, even if irreducibl e complexity was not rejected, it still does not support ID after all it is merely a test for evolution, not design. (Miller Test. 2:15, 2:35 40; Fuller Test. 28:63 66). 97 1996)[hereinafter referred to as Exhibit p 647].

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156 Professors Behe and Minnich testified that design can be inferred in nature, when one in design is quantitative and it grows stronger with more parts interacting in an intricate arrangement. Furthermore, they said the examples of design in biology are overwhe lming. What is more, nothing other than an intelligent cause has been shown to yield the design seen in life. (Behe Test. 18:90 91, 109 10; Minnich 37:50). Behe and of the designer. (Miller Test. 1:6 7; Minnich Test. 38:44, 57). This inductive argument is not scientific according to Miller. (Miller Test. 2:40 (Miller); 3:99). The inference about the "purposeful arrangement of parts" is based upon human examples of desi gn such as the design of human artifacts and objects and according to Behe it can be used to determine biological design. (Behe 18:116 17, 23:50). However, human artifacts are non replicable; they do not undergo genetic recombination, are not driven by na tural selection, and do not live or reproduce over time. (Miller 1:131 33; Behe Test. 23:57 59). What is more, with human artifacts, we know the designer's identity and the mechanism of design, since we have seen that humans can make such things. (Miller Test. 1:131 33; Behe Test. 23:63; Pennock Test. 5:55 58). While Professors Behe and Minnich conceded that in the case of human artifacts and objects, we know the identity and capacities of the human designer, but he insisted we do not know the attributes for the designer of biological life. (Minnich Test. 38:44 47, Behe Test. 23:61 73). In response to all these examples of incongruence, all Professor Behe's could say was that inference still works in science fiction movies. (Behe Test. 23:73).

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157 The only s imilarity Judge Jones saw between biological systems and human artifacts is their complex appearance, i.e. if it looks complex or designed, it must have been designed. (Behe Test. 23:73). In spite of the assertion that there is a quantitative aspect to th e inference, on cross examination Behe and Minnich admitted there is no quantitative criteria for determining the degree of complexity or number of parts other than a natural process. (Behe Test. 23:50; Minnich Test. 38:59). Since science requires testable hypotheses based upon natural explanations, the positive argument for ID is not considered science, because it is dependent upon forces acting outside of the natural world, that we cannot see, replicate, control or test. (Miller Test. 3:101 03). It is not to say that such forces do not exist, simply that they are not testable by scientific means and therefore do not qualify as science. (Miller Test. 3:101 02). Most notable about ID is the complete absence of peer reviewed publications supporting the theory Miller notes peer review is a way for scientists to share their empirical research with other experts in the field, subjecting their hypotheses to study, testing, and criticism. (Miller 1:66 69). Furthermore, peer review helps to ensure that research p apers are scientifically accurate. (Miller Test. 1:39 40). The process involves the submission of a manuscript to a scientific journal in the field, where journal editors then solicit other experts in the field to write critical reviews determining whethe r the scientist followed proper research procedures, used up to date methods, considered and cited relevant literature and basically used sound science. According to Drs. Padian and Forrest, recent literature reviews of scientific and medical electronic da tabases turned up no studies supporting a biological concept of ID.

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158 (Padian Test. 17:42 43; Forrest Test. 11:32 33). Even Professor Behe admitted on cross examination that : There are no peer reviewed articles by anyone advocating for intelligent design supported by pertinent experiments or calculations which provide detailed rigorous accounts of how intelligent design of any biological system occurred." (Behe Test. 22 :22 23). What is more, Behe admitted that there are no peer reviewed papers supporting his claims that the bacterial flagellum, the blood clotting cascade, and the immune system were intellig ently designed. (Behe Test. 21:61 62 (complex molecular systems), Behe Test. 23:4 5 (immune system), and Behe Test. 22:124 25 (blood clotting cascade). Nor are there any peer reviewed articles supporting Professor Behe's 98 (Behe Test. 21:62, 22:124 25). Additionally ID lacks scientific research and testing. (Fuller Test. 28:114 15; Behe Test. 18:22 23, 105 06). In Judge Jones opinion, ID has no place in a science curriculum. Moreover, the ID movement has tried to avoid 99 However, this seems like a ploy to supplant evolutionary theory with ID. More importantly, Judge Jones felt that a reasonable, objective observer would determine, after reviewing the record in the case and the narrative, ID to be a theological argument not science. 100 98 Michael Behe and Minnich, Simulating Evolution by Gene Duplication of Protein Features that Require Multiple Amino Acid Residues 13, 2651 2664, Protein Sci. (2004).[hereinafter referred to as Exhibit p 721](The one article referenced by Behe and Minnich does not mention either irreducible complexity or ID. Furthermore, Behe conceded that study did not rule out evolutionary mechanisms and might even support them if a biologically realistic population size were used. (Behe Test. 22:41 45)). 99 Kitzmiller v. Dover Area Sch. Dist. No. 04cv2688 (M.D. Pa. Dec 20 2005), available at http://www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf 100 Id.

