September 22, 2005

From Scopes to Dover : Should the Courts Permit Public Schools to Teach Intelligent Design?

National Press Club
Washington, D.C.

In late September 2005, Kitzmiller, et al. v. Dover Area School District et al. went to trial in federal district court in Pennsylvania. The plaintiffs challenged the decision of the Dover School Board requiring that public schools teach that intelligent design is an alternative theory to evolution. The plaintiffs alleged that such a rule constituted the teaching of religion in public schools and therefore violated the Establishment Clause of the First Amendment. Shortly before the trial, the Pew Forum, together with the Federalist Society and the Constitution Project, held an event to discuss the current state of the law under the Establishment Clause and panelists’ predictions for a ruling in the case.

Speakers:

David DeWolf, Professor of Law, Gonzaga University School of Law

K. Hollyn Hollman, General Counsel, Baptist Joint Committee for Religious Liberty

Barry Lynn, Executive Director, Americans United for Separation of Church and State

Mark Ryland, Vice President, Discovery Institute

Moderator:

Fred de Sam Lazaro, Contributing Correspondent, Religion & Ethics Newsweekly, PBS


SHARON BRADFORD FRANKLIN: Welcome. My name is Sharon Bradford Franklin, and I serve as senior counsel with the Constitution Project. On behalf of the Constitution Project, the Federalist Society and the Pew Forum on Religion & Public Life, I want to welcome you all to our discussion today, entitled “From Scopes to Dover: Should the Courts Permit Public Schools to Teach Intelligent Design?”

This panel discussion is part of a collaboration among the three organizations to present public education forums on topics involving law, ethics and religion. My organization, the Constitution Project, is a bipartisan, non-profit organization that conducts public education and research on controversial constitutional law and government issues. These include the balance between liberty and security after September 11th, the death penalty, judicial independence, criminal sentencing and the constitutional amendment process.

The Federalist Society is a group of conservatives and libertarians interested in law and public policy. It is founded on the principles that the state exists to preserve freedom, and that it is the province and duty of the judiciary to say what the law is, not what it should be. The society seeks to promote an awareness of these principles and to further them through its activities.

The Pew Forum is part of the Pew Research Center. Its mission is to provide timely information on important issues at the intersection of religion and public affairs. The Forum is non-partisan in nature and does not take positions on policy debates.

I want to thank Dean Reuter and David Ray of the Federalist Society and David Masci of the Pew Forum for their work and collaboration with us in planning this event. Also, I wanted to particularly mention David’s work on the legal backgrounder on behalf of the Pew Forum that you should have picked up at the check-in table and to thank him for preparing that for everyone.

Our program today will cover the latest chapter in the legal battle over teaching evolution in public schools. Our panelists will discuss the current state of the law under the Establishment Clause and their predictions for whether the courts will permit schools to teach intelligent design.

Our moderator for this program is Fred de Sam Lazaro, who is highly qualified to lead us through this ongoing debate. Fred is an executive producer at the PBS affiliate TPT in Minneapolis-St. Paul. Since 1985, he has served as a correspondent for The NewsHour with Jim Lehrer. Since 1999, he has also worked as a contributing correspondent for PBS’ Religion & Ethics NewsWeekly, for which he has reported extensively on issues involving the teaching of evolution and intelligent design. He has received numerous awards for his work and I am pleased to be able to turn the program over to him now. Thank you.

FRED DE SAM LAZARO: Thanks very much, Sharon. It is a great pleasure to be here this morning. It is at once liberating and terrifying to be among such wise scholars on this subject. Like most journalists, I parachute into this story, in and out of it, between doing completely unrelated stories, like being on the Katrina vigil for the last couple of weeks.

The controversy surrounding Darwinian evolution, whether it should be taught in our public schools and how it should be taught, is as old as the theory of evolution itself. And today there are no fewer than 19 states that are grappling, either at the state level or the local-district level, with an issue that some of the combatants are calling the very core of the culture war in this country, an issue that pits the Bible-thumping, far-right holy rollers against the godless, liberal science establishment.

I hope, in fact I will require, that we not engage in name-calling this morning; that we have a respectful discourse that acknowledges the sincerity of all of us who participate. We will begin with opening statements from each of our panelists. We will have an exchange of views, and then open it up for questions, not more speeches. One way we will avoid name-calling in the debate here is to really stick to the question of the day, which is whether in fact the Establishment Clause allows for the teaching of intelligent design in the public school system.

I want to talk very briefly and do a two-sentence description or definition of intelligent design for those who may not be immediately familiar with it. Very briefly, intelligent design, or ID, departs from the so-called young-earth creationism or biblical literalism and acknowledges an earth that is billions of years old, but posits that there are gaps in the fossil record and complexities in biology that simply could not be the result of random cause – that must, therefore, be the result of design. However, this inference of design does not necessarily imply God. God is a candidate for the designer. In fact, he is the candidate for a lot of the proponents of this idea, but he is not necessarily the only one.

David Masci has put together, as Sharon mentioned, a nice legal backgrounder that chronicles how we got to where we are today, where we see a number of legal actions, ongoing or imminent, across the country over actions that range from disclaimer stickers on biology textbooks, which we have seen in Cobb County, Ga., to new science standards in the Kansas state schools, perhaps the most prominent theater in which this debate is being held.

The Kansas state school board, or the Kansas board of education, has approved new biology standards. The board has sent these for external review, and they are expected back from the consultants in Denver in October, I believe. These standards will urge students to consider all scientific theories critically and, quote, “with an open mind.” Kansas students may be told of ID or alternatives in the classroom, but the board’s approach is a more general “teach the controversy” one that we may hear more about this morning. It is the strategy that is advised by the Discovery Institute, the chief sponsor of the Intelligent Design movement.

Now, Dover, Pennsylvania, or the Kitzmiller case, which goes to trial Monday, September 26, does mention intelligent design specifically, and proposes that it be taught along with evolution. And although it is ostensibly irrelevant – science, everyone agrees, stands or falls based on empirical evidence, not on the majority rule or politics – we cannot ignore the fact that most Americans – two out of three, according to the Pew Forum poll, which is available, I’m told, here – two out of three Americans generally support the teaching of alternatives along with evolution, and so does the president.

President Bush recently told reporters, quote, “I think that part of education is to expose people to different schools of thought,” unquote. And although he said that local districts should make such curricular decisions, President Bush said he supported the teaching of both sides so people can understand, quote, “what the debate is all about.”

One thing that all of the new initiatives to change science curriculum share, whether or not they mention ID, is that none that I know of makes any reference in rhetoric or definitely in the actual legislation of standards to God or a religious purpose. And this is a direct consequence of Supreme Court rulings that affirmed evolution and evolution alone as an attempt to the pass the Lemon test, which stems from the 1971 Supreme Court ruling in Lemon v. Kurtzman.

And although I’ve just cited one court case, I’m imploring that today we speak in plain English that I can understand. There are a lot of lawyers here. But at least for me, please speak in plain English and do not use Latin – (scattered laughter) – or case studies. But the reason I bring it up is because it is a pivotal case and it’s a perfect segue to introduce our first panelists this morning, who is Holly Hollman. She has agreed to provide a primer on this Lemon test to help our discussion along.

Holly Hollman is the general counsel of the Baptist Joint Committee on Public Affairs in Washington, D.C., a religious liberty, education and advocacy group formed nearly seven decades ago. As general counsel, she provides legal analysis on church-state issues that arise before Congress, the courts and administrative agencies. Her work includes preparing friend-of-the-court submissions, presentations for research institutions and religious organizations, and issue briefings for congressional staff.

She writes a regular column for BJC’s multi-publication, “Report from the Capital,” and regularly consults with national and local media on matters related to church-state relations. Prior to her work at the Baptist Joint Committee, Holly was an attorney in private practice specializing in employment law and litigation. She is a member of the bars of the U.S. Supreme Court, the District of Columbia and Tennessee. Please welcome Holly Hollman.

(Applause.)

K. HOLLYN HOLLMAN: Thank you very much, Fred. And thank you to all the sponsoring groups that put this panel together today. It’s great to be here and to get to engage in this very interesting, challenging subject.

I am just going to give a quick background on Establishment Clause law. Of course it starts with “Congress shall make no law respecting an establishment of religion.” The Constitution’s first 10 words, along with the Free Exercise Clause and the Fourteenth Amendment, making it applicable to the states, provide protection for religious liberty and the freedom of conscience. As we all know, explaining the Establishment Clause beyond that gets more difficult. Still, let me give it a try.

The Establishment Clause is said to prohibit government through institutions such as the public schools from taking sides in matters of religion. It says that government must be neutral toward religion. In its 1968 case dealing with a ban on evolution, the court put it this way: “The First Amendment mandates government neutrality between religion and religion and between religion and non-religion.”

In 1971, the court put this idea into a test that we’ll talk about – the Lemon test, as it’s often referred to, from Lemon v. Kurtzman – that asks, first, whether any government act is taken with a secular legislative purpose; second, if it has the primary effect of advancing or inhibiting religion; and, third, if it causes excessive government entanglement with religion. So it has got these three prongs.

If the government act at issue fails to satisfy any one of those prongs, the government act is unconstitutional. Since its inception in 1971, Lemon has certainly made a mark on the religion clause cases. It has been used to prevent government-sponsored religious displays, to prevent official religious exercises in public schools and to prevent government funding of religious institutions. It has also been used to uphold free exercise accommodations of religion.

The Lemon test has been used, and some would say abused. It has been honored, it has been abhorred, it has been ignored, and in the case of funding, it has been altered. One of its three prongs got demoted from a prong to be a prong of a prong. So Lemon is something that is always talked about and changing in Establishment Clause jurisprudence. As Supreme Court nominee John Roberts said last week during the hearings, despite his efforts as a government attorney to get rid of Lemon, Lemon is a survivor. No other test has garnered sufficient support as a suitable alternative. It’s the law of the land. And the parties in Kitzmiller versus Dover agree that that is the applicable standard.

