Abstract
In Kitzmiller v. Dover (2005), a court defined science to decide the legitimacy of teaching intelligent design to high school biology students. This study analyzes Kitzmiller in light of the complex and interrelated tensions between judicial, scientific, and democratic decision making that lie at the heart of modern educational governance. This study particularly explores how these tensions become more acute where the meaning of science itself is contested and examines how these tensions can be structured and balanced in a nuanced way in the institutional setting of the courts. Based on this examination, this study highlights major issues that bear upon an analysis of when it is appropriate for governmental entities to define science for educational policy purposes.
In Kitzmiller v. Dover Area School District (2005), a court defined science to decide the legitimacy of teaching intelligent design to high school biology students. The theory of intelligent design (ID) generally asserts that the origin and development of living organisms cannot adequately be explained as a result of natural forces and that an intelligent, supernatural actor planned and created these organisms. Although the major proponents of ID often frame the theory as a legitimate scientific alternative to evolutionary theory, the historical origins of ID are firmly rooted in the fundamentalist cultural and religious movement that has supported the teaching of biblical creationism in schools—the same movement that took center stage in the famous “Scopes monkey trial” ( Tennessee v. Scopes, 1925). Like Scopes, Kitzmiller has generated national attention as a forum for playing out the conflict between science and religion in the context of binding legal decisions about education. As a result, District Court Judge John E. Jones’ decision in Kitzmiller that the teaching about ID in a ninth-grade public school biology class is unconstitutional has generated both a significant amount of praise and criticism (e.g., DeWolf, West, & Luskin, 2007; Irons, 2007).
Although Kitzmiller raises several important issues (such as the relationship between religion and educational policy, and the clash between science and religion in the public sphere), this litigation is especially important for grounding an analysis of the complex and interrelated tensions between judicial, scientific, and democratic decision making that lie at the heart of modern educational governance. On one hand, Kitzmiller involved the clash between two different governmental institutions—a federal district court and a democratically elected local school board—over educational policymaking. Indeed, legal researchers have long recognized the tension that often arises between judicial and democratic decision making (e.g., Bickel, 1986).
But on the other hand, Kitzmiller heavily involved scientific issues for determining the constitutionality of the ID policy. Over the course of the 20th century, science and policy have become increasingly intertwined in education. With the development of intelligence testing, the development of the administrative state, the launch of Sputnik, and the educational lawsuits following Brown v. Board of Education (1954), science increasingly began to influence educational policy decisions in the legislative, executive, and judicial spheres (Featherman & Vinovskis, 2001; Heise, 2002a; Rury, 2002). While links between science and governance have offered the promise of “speaking truth to power” to craft more effective educational policies, such links also may have allowed for unwarranted educational policy decisions under the guise of neutral scientific authority (Wildavsky, 1979). Such actions have highlighted fundamental disjunctures between governmental and scientific modes of decision making in educational policy, especially in the context of judicial decision making, and have accordingly generated significant debate about the justifiability and effectiveness of educational policy decisions that heavily involve science (e.g., Heise, 2004). Moreover, the increasing importance of science in the educational policy process has generated and highlighted yet another important and related tension—that science is generally not democratic, while educational policy is (Lugg, 2004). In order for courts to make nuanced decisions about modern educational policies, courts therefore must be able to effectively negotiate and balance the interrelated tensions between judicial, scientific, and democratic decision making.
Although effectively negotiating and balancing these tensions is extremely difficult, this activity becomes even more difficult and high stakes where the definition of science itself is at issue. Since the beginning of the 21st century, governmental entities have increasingly addressed the definition of science and employed various constructions of science for making legally binding decisions about education. For example, in addition to deeply considering the scientific evidence underlying a range of potential educational reforms, the U.S. Congress and U.S. Department of Education have enacted and implemented laws that define and govern “scientifically based research” in education. This phrase was defined and used 111 times in the No Child Left Behind Act (2002) to regulate educational programs that can be implemented under the law. The Education Sciences Reform Act (2002) defines this concept in a slightly different way and requires research funded by the Institute of Education Sciences, the research arm of the U.S. Department of Education, to comport with this definition. By defining science in particular ways and highlighting the importance of science for educational policy decision making, governmental institutions strongly influence the range of institutions and entities that are considered legitimate and relevant to this kind of decision making. The struggles for legitimacy about what constitutes science that emerge where the definition of science is at issue exacerbate the already existing tensions between judicial, scientific, and democratic decision making in educational policy.
Because the Kitzmiller court expressly defined science to decide whether the Dover School District’s ID policy was constitutional, Kitzmiller constitutes an extremely important case for understanding how these tensions can be structured and negotiated in modern educational policy decisions. This study accordingly examines Kitzmiller in light of the interrelated tensions between judicial, scientific, and democratic decision making that lie at the heart of modern educational governance. Based on this examination, this study discusses how the institutional context of judicial proceedings (and the law in particular) structured the way in which the court negotiated these tensions. Furthermore, this study highlights major issues that bear upon an analysis of when it is appropriate for governmental entities to define science for educational policy purposes.
One should note that although Kitzmiller is generally not binding on other judicial proceedings because it was a district court opinion, it is a very high-profile case that has been hotly debated among the media, public, and academics. While much of this debate has focused on the proper relationship between religion and government, several other aspects of this debate have also emerged, and some researchers have specifically focused on the definition of science in the case. While some researchers have argued that it was legally legitimate for the court to define science (Kitcher, 2006), others have argued that defining science was unnecessary and unwise in light of courts’ lack of institutional scientific expertise (Wexler, 2006). Another researcher has argued that scientific arguments are especially important in litigation such as Kitzmiller because they confer “intersubjective validity” that other claims about the empirical world lack (Katskee, 2008), and that it was appropriate for the Kitzmiller court to address the definition of science to ensure that courts are seen as fair arbiters of important disputes by the public at large (Katskee, 2006). Still, others have focused on the strong emotional and political beliefs about science and religion underlying both sides of the litigation (Goldberg, 2006).
