I grew up in Kansas, so I know a few people who find the idea of evolution disheartening. Recently they've been saying we should teach the controversy.

I agree, but I think schools should teach the controversy in social studies class, not in science class. A good way to do it would be to study the judge's decision in the Dover School Board case.

The case, legally known as Kitzmiller versus Dover Area School District, was decided by Judge John E. Jones III, a Republican and judicial appointee of the current administration.

The judge's decision is 139 double-spaced, non-copyrighted pages suitable for reading by high school or college students.

The decision has two major parts, a 138-page introduction and a one-page decision. If you want to skip ahead to the final page, you need to know that the citizens of Dover who initiated the suit against the school district are called the Plaintiffs and the school district and its board members are referred to as the Defendants. Throughout the document, the judge uses ID as shorthand for intelligent design.

By studying this decision, students will be able to learn what a judicial decision looks like and what considerations a judge has to make in deciding a case. Students should particularly notice how Judge Jones cites both testimony given at the trial and previous legal decisions to explain how he reached his decision.

The 138-page Introduction has eight sections. The first describes what the Dover School Board did to bring about the suit and why the court has the jurisdiction to proceed with the trial. The second describes the parties involved in the case.

Next is a two-page history of previous court cases involving the teaching of evolution. It's followed by the judge's discussion of the legal tests that should be used to decide the case:

We initially observe that the Establishment Clause of the First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. The prohibition against the establishment of religion applies to the states through the Fourteenth Amendment.

The judge then notes that there are two possible legal tests that could be used to decide whether the Dover School District's actions were unconstitutional. One, derived from a 1971 case, Lemon v. Kurtzman, is known as the Lemon test. All parties in the Dover trial agree that this is a valid legal test for the Dover case.

The other test, derived from a 1989 case, County of Allegheny v. ACLU, is known as the endorsement test. Judge Jones says that the Defendants in the Dover trial have argued that the endorsement test shouldn't be used in this case, but:

After a searching review of Supreme Court and Third Circuit Court of Appeals precedent, it is apparent to this Court that both the endorsement test and the Lemon test should be employed in this case to analyze the constitutionality of the ID Policy under the Establishment Clause…[The Establishment Clause is the section of the First Amendment to the U.S. Constitution, cited earlier, that refers to the establishment of religion]

This section ends with a four-page review of the legal history that convinced Judge Jones that both tests should be used.

The final four sections of the Introduction are an application of the endorsement test to the Dover School Board's actions, an application of the Lemon Test, a final test using the Pennsylvania Constitution, and the judge's conclusions.

The bulk of the judge's document - 75 pages - is the section on the endorsement test.

The endorsement test recognizes that when government transgresses the limits of neutrality and acts in ways that show religious favoritism or sponsorship, it violates the Establishment Clause [that is, the First Amendment]…The test consists of the reviewing court determining what message a challenged governmental policy or enactment conveys to a reasonable, objective observer who knows the policy's language, origins, and legislative history, as well as the history of the community and the broader social and historical context in which the policy arose.

The section on the endorsement test has four parts.

First Judge Jones investigates whether an objective observer would know that intelligent design is a religious strategy that evolved from earlier forms of Creationism. (Courts have already decided that teaching Creationism in public schools is unconstitutional.)

Next the judge looks at whether an objective student would view the Dover Board's actions as an official endorsement of religion.

After that, the judge looks at whether an objective Dover citizen would perceive the School Board's actions to be an endorsement of religion. This part ends:

We have now found that both an objective student and an objective adult member of the Dover community would perceive Defendants' conduct to be a strong endorsement of religion pursuant to the endorsement test. Having so concluded, we find it incumbent upon the Court to further address an additional issue raised by Plaintiffs, which is whether ID is science…After a six week trial that spanned twenty-one days and included countless hours of detailed expert witness presentations, the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.