The most recent word on Lemon comes from the Supreme Court last term in the McCreary case, the Kentucky courthouse case about the Ten Commandments, which held that the displays were unconstitutional and must come down. Writing for a five-four majority, Justice David Souter affirmed the Lemon test and the central Establishment Clause value that it serves, this idea of government neutrality. And McCreary, I would say, suggests one way that courts will and should look at the issue of intelligent design in the schools.

The McCreary case, this Ten Commandments case, had a long discussion about the first prong, the secular purpose prong, and that was determinative in that case. The court noted that when government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality. There can be no neutrality when the government’s ostensible object is to take sides.

The court noted that the secular prong had seldom been dispositive. Actually, since Lemon, up until this Ten Commandments case, it had only been determinative in four cases. Briefly, the Wallace case was a moment-of-silence case out of Alabama that some of you may have heard of. The Stone case was the earlier Ten Commandments case about the Ten Commandments displays in the Kentucky public schools. The Edwards case was about teaching creationism, and the Santa Fe football case was about public prayer before football games.

It is interesting to note that these are all public-school cases. That may reflect an observation that will come up in the Dover case about the sensitivity of Establishment Clause issues in the public schools. As is often repeated, the court has been particularly vigilant to monitor compliance with the Establishment Clause in elementary and secondary schools. We might get to talk about that a little bit more later.

In McCreary the court specifically declined not to deal with the purpose test, to water it down or to ignore it. The Kentucky counties had said you should not look at purpose; the purpose is unknowable; it’s too difficult. And in McCreary, the court was quick to say that is not the case. They said that it makes practical sense where the purpose is readily discoverable from the facts.

Looking at the cases where the court has found a predominant religious purpose, they are pretty straightforward. For example, I mentioned the moment-of-silence case, Wallace. You had a statute that provided for a moment of silence. Then the government act at issue was adding the word “prayer” to that moment of silence. And the secular purpose offered was to have a moment of silence. So the court was pointing out in McCreary, when they talked about this, that actually it’s not difficult in some cases where the facts are readily apparent to show that there is not a secular purpose.

In some of the earlier cases in the line of the topic we’re talking about today, the court looked at statements of sponsors of the statutes at issue and found that they were sufficient to show that there was a predominantly religious purpose. In each of these cases, the government action was held unconstitutional only because the public record was clear. While the legislature’s stated reasons will certainly warrant deference, Lemon requires the secular purpose to be genuine, not a sham, not merely secondary to a religious object. As Justice Souter said, to ignore government action bucks common sense.

The McCreary court held that evaluation of the county’s claims of secular purpose – the counties that were putting up these Ten Commandments displays – in order to figure out if there was a secular purpose, that evaluation of the claim may take into account the evolution of those displays. I think they used that term “evolution” just for our entertainment today. (Laughter.) But in McCreary they had first just put the Ten Commandments up by themselves. And then they changed it and they put up documents that all had some religious reference in them. And then they changed that and they put up different documents with the Ten Commandments and a foundations-of-American law kind of theme and title.

So what that case teaches is that in reviewing the Ten Commandments displays and the resolutions about them, that was okay, that was sufficient to find its religious purpose. And I think that evidence is analogous to the evidence that the plaintiffs will try to offer in the Dover case about how the Dover school board made the decision to change its science curriculum.

So briefly, what will courts like the Dover court do with efforts to teach intelligent design? I think applying the Lemon standard, and based upon my review of the court filings in Dover, which maybe we’ll hear more about, I think the policy will likely fail under both the purpose and effects prongs of Lemon. The mandate to avoid sponsorship of religion and take sides in religious matters clearly applies to the science classroom.

If the evidence at trial is similar to what plaintiffs have submitted in response to the motion for summary judgment, their early pleadings there, the court will likely find that the board acted with a predominately religious purpose. Let me note, though, that in all of these cases that I have mentioned, the court is quick to say, in essence, “We have decided on these facts, and a similar issue might come up later that might be okay.” A moment of silence under different facts may have been okay in Wallace, they said. In Stone v. Graham, the Ten Commandments display may be okay in a particular emphasis about the history of the Jewish people. So these are very fact-specific cases.

I think that this would be the right outcome as a matter of law and policy. And you might say, Well, why would she be so quick to say that? Why would she urge such a strict standard? Contrary to some of the loud voices in the cultural debate about this issue, it is certainly not out of hostility toward religion. I represent an organization that has generally affirmed the standards of the Establishment Clause applied in the school cases I have mentioned. We don’t want government-sponsored religion. It is bad for religion. It is bad for religious liberty.

The Establishment Clause, while it will result in cases that disappoint some religious interests, protects the religious liberty interests of parents and students. And the BJC has long supported efforts to teach about religion in the proper context, usually in social studies, comparative religion and other settings like that, as opposed to teaching religion in a way that would violate the Establishment Clause.

Lastly, let me point to a plea for intelligent debate. A real problem I think in this arena are these charges that this is somehow a debate about religion versus science or religious people against secular people. That certainly applies to some of the intelligent design proponents who want to create some kind of false division here.

But there is a common response from religious people that belies that assertion. Often it’s put something like this: science and religion are not in conflict. They answer separate questions. One answers how things happen, the other, why things happen. Thank you.

MR. LAZARO: Thank you, Holly. Our next speaker this morning is Mark Ryland, who is the vice president and the director of the Washington, D.C., office of the Discovery Institute, which is based in Seattle. His work at the Discovery Institute also includes serving as a senior fellow in the Technology and Democracy Project, the Center for Science and Culture and the Law and Justice Program.

After practicing law for three years with the firm Latham & Watkins in Washington, Ryland changed professions in 1991 and began working in software design and management at Microsoft Corporation, where he stayed until September 2000. He is a graduate of the University of San Diego and from the Boalt Hall School of Law at U.C. Berkeley. Mark.

MARK RYLAND: Thank you. Thanks very much for joining us here this morning. I should mention that I was probably fated to be sitting on this side of the table since when I walked into my criminal law class as a first-year law student, my law professor was a man named Philip Johnson. (Laughter.)

David and I, my colleague and I, are going to divide up our approach to this issue along basically two lines. I’m going to talk a little bit about the sort of underlying issues, the concepts that I think are very important because before we can categorize things legally and sort out our legal outcomes, we have to understand what it is we’re really talking about in terms of the basic questions of science, religion, philosophy and so forth.

Before getting into that, however, I want to make clear that the Discovery Institute as an organization advocates that people interested in this question – school boards and so forth – adopt a policy of teaching Darwin’s theory critically – that is, teaching the evidence for and against Darwin’s theory, and not mandating the teaching of intelligent design.

So we actually were in dialogue with the Dover school board and suggested they not do what they ended up doing. It tends to be, among other things, waving the red flag in front of the bull in terms of creating these Establishment Clause problems. However, we’re not here to talk about that policy today. We’re here to talk about whether in principle the teaching of the design-oriented science would be a violation of the Establishment Clause. So let’s move on to that question.

First of all, let me start with a couple of caveats. Nobody here at this table or in this debate generally is advocating that evolution not be taught or that Darwinian evolution as the predominant theory of biological origins and the origination of biological complexity not be taught. Everybody acknowledges that that is the mainstream scientific view and it’s perfectly appropriate, therefore, that students be fully instructed in that.

In fact, we argue that they should be better instructed in it by understanding the alternatives, both that Darwin was arguing against in his day, and that exist today. If you read The Origin of the Species, it is full of references to an alternative understanding of nature, namely that nature exhibits properties of design. And to this day, of course, there is a minority position in science that says more or less the same thing based on different kinds of evidence.

So nobody is advocating that evolution not be taught. The other thing to recognize – and this has been alluded to already – is that there is a correlation but not a causation, a causative effect between your religious viewpoints and your viewpoints about science, about design and nature. On the one hand you have many people who are strongly theistic who accept Darwinian evolution. There is a whole very broadly populated set of people who call themselves theistic evolutionists.

And so there is a biologist, for example, Ken Miller, who debates with our people all the time. He is an orthodox Catholic – says he is a strong Catholic, and I have no reason to doubt that – and says that he can understand how God can work through this process, which to science looks like a random process driven by random variation and natural selection. So you definitely have religious people who accept the Darwinian paradigm.

On the other hand, you have people who are not particularly religiously committed who both question Darwin’s theory and have a more design-oriented understanding of science. We can, for example, go no further than a recent headline of a lifelong philosopher of God, Antony Flew, who was a famous atheist – wrote many books about atheism – who in the last few years (he’s now in his ’80s) has reevaluated the evidence of science, and particularly two things: origin-of-life problems and cosmic fine-tuning, the amazing coincidences needed to get life up and running or any type of planetary conglomeration out of the big bang and so forth, all of these amazing coincidences of physics and cosmology.

In his opinion, those would become compelling reasons to believe that there actually is some kind of intelligence behind the universe. He denies that he believes in any kind of personal god or salvation or the immortality of the soul or heaven or hell or any of that stuff, but he says the evidence is convincing to him that there is some kind of intelligence behind nature.

So you have examples like these. But it’s true that typically people who are skeptical about neo-Darwinism and believe in the design as evident tend to be theistic. And very often atheists believe Darwin’s theory because it is kind of their creation story. They have to have some way of explaining this complexity. But the distinction is very important because I think when we’re talking about Establishment-Clause questions, we are talking about the classical questions of the church – revelation, sectarian religion and so forth. And these issues are different from those issues, although they are related to them.

The most important point I want to make is to untangle this motive question from the underlying question of whether the evidence of nature suggests some kind of intelligence or some kind of design. Its is difficult to untangle that because it’s true that when these cases come up they often involve legislatures or school board members who express ideas that indicate that they have a theistic orientation and so this is why they are taking the actions that they take.

