The Dover (PA) Evolution Case: A True Win for Education?

by James Anthony Whitson — January 04, 2006

This is a win for science education. This is a win for education in general. And as a teacher, I am quite satisfied.

– Plaintiff Christy Rehm, ABC World News Tonight, December 20, 2005

Jennifer Miller, a Dover biology teacher who, along with others in the high school science department, would not read the school board-mandated statement on intelligent design, said teachers were “ecstatic” about Jones’ ruling.

– Associated Press, December 21, 2005

On the day after the decision in Kitzmiller v. Dover School District was announced,¹ the Christian Broadcasting Network’s news report during Pat Robertson’s 700 Club Show noted that the judge was a “church-going Republican,” and Robertson commented:

This is an appalling ruling by a man who’s showing unbelievable arrogance. He said “I’m better positioned than anybody in the world to decide this case. . . . this is going to be the case [in which] I hope I’ve put to rest all of these nonsensical claims that are being made all over the country.” Well, one federal district court judge. Yes, your honor. (December 21, 2005)

Judge John E. Jones, III was clearly the right judge for this case: Appointed by George W. Bush (who has publicly supported the teaching of Intelligent Design in public school science classes), Jones has a track record to support his confident declaration that “this is manifestly not an activist Court” (Kitzmiller, p. 137). With his track record and conservative credentials, Jones penned a bravura opinion—notable for its mastery of the massive trial record and technically complex issues in the case, as well as the strong and uncompromising presentation of its findings and analysis—that is not credibly assailable as the product of a liberal ideologue on the bench.

Robertson’s comment does, however, touch upon a matter of legitimate concern: the matter of just how much weight should be accorded to conclusions of this judge—or any judge—on questions that are not really legal questions, that is,  questions that are not within the special expertise of those whose training is in law. And, in particular, when it comes to questions about education that are within the expertise of those whose professional training and experience is in education, why should the judgment of educators carry less weight than that of a judge? Consider this statement by one of the newly elected Dover school board members, weeks before the judge announced his decision:

The judge’s word—whatever it is—[is] going to carry great weight. And I think it’s going to—to do some work toward helping the community start to heal because that will, you know, it’s not a school board saying, well, hey, this is how it is going to be.

 

This is a judge making a ruling on a case where both sides got to present their side, fully. This should bring some closure at least for our community. I’m sure there are many other communities throughout the United States that will be waiting for this verdict with great interest.²

After the trial was completed in early October, but before the decision was announced in late December, voters in the Dover school district elected a slate of candidates who promised to undo the action of the previous board members who had mandated the “Intelligent Design [ID] Policy”³ that was later ruled unconstitutional by the judge. But why did the board need to wait for a judge to tell them that the Constitution would not permit the ID policy, if the board was elected to abandon that policy, anyway?

The judge’s final ruling on the case was based on his conclusion that “Intelligent Design Theory” does not qualify as science to be included in the science curriculum. But the Dover School Board (with its former membership) had already been presented with this same conclusion by the members of its high school science faculty. The science teachers had informed the school board in January 2005 that they could not carry out the board’s mandated ID policy because it would be a breach of their professional ethics to tell lies to their students, and it would be a lie to tell their students that ID is science. In the middle of what otherwise looks like a normal business letter, the teachers put the following declarations in all capital letters:

INTELLIGENT DESIGN IS NOT SCIENCE.  INTELLIGENT DESIGN IS NOT BIOLOGY.  INTELLIGENT DESIGN IS NOT AN ACCEPTED SCIENTIFIC THEORY.⁴

The judge reached the same conclusions on these questions. But since these are questions about science—not questions about law—why should his conclusions on these questions be seen as adding much, if any, weight to the conclusions of the science teachers? Although it is true that the judge has access to the massive trial record in the case, the district’s science faculty has equal access to all of these same materials. And unlike the judge, whose education is (unsurprisingly) in the field of law,⁵ Dover’s high school science teachers are all certified as “highly qualified” under Pennsylvania’s definition (which requires both a major in the subject they are teaching (e.g., biology) and successful completion of the content test—more than the federal NCLB definition, which would accept either the major or the test completion).⁶ The position of the teachers was, moreover, further supported by research scientists at Penn State and around the world, as well as the American Association for the Advancement of Science and other organizations speaking for the community of scientists. How much weight can the conclusions of one judge add to all of this?