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159 Judge Jones found ID is not science based on three different criteria: (1) ID violates the centuries old ground rule s of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity contains the same flawed and illogical contrived dualism that doomed creation science in the 1980's; and (3) ID's negative attacks on evolution have been refuted by the scientific community. What is more, ID is not science because it has failed to publish in peer reviewed journals, engage in research and testing, and gain acceptance in the scienti fic community. 101 It was important for the court to ask whether intelligent design is science, because otherwise it would have entirely ignored the School District's proffered defenses for its curriculum change under the purpose, effect, and endorsement test s, all of which were premised on the claim that intelligent design is a genuine scientific theory. 102 Without a explanation why they were inadequate under the Establishment Clause, t he Dover school board could have claimed that the court never took it, or its arguments, seriously and thus they were not afforded due process. 103 This would make the court an illegitimate arbiter for the dispute having not provided the defendants with a fu ll and fair hearing. 104 However, this was not the case and after a six week trial during which the 101 Kitzmiller v. Dover Area Sch. Dist. No. 04cv2688 (M.D. Pa. Dec. 20 2005), available at http://www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf 102 Katskee, Supra note 79 at 123. 103 Id. 104 Id.

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160 court allowed both sides to present all their evidence, a 139 page opinion 105 was produced, by Judge Jones, addressing every argument that the Board members, th eir expert witnesses, and their attorneys had to offer. 106 Based on the evidence presented in the case, Judge Jones found that despite the stated secular purpose of the Board, to improve science education and exercise critical thinking skills; the curriculum change amounted to nothing more than a sham. 107 Judge purpose be 108 To support his argument, Judge Jones noted that the Board contacted no scientists or scientific organizations, nor did they consider the opinions of the science teachers. Instead, the Board relied on the legal advice of two inhe rently religious organizations, the Discovery Institute and the TMLC. What is is that most if not all of the Board members, who voted for the curriculum change, have no i dea what ID precisely is. the Establishment Clause. 109 Judge Jones chose to adopt a "belt and suspenders" 110 105 Kitzmiller v. Dover Area Sch. Dist. No. 04cv2688 (M.D. Pa. Dec. 20 2005) available at http://www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf 106 Katskee, Supra note 7 9 at 123. 107 Kitzmiller 400 F. Supp. 2d at 762 63. 108 Edwards 482 U.S. at 586 87 (citing Wallace 472 U.S. at 64)(Powell, J., concurring); Id. at 75 J., concurring in judgement). 109 Kitzmiller 400 F. Supp. 2d at 766. (The court also noted that the policy violated the freedom of worship provision of the Pennsylvania Cons titution, Pa. Const. art. 1, 3. ).

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161 approach, allowing him to use both the endorsement test, which prev ents government acts from showing preference for religion or a particular religious belief, 111 and the Lemon test 112 which forbids government sponsored messages lacking a secular purpose, having a primary effect of advancing or inhibiting religion, or creating an excessive entanglement of the government with religion. 113 Through the endorsement test, the court examined wh ether an objective observer are strategies endorsing a religious viewpoint. 114 The similarity between ID and creationism plus the "long history of Fundamentalism's attac k on the scientific theory of evolution" 115 revealed the true religious nature of ID. 116 The court determined that a reasonable observer would realize intelligent design was essentially religious viewpoint after hearing the history of the ID movement. 117 Then the court looked at whether an endorsement of religion. 118 The court determined that an objective student would find that the disclaimer wrongly singled out the theory of evolut ion, presented an alternative to evolution that was religious in nature, and encouraged students to read the intelligent 110 Kitzmiller, 400 F. Supp. 2d at 714 n.4 111 Id. at 714 (citing Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring)). 112 Lemon v. Kurtzman 403 U.S. 602 (1971). 113 Kitzmiller 400 F. Supp. 2d at 746 (citing Lemon, 403 U.S. at 612 13). 114 Id. at 714 23. 115 Id at 717. 116 Id. at 718. 117 Id. at 22. 118 Id. at 723 29.

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162 design text. 119 Based on this the court felt the disclaimer would be construed as an official endorsement of religion to an objective st udent. 120 Lastly, the court asked whether an objective citizen of Dover would think the disclaimer was an endorsement of religion. 121 Based on the plethora of letters and editorials to the local newspapers and the community's reaction to school board meeting s in which creationism was discussed, the court determined that an objective citizen of Dover would view the disclaimer as an endorsement of religion. 122 Therefore, it was obvious to Judge Jones, that the ID policy met the endorsement test by conveying a re ligious viewpoint to both the high school students who heard the disclaimer and also with parents who received a newsletter describing the board's plan. 123 When applying the purpose prong of the Lemon Test, Judge Jones found through the testimony pertainin g to the legislative history behind the disclaimer the defendants' clear intention was to advance religion. 124 This was evident based on various Board evolution on religiou s grounds. 125 The court found that intelligent design is not science because it is based on supernatural causation, not accepted by the scientific community, nor supported by 119 Id. 120 Id. at 724. 121 Id. at 729 735. 122 Id. at 734 123 Id at 724, 729 34. 124 Id at 747. 125 Id at 751