But I want you, for purposes of the next couple of minutes, to just go with me here to a hypothetical town in New Jersey, in which a campaigning school board member is essentially the Antony Flew of the local community. He believes in the god of Aristotle, that is, some kind of intelligent cause behind this stuff, but he has no other theistic commitments.

And because they think that the scientific evidence for Darwinism is weak and the evidence for structure, design and so forth, is strong, they want school children to be exposed to this, and so they promote the notion of putting into the classroom both the predominant mainstream theory about biological origins and an alternative theory, or theories, that orient more towards design or teleology – some notion of purpose, plan or design in nature.

Now, the question is, would that be unconstitutional? And I would very strongly urge that the answer is absolutely it would not be unconstitutional because now we have gotten rid of this question, do they have some kind of improper sectarian motive? They don’t have a sect – they are not a member of a sect, so they can’t have sectarian motives. And the question is, what is the scientific evidence and what is the best explanation of the evidence we find in nature?

So in untangling the motives, you may say, “Well, but why would you single out Darwinism? There are other scientific theories, there are other minority positions about scientific theories. Why is it that Darwinism always seems to come up over and over again?” And the answer is very simple: Darwinism is almost unique – I’ll mention the other exception to the rule – it is rather unique in modern science in that it’s an anti-teleological theory. It’s a theory whose purpose is to deny the inference of design.

There is a prominent college textbook whose opening sentence reads, “Biology is the study of things that appear to be designed but aren’t.” Okay, so that is what Darwinism is. You see all of these complex structures in nature. They appear to be purposive, they appear to exhibit some notion of plan or purpose. But the theory says that it is an illusion. They really aren’t; they are the result of random variation and natural selection. That is it. Everything else is built up from that. And your instinct that there is some sort of plan or purpose here is an illusion.

One other area, by the way, in modern science where this comes up – it is not taught in the high schools and so we don’t have the arguments about it – but there is a big debate in cosmology about this thing I mentioned before, cosmic fine-tuning. The natural inference from the incredibly improbable coincidences that lead to some kind of ability to support life, the natural inference is that is impossible. It’s too improbable. There must be some intelligence behind this.

There is an alternative explanation, however. It is called the multi-verse hypothesis, and it is basically an evolutionary model for the cosmos. There are billions of universes, an infinite number of universes. They all have a random distribution of laws, and we just happen to be lucky we’re in the one that wins the lottery. That is another area of science where you have an anti-teleological theory. So these are pretty unique.

Most scientific theories – chemistry, physics and so forth – are based on the notion of law, without chance playing any significant role. We can argue about quantum theory, but I’m going to stand by this statement and I’ll argue offline about that. Chance does not play a significant role in explanations in physics and chemistry. So the theists believe that laws require a lawmaker. The atheist believes that laws are brute facts about the universe and require no explanation. But they both do the same science and they don’t argue about the science. Biology is different for this very reason that Darwinism is an anti-teleological theory.

Okay, so we’re talking about a very natural inference from the evidence of science. What about this notion that somehow this has all been trumped up to work around Edwards v. Aguillard. Well, I don’t think Aristotle had ever read Edwards v. Aguillard, nor had St. Thomas Aquinas, nor had Newton, nor had a number of other people historically who thought that the natural inference from science, from the data of science, was to some notion of design or some notion of teleology.

Moreover, there is the common objection that, well, you haven’t given a cause, you haven’t given any sort of mechanism for design. Science is all about mechanism, right? Well, the answer is not really. Newton, for example, postulated the principle of universal gravitation against a mechanistic notion of science, which had already developed by his time. In a very short period of time, science had become mechanistic. There must be some sort of mechanical explanation for gravity.

His theory was widely challenged on the basis that he had no explanation for the gravitational attraction. And he admitted that he had no explanation, that it was a hypothesis, which he thought could be verified by experience, but that it was a kind of mystery. Why is it that everything attracts everything else? In his private notebooks he wrote, “I think it’s direct spirit action.” In other words, “I think God is the cause of gravity.” But that did not stop him in his public discourse from making that scientific hypothesis and proving it and so forth.

So these questions about mechanism and how does the designer interact with nature and so forth are in a sense secondary questions and don’t necessarily imply that a design orientation is somehow unscientific.

Finally, I will say there is this question, well, isn’t this inherently religious? Because let’s face it, yes, you can talk about design as a natural design, and I will fully defend that there is a notion of design in nature, which does not inherently have anything to do about supernaturalism. But it is the case that many people who are interested in these notions do in fact infer that there must be some kind of super intelligence, some kind of divine notion behind this. And the issue is, well, that obviously then makes it unconstitutional, right, because you’re talking about religion.

I postulate that the answer is no and for the following reasons. The Establishment Clause was designed to deal with sectarian strife; that is, the kinds of conflicts that arise when people of different revealed religions, who believe that God has told them how to think, how to act, how to worship through some divine revelation, whether it be by book or by prophet, when they get together and try to coexist peacefully in society, problems arise.

And I fully support the Establishment Clause because clearly we need to keep the peace. We need to keep public discourse and public government based on public reasons. But this kind of concept [of design] is a public discourse, based on public reasons, inferred from nature. It is, if you will, a bottom-up notion. Even if you conclude that it’s religious, it is not religious in the same sense in which the classic Establishment Clause cases have dealt with this question. In fact, it goes back to a very nice foundation in our own founding. You may recall the famous phrase “the laws of nature and nature’s God.” And that is exactly the kind of reasoning that many design theorists engage in when they look at the evidence for design and nature and reason to some kind of first cause.

My colleague David will talk a little bit more specifically about the Dover case. But I wanted to lay a little bit of a groundwork for you to understand what we are doing in terms of the work of the Discovery Institute and the many scientists and philosophers whom we work with. And our public project has basically been encapsulated by what I just described. Thank you very much.

MR. LAZARO: Mark, thank you. We’ll hear next from the Reverend Barry Lynn, who is executive director of Americans United for Separation of Church and State. He has been there since 1992. He is a long-time civil liberties attorney and ordained minister. He is a frequent guest on television and radio talk shows and news programs. In fact, he is heard on his own program, a daily talk show called Culture Shocks. Barry Lynn’s previous positions include serving as legislative council for the Washington lobby office of the American Civil Liberties Union and working as legislative counsel for the United Church of Christ’s Office of Church and Society. He is a co-author of The Right to Religious Liberty, the basic ACLU guide to religious rights. He earned his law degree from Georgetown University Law Center. And of course Americans United is heavily involved in the Dover case that begins on Monday. Barry.

BARRY LYNN: Thank you very much. “In the beginning” is a very good opening. So in the beginning of the 20th century, certain Protestant fundamentalists decided to resist the writings of Charles Darwin, and tried with some real success to ban the teaching of evolution in public schools on the grounds that evolutionary theory led to gross immorality. Statute was passed in many states. John Scopes was convicted for violating such a statute in 1925 in the state of Tennessee. And then in 1968, the United States Supreme Court invalidated a similar anti-evolution statute in the state of Arkansas.

The banning legislation itself made no mention of God, but the Supreme Court held that the law still proscribed a segment of knowledge solely because it was, in the words of the court, “deemed to conflict with a particular religious doctrine.” The same reactionary forces that sought to ban evolution then began to develop alternative ways to promote religion in public school classrooms. For a time they supported something called balanced treatment, which taught both evolution and the so-called alternative scientific approach of creation science or creationism.

Now, we thought that that effort had also been set to rest back in 1987 in that Edwards case when the Supreme Court again saw through the real purpose and effect of balanced treatment, characterizing it as a restructuring of the science curriculum to conform to a particular religious viewpoint. It dealt in 1987 with the so-called claim that the law was merely a way to improve science education by noting that the state already had the authority to, under existing law, improve education by including any new legitimate scientific theories on this topic.

But in the conclusion of the Edwards case, the court found creationism to be something other than science, and the law requiring its inclusion was merely, in the court’s words, “seeking to employ the symbolic and financial support of government to achieve a religious purpose.”

After 1987 in that Edwards decision, the balanced treatment decision, legal efforts of the anti-evolution movement merely evolved in two simultaneous directions from its common ancestry. Individual teaches started to make claims uniformly rejected that they had an academic freedom right to teach what they wanted against evolution or in support of some alternative. But as a court in Illinois noted there, the First Amendment is not a teacher license for uncontrolled expression at variance with established curriculum content.

In addition, this movement also sought the inclusion of disclaimers in biology texts also nearly uniformly unsuccessful, which urged the examination of so-called evolutional alternatives or noted that evolution is, quote, “a theory and not a fact.” So from those cases, all unsuccessful from the standpoint of the supporters of creationism and intelligent design, we end up in Dover, Pennsylvania, Monday morning at 9:00 where the next battle is to be waged in a lawsuit sponsored by the American Civil Liberties Union of Pennsylvania and Americans United for Separation of Church and State.

There we find a policy adopted by the school board in October 2004 to require that biology students be, quote, “made aware of gaps, problems with evolution,” and then informed of a supposed option called intelligent design, which students are subsequently told can be studied by consulting one of the 60 copies of a book called Of Pandas and People, all copies of which happened to have been purchased and donated to the school library by members of a few local churches.

To prevail in Dover, whether indeed under Holly’s very accurate assessment of the Establishment Clause, we need to prove either that the policy had a religious purpose, or that the policy has a primary effect of advancing religion. And the policy in Dover fails I think on both counts.

To begin, it was purposely designed to advocate a religious viewpoint. How do we know that? Because the advocates of ID, intelligent design, both in Dover and in the movement around the country, generally tell us so when they are speaking freely to their own supporters. One Dover school board member proposed the initial resolution after making statements like the following. Quote, “This country wasn’t founded on Muslim beliefs or evolution. This country was founded on Christianity and our students should be taught as such.”