The judge himself did not—despite Pat Robertson’s paraphrase—claim that he was “better positioned than anybody in the world” to decide the final answers to these questions. Here’s what the judge did say:

While answering this question [“whether ID is science”] compels us to revisit evidence that is entirely complex, if not obtuse, after a six week trial that spanned twenty-one days and included countless hours of detailed expert witness presentations, the 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. (p. 63)

In other words, the judge was acknowledging the complexity of matters not within the scope of legal expertise as such, even as he expressed confidence that the six week trial put him in a better position now than any other “tribunal in the United States” (i.e., court of law) to deal with this controversy.

Although there was a legal controversy when the trial took place, a controversy that did actually necessitate a judicial answer to the question about science, that controversy no longer existed once the district’s voters replaced the school board with new members who had run in opposition to the ID policy. The primary question about law, which the court had to decide, is whether the ID policy was a violation of the First Amendment prohibition against state promotion of religion. Since the old board was claiming that their policy was promoting science, not religion—based on their position that Intelligent Design Theory is actually a scientific theory, rather than a religious teaching—the judge could not reach a decision on the primary question about law (i.e., the First Amendment) without ruling on the school board’s defense of its policy (the argument that ID Theory is really science). In that situation, the question about science was a preliminary or subsidiary question that the judge had to decide, in order to resolve the First Amendment issue. But that situation ceased to exist, once the voters brought to an end the controversy that had raised the First Amendment issues⁷; so the judge’s conclusion on the question about science should no longer have the same significance.

Judge Jones himself repeatedly referred to the Dover science teachers as the ones qualified to advise the board locally on such questions, and he repeatedly faulted the old board for ignoring or refusing to seek the teachers’ views on the ID policy, on textbook selection, and on the science curriculum. Nothing in his decision suggests that the questions about science or questions about curriculum are matters that he, or the courts in general, should be deciding for the schools.

Speaking before the judge rendered his decision, the new board’s president, Bernadette Reinking, identified the problem: “The school board was not listening to the science teachers and what they were saying about evolution.”⁸ Interviewed right after the decision was announced, Reinking commented on the new board’s disposition:

We felt that some “Intelligent Design” belonged in a different area of the curriculum; and so, although I have not read the judge’s decision, from what I’m hearing, that he has said that it is not science, and so, we can then go about what we had planned to do in trying to put it in a different part of the curriculum.⁹

The new board will see to it that ninth graders in Dover High School will not be told about ID Theory in their January science classes, as had been mandated by the prior board; and, from Reinking’s comment, it appears the board will see themselves as acting on their own authority and responsibility for the students’ educational interests, as informed by the district’s and the state’s own professional experts on this area of the curriculum. Their action will not be something directed or compelled by the judge, nor will it be particularly influenced by his ruling that ID Theory is not science.

But what will the students understand about all this?

In a decision—strong and masterful as it was—that otherwise could be regarded as an unremarkably predictable ruling that what courts have said before about “creation science” applies to “ID Theory” as well, and for exactly the same reasons,¹⁰ one very remarkable development is Judge Jones’s analysis of how the ID Policy would be understood by the hypothetical “objective student” and “objective adult” in the community. This “objective observer” standard, which now has particular significance for part of the Establishment Clause analysis in Constitutional law, can be understood in comparison with the “reasonable person” test that has long been used in tort law analysis to determine the standard of care against which a defendant’s conduct will be measured to determine liability in negligence cases.

The “objective student” is not the typical student, or the average student, or any actually existing student. The “objective student” is, rather, the hypothetical student whose background understanding is such that she can serve as the standard for gauging whether government-supported communication would be construed as an “endorsement” of religion. Before even beginning the section of his opinion on “Whether ID is Science” (p. 64), Judge Jones devoted 46 pages to analyzing factual evidence on the question of how the ID Policy would be viewed by the “objective student” and “objective citizen” in Dover. Both, he concluded, would perceive the mandated curriculum as endorsement of religious teaching.