Although all these issues are certainly important and play into the analysis in this study, these issues have been ably considered elsewhere. In this study, I do not aim at rehashing these issues; instead, I aim at using Kitzmiller as a case for exploring the tensions between judicial, scientific, and democratic decision making in modern educational policy decisions. Especially because governmental institutions are increasingly addressing the definition of science for educational policy purposes, I hope to ultimately lay a foundation for understanding, negotiating, and balancing these tensions in a more nuanced way.
Analytical Framework
Where the courts address scientific issues to make educational policy decisions, several complex and interrelated tensions emerge between scientific, judicial, and democratic decision making. Where the meaning of science itself is contested, these tensions become even more acute, and resolving these tensions becomes a very high-stakes process. In order for courts to make nuanced decisions about educational policy, especially in cases involving the definition of science, courts accordingly must be able to effectively negotiate and balance these tensions.
The institutional context of judicial decision making structures and frames how courts undertake this activity. As many researchers have argued, the courts have certain institutional characteristics that enable them to effectively influence educational policy under certain conditions and for certain purposes. For example, when other governmental branches fail to act to address perceived educational policy problems, the courts can help reformers overcome political inertia and impact educational policy decisions (Rebell & Hughes, 1997). As such, reformers have used the courts to legitimize reform efforts, such as desegregation and school finance reform, that are aimed at helping politically underrepresented groups (Rebell & Block, 1982). Indeed, because the courts are generally more isolated from the political process than many other governmental institutions and because of the design of their institutional procedures, the courts generally engage in a more “evenhanded” type of decision making than other governmental institutions—the nature and procedures of the adjudicative process tend to equalize the representation of positions and how information is presented and delivered to the governmental decision maker (Komesar, 1994). To be sure, it is worth underscoring that the courts are also subject to the influence of politics and that judicial decisions have often been biased in favor of a judge’s preexisting political beliefs (Heise, 2002b). Still, given the characteristics of the judicial decision-making process, judicial decisions are generally subject to political bias to a lesser extent than many other governmental institutions.
Despite such institutional advantages, the courts’ capacities to address educational policy issues are limited in several key respects. The legal rules and principles (stemming from sources such as statutes and precedent) governing the educational policy issues heard by courts generally structure judicial decisions in this field. In many cases, these rules and principles may guide courts toward decisions that are justified from a legal perspective but do not reflect sound policy knowledge (Chemerinsky, 2003). Litigation is also a very expensive process, and many important policy issues are accordingly never brought before the courts in the first place (Buzbee, 1997). When such issues are brought before courts, a particular kind of legal expertise is needed to navigate the legal institutional environment effectively. Moreover, the courts are reactive institutions and depend on parties to bring lawsuits to address particular educational policy issues.
Directly related to the tension between scientific and judicial decision making, the courts often face difficulties when dealing with complex scientific issues. On one hand, expert witnesses can play critical roles in educating judges and driving the development of legal theories particularly involving education (Chesler, Sanders, & Kalmuss, 1988). On the other hand, governmental decision makers are often presented with competing scientific evidence that supports alternative and even opposed outcomes (Blumenthal, 2002). Indeed, courts face problems stemming from fundamental differences in the goals, methods, and epistemologies of law and science (Jasanoff, 1995). For example, while oversimplifying for the sake of brevity, science aims at truth while the law aims at justice; science is descriptive while the law is prescriptive; and scientific conclusions are probabilistic and tentative while legal conclusions must appear certain. In the particular context of the courts, the adversarial nature of the decision-making process particularly encourages the presentation of “junk science” specifically developed for extant, pending, or anticipated litigation (Edmond, 2007).
As a result, the courts have faced significant difficulties understanding scientific evidence undergirding arguments about education, and the courts have sometimes expressed a “false sense of security” about claimed facts (Moran, 2000; Welner & Kupermintz, 2004, p. 127). Where legal frameworks are vague and do not conclusively point to a particular outcome, and where courts are presented with competing scientific claims (as is typical in educational litigation), such difficulties can become particularly problematic—the combination of ambiguous legal frameworks, unclear science, and lack of judicial expertise can produce ineffective and even unwise decisions in educational policy (Superfine, 2008).
Negotiating the tension between judicial and scientific decision making in a nuanced way is especially important where the definition of science is at issue. In cases simply involving scientific evidence and testimony about educational issues, an imperfect or overly simple judicial interpretation of scientific information primarily impacts the interests of the parties in the litigation. But even if a judicial decision does not have binding authority over other courts, a decision on an issue as fundamental as the definition of science may prove persuasive to other courts, and it may influence other governmental institutions considering similar educational policy issues. Moreover, the decision may have implications for other types of cases involving science. For example, the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals (1993), which included a detailed discussion of the definition of science, has had wide-ranging implications for the admission of expert evidence more generally (Edmond, 2007).
In addition to the tension between judicial and scientific decision making, analyses of governmental decisions to define science for educational policy purposes would seem to revolve around another fundamental tension as well—that science is generally not democratic, while educational policy is (Lugg, 2004). Clearly, the distinction between science and democracy in educational policy is not as consistently clean in practice as this simple phrase makes it out to be. As Jasanoff (1995) highlights, the practices of science are the products of ongoing social interaction and construction among members of the scientific community and are not reflective of transcendent properties of science. And as Moe (2000) argues, educational policy decisions can become subject to capture by interest groups and therefore be considered antidemocratic. Moreover, the concept of democracy is vague and can be interpreted in multiple ways in the context of educational policy (March & Olsen, 2000). Still, this distinction is quite useful for highlighting a fundamental issue in educational policy and governance: Because science is conducted by experts that have expertise and legitimacy in their field not possessed by lay people, scientific practices are conducted without any direct links to the electorate or democratic processes.
This tension is likely to be particularly acute where the definition of science itself becomes the subject of policy decision. Instead of only determining what constitutes “good” or “bad” science, the decision maker distinguishes “science” from “nonscience.” The decision thus becomes about membership in a legitimized group and access for influencing the educational policy process. In cases where the decision maker labels the arguments of a democratically elected group fighting for scientific legitimacy as “nonscientific,” and where the decision maker sides with the “scientific” community over the wishes of a democratically elected group, the power to influence educational policy is located in a particularly select group of experts to an even greater extent.