Moreover, Of Pandas and People, that book of which 60 copies are in the library, is published by a group called The Foundation for Thought and Ethics, which describes itself as having the mission of promoting and publishing textbooks presenting a Christian perspective on academic studies. Moreover, in that broader intelligent design movement, of which Fred spoke initially, the godfather of that movement is indeed the law professor from Berkley, Philip Johnson, who apparently has corrupted the legal – (laughter) – education of one of the other panelists.

Phil Johnson told a Christian radio show the following. I’m quoting him directly. “Our strategy has been to change the subject a bit so that we get the issue of intelligent design, which really means the reality of God, before the academic world and into the schools.” So one could say that is a lot of evidence for religious motive. But you also have to ask, are there any secular purposes that as a legal matter override the religious impetus of some? – a good question. Unfortunately, for ID supporters the answer is no.

Dover policy does not enhance scientific understanding for a variety of reasons. First, it is very misleading to characterize evolution, as Dover does, as a theory, not a fact. Evolution is a theory as defined by the National Academy of Sciences. Quote, “a well substantiated explanation of some aspect of the natural world that can incorporate facts, laws, inferences and tested hypotheses.”

In other words, evolution is in fact precisely in the same category as the theory of electromagnetism or the theory of gravity. Yes, we know more about all of these theories than we did when they were first articulated by Fermi or Newton, or even by Charles Darwin. But the fact that we know more now than we did 100 years ago does not disturb the underlying validity of these as scientific theories.

And when you compound that erroneous denigration of the theory of evolution, you find in the Dover context no acknowledgment at all that this alternative, intelligent design, is itself an incomplete analysis of the data, something usually conceded even by its promoters. So in effect this policy says to students, “You can choose to accept the cracked chuck of coal that is evolution or the pure diamond without flaws and gaps that is intelligent design.” That is highly misleading. It is not good science.

The effect of this language is to promote uncritical acceptance of ID, of a purely religious concept, notwithstanding what we have heard. Intelligent design is in many ways the very antithesis of science. As a matter of the philosophy of science, it starts with the conclusion that the world is so inherently complex that only an intelligent being could design it. And that in fact was one of Aquinas’ original proofs for the existence of God, and it remains the theological underpinning of intelligent design today.

Starting with this assumption, then, ID proponents find bits and pieces of information to force into that mold of thinking. This, not any kind of grand academic conspiracies, is why there are no peer reviewed documents about ID in the scientific literature.

Let me just conclude by explaining why I think this is so important. I want every American school child to have the best possible science education. If evolution is not treated as a cornerstone of modern science, then we have a major problem keeping our children competitive with those children around the world who are not subjected in schools to the pull of religious belief.

There was an article in Time magazine last November titled “Was Darwin Wrong?” I want them to get the answer that appears as the very first word of the inside article: No, Darwin was not wrong. And I want them to understand that this is so because all the post-Darwinian evidence from the natural sciences points in the basic direction of informing Darwin’s essential message. It’s thrilling stuff to me. I really like looking at what evolution has told us, and it’s accurate stuff. If a person like myself chooses to add, as a spiritual matter, that this is all in the cause of some divine purpose, so be it, but to conflate religion with science in fact does no benefit at all to religion or to science.

Thank you.

MR. LAZARO: Thank you, Barry. Finally this morning we’ll hear from David DeWolf. He’s a professor of law at Gonzaga Law School in Spokane, Washington. He came even further to be here than I did. He’s an author of Teaching the Origins Controversy: Science, Or Religion, Or Speech? He was quoted by Senator Santorum when the senator introduced his Teach the Controversy Amendment to the No Child Left Behind Act. Mr. DeWolf is a graduate of Stanford University and Yale Law School. He’s an author of Washington Torte Law in Practice and Washington Contract Law in Practice. He also serves as a senior fellow for the Discovery Institute in Seattle, which, as we’ve heard already this morning, is a think tank whose programs include supporting the work of scholars working on the theory of intelligent design.

David DeWolf.

DAVID DEWOLF: Thank you very much for hosting this forum and for inviting me to be here. Since the five to seven minutes we were asked to budget for our remarks is hardly more than an extended sound bite, I want to hit a few highlights and leave time for you all to follow up.

I’d like to start by asking a not-so-hypothetical question. How should a school district respond to the following situation? Suppose a student walks into the biology classroom and holds up a copy of the recent issue of Time magazine with “Intelligent Design” on the cover and asks, “What’s the deal with intelligent design? What does it have to do with the study of evolution in this class?” I suggest there are two absurd answers to that question and one plausible answer. The first absurd answer would be to say that as a matter of constitutional law the teacher must say, “I’m sorry, I can’t answer that question. That’s for you and your parents to discuss. It has nothing to do with biology class.” It’s understandable a teacher might give that response to avoid answering the question, but if the issue is whether that’s required by the Constitution, it seems implausible to suggest that it is.

A second absurd answer would be to say that the teacher is required, again as a matter of constitutional law, to say the following: “The theory of intelligent design is not a scientific theory, it is a religious theory dressed up as science. It has no place in the biology classroom. All reputable scientists accept evolution as the explanation for the origin of complex biological systems, and if you’re going to get anywhere in biology, you’ll have to accept it too.” Again, I’m sure many biology teachers would make a statement like this if asked their personal opinion, but I hardly think that this response is required as a matter of constitutional law. In fact, I find it highly ironic that the American Civil Liberties Union and Americans United would cheer on the imposition of an orthodoxy, however strongly they might happen to agree with it.

The Barnette case, the flag salute case that was decided in the middle of the Second World War affirming the right of a student to refuse to say the Pledge of Allegiance, caused Justice Jackson to write that “If there is any fixed star in our constitutional firmament, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.” To my knowledge, that has not yet been disaffirmed as a principle of constitutional law. And again, it seems strange that Darwinian orthodoxy is being established as a matter of constitutional law.

I think the third answer I would propose to my original question would be far more sensible. The school board should direct their biology teachers to respond along the following lines: “The theory of intelligent design is a challenge to the theory of evolution that we are going to learn about in this class. It claims that the mechanisms of random mutation and natural selection, which we will learn about, and other variations on Darwin’s theory, are inadequate to explain the appearance of design. As we study Darwin’s theory of evolution and the developments in evolutionary theory since Darwin, you should try to understand why most scientists agree with some version of evolutionary theory but also why some scientists are unpersuaded. Remember, though, that you have to understand the underlying evidence before you can hope to evaluate it. Let’s get to work.” For the life of me I can’t understand why one or the other answers to this question is constitutionally required and the one I just gave is constitutionally forbidden.

Now, I want to clarify again that the Discovery Institute believes that at the current state of knowledge, we lack both the tested curriculum and teacher preparation to require teachers to present a curriculum on intelligent design. On the other hand, to the extent that a teacher feels prepared to at least provide some information about intelligent design – to acknowledge the existence of a scientific controversy, to invite the students to think critically about this issue – I would think that that would be far preferable science education, and again, most consistent with our view of the Constitution.

I want to just say a few words about Edwards. Edwards, it seems to me, stood on three basic principles. The first principle in the Edwards case was there had to be a genuine secular purpose, and the court in Edwards found that the ostensible purpose of promoting academic freedom was a sham. I don’t think in Dover the secular purpose of promoting better science education by exposing students to criticism of Darwin’s theory is a sham. Again, it’s a very realistic notion given the prevalence of intelligent design in the culture that this ought to have some place in the science curriculum, and to be treated critically.

The second aspect of Edwards was that it conditioned the teaching of evolution on the presentation of alternatives. We don’t think that’s advisable. We don’t think there should be any limitation on the teaching of evolution. Again, we think students ought to learn more about it rather than less.

And the final objection in Edwards was that the alternative curriculum, the creation science that was proposed in the Edwards statute, was a thinly veiled version of a sectarian, biblically based creed. As Mark was saying earlier, the concept of design is fundamental to many different aspects of science. Design is used to search for extraterrestrial intelligence. Design is used in forensic medicine. It’s used in archeology. It’s used in a variety of different scientific pursuits. Simply applying well-established design methodology to the study of biology is not something that takes us outside of the realm of science. In fact, it brings us into better harmony with existing scientific progress.

Thank you.

MR. LAZARO: Thank you very much. Before we move to questions from the audience, I would like to offer each side a brief chance to respond. Let’s say a minute -

MR. LYNN: Why one little minute to respond to this hypothetical? I liked those first two answers Mr. DeWolf articulated, by the way. “This has nothing to do with biology; we’re not going to talk about it,” if the kid holds up the Time magazine. “ID is not scientific theory. You should accept evolution.” I don’t know if those are constitutionally required, but they’re awfully good answers. “We will learn about the appearance of intelligent design” – I do think that would violate the Constitution.

And I would add one other thing that would violate the Constitution, and that would be if the teacher were to say, “Evolution, pal, is true. Your silly Bible stories are false; reject them.” That would also violate the Constitution by taking an anti-religious perspective. But I do think that those first two answers are the proper ones. The Constitution may not literally require them in so many words, but the other two, I think, do violate the Constitution, and Dover will help us get to that proposition.

MR. RYLAND: I have a couple of quick comments in response to Dr. Lynn’s words. First of all, just a little bit of historical revisionism often slips into these discussions. For example, in the Scopes case, the state of Tennessee had not banned the teaching of evolution. They banned the teaching of human evolution, and all of the approved textbooks for the state of Tennessee had nothing but evolutionary theory in them. In fact, you could not use the approved textbooks without violating the statute. So the statute was primarily symbolic, and of course the Scopes trial was trumped up as a publicity stunt, as you all probably know.

The reason that Tennessee passed the law banning the teaching of human evolution was not because of the fear of gross immorality; it was because of fear of the eugenics movement. It was an anti-eugenics statute. It was a statute that said, “We cannot treat humans like animals and breed them for better outcomes,” which was a very common perspective in pre-World War II America – a forgotten part of our past. But the Nazis came to the United States and talked to the eugenics experts here when they developed their theories of breeding. Read any historical treatment of this and you will find that I am speaking the absolute truth.