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163 peer reviewed research, or any research or testing of its own. 126 Therefore, under the effects prong, Judge Jones found that "since ID is not science ... the only real effect of the ID Policy is the advancement of religion." 127 Significance of the Case Regardless of the fact that the Kitzmiller ruling was never appeale d to a higher court and is not binding precedent outside of the parties directly involved in the lawsuit, its outcome can serve as a warning that litigation may not be worth the time and money. 128 Of its importance in judicial review, the court stated : [T]h e Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding tha t an Establishment Clause violation has occurred in this case, but also 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. 129 Ju school boards and other people who were considering this [issue]" 130 and he added that he wished to prevent such "litigation [being] replicated someplace else." 131 It was Judge 126 Id at 735; see also Laurie Goodstein, Intelligent Design Might be Meeting its Maker, N.Y. Ti mes, Dec. 4, 2005, at 1, 4. 127 Id. at 764. 128 Jodi Rudoren, Ohio Expected to Rein in Class Linked to Intelligent Design, N.Y. TIMES, Feb. 14, 2006, at A12 (describin g a reversal in Ohio as "signaling a sea change across the country against intelligent design"). The article also describes events in California, Indiana, and Wisconsin in reaction to the Kitzmiller ruling. Id. See also Laurie Goodstein, Schools Nationwide Study Impact of Evolution Ruling, N.Y. TIMES, Dec. 22, 2005, at A20. 129 Kitzmiller, 400 F. Supp. 2d at 735. 130 Lisa L. Granite, One for the History Books Pa. Law., July Aug. 2006, at 17, 22. 131 Sherri Kimmel, Of Dover and Design Dickinson Mag. (Spring 2006) available at http://www2.dickinson.edu/magazine/article.cfm?article=74 (quoting Judge Jones).

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164 I wrote the opinion in a comprehensive way because I knew that the dispute was possibly going to be replicated someplace else. And what I wanted to do was make the opinion sort of a primer that people could read. I thought that if other school boards and other boards of education could read it, they would possibly be more enlightened about what the dispute was all about. 132 Kitzmiller shows that the debate o ver intelligent design has spread to the board rooms of public schools, and has affected communities that they serve. 133 Additional litigation seems inevitable as government agencies debate the issues raised by intelligent design. Although it can be argued that Kitzmiller did not involve the actual teaching of intelligent design, future cases surely will. 134 However, for now the only case to explore the constitutionality of intelligent design, thus far, is the Kitzmiller v. Dover 135 132 NewsHour: Documentary Explores Key Case on 'Intellig ent Design' (PBS television broadcast Nov. 13, 2007) (transcript available at http://www.pbs.org/newshour/bb/education/july dec07/evolution_11 13.html ) (quoting Judge Jo hn E. Jones III). 133 Lisa Anderson, Darwin's Theory Evolves into Culture War: Kansas Curriculum Is Focal Point of Wider Struggle Across Nation Chi. Trib., May 22, 2005, 1, at 1 (reporting that in the first few months of 2005, "the issue of evolution has sparked at least 21 instances of controversy on the local and/or state level in at least 18 states "). 134 For example, a lawsuit challenging the teaching of intelligent design in California public schools was filed on January 11, 2006. Complaint, Hurst v. Newman, No. 06 00012 (E.D. Cal. filed Jan. 11, 2006), available at http://ncse.com/creationism/legal/hurst v newman 2006 ; see also Henry Weinstein, 1st Suit in State to Attack "Intelligent Design" Filed, L.A. Times, Jan. 11, 2006, at A1. The parties settled the case six days after the complaint was filed, however, and the California school dropped the class as a result of the settlement. See Ann Simmons, In Lebec, "In telligent Design" Class Is History L.A. Times, Jan. 18, 2006, at B1. 135 Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707, 712 (2005).

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165 CHAPTER 5 SUMMARY CONCLUSIONS, IMPLI CATIONS, AND RECOMME NDATIONS The primary units of analysis for this study were investigations of the constitutionality of teaching intelligent design in public schools in the case law. Additionally, scholarly commentary conce rning intelligent design and its history was used as a source of analysis. The literature review of this study provided a basis from which to interpret intelligent design and the intelligent design movement as well as past establishment clause jurispruden ce. On September 26, 2005, a federal district court in Pennsylvania became the first in the nation to assess the constitutionality of teaching intelligent design in public schools. 1 the endorsement test, 2 and the test established in Lemon v. Kurtzman 3 which forbids government sponsored messages that lack a secular purpose, have a primary effect of advancing or inhibiting religion, or create an excessive entanglement of the governmen t with religion. 4 Despite the prevalent use of these tests, the Supreme Court has yet to pronounce an unambiguous, uniform Establishment Clause test that is malleable enough to consistently be applied to diverse factual situations. 5 In the interim, the K itzmiller opinion shows that existing tools can serve us well if properly used. 1 Kitzmiller v. Dover Area Sch. Dist ., 400 F. Supp.2d 707 (M.D. Pa. 2005). 2 Id at 714 (citing Lynch v. Donnelly 465 U.S. 668, 690 (1984) (O'Connor, J., concurring)). 3 Lemon v. Kurtzman 403 U.S. 602 (1971). 4 Kitzmiller 400 F. Supp. 2d at 746 (citing Lemon, 403 U.S. at 612 13). 5 Wallace v. Jaffree 472 U.S. 38, 110 11 (1985) (Rehnquist, J. dissenting) (noting the fractured plurality opinions in the wake of Lemon).