At the same time, the tension between democratic and judicial decision making is central to an analysis of governmental decisions to define science for educational policy purposes. Decisions by unelected federal court judges generally involve what legal and political science theorists have labeled the countermajoritarian difficulty—the tension created by courts’ ability to overrule laws that reflect the will of the majority (Bickel, 1986). As Supreme Court Chief Justice John Marshall states in the seminal case
Marbury v. Madison (1803), “It is emphatically the province and duty of the judicial department to say what the law is” (p. 177). However, as Lipkin (2006) argues,
This creates a republic where constitutional choices of the people are often blocked or come to a virtual dead-end. Such a dead-end republic . . . prevents citizens . . . from engaging in the joint enterprise of integrating and reconstructing reflective judgments into a conception of the common good.
The presence of scientific issues in judicial decision making can complicate this tension. Judicial decision making is already antidemocratic in certain respects. Where judges heavily rely on science at the expense of attention to the local community implicated in litigation to make decisions about educational policy, there is an even greater potential for antidemocratic decision making. However, the courts also constitute a public place where contentious issues that exist at the nexus of law and science can be addressed. For example, there was significant public anxiety about new biomedical technologies (such as new contraceptive technologies and in vitro fertilization) beginning as early as the 1970s. In the context of this anxiety, the courts served as a forum for both effecting particular social policies about these technologies and, through the symbolic status of judicial decisions, facilitating more subtle changes in public understandings about the organization of intimate relationships and the role of choices in defining individual identities (Jasanoff, 1995). The courts accordingly can constitute a critical institution for addressing the place of science in the U.S. democratic state.
In short, judicial decisions involving science for educational policy purposes reflect a series of complex and interrelated tensions between judicial, scientific, and democratic decision making. Where such decisions involve the definition of science, these tensions are likely to be particularly acute, and negotiating these tensions is likely to be a somewhat difficult and high-stakes activity. While the facts of legal disputes necessarily shape these tensions in particular cases, the institutional context of the courts can at least structure and frame judicial decisions involving these tensions in somewhat predictable ways. As a judicial decision where a court defined science for educational policy purposes, Kitzmiller constitutes a perfect case for examining how these tensions can be structured and negotiated in the institutional setting of the courts.
Methods
In order to analyze Kitzmiller in light of the interrelated tensions between judicial, scientific, and democratic decision making, and in the particular institutional context of the courts, I employed an interdisciplinary approach that combined historical case study methods and traditional methods of legal analysis. Historical case study methods are generally employed by historical institutionalists, or researchers who think theoretically about institutions and their impact on behavior and real-world, political, and policy outcomes (Steinmo, 2001). Historical institutionalists generally see institutions not as the only variable determining political and policy outcomes but as an intervening variable through which battles over interests, ideas, and power are fought. Accordingly, these researchers make visible the overarching contexts and interacting processes that shape (and reshape) states, politics, and policy (Pierson & Skocpol, 2002). Historical institutionalists often structure their work around the concept of “path dependence”—the idea that there are critical junctures in history and that once actors take a particular path, they are likely to find it very difficult to reverse course. As a result, historical institutionalists often highlight the “path not taken,” or the political alternative that would otherwise become irretrievably lost (Pierson & Skocpol, 2002, pp. 665–666).
In order to engage in this kind of analysis, historical institutionalists generally work from case studies or small-n comparisons and employ both primary and secondary sources (Skocpol, 1984). In this study, I created a case study with an understanding that emerged through the process of data collection and analysis—that Kitzmiller was a key educational policy event in which the institutional context of the courts structured the negotiation of salient tensions in a very concrete and visible way. Had these tensions manifested in another institutional context (say, that of a legislature), the tensions between these values would likely have been structured and negotiated quite differently. Moreover, the case study was crafted with the emerging understanding that Kitzmiller constituted a critical juncture in the history of both the ID movement and the increasing tendency of governmental institutions to define science—given that Kitzmiller represented an instance in which a court defined science, the court likely privileged some types of decision making, and an analysis from a historical institutional perspective would require a consideration of how the litigation could have privileged other types of decision making.
Because institutional context is so important to the case, and the institutional context was that of the courts, I employed legal analysis as well. Legal analysis has long been an important element of institutional analyses involving the courts (Przeworski, 2004). While historical institutional approaches do not center on the law, focusing on the law can be very useful where the object of study specifically involves the application of legal rules or principles. Kitzmiller is precisely this sort of case, as the judge in Kitzmiller defined science as an integral piece of his legal analysis. The legal methods used in this study are aimed at complementing the historical case study methods—while the historical case study methods can highlight the ways in which Kitzmiller broadly structured the negotiation of certain values and ideas, the legal analysis can provide a more focused understanding of the ways in which the law can play a particularly important role as well.
In accordance with the types of data sources suggested by Skocpol (1984), I collected and analyzed several primary and secondary data sources to construct the historical case study. In particular, I examined several secondary sources to construct the broad historical background of the litigation. I then examined several websites and newspaper articles to construct the basic anatomy of the case and the treatment of the case around the country. I also obtained several official documents pertaining to the litigation from various online sources, such as LexisNexis, Westlaw, and websites run by individuals and organizations interested in the case. These documents include the 139-page legal opinion, briefs, complaints, and the entirety of the transcripts from the case, which total approximately 6,000 pages. In addition, using the Kitzmiller opinion and major constitutional law casebooks, I identified legal cases relevant to the Establishment Clause jurisprudence referenced in Kitzmiller and collected these cases from LexisNexis.