What follows - the investigation of whether intelligent design is science - is in many respects the most interesting part of the decision. This 25-page section begins on page 64 like this:

After a searching review of the record and applicable caselaw, we find that while ID arguments may be true, a proposition on which the Court takes no position, ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980's; and (3) ID's negative attacks on evolution have been refuted by the scientific community. As we will discuss in more detail below, it is additionally important to note that ID has failed to gain acceptance in the scientific community, it has not generated peer-reviewed publications, nor has it been the subject of testing and research.

This section of the judge's decision should be of interest to students not just for the social science, but also for the science. Students will come away with an enhanced understanding of what science is, why supernatural causes aren't allowed as scientific explanations, and the importance of testing and peer review in the scientific community.

After dealing with question of whether intelligent design is science, the judge turns to the Lemon test. This 44-page section includes a thorough time line of board member actions related to the case. Here the judge is interested in determining the purpose of the school district's actions as well as their effect. Purpose and effect are known as the two prongs of the Lemon test.

Following that is a two-page discussion of why the Dover School Board violated the Plaintiff's rights not only under the U.S. Constitution, but also under the Pennsylvania Constitution.

Finally, the three-page conclusion begins:

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

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

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

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

Students will be well-served by studying the judge's decision in the Dover case. They will come away with:

• a better appreciation of the meaning of the U.S. Constitution
• an understanding of how legal decisions are based both on law and on previous court decisions
• a demonstration of the application of legal tests
• a better understanding of what science is and how scientists reach conclusions
• an example of the lack of any relationship between strong religious convictions and ethical conduct

Even in Kansas, it should be noted, evolution's foes get elected to the state school board only when they run as stealth candidates, hiding their intentions from voters. Once they reach the board and make their views known, they are typically defeated in the next election (just as the Dover school board was) - even in Kansas.

Finally, as a teaching aid, here is a complete outline of the Dover decision. The full text of the decision is here.

• Introduction
  
  • Background and Procedural History
  • The Parties to the Action
  • Federal Jurisprudential Legal Landscape
  • Consideration of the Applicability of the Endorsement and Lemon Tests to Assess the Constitutionality of the ID Policy
  • Application of the Endorsement Test to the ID Policy
    
    • An Objective Observer Would Know that ID and Teaching About "Gaps" and "Problems" in Evolutionary Theory are Creationist, Religious Strategies that Evolved from Earlier Forms of Creationism
    • Whether an Objective Student Would View the Disclaimer as a Official Endorsement of Religion
    • Whether an Objective Dover Citizen Would Perceive Defendants' Conduct to be an Endorsement of Religion
    • Whether ID is Science
  • Application of the Lemon Test to the ID Policy
    
    • Purpose Inquiry
      
      • Beginning in January 2002, Bonsell Made Repeated Expressions of Interest to Inject Religion into the Dover Schools
      • Fall 2003 - Bonsell Confronted Teachers About Evolution
      • Early 2004 - Buckingham's Contacts with the Discovery Institute
      • June 2003 to June 2004 - Board Delayed Purchasing the Biology Textbook
      • June 2004 Board Meetings - Buckingham and Other Board Members Spoke in Favor of Teaching Creationism
      • June 2004 - Board Curriculum Committee Meeting
      • July 2004 - Buckingham Contacted Richard Thompson and Learned about Pandas
      • July 2004 - New Edition of Biology Textbook Discovered
      • August 2004 - Buckingham and Other Board Members Tried to Prevent Purchase of Standard Biology Textbook
      • August 26, 2004 - Solicitor's Warning to Board
      • August 30, 2004 - Board Curriculum Committee Forced Pandas on the Teachers as Reference Text
      • October 2004 - Arrangement for Donation of Sixty Copies of Pandas
      • October 7, 2004 - Board Curriculum Committee Drafted Curriculum Change
      • October 18, 2004 - Curriculum Change Resolution Passed
      • Development of Statement to be Read to Students
      • Newsletter Published by the Board
      • Effect of Board's Actions on Plaintiffs
      • Defendants Presented No Convincing Evidence that They were Motived by Any Valid Secular Purpose
    • Effect Inquiry
  • Challenge under Pennsylvania Constitution
  • Conclusion
• NOW, THEREFORE, IT IS ORDERED