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166 Considerable attention was focused on Kitzmiller v. Dover 6 because everyone knew other communities would look to the court's decision to determine whether they might lawfully follow the path set by the Dover Area School District. The Thomas More Law Center, which provided legal counsel for the defendants in Kitz miller viewed the case as a culture war, in which it became necessary to defend the religious freedom of Christians. 7 The impact of Christianity on the teaching of evolution can be seen throughout the country, 8 not to mention its longstanding history in legal litigation. Furthermore, Barbara Forrest testified, in Kitzmiller about a Discovery Institute statement called the Wedge Document, which "outlines the ID movement's plan to promote mainstream acceptance of ID creationism and, subsequently, the teach ing of ID in public school science classes." 9 The Discovery Institute is a Seattle based think tank that promotes the writings of intelligent design proponents. 10 When speaking 6 Kitzmiller 400 F. Supp. 2d at 746. 7 Laurie Goodstein, In Intelligent Design Case, a Cause in Search of a Lawsuit, N.Y. TIMES, Nov. 4, 2005, at A16. See also Thomas More Law Center, About Us, http://www.thomasmore.org/qry/page.taf?id=23 (last visited Sept. 21, 2010). 8 Jodi Wilgoren, Kansas Board Approves Challenges to Evolution, N.Y. TIMES, Nov. 9, 2005, at 14. (In Kansas, new science standards redefine science to include supernatural explanations; the standards in Minnesota, New Mexico, and Pennsylvania require "critical analysis" of evolution.) See also Edward J. Larson, Trial and Error: The Americ an Controversy Over Creation and Evoltuion 203 (3d ed. 2003) (quoting a news broadcast describing the "ridicule" that Kansas's new standard promoted from non Fundamentalists). (A school district in Georgia attached stickers to the front of biology books th at read much like the Board's statement in Kitzmiller. ) 9 Barbara Forrest, Expert Witness Report at 1, Kitzmiller 400 F. Supp. 2d 707 (No. 4:04 CV 02688) (M.D. Pa. 2005), available at http://ncse.com/webfm_send/328 10 The CSC website defines itself as follows: "The Center for Science and Culture is a Discovery Institute program that encourages schools to improve science education by teaching students more fully about the theory of evo lution, as well as supporting the work of scholars who challenge various aspects of neo Darwinian theory and scholars who are working on the scientific theory known as intelligent design." The Discovery Institute, Top Questions, available at http://www.discovery.org/csc/topQuestions.php (last visited Sept. 20, 2010).

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167 amongst each other, to potential donors, and or to sympathetic audiences, such as the Dover school board, movement leaders acknowledge that intelligent design (ID) is nothing more than a strain of Christian religious doctrine translated into scientific sounding terminology. 11 The question of whether ID is science was essential to Jud Kitzmiller If ID is a legitimate scientific theory, as the defendants in Kitzmiller claimed, it might well have belonged in the science curriculum. What is more, the religious motives of the Dover board members who adopted the ID p olicy become irrelevant, as do the religious beliefs of ID proponents. That is why, when the Discovery Institute markets intelligent design, to school officials concerned about the legality, or to the general public, the movement's leaders vehemently deny the religious connection, and instead claim that they are presenting a thoroughly secular, scientific alternative to evolution. 12 After all, if they were to admit that intelligent design is simply a sectarian 11 Phillip E. Johnson, Third Party Science, 2 Books & Culture, May June 1996, at 30, republished as Phillip E. Johnson, Starting a Co nversation About Evolution, at http://www.arn.org/docs/johnson/ratzsch.htm (Aug. 31, 2006) (Phillip Johnson describes intelligent design as "theistic realism," which he in turn defines as meaning "t hat we affirm that God is objectively real as Creator, and that the reality of God is tangibly recorded in evidence accessible to science, particularly in biology.". Discovery Institute Center for Renewal of Science and Culture, The Wedge, 53, at http://www.seattleweekly.com/news/0605/discovery wedge.php#intro ("the foundational belief behind the intelligent design movement and the reason that [the movement has] rejected the theory of evolution" is the movement's adherence to "the proposition that human beings are created in the image of God [as] one of the bedrock principles on which western civilization was built."); William A. Dembski, Signs of Intelligence: A Primer on th e Discernment of Intelligent Design, Touchstone, July Aug. 1999, at 76, 84 (Dembski claims "intelligent design is just the Logos theology of John's Gospel restated in the idiom of information theory.") 12 Discovery Institute Center for Science and Culture, Top Questions, http://www.discovery.org/csc/topquestions.php#questionsabout%20intelligent%20design (last visited Sept. 20, 2010); Stephen C. Meyer, Not by Chance: From Bacterial Propulsion Systems to Human DNA, Evidence of Intelligent Design is Everywhere, Nat'l Post, Dec. 10, 2005, at A18, available at http://www.discovery.org/a/3059 ; Stephen C. Meyer & John Angus Campbell, Teach the Controversy, Balt. Sun, Mar. 11, 2005, available at http://www.discovery.org/a/2456