After collecting these data, I employed a coding scheme that emerged from a consideration of the data itself and from broader literature on the institutional characteristics of the courts and the tension between judicial, scientific, and democratic decision making in education. The codes used include instances in which the court was exposed to conflicting scientific evidence, consistent scientific evidence, evidence about the characteristics of science itself, views of citizens in the local community, arguments about legal doctrines and appropriate interpretations, and views of citizens in the United States more broadly; national and local publications focused on Kitzmiller to highlight the science students are taught; and national and local publications focused on Kitzmiller to highlight the religious views held by members of national and local communities. Codes also include instances in which the court addressed each of these issues in its actual opinion. The legal analysis involved a detailed consideration of the precedent underlying Kitzmiller and the application of legal rules and principles in the opinion. Given the ways in which the issues highlighted in the case study and legal analysis emerged, the judicial opinion in Kitzmiller proved to be one of the most important documents for this study (though the transcripts were very useful for ensuring that important information and potentially competing interpretations were not ignored). The ultimate analysis synthesized the historical case study analysis and the legal analysis and particularly focused on the ways in which the applicable legal tests involved the various issues highlighted by the coding scheme. In this way, this study especially underscores the ways in which the law—an important institutional feature of courts—can structure how courts negotiate the tension between various types of decision making in educational policy.
Historical and Legal Contexts
Kitzmiller represents one of the latest (and certainly more high-profile) instances in which a particular cultural and religious movement found itself in court in response to educational policies governing the teaching of evolution or creationism. Since at least the early 20th century, a segment of the politically conservative religious right has focused on opposing the teaching of evolution in public schools (Larson, 1985). Members of this movement have generally held that the theory of evolution conflicts with their religious views on the development of life, and sometimes the history and age of the Earth, and have been referred to as “creationists.” When attempting to influence educational policy through political action, members of this movement have often targeted school boards, textbook publishers, and state legislatures (Newman, 2007). As Apple (2001) found, creationism (and later ID) has served as one of many platforms of the religious right in education, and this movement has influenced educational policy debates in a range of other policy areas, including school choice and prayer in schools.
Because the basic tenets of this movement have often involved the teaching of doctrines or theories with a religious aspect in public schools, the history of this movement is deeply tied to the courts. In particular, policies involving the teaching of religion in public schools may conflict with the Establishment Clause of the First Amendment of the U.S. Constitution: “Congress shall make no law respecting an establishment of religion” (U.S. Constitution, Amendment I). As the Establishment Clause has been interpreted by the Supreme Court, the First Amendment also applies to policies enacted by state-level entities, including local school boards ( Everson v. Board of Education, 1947). The famous “Scopes monkey trial” was the first major consideration of an antievolution policy by the courts. During the 1920s, 45 antievolution bills were introduced in 20 states (Newman, 2007). Tennessee enacted one of these bills, which specifically made it unlawful for teachers in Tennessee public schools to “teach any theory that denies the story of the divine creation of man as taught in the Bible and to teach instead that man has descended from a lower order of animals” ( Scopes v. Tennessee, 1927, p. 363). In the trial, a jury convicted biology teacher John Scopes for failing to comply with this law. While the Tennessee Supreme Court did not find the law unconstitutional on appeal, the court reversed the jury verdict on a technicality and emphasized that there should be no further proceedings.
For decades after Scopes, the antievolution movement stayed out of the public and legal spotlight. By applying pressure to textbook companies, this movement was largely successful at keeping discussions of evolution out of textbooks used widely by school districts (Apple, 1998).1 Moreover, many public schools simply stopped teaching evolution to avoid the controversy that it would raise. However, amidst fears in the 1950s and 1960s that the United States needed to boost the quality of its science education to keep pace with the Soviet Union and other foreign countries, several publishers revised textbooks to include discussions of evolution, and the antievolution movement was thrust into the spotlight yet again. In Epperson v. Arkansas (1968), the Supreme Court considered the constitutionality of a state law with very similar language as the one implicated by Scopes. Analyzing the state law under then current Establishment Clause principles, the Court focused on whether the law could be defended as an act of “religious neutrality,” or a policy that does not favor one religion over another. The Court found that the law was unconstitutional under this principle—according to the Court, the law violated the Establishment Clause by seeking to excise all discussion of human origins from public school curricula because of the theory of evolution’s supposed conflict with a particular interpretation of the Bible by a particular religious group.
In response to Epperson, the antievolution movement changed its approach by formulating the concept of “creation science,” the idea that the Biblical account of human origins can be scientifically investigated (Forrest & Gross, 2004). The movement particularly argued that creation science should be taught in public schools as a legitimate scientific alternative to evolution and that creation science merited fair and balanced treatment in biology classes—as the proponents of creation science argued, this concept actually fit within the existing definition of science (Binder, 2007). In the early 1980s, Louisiana passed a law requiring the teaching of creation science in public schools whenever evolution was taught. When the Supreme Court considered the constitutionality of this law in Edwards v. Aguillard (1987), it also found this law unconstitutional under the Establishment Clause. The Court particularly applied the “Lemon test”—a constitutional doctrine established in Lemon v. Kurtzman (1971), an Establishment Clause case decided after Epperson. The Lemon test requires governmental action to (a) have a legitimate secular purpose, (b) not have the primary effect of either advancing or inhibiting religion, and (c) not result in an excessive entanglement of government and religion. The Court specifically found that the purpose of the Louisiana law was religious, despite its stated purpose of protecting academic freedom. Still, the Court indicated that alternative scientific theories to evolution could be constitutionally taught; it stated that teaching a variety of scientific theories about the origins of humankind could be validly done with the clear secular intent of enhancing the effectiveness of science instruction. While the Court did not definitively state that determining whether a theory is actually scientific is a necessary part of a constitutional analysis on this issue, it accordingly suggested that such a determination could be relevant.
Although Epperson and Edwards are the two cases that most directly preceded Kitzmiller, it is also worth noting Lynch v. Donnelly (1984), a case in which the Supreme Court considered the constitutionality of Christmas decorations on government property, and ruled that such decorations were not unconstitutional. In this case, the Court created the “endorsement test,” a constitutional analysis under which a governmental policy is unconstitutional if it conveys the message to a reasonable observer that the government endorses a particular religion. Since Lynch, courts have employed both the Lemon test and endorsement test in Establishment Clause cases, and the court in Kitzmiller analyzed Dover’s policy under both of these tests as well.
