Kitzmiller v. Dover: Plaintiffs' Findings of Fact and Conclusions of Law (continued)

IV. THE DOVER SCHOOL BOARD SOUGHT TO PROMOTE CREATIONISM IN THE GUISE OF INTELLIGENT DESIGN AND DENIGRATE THE SCIENTIFIC THEORY OF EVOLUTION ON RELIGIOUS GROUNDS (continued)
- I. Board Member Geesey Published a Letter to the York Sunday News Advocating the Teaching of Creationism
  - 189. On June 20, 2004, plaintiff Eveland published P56, a letter to the editor of the York Sunday News. She wrote the letter in response to P46, an article from the York Daily Record dated June 9, 2004. 6:96-98 (Eveland). In her letter, Eveland wrote:
    
    In partnership with family and community to educate students, we emphasize sound, basic skills and nurture the diverse needs of our students as they strive to become lifelong learners and contributing members of our global society. What a slap in the face to many of the parents and taxpayers of the Dover area. How sad that a member of our own school board would be so closed-minded and not want to carry on the mission of Dover schools. His ignorance will not only hold back children attending Dover area schools, but also reinforce other communities' views that Dover is a backwards, close-minded community. If it was simply a matter of selecting a text that gives two contradicting scientific theories equal time, that would be an entirely different matter, but it's not. Creationism is religion, plain and simple. Mr. Buckingham's comments offend me, not because they are religious in nature, but because it is my duty to teach my children about religion as I see fit, not the Dover Area School District during a biology class.
    
    P56; 6:98-100 (Eveland).
  - 190. In response, board member Geesey published the following letter, P60, in the June 27, 2004 York Daily Record:
    
    This letter is in regard to the comments made by Beth Eveland from York Township in the June 20 York Sunday News. I assure you that the Dover Area School Board is not going against its mission statement. In fact, if you read the statement, it says to educate our students so that they can be contributing members of society. I do not believe in teaching revisionist history. Our country was founded on Christian beliefs and principles. We are not looking for a book that is teaching students that this is a wrong thing or a right thing. It is just a fact. All we are trying to accomplish with this task is to choose a biology book that teaches the most prevalent theories.
    
    The definition of `theory' is merely a speculative or an ideal circumstance. To present only one theory or to give one option would be directly contradicting our mission statement. You can teach creationism without it being Christianity. It can be presented as a higher power. That is where another part of Dover's mission statement comes into play. That part would be in partnership with family and community. You as a parent can teach your child your family's ideology.
    
    6:104-105 (Eveland).
- J. July 2004 Buckingham Contacted Rchard Thompson of the Thomas More Law Center and Learned about the Creationist Textbook Of Pandas and People
  - 191. Sometime before late July 2004, Buckingham contacted Thomas More Law Center ("TMLC") and spoke with Richard Thompson. 30:10-12 (Buckingham). Buckingham contacted TMLC for the purpose of seeking legal advice and never received anything but legal advice; on that basis defendants' counsel asserted privilege over all communications between Buckingham and TMLC. 30:17-18.
  - 192. In one of the early conversations between Buckingham and TMLC, Thompson told Buckingham that TMLC would represent the Board if it needed legal assistance and Buckingham accepted on behalf of the Board, although later after the litigation commenced the Board formally engaged TMLC as its counsel. 30:15-16.
  - 193. Buckingham and the Board first learned of the creationist textbook Of Pandas and People from Richard Thompson sometime before late July 2004. 29:107-08; 30:10-12 (Buckingham).
  - 194. Bonsell confirmed in testimony that the passage on pages 99 to 100 of Pandas ("Intelligent design means that various forms of life began abruptly through an intelligent agency, with their distinctive features already intact, fish with fins and scales, birds with feathers, beaks, and wings, etc.") is very similar to one aspect of creationism. 33:64. A young earth creationist himself, Bonsell also confirmed in testimony that a passage from Pandas that questions the notion of common descent, which is consistent with his personal religious belief. 33:54-56, 66-67.
- K. July 2004 The Teachers and Baksa Reviewed the Sections of the 2004 Edition of Biology that Dealt With Evolution in Response to the Board's Concerns
  - 195. In July 2004, the teachers discovered that there was a 2004 edition of Biology available. 12:127 (J. Miller); 13:30 (Spahr). The Board at its meeting on July 12, 2004 agreed to defer consideration of purchasing a new textbook until it could review this textbook. 12:127 (J. Miller).
  - 196. That same month, Spahr, Miller, and Baksa met to review the 2004 edition of Biology. 12:127 (J. Miller). Together they read the sections on evolution, compared them to the same sections in the 2002 edition, and created P150, a document showing the differences between the two editions with respect to evolution. 12:127-29 (J. Miller).
- L. August 2004 Buckingham and Others Tried to Prevent Purchase of the Standard Biology Textbook
  - 197. The Board met on Monday, August 2, 2004. One of the items on the agenda for the meeting was approval of the purchase of the 2004 edition of Biology. 8:64 (J. Brown).
  - 198. A few days prior to the August 2, 2004 meeting, Casey Brown received a call from Assistant Superintendent Baksa, who told her that Buckingham had a book called Of Pandas and People that he recommended the school district purchase as a supplemental textbook. 7:52-53 (C. Brown); 8:64 (J. Brown).
  - 199. Jeff Brown went to Harkins' home to pick up a copy of Pandas. 8:65. She told him that she wanted the school district to purchase the book. 8:66. He said: "Sheila, you don't even want to buy the books that we're supposed to buy, why do you want to buy this book that we don't even need and the state is not requiring us to buy." 8:66 (J. Brown). She told him that "this book was such an eye opening thing about what's wrong with evolution and so on and so forth." 8:67. Brown responded that "with all the statements that Bill has made that have been in the press and have actually gone wire service, I said, if we even touch the subject we're going to end up in court. And she remained adamant." 8:67.
  - 200. At the board meeting four days later, Buckingham opposed the purchase of Biology, which was recommended by the faculty and administration unless the Board also approved the purchase of Pandas as a companion text. Only eight members of the Board were present on August 2, 2004 (Cleaver was in Florida) and the initial vote to approve the purchase of Pandas failed to pass on a four to four vote, with Buckingham, Harkins, Geesey, and Yingling voting against it. 8:68 (J. Brown); 29:105-06 (Buckingham); P67.
  - 201. Buckingham stated that he had five votes in favor of purchasing Pandas, and that if the Board approved the purchase of Pandas, he would release his votes to also approve the purchase of Biology. 8:68-69 (J. Brown). Yingling then changed her vote, and the motion to approve the purchase of Biology passed. P67; 8:69. At trial, Buckingham admitted that at the meeting he said "if he didn't get his book, the district would not get the biology book." 29:106 (Buckingham).
  - 202. This email is additional evidence that the Board knew that intelligent design is a form of creationism.
- M. August 26, 2004 The Board's Solicitor Warned the Board That It Could Lose a Lawsuit If It Pushes Intelligent Design Creationism
  - 203. On August 26, 2004, the Board Solicitor sent an email to Superintendent Nilsen that stated, among other things, the following:
    