A couple of other quick points. We’re kind of stuck here with what I call – you said don’t use Latin, but this is not lawyer’s Latin (laughter) – the post hoc ergo propter hoc fallacy, which means it happened afterwards, therefore it happened because of. David and I – it’s very ironic – we’re Catholics. We have nothing at stake in the literal biblical creation story, and yet we’re up here debating a couple of what I take to be Protestants, and of course some Protestant denominations do care about biblical literalism. There is a deep irony there, but the point is that, yes, it appears that there is some kind of historical continuity, because the thinking seems to be, “Well, the creationists did this and they did that, and now you ID people show up, so obviously you’re evolved creationists.” And speaking for myself I can guarantee you that I’m not an evolved creationist.

And on the issue of having no secular purpose, we have research which shows that when students are presented with a controversial approach to the study of evolution, they learn a lot more about it. They’re much more interested in it. They score better on the tests. There is a doctoral dissertation that’s been written on this topic in the state of Ohio, which has adopted already the same kind of standards that Kansas is currently contemplating, namely the teaching of the theory in a dialectical fashion – that is, evidence for and against it.

Finally, just a couple of comments on this idea that there is no scientific controversy. I recommend that our listeners go and read a couple of books. First of all, read the book Life’s Solution by Simon Conway Morris. Simon Conway Morris is an eminent paleontologist who became famous as a young scientist because he was the star of a book by Stephen Jay Gould. The book was called, I believe, Wonderful Life. And as a young paleontologist, an expert on the Cambrian explosion – this book was a non-fictional book but nevertheless made Conway Morris into somewhat of an academic star. He is a non-Darwinian biologist. He believes that evolution follows teleological patterns. He rejects the core of Darwin’s theory, and yet we’re told that there is no scientific controversy about Darwinism.

Another example is Stuart Kauffman, an expert in something they call self-organization theory. This is an alternative explanation for complexity in biology, based on mathematical principles of chaos and complexity. He has well-funded research. He ran something called the Santa Fe Institute for a number of years. He has now gone to Canada where they are paying him even more money to do his research. This is non-Darwinian biology, folks. There is definitely a scientific controversy.

MR. LAZARO: Okay, once again I want to remind us that we’re trying, although it’s difficult, not to get too deeply into the question of whether this is science or not but to talk about the constitutionality of teaching ID in our public school science classrooms.

That said, my question is sort of related to something that you said, Mark, about the fact that so many people that you are allied with politically actually come to be your bedfellows basically because of theological leanings. How does that spill over as you try and make a legal case here based on Edwards or on the Lemon test?

MR. RYLAND: I think we’re all struggling with this whole issue of motive, which the Supreme Court has also struggled with. How much should motive really matter in deciding some of these constitutional questions? I’ll let David maybe comment in more depth on that, but I will say that there is a symmetrical problem on the other side. The court has clearly said that atheism should be treated as a kind of religion for purposes of the Establishment Clause. And if you look at the people who fight vigorously against our position, many of them are aligned with secular humanist organizations, atheist organizations and so forth. So if you’re going to say that motivation matters, then the motives of the people who are supporting evolution are relevant, and they would also be religious motives.

I think the best approach is to try to get away from this motive question and look at the evidence, look at the science and focus on what makes the most sense in terms of pedagogy. How are students best going to learn this? They learn it best when they are presented with an alternative argument, because right from the start Darwin described his book as one long argument. Well, what was he arguing with? The only way you can really understand the claims, the radical and impressive claims made by Darwin’s theory, is by comparing them to a theory which says, no, there is some kind of intelligent cause here.

MR. LAZARO: I want to get a response from the other side about this whole issue of the complication, the spillover of the political alliance into anything with legal implications.

MS. HOLLMAN: Barry can help me get to the more political issue, but I just wanted to say something that I’m hearing – and I’m not certain I’m hearing it right – from Mark Ryland. It seems like in his presentation he pointed to the first page of a science book that presented Darwin as orthodoxy, in a way that said things that look like design are in fact not. And I think that’s a bad textbook from just my simple view, and it is answered by the comment that Barry Lynn made about the other hypothetical, which is that a teacher can’t say, “Evolution – accept it, believe it with your heart, and your religion is bad.”

So it seems like we could be setting up sort of false dichotomies here in a way that makes it more difficult to get past these political interests.

MR. LYNN: I do think that politics is awfully important because it goes to the question in a specific case – and these are case-specific – of what is motivating a school, a public school system, to make a certain decision. And Wendover makes a decision to talk about intelligent design, to use a specific reference book. In one of the filings we made in a motion to oppose a summary judgment in this case, we talked a little bit about the history of this book Of Pandas and People. It was being developed in the late 1980s. The draft of the textbook used the phrase “creationism.” And then – as we said in this filing with the court – with all the elegance of a word processor’s algorithm, they replaced references to creationism with the new label “intelligent design” so that when they issued the book two years later they presented intelligent design as if it were a new intellectual endeavor rather than merely a rechristening of creationism.

So the history is one and the same, and the parallel track I think that I talked about in the history of this is quite valid – all the way through Dover. And I maintain that there is no evidence in Dover that the folks supporting this change in policy had any motive other than one generated from their religious outlook on life, just none.

MR. LAZARO: I wanted to ask one of you guys about this whole history that in Dover led up to what is now a policy – until it is overturned, if it is – and that is some of the commentary, some of the deliberation in the school board. Does that have legal implications? When Barry cites a quote from one of the school board members about this country not being based on Muslim values or evolution, does that wind up being legally damning in any sense to the case?

MR. RYLAND: Certainly with the current state of the law. And unquestionably it’s going to be harmful for the Dover school board. And if I had been a lawyer to the Dover school board I certainly would have told them to keep their focus on the secular purposes because that’s the appropriate thing for school boards to be doing.

MR. DEWOLF: I would say that what we all want to avoid is these questions about what our policy should be and what the best educational approach should be – that those devolve, so to speak, into questions like, “Are you now or have you ever been either, on the one side, an atheist, or on the other side, a fundamentalist?” Say you’re debating whether we ought to have the Pledge of Allegiance. The accusation that someone is motivated by an agenda to remake the culture and that that would doom an otherwise valid policy seems unhelpful to me. It just seems to me that this line of inquiry, which in some way the Lemon test has fomented – and I think it’s one of the reasons why a lot of people question whether Lemon ought to be a survivor – invites this sort of poisonous inquiry that I think should be replaced by at least a primary focus on what’s good science education, not “What is really motivating you and aren’t you affiliated with a movement that started in the 19th century that had an agenda that you’re succeeding to today?”

And I might say, just on Of Pandas and People, the textbook that’s at issue in Dover – that that particular issue about how that textbook was developed will probably be an issue in the case, and I would disagree with Barry Lynn’s characterization of that, although I’m not as familiar with the underlying facts as I would like to be.

MR. LAZARO: I was going to ask also what you thought about the Scalia-Rehnquist dissent in the 1987 case, in which they both took real issue with the court basically discerning purpose in questioning the good faith and intention of legislators. To a lay mind that sounds like a valid criticism. How can a court determine -

MR. RYLAND: Fred, can I just add that it was on a motion for summary judgment? For the lawyers in the crowd, that was a very key point. Motion for summary judgment is a claim that there are no facts in dispute in the case and it can be resolved purely on legal issues. Edwards was resolved on a motion for summary judgment, and both the dissent by Judge Gee at the Fifth Circuit – whom I clerked for, by the way; another reason I was fated to be on this side of the table – and also Justice Scalia at the Supreme Court was that you haven’t even had a trial yet to know what the evidence is for their motives. You’re making a legal conclusion as to their motives. So that strengthens your question.

MR. LAZARO: Let it be posed.

MS. HOLLMAN: I understand, Fred, why you would ask about the Scalia dissent. I think it’s a tough issue, the whole notion of motivation. You can make a distinction between someone’s religious motivation and actually the legislative purpose of the act. I disagree with David’s idea that somehow we’re saying that you can’t be a religious person and bring your religious motivation into your acts as a legislator. People do it all the time. I’m pretty sure we have a Congress full of Christians, at least people who say they are, and all the things they do that may come out of that motivation do not necessarily discredit their secular legislative purpose at issue there.

I agree, Fred, that it’s a tough issue, but I think the way Scalia was discussing it in that dissent in Edwards, it’s a different view that would make any claim of secular purpose be okay. And the opposite view is the one that I laid out from Justice Souter that said, you know, we’re not required to ignore the facts as put in the record, as the legislator said, or as the text of a particular statute indicates.

MR. LYNN: Again, I agree. I think that the facts do matter. The facts have always mattered. It is important to document, as was done both, I would say, in Edwards and in the silent prayer case, the Wallace v. Jaffree case, when you look at the record and everybody is talking about prayer, you kind of get the impression that if one person was talking about something else, it really wasn’t the motivating factor or the intended purpose of writing the statute in that way. And I think it’s completely appropriate. I understand why Justice Scalia and Justice Rehnquist did not have a different view, but I think it’s fundamentally wrong.

MR. LAZARO: Has that changed at all in the several years with the composition of the court changing? Do you anticipate -

MS. HOLLMAN: Scalia and Rehnquist have held that position since Edwards; Scalia and Rehnquist are still there, and actually have gone further – tend to go further.

MR. LAZARO: I’d like to open it up for questions from the audience. Go ahead, ma’am.

CONSTANCE HOLDEN, SCIENCE MAGAZINE: I’m confused about something. The Discovery Institute says it’s for teaching the controversy but that ID is not yet ripe to be taught. I still don’t understand what the difference is between ID and “teaching the controversy.” You said people should know that the mechanisms of mutation and natural selection are inadequate to explain the appearance of design. It seems to me that describes both ID and “teaching the controversy.” So if you could explain the difference, I’d appreciate it.