In particular response to its defeat in Edwards, the antievolution movement changed its approach yet again by formulating the concept of ID. As noted earlier, the theory of ID generally asserts that the origin and development of living organisms cannot adequately be explained as a result of natural forces and that an intelligent, supernatural actor planned and created these organisms (Katskee, 2006). Like creation science, ID has been framed by its proponents as a legitimate, scientific alternative to evolution that explains the origins of life better than evolution. However, unlike creation science, the theory of ID does not assert that the Biblical account of creation accurately describes the origins of life; instead, ID asserts that the origins of life can potentially be explained by various intelligent, supernatural entities, including a time-traveling cell biologist or aliens, and in doing so attempts to expand the definition of science (Binder, 2007). Thus, as its proponents argue, ID constitutes an alternative scientific theory that would be constitutional because it could not be viewed as endorsing a particular religion, having a religious purpose, or advancing a particular religion. Still, most of the major proponents of ID appear to believe that the god of Christianity is responsible for the origins of life (Forrest & Gross, 2004).
Since Edwards, the ID movement has become increasingly powerful, and its theory has become increasingly visible to the general public. A mix of religious think tanks, publishers, funding sources, evangelical Christian colleges, and conservative law centers have brought economic, political, legal, and academic resources to bear to support this movement—these groups prepare their own textbooks and articles, lobby and draft legislation, and offer to defend potential lawsuits that could arise if a school board adopts an antievolution curricular policy (Newman, 2007). Between 2000 and 2005, 15 state boards of education considered the adoption of a policy requiring the study of ID or that teachers present a critical view of evolution in science class (Bowman, 2006). In 2005, 47 school boards and 14 state legislatures considered similar proposals. Moreover, state legislatures in Kansas, Minnesota, New Mexico, and Ohio have enacted laws allowing instruction about ID in public school science classes.
Some nationally prominent politicians have taken a similar stance toward the teaching of evolution. Senator Rick Santorum (R-PA) proposed a non-binding amendment to the No Child Left Behind Act (2002) that states, “Where biological evolution is taught, the curriculum should help students understand why this subject generates so much continuing controversy” (U.S Congress, 2001). Although his statements did not have any binding legal force, President George W. Bush publicly stated that students should be taught about ID: “Both sides ought to be properly taught . . . so people can understand what the debate is about” (Baker & Slevin, 2005). Moreover, for at least the past 25 years, the population of the United States has been divided over belief in evolutionary theory. In 2005, 31% of Americans believed that humans evolved from other organisms with divine assistance, 12% believed that humans evolved from other organisms without divine assistance, and 53% believed that humans were created directly by a divine being at some point in the past 10,000 years (Bowman, 2006; Gallup Organization, 2005). So although the concept of ID is fairly new and has been framed by its proponents as a scientific alternative to evolution, this movement has become increasingly powerful in state and federal arenas in recent years and appears to have at least partially reflected beliefs about the origins of life held by a sizable portion of the U.S. populace.
Kitzmiller v. Dover
Kitzmiller began on December 14, 2004, when the American Civil Liberties Union and Americans United for Separation of Church and State filed suit on behalf of 11 Dover parents against the Dover Area School District School Board (hereafter, School Board). The plaintiffs generally argued that the actions taken by the School Board to incorporate ID into the Dover science curriculum violated the Establishment Clause of the U.S. Constitution. The lawsuit was filed in the U.S. District Court for the Middle District of Pennsylvania, and the case was assigned to Judge John E. Jones III, an appointee of President George W. Bush. The Dover Area School District itself includes approximately 3,700 students and is located in a rural area of southeastern Pennsylvania that is home to approximately 20,000 people.
The events that led up to the lawsuit began as early as 2002 when School Board members began to continually push for the integration of creationism and ID into the ninth-grade biology curriculum in School Board meetings and retreats. In 2004, the controversy over the science curriculum took on increasingly public dimensions. In two School Board meetings, School Board members openly spoke in favor of teaching creationism and criticized evolutionary theory on religious grounds. One School Board member was specifically in contact with the Discovery Institute, an organization that agreed to represent the School Board in any litigation over the biology curriculum. This organization recommended that Dover use in biology classes Of Pandas and People (hereafter, Pandas)—a reference book that detailed the theory of ID. Sixty copies of this book were later anonymously donated to the school library.
Shortly thereafter, much of the Dover community was swept up by the controversy. Two local newspapers printed the comments of the School Board members from School Board meetings. A large number of Dover residents who had not previously attended School Board meetings began to come to these meetings as a result. As an English teacher in Dover stated,
Typically, a school board meeting is a very dry thing, a couple of people show up because they have a certain issue they want to discuss. But these meetings would [have] hundreds of people, and it would be hot, and people would be upset, and it was a zoo. It was just an absolute madhouse.
In a public meeting in late 2004, the School Board finally passed by a 6-3 vote a resolution that amended the biology curriculum: “Students will be made aware of gaps/problems in Darwin’s theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of Life is not taught” (Kitzmiller v. Dover, 2005, p. 708). In response, two members of the School Board immediately resigned from their posts. Shortly thereafter, the Dover Area School District announced by a press release that beginning in 2005, teachers must read the following statement to students in ninth-grade biology classes at Dover High School:
The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part. Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations. Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves. With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.
The Kitzmiller Litigation and Opinion
The trial in Kitzmiller began in September 2005 and lasted for 21 days. In addition to dealing with the historical roots of ID and the events that happened in Dover during the preceding years, the trial also dealt with an array of extremely complex scientific issues. The trial involved 33 witnesses and generated approximately 6,000 pages of testimony, and the parties submitted hundreds of exhibits to support their positions. On December 20, 2005, the court handed down a very long and detailed 139-page opinion finding that Dover’s actions violated the Establishment Clause. In this opinion, the court meticulously addressed the variety of issues raised during the trial, including the motivations of School Board members and whether ID is science.