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168 motive masquerading as science; intelligent de sign would face the same fate that befell creation science after Edwards v. Aguillard 13 In the end, the Kitzmiller court ruled in favor of the plaintiffs and permanently enjoined the Dover School Board from pursuing the ID policy. 14 However, perhaps more s ignificantly, Judge Jones ruled, "ID is a religious view, a mere re labeling of creationism, and not a scientific theory." 15 Jones justified why he felt it "incumbent upon the Court" 16 to ask "whether ID is science" 17 and why it was "essential to [the court' s] holding that an Establishment Clause violation has occurred in this case" 18 in terms of "preventing the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us." 19 Kit zmiller's analysis caused irreparable damage to the ID constitutionally teaching ID in public schools. Even though Kitzmiller may have ruined any hopes of ID supplanting or rivaling evolution in the nation's public schools, it will de finitely not be the end of the ID movement. Nevertheless, the court in Kitzmiller created a thorough and logical roadmap ensuing courts will have difficulty resisting. 13 Paul A. Nelson, Life in the Big Tent: Traditional Creationism and the Intelligent Design Communi ty, 24 Christian Res. J. 2 (2002), available at http://www.equip.org/PDF/DL303.pdf (According to Paul Nelson the old attempts to circumvent the Supreme Court's 1968 decision in Epperson v. Arkansas and get creationism into public school science classrooms under the label "creation science' had hit a dead end after the Court struck down bal anced treatment laws in Edwards). 14 Kitzmiller, 400 F. Supp. 2d at 766 15 Id. at 707, 726. 16 Id. at 734. 17 Id at 735. 18 Id. 19 Id.

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169 Summary This study looked at the Establishment Clause jurisprudence, and specifically e xamined the Kitzmiller v. Dover decision. First, the study examined the relevant Supreme Court Establishment Clause cases leading up to the Kitzmiller decision. Second, this research examined the storied history of the Intelligent Design movement through a detailed literature review. Third, the study examined the pivotal case of Kitzmiller v. Dover which was the first case to address the teaching of Intelligent Design in public schools. Finally, this study provided recommendations for ways to introduce Intelligent Design into the public school system without violating the Establishment Clause. Conclusions Intelligent Design (ID) proponents have argued for the inclusion of Intelligent Design in public school science curricula stating that it offers a val id secular criticism of the existing scientific dogma, thereby satisfying Lemon's second prong. 20 However, the addition of Intelligent Design to the science curricula "implicitly legitimizes a clearly religious belief." 21 The literature shows that Intellig ent De sign is nothing more than a 22 foundational arguments such as the explanatory filter, complex specified information, 20 Kitzmiller v. Dover Area Sch. Dist ., 400 F. Supp. 2d 707, 762 (M.D. Pa. 2005). 21 Eric P. Martin The Evolutionary Threat of Creationism: The Kansas Board of Education's Omission of Evolution from Public School Curricula, 27 J. Legis. 167, 177 (2001). 22 Stephanie L. Shemin, The Potential Constitutionality of Intelligent Design, 13 Geo. Mason L. Rev. 621, 639 (2005).

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170 and irreducible complexity. 23 Although proponents of Intelligent Design have produced a plethora of self published literature, 24 there is a general lack of peer reviewed journals in science supporting Intelligent Design. 25 The mere fact that Intelligent Design posits a tes it from scientific discussion and implies a religious connotation. 26 The federal court in the middle district court of Pennsylvania ruled that Intelligent Design was a violation of the Establishment Clause. 27 Furthermore, the Supreme Court has found Establishment Clause. 28 In fact the pivotal case of Edwards v. Aguillard 29 in which the Louisiana Balanced Treatment 23 Kenneth R. Miller, Review of Darwin's Black Box 16 Creation/Evolution 36 (1996) (book review), available at http://www.millerandlevine.com/km/evol/behe review/index.html ; H. Allen Orr, Darwin v. Intelligent Design (Again) Boston Rev., Dec 1996/Jan. 1997; Behe's Empty Box (Nov. 28, 2001), http://richarddawkins.net/articles/2719 behe 39 s empty box (collecting reviews ); Branden Fitelson, et al., How Not to Detect Design Critical Notice: William A. Dembski, The Desig n Inference 66 Phil. Sci. 472 (1999); Massimo Pigliucci, Chance, Necessity, and the War Against Science 50 BioScience 79 (2000) (book review). 24 Laurie Goodstein, In Intelligent Design Case, a Cause in Search of a Lawsuit, N.Y. TIMES, NOV. 4, 2005, at A1 6 ; Joan DelFattore, Speaking of Evolution: The Historical Context of Kitzmiller v. Dover Area School District 9 Rutgers J. Law & Relig. 3, 8 (2007). 25 Kitzmiller 400 F. Supp. 2d at 744 (expert testimony revealing the lack of peer review journals support ing Intelligent Design) 26 David R. Bauer, Constitutionality of Teaching Intelligent Design in Public Schools 75 Fordham L. Rev. 1019, 1022 (2006). 27 Kitzmiller 400 F.Supp.2d at 808. 28 Edwards v. Aguillard, 482 U.S. 578 (1987); Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337 (5th Cir. 1999) (invalidating a school board policy mandating reading of disclaimer before the teaching of evolution); Daniel v. Waters, 515 F.2d 485 (6th Ci r. 1975) (invalidating Tennessee statute requiring that textbooks teaching evolution contain disclaimers and equal treatment of competing theories of the origins of humans, including creationism); McLean v. Ark. Bd. of Educ., 529 F. Supp. 1255 (E.D. Ark. 1 982) (finding that Arkansas statute requiring balanced treatment of evolution and creation science in public schools violated the Establishment Clause). 29 Edwards 482 U.S. 578 (1987) (striking down Louisiana law forbidding public schools to teach evolu tion without also teaching creation science).

