Judge rules on motion in Dover trial: Discovery Institute brief dismissed, etc

News items about the Dover case (Kitzmiller, et al v. Dover School District, et al), with my comments in square brackets.

Judge rules on motion in Dover trial: Discovery Institute brief dismissed, The York Dispatch, October 28, 2005 ... U.S. Middle District Judge John E. Jones III filed an order Monday to strike a brief filed on behalf of the Dover Area School District in its intelligent design trial. The Discovery Institute, the largest intelligent design research organization, filed a "friends of the court" brief Oct. 17, asking the judge to consider the organization's written arguments before making a decision in the case. Attorneys for parents who are suing the district over the mention on intelligent design filed a countermotion the next day, asking the judge to strike both that motion and another "friends of the court" brief filed by a group of scientists. The parents' attorneys argued that the briefs included portions of an expert report prepared by a school district's expert witness, William Dembski, before he decided not to testify. The parents' attorneys said the briefs were an attempt for Dembski and Discovery Center program director Stephen Meyer to serve their expert opinions "without opening themselves to the scrutiny of cross-examination." Jones ruled to dismiss the Discovery Institute's brief, but left the scientists' brief in place. [This is not as bad as the headline says. The actual order by the judge concerns two briefs filed by the Discovery Institute: 1) a brief by 85 scientists; and 2) a legal opinion by the DI. The order says "The Motion will be granted in part and denied in part". Specifically, it grants 1) and holds open that 2) can be re-filed, minus expert witness testimonies by Stephen Meyer and William Dembski, which cannot be allowed since they cannot be cross-examined in person. See below for more details of the briefs.]

85 Scientists Join Together in Urging Court to Protect Academic Freedom and Not Limit Research into Intelligent Design Theory, Discovery Institute News, October 4, 2005 ... Harrisburg, PA -Eighty-five scientists have filed an Amicus Brief in the Kitzmiller v. Dover trial asking the Judge to "affirm the freedom of scientists to pursue scientific evidence wherever it may lead" and not limit research into the scientific theory of intelligent design. Not all the signers are proponents of intelligent design, but they do agree "that protecting the freedom to pursue scientific evidence for intelligent design stimulates the advance of scientific knowledge." The signers of the brief, identified as "Amici curiae" include such notable scientists as Dr. Philip Skell of the National Academy of Sciences, Dr. Lyle H. Jensen a Fellow of the American Association for the Advancement of Science, and Dr. Russell W. Carlson Professor of Biochemistry and Molecular Biology, Executive Technical Director, Complex Carbohydrate Research Center at the University of Georgia. "The advance of scientific knowledge depends on uninhibited, robust investigation seeking the best explanation," said Gonzaga University law professor David DeWolf, a senior fellow at Discovery Institute. "Doubts as to whether a theory adequately explains the evidence should be resolved in the laboratory not in the court room. Scientists are concerned that a Court ruling limiting the nature of science would have far-reaching detrimental effects beyond the schoolhouse doors and into the laboratories and careers of many legitimate scientists." The brief reads in part: Amici curiae are scientists who oppose any attempt to define the nature of science in a way that would limit their ability to follow the evidence wherever it may lead. Since the identification of intelligent causes is a well established scientific practice in fields such as forensic science, archaeology, and exobiology, Amici urge this Court to reject plaintiffs’ claim that the application of intelligent design to biology is unscientific. Any ruling that depends upon an outdated or inaccurate definition of science, or which attempts to define the boundaries of science, could hinder scientific progress. Amici are professional scientists who support academic freedom for scientific research into the scientific theory of intelligent design. Some Amici are scientists whose research directly addresses design in biology, physics, or astronomy. Other Amici are scientists whose research does not bear directly upon the intelligent design hypothesis, but feel it is a viable conclusion from the empirical data. Finally, some Amici are skeptics of intelligent design who believe that protecting the freedom to pursue scientific evidence for intelligent design stimulates the advance of scientific knowledge. All Amici agree that courts should decline to rule on the scientific validity of theories which are the subject of vigorous scientific debate. ... [See also The York Dispatch. It may be very significant that the judge accepted this first brief, which may head off the main danger for ID that in finding fault with the Dover board, he may rule against ID itself.]