In the Kitzmiller opinion, the court applied two related legal tests to determine whether Dover’s actions were constitutional—the endorsement test and the Lemon test. As interpreted by the court, the endorsement test precludes government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. In particular, the test requires a court to determine
what message a challenged governmental policy or enactment conveys to a reasonable, objective observer who knows the policy’s language, origins, and legislative history, as well as the history of the community and the broader social and historical context in which the policy arose.
In applying the endorsement test, the court first analyzed whether reasonable observers would believe that ID and teaching about “gaps” and “problems” in evolutionary theory are religious strategies that evolved from earlier forms of creationism. The judge examined the wealth of testimony presented at trial about the historical roots of ID in creationism and specifically noted the creationist origins of Pandas. As the court found, by comparing the pre- and post-Edwards drafts of the book, three major points emerge:
(1) [T]he definition for creation science in early drafts is identical to the definition of ID; (2) cognates of the word creation (creationism and creationist), which appeared approximately 150 times were deliberately and systematically replaced with the phrase ID; and (3) the changes occurred shortly after the Supreme Court held that creation science is religious and cannot be taught in public school science classes in Edwards.
Because Dover students were read a statement in biology class, the judge also examined whether a reasonable student would view the statement as an official endorsement of religion. The judge carefully examined the language of the statement read to students and concluded that the statement conveys a strong message of religious endorsement to a reasonable student primarily because it offered no “scientific alternative” to evolutionary theory while highlighting the value of an inherently religious theory ( Kitzmiller v. Dover, 2005, p. 726). Moreover, the judge examined whether a reasonable adult in Dover would perceive the district’s conduct to be an endorsement of religion and concluded that a reasonable community member “cannot help but see that the ID Policy implicates and thus endorses religion” ( Kitzmiller v. Dover, 2005, p. 734).
The Separation of “Science” From “Nonscience”
Following the analyses of what reasonable observers would believe, the court turned to a much more technically complex issue—whether ID is science. If ID were to be labeled as “nonscience,” it would be very difficult for its proponents to persuasively claim that the teaching of ID did not endorse a particular religion. Although the text of the Constitution and relevant precedent did not clearly indicate that the court needed to address this question, and although the court itself indicated that it could likely complete the endorsement and Lemon test analyses without addressing this question, the court decided that such an analysis was worthwhile. The court particularly stated that after such a lengthy and detailed trial, “no other tribunal in the United States is in a better position than are we to traipse into this controversial area” ( Kitzmiller v. Dover, 2005, p. 735). The court specifically underscored its hope that expressly addressing whether ID is science would prevent the waste of judicial and other resources occasioned by a subsequent trial on precisely this question.
In order to answer this question, the court considered a wealth of complex evidence and testimony from scientists, historians of science, and philosophers of science. Expert testimony for the plaintiffs focused on the very definition and basic characteristics of science—testimony particularly highlighted the importance of developing empirically testable hypotheses, testing these hypotheses, and the omission of supernatural explanations as central features of science since the scientific revolution of the 16th and 17th centuries. The National Academy of Sciences (NAS), recognized by experts for both parties as the most prestigious scientific organization in the United States, submitted an amicus curiae brief indicating that scientific explanations
are restricted to those that can be inferred from the confirmable data—the results obtained through observations and experiments that can be substantiated by other scientists. . . . Explanations that cannot be based upon empirical evidence are not part of science.
As is typical in litigation heavily involving scientific issues, the defendants attempted to counter such evidence and testimony with presentations by experts of their own. Dr. Behe, an expert for the defendants, presented what he framed as a scientific argument for ID based on the concept of “irreducible complexity”—the idea that some biological systems, such as the bacterial flagellum, are so complex that the removal of any part would cause such systems to lose their functionality. According to Behe, such systems cannot be produced directly by slight, successive modifications of a precursor system, such as the types of modifications that constitute central features of evolutionary theory—the parts of such systems would need to arise at the same time. In line with the typical role that expert witnesses play in litigation heavily involving scientific evidence, Dr. Miller, an expert for the plaintiffs, presented opposing evidence that systems such as the bacterial flagellum were not irreducibly complex. Underscoring that Miller’s presentation was based on peer-reviewed studies (unlike Behe’s) and that irreducible complexity is only a negative argument against evolution (and not proof of design), the court indicated that it found Miller’s presentation more persuasive.
Experts for the defense also testified about the theory that the structure of living organisms exhibited a “purposeful arrangement of parts.” According to these experts, observers infer design when they see parts of a system that appear to be arranged for a purpose. Because the appearance of design in biology is overwhelming and nothing other than an intelligent cause has been demonstrated to yield such a strong appearance of design, an inference of design is rationally justified and scientific. Analyzing this argument for the scientific nature of ID, the court found that an inference of purpose is a completely subjective proposition. The court also noted that although some proponents of ID suggest that the designer could be a space alien or a time-traveling cell biologist, the defendants’ experts had not proposed a serious alternative to a divine being as the designer. After considering several other extremely complex scientific issues during the trial as well, including expert testimony about the fossil record and cell biology, the court found that the defendants distorted established evolutionary principles, and there was no peer-reviewed literature to support the defendants’ claims.
Based on this analysis, the court expressly defined the characteristics of valid scientific work and found that ID is not science:
After this searching and careful review of ID as espoused by its proponents, as elaborated upon in submissions to the Court, and as scrutinized over a six week trial, we find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community. ID, as noted, is grounded in theology, not science. Accepting for the sake of argument its proponents’, as well as Defendants’ argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum.
Even finding that the ID policy was an unconstitutional governmental endorsement of religion under the endorsement test, the court still proceeded to analyze the policy under the Lemon test. As noted earlier, the Supreme Court has indicated that under the Lemon test, a government-sponsored message violates the Establishment Clause if (a) it does not have a secular purpose, (b) its principal or primary effect advances or inhibits religion, or (c) it creates an excessive entanglement of the government with religion. In order to determine whether the ID policy had a secular purpose, the court reviewed evidence and testimony about the push to integrate ID into the science curriculum in Dover and found that the policy was clearly motivated by religious concerns. Moreover, noting that the effect inquiry under the Lemon test largely covers the same ground as the endorsement test, the court quickly found that the policy unconstitutionally advanced religion—the court specifically found that since ID is not science, “the conclusion is inescapable that the only real effect of the ID policy is the endorsement of religion” ( Kitzmiller v. Dover, 2005, p. 764). Given the similar conclusions reached by the court from the application of the endorsement test and the Lemon test, the court found that Dover’s actions to integrate ID into the ninth-grade biology curriculum were unconstitutional.