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171 Act was struck down. 30 Since that time, various leaders affiliated with the Intelligent Design movement have characterized Intelligent Design in ways that can be construed as religious in nature and expert witnesses have even testified to the non scientific nature of In telligent Design. This means, that under its current operationalized form, Intelligent Design violates the Establishment Clause and is therefore unconstitutional. In order for Intelligent Design to begin to be considered constitutionally acceptable in pu blic schools, it must distance itself from its religious trappings and fundamentalist roots. Even though Intelligent Design may never be seen as science, it may find acceptance in other disciplines, such as philosophy which is more accepting of different epistemological views While it may be true that critical analysis is a valid secular purpose of scientific education, it is also true that critiques of Darwinian evolution can be presented without the religious trappings that accompany Intelligent Desig n. It is important to note, that causation. 31 Therefore, while a state agency may have a valid secular purpose for exposing students to scientific criticism of Darwinist ev olution, there is no secular Moreover, there has been no showing that schools do not already sufficiently cover the nature and process of science. 32 What is more, even if the purpose of introducing 30 Frank S. Ravitch, Playing the Proof Game: Intelligent Design and the Law 113 Penn St. L. Rev. 841, 844 (2009). 31 M uch of the criticism leveled at evolution by Intell igent Design theorists has been resolv ed b y naturalistic explanations making supernatural explanations unnecessary. 32 Jay D. Wexler, Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools 56 Vand. L. Rev. 751, 810 (2003).

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172 ID was to discuss alternatives to evolution, it would be a poor choice because it would convey to students that there is a significant scientific dispute about the subject, which there is not. 33 Historically, the Lemon and the endorsement tests have provided protection against religion based attacks on public school science programs. The United States Supreme Court has struck down anti evolution statutes and balanced treatment acts enacted by states, holding that both tactics violated the E stablishment Clause. Following the precedent set by the Court, the lower federal courts have struck down disclaimer resolutions and intelligent design programs. In spite of these setbacks, Christian fundamentalists continue to discredit the theory of evol ution, and their success in the swaying public opinion presents a challenge to biology teachers across the country. Even though teachers cannot discuss the religious overtones of design theory, teachers can defend evolution against the erroneous arguments presented by design theorists. Implications The threat of civil liberties lawsuits would be enough reason for ID opponents to reject the teaching of ID in public schools; however, there are serious pedagogical problems with the teaching of ID. Some crit ics of ID fear that including ID in a science curriculum irreparably damages the quality of a student's education. They argue that students cannot appreciate the scientific method if they are also taught that science 33 Id. at 760.

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173 allows for unproven assumptions abo ut supernatural causation 34 What is more, students are unlikely to become successful scientists if they are taught to discount, one of the primary building blocks of modern scientific inquiry, evolutionary theory. 35 Pundits have repeatedly commented on the poor state of America's science education compared to other countries. 36 How can we expect to close this gap if we continue to dilute the value of our science education with religious dogma? 37 As one spectator noted after Kitzmiller States at a time when only forty percent of Americans believe in evolution, only thirteen percent know what a molecule is, twenty percent think the sun goes around the earth, and fifty percent think man lived at the same time as dinosaurs, at best what could be 38 There are those concerned about the political implications of including ID in a science curriculum. For example, will the ID controversy teach students and future voters that they are free to ignore the lessons of scientists whenever these lessons 34 Andrew Jacobs, Georgia Takes on 'Evolution' as 'Monkeys to Man' Idea N.Y. Times, Jan. 30, 2004, at A13 (quoting Dr. Francisco J. Ayala) ("Creation is not science, so it should not be taught in science class." Dr. Ayala further noted that "[w]e don't teach astrology instead of astronomy or witchcraft practices instead of medicine.") 35 American Association for the Advancement of Science, Board Resolution on Intelligent Design Theory, Oct. 18, 2002, http://www.aaas.org/news/releases/2002/1106id2.shtml ("[B]iological evolution is one of the most robust products of scientific inquiry."). 36 Sam Harris, Letter to a Christian Nation 62, 70 (2006)(quoting statement from the Nation al Academy of Sciences)("[H]igh school students in the United States test below those of every European and Asian nation in their understanding of science and math."). 37 Barbara Forrest & Paul R. Gross, Creationism's Trojan Horse: The Wedge of Intelligent Design 9 10 (2004) (claiming that the strategy of ID proponents to substitute "theistic science" for natural science constitutes "a threat to the integrity of education and in the end the ability of the public to judge scientific and technological claims, and is aimed "at a vast, mostly science innocent populace and at public officials and lawmakers who depend on it for votes"). 38 Nicholas D. Kristof, The Hubris of the Humanities N.Y. Times, Dec. 6, 2005, at A27.

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174 conflict with their faith. 39 According to journalist Bill Moyers, a science curriculum a politics in which the citizenry cavalierly ignores the warnings of scientists because they are confident that whatever happens is 40 Recommendations After Edwards 41 it became clear that public schools could not teach "creation religious truth. 42 Int elligent Design might also be discussed in such forums without violating the Establishment Clause. Equally, Creation science and, through default by association, ID cannot be promoted as science in school sponsored assemblies, 43 extra curricular activities, 44 or by school sponsored outside speakers. 45 However, this does not prohibit ID from being discussed by non curriculum related groups that meet during non curricular time under 39 Forrest & Gross, Supra note 28, at 9 10. 40 Bill Moyers, Acceptance Remarks for the Global Environmental Citizen Award of Harvard University's Center for Health and the Global Environment (Dec. 1, 2004), available at http://www.co mmondreams.org/views04/1206 10.htm (describing the Christian Right's influence in politics and its consequences for the environment). 41 Edwards 482 U.S. at 593. 42 Id. at 606 08 (Powell, J., concurring). 43 ACLU of N.J. v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1482 84 (3d Cir. 1996) (holding school sponsored prayer at graduation ceremony was a violation of First Amendment). 44 Borden v. Sch. Dist. of Tp. of East Brunswick 523 F.3d 153, 168 73 (3d Cir. 2008) (stating high school football coa ch cannot lead student prayer before games). 45 Doe v. Porter 188 F. Supp. 2d 904, 909 11 (E.D. Tenn. 2002) (holding bible study session taught by visiting students once a week in elementary school was a violation of Establishment Clause).