MR. DEWOLF: Maybe we’re too subtle by half here, but the teach-the-controversy concept is that you teach both the strengths and the criticisms of Darwinian theory. But with respect to intelligent design, we believe that it’s constitutional to teach it if a teacher feels so motivated, but as a public policy matter, we think it is unwise for a school board like Dover to require that it be taught because at the moment, Ohio, for example, is developing a curriculum that does teach the controversy and introduces a lot of the concepts, but as yet there isn’t sufficient background to impose that upon teachers. We think a teacher who voluntarily chooses to do that is perfectly entitled to do so.

So the difference is whether you’re making a negative argument that tends to refute the Darwinian explanation, that proposes no alternative explanation, or whether you propose an alternative explanation.

MS. HOLDEN: And what are some alternative explanations?

MR. DEWOLF: One alternative explanation is intelligent design. Others are self-organization theory and teleological evolution. Prominent scientists promote other non-Darwinian explanations. Those are three I’ve just given you – three alternatives, but none of those need to be mentioned in the biology class, according to the policy we recommend. For example, homologies arise over and over again in evolution. The problem is the common ancestor doesn’t have the structure, which then evolves separately in many, many different lineages from that common ancestor. That’s a problem for Darwin’s theory because Darwin’s theory would not predict that the same structure would evolve separately time and time and time again. That leads to an inference of teleology, but you don’t have to talk about that inference. That’s the positive case for design.

MR. LAZARO: Barry?

MR. LYNN: First of all, good biology textbooks, including Ken Miller’s, are at issue in the Dover case. Ken Miller has written a separate book about how his Catholicism is not inconsistent with his support for the scientific theory of evolution. A good biology textbook will concede that there is not a complete theory of evolution; that we are continuing to learn more every year in precisely the same way that we’re still learning more about the theory of gravity. A major decision about gravity was a new discovery published in Scientific American a few years ago about the effect of mass leaving the Earth. This is primitive science, but just what happens to gravity when a large piece of mass leaves the Earth?

I mean, people are thinking about these things all the time and conceding that we don’t have all the answers. Teaching the controversy sounds awfully appealing, because after all, people like conflict – you know, we liked to be on Crossfire before it was cancelled and all of that stuff. (Laughter.) But the point is we have a situation in the United States where one third of biology teachers admit that they don’t teach evolution at all. This has nothing to do with laws; this is just the fear that somebody is going to give them trouble in their classroom – a parent is going to come in and yell at them – so they don’t teach it. Another third say they give one or two days of discussion to evolution. This is a cornerstone of science, and they’re afraid to teach it now. I don’t want to have them spend half of their one day talking about a controversy that is really a controversy between religion and science, not between scientists.

The fact that there is one book or two books, some of which are very interesting books, that take a different view does not constitute a sufficient weight of research to argue that there is a serious scientific doubt about the essentials of evolution – which is not, by the way, “Darwinian evolution.” The poor guy has been dead for 80 years. We’ve learned a lot more since then, and I wish we’d stop using the phrase because it implies that Darwin knew or thought he was right about everything. He didn’t. We didn’t even have modern genetics at the time that he was writing.

MR. LAZARO: I did want to refer to one of the cases – and I think it might have been Edwards – in which I believe the majority ruled that there is the opportunity within existing science curricula to talk about problems with evolution, is that so?

MR. RYLAND: Is it footnote eight? There is a famous reference that says, “Look, other scientific alternatives can clearly be taught.” There is no incorporation of Darwin’s theory into the First Amendment – the new incorporation doctrine.

JIM DAY: My name is Jim Day. In the early 1900s when Einstein made the famous quote, “God does not play dice with the universe,” and he was coming up with the theory of quantum mechanics – which at the time was very novel and was not readily accepted in the scientific community – presumably, based on everything that I’ve heard today, it would have been constitutional for a teacher in the early 1900s to teach quantum mechanics in spite of the reference to God in it, and in spite of the fact that it was not a commonly accepted principle. So given that, at the end of the day, doesn’t all of this constitutional debate really boil down to an inquiry as to the underlying motives of a person who is doing the teaching? That’s the first part of my question. I also have a second -

MR. LAZARO: Let’s take a crack at that one.

MR. RYLAND: Can I just give a real-world example? Around the same time, big-bang theory – the idea that the cosmos had a beginning – was considered to be radically theistic in implications. Many, many scientists for about 40 years argued against it, primarily on the grounds that it violated the uniformitarian hypothesis, the idea that the universe, in Carl Sagan’s famous phrase, “always has been, will be, and ever shall be,” where he has kind of this doxology to the cosmos.

Eventually the evidence overwhelmed the theological and philosophical concerns, and now there’s tons of atheistic and secularist cosmologists who accept the big-bang hypothesis. So the implications of the theory are different from the scientific theory.

MR. LYNN: Yeah, it’s important to recognize that a lot of these questions, including the cosmological questions that the other side wants to talk about, are not at issue in Dover; they are not present in Ken Miller’s textbook, precisely because he wants to stick to the topic of evolution, descent with modification. He doesn’t talk about cosmology.

MR. RYLAND: So design is constitutional but not in biology class. It’s design-oriented thinking.

MR. LYNN: No, what I’m saying is that if we’re talking about the legal issues in the Dover case, questions of cosmology are not even raised by the textbook, which was the subject of his initial effort to find an alternative book for the library, just as a practical matter.

MR. LAZARO: Did you have a brief second question, sir?

MR. DAY: I did. About three or four years ago a circuit split was created when the Fifth Circuit reached the conclusion that a teacher could not be compelled to raise a student’s grade from an F to a C on free speech grounds, saying that that was compelled speech. And I believe that created a circuit split with the Seventh Circuit. Under that same theory, wouldn’t it also violate free speech to force a teacher to stand up in front of his students and say something that he doesn’t really believe?

MR. LYNN: This issue was litigated in California and the court again reached the conclusion, similar to the one that I quoted in another case in Illinois, that there is no academic freedom – that is to say, no constitutionally protected form of academic freedom that says teachers have a complete license to ignore the curriculum content developed under the procedures of the school board and interject their own ideas about the topic. And what you have articulated is not, to my knowledge, an alternative position that’s been adopted by any circuits in the last 20 years.

MR. DEWOLF: The first reason for striking down the statute in Edwards was that the purported goal of promoting academic freedom was a sham. And this is what the court said in Edwards – I don’t have the exact language but this is pretty close – that the statute did not grant flexibility the teacher already enjoyed to supplant the science curriculum with one that constituted better science education. So the presupposition for saying that the purpose of academic freedom was a sham was to say that the teacher enjoyed this freedom, which I agree is silly, that a teacher does not have the freedom to supplant the science curriculum with one of the teacher’s own choosing. The teacher works for the school board.

So, again, there is something kind of strange going on in that line of logic. But I do think the teachers, although they have an obligation, whether you’re a Protestant or a Catholic, to teach the Reformation and present both perspectives on the Reformation – that’s your job as a teacher – teachers enjoy some academic freedom, but it’s not as extensive even as what the Supreme Court said it was in Edwards.

MR. LAZARO: I just have a follow up that would bring us back to these days and Dover. As I understand it, the teachers in Dover refused to read the policy – the disclaimer that is now required under the policies proposed by the school board – and an administrator had to go out and do that. I mean, how does that action tie in, given that a teacher doesn’t really have the right to decide who works for the school district?

MS. HOLLMAN: Barry, you can answer about exactly how it happens, but I think that goes with your question there. They don’t have the right to do that. They wouldn’t win a case if they took it up. But practically, what are we talking about? Is the school going to fire all the science teachers over this? It sounds like they made the best of the situation to go forward with the policy without causing a greater fight with the teachers.

MR. LYNN: That’s pretty much what happened. An administrator came in and read the policy during the first round of this, I believe, last January, and our hope in this litigation is to get a decision before this has to come up again in, I believe, January of 2006 so that we don’t have to go through this a second time.

But the teachers from the beginning have said, “Do not do this,” and to their moral credit, they refused to read what they felt was – again, as a matter of law – religion and not science.

PAUL NUSSBAUM: I’m Paul Nussbaum with the Philadelphia Inquirer. As a legal and practical matter, Mark, the Discovery Institute seems to be in a difficult situation in that it is trying to distance itself from the defense. Why is that?

MR. RYLAND: Well, let’s just step back for a minute from the previous comment that Barry made on how this implementation of the teaching of intelligent design is taking place. Let’s just step back and think about what’s going on in this funny little school district.

In the middle of your instruction on Darwinian evolution, the teacher sits down, and a school administrator walks in and reads from a prepared statement that there are alternatives, including something called intelligent design, which is not even described or discussed in any way. The teacher stands up, the administrator leaves, the class proceeds.
Now we’re having a gigantic federal lawsuit with millions of dollars of legal fees being spent on both sides about this silly little event, this kind of ritualistic event that happens one day in the biology classroom in one silly little school district. Perhaps I’m being a little bit unfair here, but just think about it. I mean, this is ridiculous. It’s truly ridiculous.

It was a very poorly thought-out policy. Nobody is learning anything about intelligent design. You know, we can have wonderful policy arguments. Barry just said something a minute ago about why it’s totally inappropriate to spend time in a classroom talking about what is really a minority position, since there are only a couple of books out there on it. These are wonderful policy arguments, which we should be having in our legislative process, but that’s not the same as saying that the courts, through the Constitution, should control what happens in local school districts. That is the question – not the wisdom of the Dover school board. I think they were extremely unwise, both in what they actually implemented and the way they did it, which invited constitutional litigation.

But that’s not what the court gets to decide. The question at hand is not the wisdom of their decision, it’s not the way they implement it; it’s the constitutionality. And there, I’d say, what they’ve done should be constitutionally sustainable. If it’s unconstitutional, the only reasonable ground for holding that it is is by the motives, the background, and so forth; not the question of whether design is constitutional. It’s going to be a narrow ruling, if the school board loses, on the question of motivation, etc., etc.