Like the period of time leading up to the litigation, the litigation itself was a media spectacle. The national media descended on the courthouse, and several major publications around the country, such as Time and Newsweek, ran news stories about it (e.g., Adams, 2005; Wallis, 2005). Four days after the trial ended, the School Board members who had voted for the ID policy were up for reelection, and all of them were voted out of office by a narrow margin in favor of anti–intelligent design candidates (Powell, 2005). In response to this vote and before the court had handed down its opinion, televangelist Pat Robertson publicly stated, “I’d like to say to the good citizens of Dover, if there is a disaster in your area, don’t turn to God. You just rejected him from your city” (Aspel, 2007). So Kitzmiller contained not only important legal and scientific dimensions but a significant public dimension as well.
Discussion
As a detailed examination of Kitzmiller illustrates, the case reflects a series of complex and interrelated tensions between judicial, scientific, and democratic decision making that were structured and negotiated in the institutional setting of the courts. In Kitzmiller, democratic and scientific decision making were clearly at odds at the most basic level of the litigation. The plaintiffs were backed by an overwhelmingly and uncharacteristically one-sided position taken by the scientific community (e.g., AAAS, 2005; American Society for Cell Biology, 2005; NAS, 2008; National Science Teachers Association, 2005). In opposition, the democratically elected local school board constituted the primary defendant in the case.
Both the institutional context of the courts and presence of fundamental issues regarding science structured and exacerbated this basic tension between science and democracy already existing in Kitzmiller. As some commentators have forcefully argued (e.g., Wexler, 2006), previous judicial decisions did not clearly require courts to define science in order to complete a persuasive legal analysis—to be deemed unconstitutional under the endorsement test, the court needed only to find that a reasonable observer would consider the ID policy to be an endorsement of religion, which was quite possible given only the knowledge of the relationship between ID and the history of creationism. But in light of the historical trajectory of the law and the creationists’ legal strategy to classify their theory as a scientific alternative to evolution, the court effectively found itself at a legal crossroads with regard to defining science.
On one hand, the court could have decided not to define science and to focus solely on what a reasonable person or student in Dover, the local community that the ID policy primarily impacted, would have believed about the ID policy. In doing so, the court would have used the law to essentially focus the litigation and legal analysis on the democratic decision-making process and perceptions of it. On the other hand, the court actually chose to define science, which directly responded to the defendants’ legal strategy and thereby focused much of the litigation on the overarching principles of scientific inquiry—principles that are best understood and argued about by experts. In doing so, the court effectively transformed the litigation into a struggle for membership in a legitimized group, characterized by scientific decision making, that could significantly influence the educational policy decision at hand. So, by ultimately labeling the decision making of the defendants as “nonscience” and focusing much of the litigation on science itself, the court structured the tension that already existed between scientific and democratic decision making in a way that made it significantly more acute.
At the same time, judicial decision making was in tension with scientific decision making in Kitzmiller. At first glance, these two types of decision making would appear to have been aligned in the case—the court essentially allied itself with the scientific community to trump the decision of the local school board. Indeed, judicial appeals to science should underscore the historically increasing role of the scientific community in the educational policy process. But upon closer inspection, deeper tensions still emerge. Where heavily relying on science to make decisions in the presence of ambiguous legal frameworks, courts (which lack scientific expertise) can make unwise decisions. Where the definition of science is at issue, such decisions are particularly high stakes because they can have implications for many other cases besides the case at hand. Because Kitzmiller directly involved the definition of science and legal frameworks that did not even seem to require the court to examine scientific evidence, much less guide the court’s consideration of scientific evidence, there would appear to be strong grounds for concern—the Kitzmiller opinion could legally lock in place (and at least prove very persuasive in cases outside the jurisdiction of the Middle District of Pennsylvania) a definition of science that is insufficiently nuanced by scientific standards.
This theoretical tension between judicial and scientific decision making, however, proved to be weak in Kitzmiller. The court was presented by conflicting scientific evidence by the plaintiffs and defendants, and this evidence was very technical and complex, as it dealt with issues like the construction of the bacterium flagellum. Moreover, the amount of scientific evidence submitted by both parties was very large, as the trial generated approximately 6,000 pages of testimony and involved hundreds of exhibits. But as discussed earlier, a large, strongly united, and prestigious portion of scientific community supported the plaintiffs’ position on the state of the relevant scientific evidence and ultimately what constitutes science. Such factors made it much less likely that the court would improperly interpret the relevant scientific evidence and testimony, and indeed, the major scientific organizations strongly praised the Kitzmiller opinion for its treatment of science. So even though the decision directly involved the definition of science, the tension between scientific and judicial decision making was significantly and uncharacteristically mitigated by the particular facts of the case.
Finally, judicial decision making was in tension with democratic decision making. Because an unelected federal judge overruled the “will of the people,” Kitzmiller strongly reflected the countermajoritarian difficulty as it is classically constructed. But the particular facts of Kitzmiller mitigated this tension as well. As discussed earlier, the school district (and the ID movement more broadly) essentially argued that the definition of science should be expanded to include ID—this is specifically the conceptual innovation of ID over creation science, and this innovation constituted a key element of the defense’s legal strategy. By choosing to define science when it was not clear that this action was legally required, the court directly engaged with the School Board in the precise terms that the board used to justify its policy. While the result of Kitzmiller was not what the School Board desired, the School Board was at least treated in an evenhanded way by a governmental institution that respected the way in which the democratically elected local institution framed its own policy.