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175 the equal access doctrine. 46 For example, proponents of ID can even promote the ir ideas through private speech activities and clubs. 47 ID could even be taught in comparative religion or philosophy courses so long as it is not favored. 48 Perhaps, that is the more appropriate forum, because if ID is discussed in the science curriculum it is likely that the activity would be found unconstitutional. 49 Even though Intelligent Design may not be taught as a scientific theory, similar religious ideas could be presented as part of the social sciences or humanities curriculum. Social studie s teachers could discuss ID without raising constitutional concerns. Social studies teachers could use Intelligent Design as an example of the current and historical controversy over competing theories of human origin, as a part of a survey of religions o r religious views, or to show the development of science as a discipline. 50 It is quite possible that, "any critical thinking advantages that could be gained by teaching intelligent design ... can probably be gained by teaching about religion in social sci ence classes and discussing the various relationships between religious and scientific ways of thinking in that context." 51 What is more, the instruction 46 Good News Cl ub v. Milford Cent. Sch ., 533 U.S. 98, 113 14 (2001). 47 Id. 48 Edwards 482 U.S. 578; Kitzmiller 400 F. Supp. 2d at 707. 49 Kitzmiller 400 F. Supp. 2d at 707. 50 Jay D. Wexler, Darwin, Design, and Disestablishment: Teaching the Evolution Controversy in Public Schools 56 Vand. L. Rev. 751, 787 (2003). ("History teachers could teach about the history of the opposition to evolution ... ; civics teachers could teach about the ongoing controversy over origins ... ; [and] philosophy teachers could teach about the epistemological claims of science and religion ... ."). 51 Id. at 848.

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176 offered in a social studies class would not be seen as a presentation of the merits of Intelligent Des ign, but rather simply offer a description of ID. 52 While the Supreme Court has found religion based public school science curricula to be in violation of the Establishment Clause, the Court has suggested, on at least two occasions, that religious topics co uld be taught in the context of history courses without violating the First Amendment. 53 When analyzed under the three Establishment Clause tests, courses in the social sciences seem to focus on the behavior of human beings and as such, the discussion of r eligious causal analytic systems may be permitted a limited role in discussing how such systems motivate individuals or groups. 54 So even though the exclusion of ID from the science curriculum may be justified or even mandated under the Constitution, 55 it d oes not prohibit the teaching of ID in other classes such as social studies, comparative religions, humanities, or philosophy. If ID is presented in a way that conforms to the Supreme Court's condition, "presented objectively as part of a secular program of education," it will pass the purpose prong of the Lemon test. A proposed secular purpose to teaching ID in social sciences could be to discuss the important influence religious doctrine and organizations have had on 52 Id at 793 (explaining that teachers may describe the content of religious theories of human origin as long as they do not share their personal views). 53 Abington Sch. Dist. v Schempp 374 U.S. 203, 225 (1963) (stating that "it certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objective ly as part of a secular program of education, may not be effected consistently with the First Amendment."); Epperson v. Arkansas 393 U.S. 97, 106 (1968) (noting that "study of religions and of the Bible from a literary and historic viewpoint, presented ob jectively as part of a secular program of education, need not collide with the First Amendment's prohibition ... ."). 54 Nicholas A. Schuneman, One Nation, Under ... The Watchmaker?: Intelligent Design and the Establishment Clause 22 BYU J. Pub. L. 179, 1 94 (2007). 55 Edwards 482 U.S. 578; Kitzmiller 400 F. Supp. 2d at 707.

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177 human society. Indeed, Justice Clark noted in Schempp "it might well be said that one's education is not complete without a study of ... the history of religion and its relationship to the advancement of civilization." 56 Therefore, the presentation of religious ideas in the context of a soc ial sciences course would not necessarily have the primary effect of advancing or inhibiting religion. It is at least reasonable to believe that Intelligent Design could be presented in a history course under the guise of major cultural phenomena in T went y F irst C entury America without violating the First Amendment. Additionally, Justices Clark and Fortas have suggested that the inclusion of religious ideas might be permissible in the context of humanities classes, using literature and comparative religi on as examples. 57 Students are less likely to see the presentation of religious ideas as an endorsement of a particular religion in a humanities setting versus a social studies class. Then the question becomes whether religious ideas could presented in hu manities courses such that do not advance religion. In Schempp Justice Clark suggested that the discussion of religious topics might be acceptable in the context of the study of comparative religions. 58 Comparative religion courses provide such a broad survey and critical analysis of different religions that they convey no advantage or disadvantage to particular religion. Surely, the scussed within a comparative religion class without fear of violating the Establishment Clause. 56 Schempp 374 U.S. at 225. 57 Epperson, 393 U.S. at 106; Schempp 374 U.S. at 225. 58 Schempp 374 U.S. at 225 (stating that "In addition, it might well be said that one's education is not complete without a study of comparative religion... Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the F irst Amendment.").