MR. LAZARO: How does that differ from your work in Kansas and the Kansas board’s deliberation? I mean, is Kansas going about it in a way that you would find more legally advised?

MR. RYLAND: Yes, very much so. In fact, Ohio has already done this, and there was no legal challenge to the Ohio curriculum decision, which involves a critical examination of Darwin’s theory – exactly what we recommend to school boards.

MR. DEWOLF: And as you may know, in Kansas when the school board basically scheduled a hearing to say, “Let’s talk about the merits of this scientific theory,” it was boycotted by the Darwinist side, and a teaching opportunity was missed. So you know, our belief is that this approach to teaching the controversy really is good science education, and as Mark was saying, it’s too bad we tend to focus on the minutiae when there are larger fish to fry.

MR. LAZARO: Are you not also, though, acknowledging that you don’t have a curriculum adequately developed to teach intelligent design, as much as you bemoan the lack of teaching alternatives?

MR. DEWOLF: But to require it against – I mean, I think that regardless of your personal beliefs about the Protestant Reformation, if you’re a history teacher, you have to do a fair job to reflect the diversity of views about what the Protestant Reformation was all about. And I think it’s reasonable to expect a biology teacher, however they feel about the merits of the scientific controversy, to do a fair job of presenting the case. And-

MR. RYLAND: But they have to know the case, which at this point, biology teachers specifically don’t. And it’s also true that evolution is generally poorly taught in our schools. But on the other hand, it isn’t the case that evolution is the cornerstone of modern biology. That phrase is constantly used, and it’s even frequently used by scientists. But it’s just not true. There was a recent article in The Scientist by Phil Skell, a National Academy of Science member, who points out how none of the important discoveries of modern biology have anything to do with Darwin’s theory.

MR. LAZARO: I feel the sinking sands again – ooh – (laughter) – going into the science controversy. Let’s go to some more questions. Over there in the pink top.

LORI LIPMAN-BROWN, SECULAR COALITION: I’m Lori Lipman Brown with the Secular Coalition for America. Mr. Ryland alluded to secularism being considered a religion, but wouldn’t that then lead to a conclusion that we couldn’t teach any science in public schools? Or for that matter, English grammar or math, or even comparative religion or philosophy, or any other secular subjects?

MR. RYLAND: No, not at all. What I’m saying is that there is a correlation between views about design and nature and religious outlook. That’s all I’m saying. Of course we all teach and should teach topics based on public reasons, public evidence. There’s no question that Shakespeare existed and he wrote his sonnets, and so we can teach about that. It’s not a religious question. In fact, very few things are directly religious.

MS. LIPMAN-BROWN: And very quickly, for Mr. DeWolf, in my former life I was an English teacher who taught world literature quite a bit. And it seems to me it’s the subject where this is being proposed – science class – that’s the problem. I mean, my world literature class was really quite a bit of world religions. But it’s putting it into the science curriculum that is the problem. As you said, the Protestant Reformation would be taught in history.

MR. DEWOLF: The difficulty is that the line between science and religion, the way in which those two subjects get along with each other, is itself debated. It’s not as though that’s an agreed-upon line. So saying, “Well, gee, we’re going to treat your viewpoint, but we’re going to treat it essentially as literature, as myth, rather than treat it as a scientific viewpoint” – that itself is a ruling on the merits of the scientific theory, which is something we don’t think the court should do.

MR. LYNN: On the issue of whether you can discuss these intellectual questions at all, you obviously can in those schools that do comparative religion. You have to be careful, of course, to include stories – and I don’t mean “myth” in any pejorative way – but stories about creation other than from the Book of Genesis.

But the Dover folks have chosen to do this as science. And again, I don’t want people to get the impression that there’s something vague about this whole decision. Here is how the district itself described to parents what the change in the policy meant. They sent out a newsletter, in which they said intelligent design is a scientific theory. Quote, “On a molecular level, scientists have discovered a purposeful arrangement of parts which cannot be explained by Darwin’s theory.” Come on, folks! That is a scientific explanation or excuse for including it in the biology curriculum. That is the purpose; they do want to treat this as science, and that’s why we – and the court – will ultimately have to deal with the sinking sands question we are all trying to avoid here of whether you can call this science at all. I think fundamentally they’re going to end up reaching a conclusion on that topic, whether we like it or fully understand it or not.

ANNE LOFASO, WASHINGTON COLLEGE OF LAW: Is intelligent design falsifiable? If so, can you explain how? And if it were shown to be falsifiable, would it then be constitutional or would there be other constitutional impediments?

MR. DEWOLF: Well, this goes to what is called the demarcation criteria that were used in one of the early cases – McLean v. Arkansas – and the design methodology itself is, as I said, used in such things as forensic medicine: you find a body at the bottom of the stairs and you ask, you know, did this person die of natural causes or does their death suggest that they were murdered?

You use various methods to differentiate what is plausible as a material cause, as an explanation, and what situations imply design. So you can falsify the design hypothesis by discovering plausible material explanations for a cause, and in other cases, you confirm the design hypothesis. So design itself as a methodology is as falsifiable as the Darwinian theory, which again – because it’s a historical account and not a law, like gravity, that you can test – the Darwinian theory is a historical scientific theory which requires basically comparative explanation.

MR. LAZARO: Okay, Establishment Clause. Please, questions related to the Establishment Clause. In the back of the room over there. Right behind you, sir.

ROBERT WEINBERG, AAJLJ: I’m Robert Weinberg. I’m the president of the American Association of Jewish Lawyers and Jurists, but the opinion I’m going to express is purely my own; the Association hasn’t taken a position on intelligent design.
But I want to ask the proponents of intelligent design why they pick as a battleground for the theory the area where there’s overwhelming scientific evidence against them and produce a clash between science and religion instead of picking as their battleground the areas where scientists themselves say they don’t have the answer, and debate whether there is a scientific answer?

For instance, the present condition of the universe – the physical condition is traced back by scientists with great erudition to what happened in the first millisecond after the big bang, but I don’t believe there is any scientific consensus on what was there before the big bang. And if in a high-school physics class you were discussing astronomy and the big bang, it would certainly be quite legitimate if a student asked what was before the big bang for the teacher to respond that there are various religious explanations and scientific hypotheses. It seems to me that’s the kind of area that those who sincerely believe in intelligent design would want to pick for their fight.

MR. DEWOLF: We didn’t pick the battleground, but to the extent that there is a battle, I was impressed by the testimony of the head of the pediatric genetics department in Nebraska, who I happened to follow in testifying before the Nebraska State Board of Education. You know, he’s a renowned scientist, a doctor searching for the cures for genetically related diseases, and he said, “I’m in the market for finding solutions to problems. I don’t want to foreclose opportunities because we have some, you know, orthodoxy about where genetics came from or the like.”

And I thought, that makes a lot of sense to me that the imposition of an orthodoxy in science is really bad for science. And sure, teach it as the mainstream current theory, but to the extent that we’re saying, “This is the truth; you must believe it” – I think it’s a battle worth fighting.

MR. RYLAND: Just one quick comment – I suggest you read an essay called “The Permanent Limitations of Biology” by Dr. Leon Kass, an eminent physician and biochemist, and you’ll find in there in effect that he is a Darwin skeptic – a very mainstream guy, mainstream scientist, also a Jewish man, I believe – and so there are lots of doubts out there in the scientific community. It’s only the table-pounding of the mainstream organizations that keeps the questions off the table.

MR. LAZARO: Mainstream and orthodoxy – that’s you guys. We’re not doing any name calling. Do you -

MR. LYNN: No, but we are going to pound the table in just about five – (laughter). Look, you know, when all is said and done, there really is a fundamental question about intelligent design, and that is, if there is intelligent design, then who is “the designer”? And I have yet to hear a single person give a credible answer to the notion of who that designer is other than God, and that makes it extraordinarily and specifically, from a legal standpoint, a religious issue. So to my friends on the other side of the table, give me some alternative thoughts as to who – whether a he, she or it – who or what is the intelligent designer if it is not God?

MR. DEWOLF: Francis Crick, who co-discovered the DNA molecule, thought that there was something called panspermia – that life on Earth was too complex to have arisen through material causes, that we were seeded -

MR. RYLAND: There wasn’t enough time.

MR. DEWOLF: Yeah, that life on Earth was seeded from outer space. I don’t happen to share that view, but the point is that scientifically the first question is, does this phenomenon reflect a plausible material explanation; does it appear to be designed? A secondary question that follows from that is if it appears to be designed, who is the likely designer?

MR. LYNN: Who designed the seeds? If this is seeded – you know, I’ve heard this argument before – it just takes the question one step back into some other planet or some other universe, but it reaches exactly the same point.

MR. RYLAND: Crick was a materialist, and so he thought that there had been some sort of spontaneous generation somewhere else. But he wanted it to gain another ten billion years, so he pushed the – (inaudible, cross talk) – because there wasn’t enough time. He was a good enough scientist to know that Darwin’s -

MR. LAZARO: Okay, folks, we’re going to move on to questions, please.

MS. HOLLMAN: I’ll make the comment that I promise gets us away from the science part.

MR. LAZARO: Please. (Laughter.)

MS. HOLLMAN: The Baptist tradition has a variety of different views of literalism and how it looks at the Bible, but I think what happens is some of the rhetoric coming from the other side feeds this idea – some of the rhetoric that is critical of Darwin, and as I understand it, the textbooks that are critical of Darwin. And scientists admit there are gaps in understanding. Scientists don’t make these great philosophical claims that they know everything. But when you emphasize this idea that we’ve got to talk about the criticism of Darwin, it feeds the notion that people should be insulted that their religion is not taken seriously, that somehow they’re teaching in the schools orthodoxy that cannot be reconciled with religion.

And so I think that’s part of the problem. Just to tell a quick personal story, I remember as a little girl growing up in Jackson, Mississippi, going to a Baptist church and hearing the creation story and asking a Sunday school teacher, “Do you think God really, in one day, created all of that?” And I was just told, appropriate for my age, “Well, we don’t really know that the Bible’s one day is what we think of as one day.”