But even more importantly, the decision to define science allowed the court to draw on its institutional capacities to serve as a forum for symbolically playing out the struggle for public understandings of the relationship between science and religion in education. Given the sense of “civil war” characterizing Dover immediately before and during the Kitzmiller litigation, the national media attention concentrating on the litigation, and the increasing prevalence of unsuccessful bills related to ID in state legislatures, the teaching of ID in schools constituted a major point of contention for the citizens of Dover and the U.S. population more generally. The court’s decision to focus the litigation and legal analysis on the definition of science and whether ID constitutes science allowed the court to fulfill one of its critical institutional roles as an arena for addressing the place of science in the democratic state. Indeed, without addressing whether ID is science, the court could not have effectively served this function.
So the court’s decision specifically to define science appears to have effectively mitigated much of the tension between judicial and democratic decision making without exacerbating the tension between judicial and scientific decision making. At the same time, the court arguably minimized the tension between democratic and scientific decision making in at least one important respect as well—while the decision to define science made the tension particularly acute between the scientific community and the decisions of the democratically elected school board, this legal move allowed the broader public the needed opportunity to deeply consider its relationship with scientific decision making. Seen from this angle, scientific decision making was not simply an alternative to democratic decision making but a form of decision making that needed to be more deeply considered by the public at large.
Taking together the decisions actually made by the Kitmziller court and the tensions inherent in the case, the court appears to have done a fairly effective job of negotiating the various tensions. No matter how the court decided, the importance of some types of decision making would be trumped by others in the process. The tensions between judicial, scientific, and democratic decision making in modern educational governance are interrelated and complex, and minimizing one tension may exacerbate another one. So in evaluating how these tensions were managed, it is important to consider how the different types of decision making were balanced. Here, the court used the definition of science, which was a particularly high-stakes legal tool, to structure and minimize much of the tensions. While democratic decision making in its most local sense was trumped by other types of decision making in the final tally, the values of the other types of decision making held strong. In this sense, the court capitalized on its institutional capacity to engage in reasoned and evenhanded decision making in a public way that few, if any, other governmental institutions could.
Implications of Kitzmiller for Future Educational Policy Decisions
Kitzmiller constituted a rare and perhaps unique opportunity for a governmental institution to define science. Given the historical and institutional contexts, and the way in which the various tensions were structured in the case, the Kitzmiller court was able to chart a theoretically justifiable course of action in an important area of educational policy that is fraught with landmines. In this sense, Kitzmiller likely represents a case unlike any other that will soon arise in this area. Still, Kitzmiller holds important implications for other courts that are considering whether to define science for educational policy purposes—Kitzmiller broadly underscores the fundamental tensions and issues to which a court should attend when making this decision. As highlighted by the case, courts should particularly consider the wishes of the community in which the case arises, the public dimensions of the issue at hand that transcend this community, the institutional capacity of the court to address scientific issues, the degree of consensus among scientists on the relevant scientific issues, and of course, the relevant law and the ways in which it structures how these factors are related to each other. There are undoubtedly more factors that could generally apply across such cases or that are particularly important in light of the characteristics of specific cases. Still, this range of factors stresses the need for both a comprehensive and interdisciplinary analysis when considering whether a court should define science for educational policy purposes.
Despite the seemingly balanced way in which the court navigated the tensions in Kitzmiller, it is important to recognize that defining science in the context of the courts may not always (and in fact may rarely) be a theoretically justifiable and desirable course of action. In litigation involving educational policy where the science in question is not as clear, and public understandings of science and its role in the personal lives of the public are not at stake, the tension between science and democracy may be very difficult to resolve. Given the difficulty courts have historically faced in this area, especially in the presence of ambiguous legal frameworks, it may make more sense for courts to minimize the extent to which they directly address and even define science. So while other courts will likely not be in the same position as the Kitzmiller court to define science for educational policy purposes, Kitzmiller can at least serve as a strong guide to the issues to which these courts should attend when faced with a similar decision.
In addition to facilitating a stronger understanding of judicial decisions to define science, Kitzmiller also highlights tensions that may apply to analyses of the ways in which other governmental institutions have begun to define science for educational policy purposes. As discussed earlier, the U.S. Congress has defined “scientifically based research” in both No Child Left Behind and the Education Sciences Reform Act, and the U.S. Department of Education has been charged with the responsibility of interpreting and applying these definitions. While Congress must consider the constitutionality of policies as it codifies them into law, it is not nearly as bound by existing legal rules as courts; indeed, there was little discussion of preexisting legal rules when Congress considered the provisions governing scientifically based research in either the No Child Left Behind Act or the Education Sciences Reform Act (U.S. Congress, 2002a, 2002b). Similarly, given that the provisions for scientifically based research in these laws have been built to govern the implementation of educational programs and decisions about research funding, these provisions have not engaged the general public nearly to the same extent as the teaching of ID. So at least at first glance, it would be difficult to make the argument that the democratic dimensions of applying science apply as forcefully in this context.
However, studies of democratic institutions do indicate that these institutions are generally influenced by democratic politics to a greater extent than courts, and the scientific community has also had much to say (and, in this case, is rather divided) about the provisions for scientifically based research. Accordingly, while the tensions that bear upon an analysis of a judicial decision to define science for educational policy purposes are not precisely the same as those that bear upon an analysis of a similar legislative decision, there is substantial overlap, and this overlap can likely constitute the basis for a fruitful comparison. While it is not the place here to conduct a thorough analysis of how governmental entities have recently addressed and defined science for educational policy purposes, this area is certainly one that merits continuing examination and that can be productively analyzed by paying careful attention to the tensions highlighted by Kitzmiller.
Footnotes
1
The Biological Science Curriculum Study, a nonprofit organization focused on improving students’ understanding of science and technology through curriculum materials, also pressured curriculum companies to keep discussions of evolution out of textbooks as an attempt to differentiate, defend, and promote its work (Ladoceur, 2008).
2
An amicus curiae brief is a brief submitted by a “friend of the court”—a group or individual that is not party to litigation but that submits information during litigation to help a court make a well-informed decision.