It is important now, however, to forget about the Constitutional law question, and get back to asking questions that are essentially questions about curriculum. As Reinking noted, the court opinion makes it clear that we are free to do that now. The concern that is most immediate in my work as a professor of curriculum is that even in “Educational Leadership” programs in our universities, professional educators are somehow learning to think about curriculum as something dictated by courts and government-appointed commissions, acting on political mandates within boundaries set by the Constitution as interpreted by judges. We are forgetting how to think about curriculum questions on the basis of curriculum principles that are within the area of our own particular knowledge as educators.

Here’s a quick experiment that you can try in your own classroom, if you are teaching graduate courses in education. Ask two quick questions: (1) Should Intelligent Design be included in K–12 science classes? and (2) why or why not? Based on my own experience (experience over several years, before the case in Dover), I predict that a substantial number of education professionals in graduate school courses will answer “no” to the first question, and then as the reason for that answer they will refer to court decisions interpreting the First Amendment. (I will be interested in learning about the results if you do try this in your own classes. You can share reflections on your experience online, in a response to this commentary.)

When I ask students to set aside the question of Constitutional limitations based on principles of church–state separation and to consider what they would recommend in the interests of students’ education, based on a principled understanding of curriculum itself, many see this as an incomprehensibly pointless and unrealistic exercise. The question about what to teach and not teach has already been decided, after all, by the courts; so why pretend that it has not?

Since the inception of standards-based regimes throughout the states, science standards frequently are mentioned as the reason for teaching about evolution; but again, the mere existence of the standards requirements imposed by some outside authority is often cited as being, in itself, the rationale for the curriculum. The Dover ID Policy itself took this approach, in mandating that the statement read to students would include this language:

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

As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.¹¹

So long as students are given to understand that the reason they are not hearing about ID in their biology class is because of the Constitution, or because the courts or judges have said that it’s not allowed. . . . so long as students think that the reason they are learning about evolution is that it’s required by the state standards … so long as students think—and are even being told—that the reason they need to learn about evolution is so that they will score well on the high-stakes test . . .  so long as this is how the students think about what’s happening in science class, such thinking deflects attention from their learning to understand biology and how it is the character of biology, as a natural science, that necessitates an evolutionary perspective, and distinguishes ID Theory as an alternative to the quest for explanations based on the operation of naturalist principles.

Of course, how students actually do understand and think about such things is a matter for empirical investigation, as is the understanding and communication about these matters among professionals in education and between educators and communities at large. From my own vantage point in the academy, and from extensive surfing through the media, I am concerned about what I see as a tendency to abdicate curriculum responsibility to legal and political authorities who understandably do not have the understanding of curriculum that should be grounded in the research and practice of education. At some points, of course, there are decisions that must be made by legal and political authorities; but even then, they should have the benefit of insights from an educationally grounded understanding of curriculum.¹² When we as educators start to abdicate our proper role in curriculum, the habits of curricular thinking can begin to atrophy; and the idea that educators have nothing distinctive to contribute can become a self-fulfilling prophecy.

So, is the Dover evolution case a true win for education?  What I am urging is that, although the court’s decision in the case is certainly propitious, a true win for our students is not something that we can be given by a judge but something that we ourselves must achieve, as professionals and researchers in education, along with students, parents, and our communities.

Notes

1.  The opinion in Kitzmiller, et al. v. Dover School District, et al., announced December 20, 2005, is available (along with many legal documents in the case) through the court’s own website at http://www.pamd.uscourts.gov/kitzmiller/kitzmiller.htm. The opinion is also available, along with complete archives of transcripts, briefs, and other documents, as well as links to other useful sites, on the website of the National Center for Science Education, at http://www2.ncseweb.org/wp/.

2.  “Evolution Debate in Dover, Pa.” Online NewsHour, November 25, 2005.

http://www.pbs.org/newshour/bb/religion/july-dec05/dover_11-25.html.