`Design' proponents look beyond Dover: Fearing a loss by the school board could hurt their cause, the movement's key backers ask judge for a narrow ruling. Philadelphia Inquirer, Oct. 20, 2005, Paul Nussbaum ... Can the intelligent-design movement survive if the Dover, Pa., school board loses its court battle to offer the concept as an alternative to evolution? Fearing that the Dover board is on thin ice legally, the leading backers of intelligent design have been trying to distance themselves from the case, while maintaining that their idea is sound. And this week, the Discovery Institute, the Seattle think tank that promotes intelligent design, asked the federal judge in the case to save it even if he rules against Dover. In a friend-of-the-court brief, the Discovery Institute argued the concept could pass constitutional muster even if the school board's action doesn't. "We're afraid a judge could say, 'Well, this policy is unconstitutional,' and the conclusion people would draw is that it's unconstitutional to teach anything about intelligent design," said David DeWolf, a law professor who filed the Discovery Institute brief on Monday. Just so, said Barry Lynn, executive director of Americans United for Separation of Church and State. "Discovery Institute invented this snake oil called intelligent design, and now they've found that Dover is really a bad salesman," Lynn said. He predicted that a ruling against Dover "will be viewed, when history looks back at it, as the death knell of intelligent design.".... In its court filing, the Discovery Institute said that "whatever the merits and history of [the school board] policy, [Discovery] urges the court to reject plaintiffs' claim that teaching students about the theory of intelligent design necessarily violates the Establishment Clause. "If the court strikes down [school board] policy, [Discovery] urges the court to fashion relief that does not impugn the constitutionality of teaching about intelligent design, since policies permitting such instruction might reflect valid secular purposes and could enhance religious neutrality." Lawyers for the parents asked the court Tuesday not to accept the Discovery Institute filing. It was an improper attempt to get the institute's views into the case without subjecting their officials to cross-examination, the parents' lawyers said. The Discovery Institute has been leery of the Dover policy since the beginning. It urged the Dover board not to adopt the policy, and it prompted several prominent intelligent-design advocates to withdraw as defense witnesses in the case. "We told them early on ... that there are things about this policy that are going to make you vulnerable on this," DeWolf said yesterday. The institute urged the court not to equate intelligent design with religion, but said it took no position on whether the Dover board adopted its policy for religious reasons. "We're trying to separate those two questions," DeWolf said. "We're not really privy to what happened in Dover." The case, in federal district court in Harrisburg, is in its fourth week, with the school board lawyers beginning to present their case. .. [I had mentioned this second brief before, but not this article. It is this issue of having expert witness testimonies of Meyer and Dembski in the brief "without subjecting their officials to cross-examination" that lead to this brief being "stricken in its entirety". But importantly, the judge's order leaves open that the Discovery Institute may re-file it "in accordance with the confines of this Order"! It will be very interesting if the Discovery Institute does that. BTW, Barry Lynn's hope that "a ruling against Dover "will be ... the death knell of intelligent design" shows that his real agenda is not just the "Separation of Church and State"!]

Dover lawyer, Discovery at odds: Institute `victimized' district, complains Richard Thompson, York Daily Record, Lauri Lebo, October 30, 2005 ... Dover Area school board's lead attorney in the federal court battle over intelligent design says his would-be ally, the Discovery Institute, victimized his clients. Now that a fifth expert has backed out of the Dover district's court battle, a rift is widening between defense attorneys and the primary pro-intelligent-design organization in the country. At a forum in Washington, D.C., Dover's lead attorney Richard Thompson of the Thomas More Law Center squabbled publicly with a member of the Discovery Institute over whether the organization had endorsed the teaching of intelligent design in public school. Outside Harrisburg's federal courthouse last week, Thompson said his ability to develop a case in this First Amendment lawsuit has been damaged by the Discovery Institute's strategy of backing off in the face of public criticism. And, he said, Discovery fellows are wrong when they explain their position. The disagreement at the American Enterprise Institute occurred Oct. 21 during a panel discussion of the Dover trial when Mark Ryland, a Discovery vice president, said the organization has always opposed teaching intelligent design in the classroom. "The Discovery Institute never set out to have a school board, schools, get into this issue," Ryland said, according to transcripts of the exchange posted on the Web site for the National Center for Science Education. "We've never encouraged people to do it, we've never promoted it. We have, unfortunately, gotten sucked into it, because we have a lot of expertise in the issue, that people are interested in." Ryland said Discovery's position is against teaching intelligent design. Rather, he said, teach the evidence for and against evolutionary theory. But Thompson, at the forum, read from a copy of the Discovery Institute's "Intelligent Design in Public School Science Curriculum: A Guidebook" that states, "school boards have the authority to permit, and even encourage, teaching about design theory . . ." "Now, whether they wanted the school boards to teach intelligent design or mention it, certainly when you start putting it in writing, that writing does have consequences," Thompson said at the forum. Thompson also criticized Discovery for the fact that three of its members - William Dembski, Stephen Meyer and John Campbell - backed out of the case in June after providing expert witness reports. Because of the timing, Dover's lawyers were unable to line up other experts, Thompson said at the forum. Two other defense experts Warren Nord, a University of North Carolina professor, and Dick Carpenter of Focus on the Family, also backed out the same week the defense began presenting its case. Michael Behe, a Lehigh University professor, has already testified for the defense. Scott Minnich of the University of Idaho is scheduled to take the stand Thursday or Friday. John West, a Discovery spokesman, said last week the organization has not wavered from its policy. "DI's consistent message to the Dover board from the start was to adopt our teach the controversy approach - teach scientific criticisms of Darwin's theory, but don't mandate that students learn about design," West wrote in an e-mail. "This is the same approach we have advocated in Ohio, Wisconsin, New Mexico, Montana, and numerous other states." Thompson knew Discovery disagreed with Dover's policy, West wrote. In December, members of the Discovery Institute met with Dover officials to try to persuade them to change their decision to include intelligent design in their biology curriculum. Ryland said he and Thompson were both at the meeting. "And they didn't listen to me, that's fine, they can do what they want, I have no power and control over them," Ryland said at the forum. Thompson said during the panel that Discovery, as part of tactics used in Ohio and other states, pushed school boards to go with intelligent design, then compromised when controversy arose. "And I think what was victimized by this strategy was the Dover school board, because we could not present the expert testimony we thought we could present." Ken Miller, a Brown University professor and one of the plaintiffs' experts in the trial, also participated in the panel. When the moderator asked him to weigh in on the disagreement, Miller said, "Do we have to? I'm really enjoying this." ... [Thompson is wrong here and Ryland is right. The NCSE's transcript shows that Ryland did not get into a "tit-for-tat" with Thompson:

MARK RYLAND (DI): Sure, I'd be happy to respond. Let me back up first and say: The Discovery Institute never set out to have a school board, schools, get into this issue. We've never encouraged people to do it, we've never promoted it. We have, unfortunately, gotten sucked into it, because we have a lot of expertise in the issue, that people are interested in. When asked for our opinion, we always tell people: don't teach intelligent design. There's no curriculum developed for it, you're teachers are likely to be hostile towards it, I mean there's just all these good reasons why you should not to go down that path. If you want to do anything, you should teach the evidence for and against Darwin's theory. Teach it dialectically. And despite all the hoopla you've heard today, there is a great deal of -- many, many problems with Darwin's theory, in particular the power of NS and RV to do the astounding things that are attributed to them. The new demonology, as one philosopher calls it, the selfish gene can do anything. So that's the background. And what's happened in the foreground was, when it came to the Dover school district, we advised them not to institute the policy they advised. In fact, I personally went and met with them, and actually Richard was there the same day, and they didn't listen to me, that's fine, they can do what they want, I have no power and control over them. But from the start we just disagreed that this was a good place, a good time and place to have this battle -- which is risky, in the sense that there's a potential for rulings that this is somehow unconstitutional. That's basically from an institutional perspective what I can say and what I know. Now, individuals associated with the Discovery Institute were then, had got involved in, the possibility of becoming expert witnesses in the case. And I don't, as far as I know there was no institutional decision made one way or the other, but I think it was the case that those individuals felt they had somewhat different legal interests being -- it was often because they were both expert witnesses, but usually fact witnesses as well, about things like the history of the intelligent design movement. So they wanted to have their own lawyers involved with depositions, and I believe there was an argument, a disagreement about that. I think that was the reason why they decided not to participate.

... I wanted to say a couple of things very quickly. One is, I won't get into a tit-for-tat about whether Discovery's employees were behaving properly or not. I will say that, just to be clear, we're convinced that if the question before the court is the per se constitutionality, constitutionality of teaching design, then it's very clear, as I was arguing when using my thought experiments, that there's really only one reasonable answer. That, however, is not necessarily the court's decision that they'll face in Dover, since there's all these other complicating factors, of actual motive, purpose, and so forth and so on. And I'll leave it at that."

The fact is that the Discovery Institute has from the beginning of this issue, been critical of Dover's mandatory approach, calling it "misguided". As for the "guidebook", it is not "the Discovery Institute's" - it is not even on DI's website but on Access Research Network's and it is produced by the Foundation for Thought and Ethics. Anyway, it is just a resource for teachers who want to teach ID. As for some witnesses pulling out, according to this York Daily Record article in June, it was because Thompson would not allow Dembski to have his own legal counsel. For Thompson's Thomas More Law Center, this may just be another "Defending the Religious Freedom of Christians" case, but for the Discovery Institute (and the ID movement), the issues here are scientific and go far beyond whatever the outcome in Dover will be. However, having said all that, the Discovery Institute has been very supportive of the Dover case (what does Thompson think Discovery Institute fellow Mike Behe's 3 days of testimony was - chopped liver?). Not to mention their two "friend of the court briefs" (see above). It is Thompson's clients, the Dover board members, who have been shown to be the weak link in this case, and if it is eventually lost, it is them who will have lost it, by their confusion of Christianity and creationism (including reportedly "meetings ... complete with ... Scripture-quoting and a chorus of `amens'") with ID. Quite frankly, as a long-standing member of the ID movement, I am relieved that the Discovery Institute has shown such wisdom and far-sightedness to stick to its principles, and not be sucked into what may be a disaster by those who may be only using ID as a convenient tool for their own (however worthy) agendas.]

Stephen E. Jones, BSc (Biol).
"Problems of Evolution"