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178 One might also be able to view the Christian Bible for its literary qualities in public schools as Justices Clark and Fortas have suggested. 59 Whether such a pr esentation complies with the Establishment Clause likely depends on the particular manner in which literature is evaluated in a given course. By subjecting a religious text to historical and rhetorical criticism, emphasizing the relation of the text to hi storical events, or by evaluating the grammatical, syntactic and structural merits of such a text, it is possible that the B iblical account of Genesis might pass the Lemon test in an English literature class. 60 However, it would have to be evaluated purely on its literary value as opposed to its moral or philosophical value in order to not be seen as a violation of the Establishment Clause. In other words, the Bible or another religious text must be presented in public schools as merely a work of lit eratur e, written by mortal men. Any other connotation (aside from its influence o n history, literature, art, and so on ) could be seen as an undue advantage to religion, and therefore a violation of the Establishment Clause. Although never specifically mentioned by the Supreme Court, philosophy with its ambiguous epistemological and metaphysical views seems like quite a natural fit for Intelligent Design. Many of the traditional western philosophers like Plato and Aristotle have suggested the existence of a nat ural creator just like in ID. 61 Even Thomas 59 Epperson 393 U.S. at 106; Schempp 374 U.S. at 225. 60 Schuneman, Supra note 56. 61 some cause, for without a cause nothing can be created. The work of the creator, whenever he looks to the unchangeable and fashions the form and nature o f his work after an unchangeable pattern, must necessarily be made fair and perfect; but when he looks to the created only, and used a created pattern, http://www.activemind.com/Mysterious/Topics/Atlantis/timaeus_page3.html

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179 Summa Theologiae 62 Therefore, the discussion of Intelligent Design seems quite appropriate fodder for a philosophy class. For example, philosophy cours es could present the dualism and Intelligent Design as a legitimate system with which to understand observed phenomena. 63 Even though Intelligent Design cannot be presented in a science classroom as science, it does not mean that it could not necessarily b e taught in public schools if there was truly a secular purpose. 64 It was clearly determined in Kitzmiller 65 that the and the science classroom was not the appropriate f orum for the discussion of ID. Proponents of ID would be better served by distancing themselves from religious zealots, and look at introducing ID in subjects other than science for ID is not science. Recommendations for Further Research The Kitzmiller op inion may have stuck a severe blow to the Intelligent Design movement, but the pendulum is sure to swing back. The decision in Kitzmiller make s it risky for any school board to consider adding ID to its science curriculum without almost certainty of costly lawsuits. However, this does not mean that other school boards have 62 Theologica (Sophia Institute Press 2002) 63 Schuneman, Supra note 56. 64 Epperson 393 U.S. at 106. 65 Kitzmiller 400 F. Supp. 2d at 707.

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180 not considered teaching Intelligent Design. 66 As after the decision in Edwards 67 where the Intelligent Design movement was formed out of the necessity, there is bound to be a re packagi ng of Intelligent Design to meet the muster of the Establishment Clause. The recent trends have been to discredit evolution by trying to persuade school boards to 68 The courts will have to remain vigilant because there are no signs that the Intelligent Design movement is going away soon. Further study in the following areas may help schools better understand the future challenges they may face f rom the Intelligent Design movement. Investigate whether alternatives to teaching Intelligent Design in science class, such as teaching ID in social studies or philosophy classes, are truly viable and whether they are being implemented. Investigate how in stitutions of higher learning are addressing the teaching of controversial subjects such as Intelligent Design. Analyze the impact the ruling in Kitzmiller had on state science curriculum concerning the teaching of alternatives to evolution. Analyze the role demographics play in the determination of school curriculum especially in regard to evolution. Examine the effect of the changing state science standards on the performance of students entering college. 66 For example, a lawsuit challenging the teaching of intelligent design in California public schools was filed on January 11, 2006. Complaint, Hurst v. Newman, No. 06 00012 (E.D Cal. filed Jan. 11, 2006), available at http://ncseprojects.org/creationism/legal/hurst v newman 2006 ; see also Henry Weinstein, 1st Suit in State to Attack "Intelligent Design" Filed, L.A. Times, Jan. 11, 2006, at A1. The parties settled the case six days after the complaint was filed, however, and the California school dropped the class as a result of the settlement. See Ann Simmons, In Lebec, "Intelligent Design" Class Is Histo ry L.A. Times, Jan. 18, 2006, at B1. 67 Edwards 68 Selman v. Cobb County School District 390 F. Supp. 2d 1302 (N.D. Ga. 2005).

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199 BIOGRAPHICAL SKETCH Adam Hayashi was born in Illinois but spent time growing up in many places over the years. During his last year in high school, Adam decided it would benefit him to enroll directly into college courses and took the opportunity to go to Ripon College and f orgo his senior year of high school. He eventually earned a Bachelor of Science degree from Texas A&M University in wildlife and fisheries science From there he applied to the University of North Texas where he pursued his passion for music; however, th at passion quickly turned to the sciences once again and he graduated with p hysiology. In 2000 he accepted a teaching position at Central Florida Community College, now the College of Central Florida. Since that time, he has gone from an Associate professor in the science department to currently holding the County. He is married to Alicia and they h ave two beautiful sons together and are expecting a daughter in March 2011.