3.  “The ID Policy” is Judge Jones’s way of referring to the policy set forth collectively in the Dover School Board’s October 18, 2004, resolution and its November 19, 2004, press release. See Kitzmiller at p. 2.

4.  The letter may be found under Tab U of Appendix IV – Volume I of the “Exhibits to Plaintiffs’ Brief in Opposition to Defendant’s Motion of Summary Judgment.” Accessible at  http://www2.ncseweb.org/kvd/all_legal/2005_08_08_Brief_Opp_SJ/APPENDIX%20IV%20-%20VOLUME%20I/Appendix%20IV%20-%20Volume%20I.pdf .

5.  See the Biography of Judge John E. Jones, III on the court’s website for Kitzmiller, at http://www.pamd.uscourts.gov/kitzmiller/jonesbio.htm.

6.  The definitions and statewide overview, with links to Excel and PDF tabulations by district and by individual school, is posted on the website of the Pennsylvania Department of Education at http://www.teaching.state.pa.us/teaching/cwp/view.asp?A=7&Q=108111: Highly Qualified Teachers in Pennsylvania: School Year 2003-04, Preliminary Report. Last updated January 26, 2005.

7.  Unlike judicial systems in other countries, the federal judiciary in the United States has no power under Article III of the U.S. Constitution to make decisions where there is no real “case or controversy” between opposing parties (e.g., by issuing advisory opinions). For that reason, it would have made some sense for Judge Jones to declare that he lost jurisdiction once the controversy had been rendered moot by the election in November. Indeed, a former board member who had voted for the ID Policy appeared at the first meeting of the new board to urge that they should pull out of the lawsuit, so that the District would not end up having to pay for legal fees after losing the decision (York [PA] Dispatch, December 6, 2005). The trial was already completed at that point, however, and there was no action to formally inform the judge that the district would be changing its position.

8.  Reported by Martha J. Heil on http://www.prnewswire.com, December 21, 2005.

9.  Although other excerpts of this interview were aired elsewhere, I have only found these statements in the excerpt played on the CBN news report aired during the 700 Club program on December 21.

10.  Edwards v. Aguillard, 482 U.S. 578 (1987) is the authoritative Supreme Court precedent on the general controversy over teaching evolution, but the landmark district court opinion on “creation science,” which is cited extensively in the analogous Kitzmiller opinion on “Intelligent Design,” is McLean v. Arkansas Board of Education, 529 F. Supp. 1255, 1258 (E.D. Ark. 1982).

11.  Quoted in Kitzmiller on pp. 1–2. Citing trial testimony by Brian Alters (Associate Professor of Education, McGill University), Judge Jones found that “the message this paragraph communicates to ninth grade biology students is that:

[W]e have to teach this stuff[.] The other stuff we’re just going to teach you, but now this one we have to say the Pennsylvania academic standards require[] students to . . . eventually take a test. We’d rather not do it, but Pennsylvania academic standards . . . require students to do this.” (p. 39)

“Stated another way,” Judge Jones continued,

the first paragraph of the disclaimer directly addresses and disavows evolutionary theory by telling students that they have to learn about evolutionary theory because it is required by “Pennsylvania Academic Standards” and it will be tested; however, no similar disclaimer prefacing instruction is conducted regarding any other portion of the biology curriculum nor any other course’s curriculum. (p. 40)

By the same token, I am arguing that we must pay attention to how students will make sense of the situation in which they may believe that the reason they are not hearing about ID in their science class is because the mere “mention” of ID has been banned by a federal judge (which is how the decision has been reported many times in the print and broadcast media).

12.  This is discussed more extensively in James Anthony Whitson (1991. Constitution and curriculum: Hermeneutical semiotics of cases and controversies in education, law, and social science. New York: Falmer Press.

Cite This Article as: Teachers College Record, Date Published: January 04, 2006 http://www.tcrecord.org/Home.asp ID Number: 12271, Date Accessed: 1/4/2006 5:39:16 PM