And obviously there are much more sophisticated, complex ways to reconcile these questions, but I think the problem is that I seem to hear an assumption that you’re beginning with on the intelligent design side that science is making claims that it is not equipped to make. Yet when I talk to scientists about this, they say no. Let me quote this scientist that wrote for the BJC. He said, “Both ID proponents and advocates of atheistic materialism attribute to science the power to make definitive truth claims on the question of theism. But true science does not deal with this philosophical question; it’s only equipped to test and model the natural world and its processes. Since science is the study of the natural, of course it does not admit supernatural explanations.”

So to the extent that we get to this question of the supernatural, science is not equipped to deal with it. I like the way this scientist, Larry Hudson, put it. He said, “To imbue science with the ability to probe the supernatural is to demote God to the status of a lab rat.”

MR. LAZARO: All right, let’s come back to the constitutional questions here please. (Laughter.)

BRUCE CHAPMAN, DISCOVERY INSTITUTE: No one else has asked this question so I might as well ask it. I’m Bruce Chapman, and I’m maybe abusing the privilege here because I’m also from Discovery.

Here’s the question: by saying “teach the controversy,” the Discovery Institute means teach the controversy among scientists over Darwin’s theory – not teach the controversy over design; teach the controversy over Darwin’s theory. There are arguments for Darwin’s theory from science and there are hundreds of scientists now, many of them very prominent, who dispute these examples that are used in the textbooks and say that they are incorrect. So that’s the controversy to be taught.

And the question I have is – and of course, intelligent design is another matter that we would not suggest be required in schools, and that’s the problem with the Dover case – but do you have a problem constitutionally, either of you, with teaching the scientific – scientific only – arguments that are posed against Darwin’s theory as well as the scientific arguments that are posed for it?

MR. LYNN: I just think that the best textbooks, including the one at issue in Dover, Ken Miller’s book, adequately acknowledge the limitations of and the absence of all the answers. And I think that’s all that is required. I think that’s all that’s good pedagogical thinking about science education, and I don’t think anything more than that is required. I don’t think you can read this textbook at issue here – and it’s, I think, the most widely used introductory biology book in high schools and in colleges – and say that he does not acknowledge that there are limitations to the knowledge that we have about evolution. I simply don’t think that’s an accurate representation.

MR. RYLAND: That’s a great policy argument. Let’s hear the constitutional argument.

MR. CHAPMAN: Is it allowed?

MR. LYNN: It depends what the purpose and the effect of doing so would be. If that is to be a religious purpose and effect, as I think it would be in the fact patterns that we’ve created this morning and that are existing in Dover, then I think it does raise a constitutional problem.

MS. HOLLMAN: I agree. I think the way you posed the question had a lot of assumptions that kind of answered the question that it’s just science, and if you could assume all that, that it was all scientific and therefore belonged in the science classroom, then I think you’d be correct. I just think, as Barry said, it’s going to depend on all these different facts, and I’d have to know more about the alternatives that were being presented. Does it place some views over the other and are some of those more aligned with religious views than the others?

We spent so much time talking about the purpose test – and partly that’s my fault because I set it up that way because I think it’s important here – but also the effects test would take into account how you weigh these different groups. One of the highest rules the Establishment Clause requires is that you not make a distinction between one religion and another religion. And so, to the extent that you choose certain theories, place some above another, then you could have Establishment Clause problems there.

RACHEL TRIPP: I’m Rachel Tripp. It has been quite some time since I studied Darwinism and macroevolution in general in high school, but I do believe Ernst Haeckel’s drawings of embryos used to be given as evidence in biology textbooks. I don’t know, is that in Ken Miller’s book still?

MR. LYNN: I doubt it, no. No, it’s not.

MS. TRIPP: Okay, good. But take it from when I was there – and I’m unsure of exactly all the evidences that are in his book but there might be something similar – say there was a teacher who saw that and knew that it had been discredited, that it was basically a fraud but was still told to teach it, as I believe I learned it. I mean, that’s an ethics question for that teacher. Constitutionally, would they be allowed to say, “This is in the textbook but I believe it’s wrong?”

MR. LYNN: But it’s been superceded by other scientific results that reveal that in fact embryos don’t look like crocodiles at some point and then elephants and then people, which is what this drawing kind of did. Now, that’s a gross overstatement, but yes, I would literally defend the right of a teacher to acknowledge that science has superceded some drawing in an ancient textbook used in some place where they haven’t been able to buy a new textbook for the last 20 years.

MR. RYLAND: They’re still in the modern textbooks. In fact, a number of textbook publishers have just started removing them in the last two years, based on pressure from our organization and other organizations.

MR. LYNN: Well, based on science though.

MR. RYLAND: No, the scientists have known for 40 years that those drawings were fake but they were still in the textbooks.

(Cross talk.)

MS. TRIPP: My understanding was that it was a fraud. And that was a softball question, but the next one is – (laughter) – no, it is, but that’s because the follow up is, this particular teacher was a strong fundamentalist Christian, and everybody knew that. Now, if you knew that before I asked the hypothetical, I guess that gets me to the question, then, of whether it is constitutional or unconstitutional based on whether you know this person is a Christian – the question, in other words, of whether their motive was a fraud.

MR. LYNN: No, I would say that if the evidence is that science has superceded the conclusions of that drawing, then it doesn’t matter whether the teacher is a fundamentalist or an atheist or anything else because it’s still simply a corrective to an admitted scientific error, fraud, or whatever you want to call it. So that would not change the hypothetical.

MR. DEWOLF: I’ve got a legal comment here, and that is that the reasonable observer test that is used to judge whether it has a primary effect of advancing religion, I think, would inevitably focus on how it is perceived that that teacher used this opportunity to create doubt in the minds of students about the Darwinian theory generally. And I think legally a judge would probably have to look at the issue of the teacher’s perceived role in the community, and I think it’s just an illustration that the Lemon test, both on purpose and on primary effect, has fallen on hard times.

MR. LAZARO: I have a question as we wrap up here. We don’t have a long time, but as we look ahead now, the one thing that struck me as interesting – I think it was Mark who said that Ohio has enacted a set of guidelines that does not seem to have been adopted for a case. I mean, are they meeting the Lemon test? Give us a little information about what they seem to be doing right, if that’s the correct word, in Ohio so that there hasn’t been the consequence that we’re likely to see out of Kansas and that we’re seeing in Dover.

MR. LYNN: I can’t speak in detail about it, but I would say that in Ohio and in Kansas, as the implementation of those policies goes into effect, it certainly is conceivable that we’ll see more litigation. It just turns out that Dover presented this flat, clear and obvious and immediate place in which we had all of the record that we needed to pursue a legal intervention. I don’t think that simply doing it in another way or having people in Colorado examine the guidelines in Ohio necessarily will immunize it ultimately from legal challenge, but I think it’s a little premature to know for sure to be able to give you a straight answer on it.

MR. RYLAND: If Ohio is sued and loses in court, then we will have the new incorporation doctrine, namely that Darwin’s theory has been incorporated into the First Amendment. I mean, that’s just absolutely ludicrous.

MR. LYNN: Well, we’ll see how that policy is implemented. As we all agree, these are very fact-specific cases, and we’ll see what develops, how it evolves.

MR. LAZARO: I’m going to end with that question and your best sort of one-minute summation, prognostication, prediction of what’s going to happen down the road here, starting with Dover.

MR. LYNN: They say only fools make predictions about what courts will do, so let me make this prediction. I believe that we will be successful in the Dover case as far as it goes in the federal court system, and that it will prove to be the death knell for intelligent design as a serious issue confronting American school boards, period. I think this will be the last case. I think we will prevail. And I think this will put an end to this intelligent design discussion in public schools, as it should.

MR. LAZARO: Holly, anything to add to that?

MS. HOLLMAN: Well, Barry’s closer to the case, but I’ve read a lot of the pleadings and I tend to agree with his conclusion about the Dover case itself. I think it should be a big win for the ACLU and AU. But from my experience on this panel with these guys from the Discovery Institute, I can’t say that it’s all over as far as the intelligent design scheme and what we’re going to see next in another school district. And plus, so many school districts we see catch on sort of slowly and they might not get word of the case. They might first get word of the controversy and get things going with their own policies.

MR. LAZARO: An interesting question for you guys from the Discovery Institute – because you’re nodding – you have some misgivings about the Dover case yourself, certainly strategically. What’s your prediction about what’s going to happen down the road in the next few months and beyond that?

MR. RYLAND: Given the, I would say, weaknesses of the Lemon test, school boards have to tread warily, but I’m sure that a policy can be properly crafted in such a way that the real, underlying scientific issues can be dealt with. There is no question that Darwin’s theory is creaking and tottering and will implode soon. There are tons of secular scientists who won’t come out in support of that notion because they’re afraid of giving succor to the creationists and the quote, unquote “intelligent design movement.” And in fact, if you want evidence for that, go to stephenjgould.org where you will find a new drive for scientists who are going to both assert that Darwin’s theory is false and that intelligent design is false, and they’re going to be a third voice in this debate, I hope, soon.

MR. DEWOLF: I’ll join Barry in the fool department here – (laughter) – and that is, I think the judge will take a very close look at the question about how religion and science are to be treated in this environment. And there may be issues about the purposes and motivations of the school board members, precisely because the Lemon test requires this kind of intense – and inappropriate, I believe – scrutiny. But one way or the other I think we’re going to get a helpful guideline as to how best to present this, and it may be a mixed decision, I think, leaving neither side completely happy with it and neither side completely crestfallen.

MR. LAZARO: David, Mark, Holly and Barry, thank you so much. Thanks to the Federalist Society, the Constitution Project and the Pew Forum on Religion &Public Life. (Applause.)

And to the audience, thanks again for coming.

(END)