    Today, I talked to Richard Thompson, President and Chief Counsel for the Thomas More Law Center. . . . They refer to the creationism issue as "intelligent design". . . . They have background knowledge and have talked to school boards in West Virginia and Michigan about possible litigation. However, nothing has come about in either state. This suggests to me that no one is adopting the textbook because, if they were, one can safely assume there would have been a legal challenge by someone somewhere. . . . I know that we have given an opinion on this matter on more than one occasion. I guess my main concern at the moment, is that even if use of the text is purely voluntary, this may still make it very difficult to win a case. I say this because one of the common themes in some of the US Supreme Court decision, especially dealing with silent meditation, is that even though something is voluntary, it still causes a problem because the practice, whatever it may be, was initiated for religious reasons. One of the best examples comes out of the silent meditation cases in Alabama which the court struck down because the record showed that the statute in question was enacted for religious reasons. My concern for Dover is that in the last several years there has been a lot of discussion, news print, etc. for putting religion back in the schools. In my mind this would add weight to a lawsuit seeking to enjoin whatever the practice might be.
    
    P70 (emphasis added).
  - 204. Nilsen shared this email with everyone present at the Board Curriculum Committee meeting on August 30, 2004, including Buckingham, Bonsell, and Harkins. 25:135-36 (Nilsen).
  - 205. Nilsen and Baksa both admitted that they knew the email referred to the news reports of the June 2004 board meetings. 25:135-36, 138-39 (Nilsen); 35:105-06, 111-12 (Baksa).
  - 206. This email is additional evidence that the Board knew that intelligent design is a form of creationism.
- N. August 30, 2004 The Board Curriculum Committee Forced Pandas on the Teachers as a Reference Text
  - 207. The Board Curriculum Committee met on August 30, 2004 with Spahr, Miller, Nilsen, Baksa, Bonsell, Buckingham, Harkins, and Casey Brown. 12:133-34 (J. Miller). The principal subject discussed at the meeting was Of Pandas and People and how it would be used in the classroom. 12:134 (J. Miller). Spahr expressed concern that the textbook taught intelligent design and that intelligent design amounted to creationism. 12:135 (J. Miller). Buckingham wanted Pandas used in the classroom as a comparison text side by side with the standard biology textbook. 29:104-05 (Buckingham). The teachers strongly opposed using Pandas as a companion text. 29:111 (Buckingham). As a compromise to the Board, however, the teachers agreed that Pandas could be placed in the classroom as a reference text. 12:136 (J. Miller); 13:88 (Spahr). They thought that if they compromised with the Board, "maybe this will go away again." 12:136 (J. Miller). There was no discussion at the meeting about any change to the curriculum. 12:136 (J. Miller); 13:88 (Spahr).
  - 208. Although the teachers agreed to accept Pandas as a reference text in the classrooms, they clearly did so only as a compromise in consideration for receiving Biology. 35:119-120 (Baksa). Baksa testified that no one could construe the teachers as having supported Pandas in any way, either as a reference text or otherwise. 35:120.
  - 209. Baksa testified on direct examination that during this time period he did research on Pandas and intelligent design. Among other things, he directed his secretary to go to the webpage from the Institute for Creation Research to get information about Pandas. 35:113-14 (Baksa); D35. That webpage states that Pandas "contains interpretations of classic evidences in harmony with the creation model." 35:114-15 (Baksa). He was asked "that was information you were aware of as you researched Pandas?" And he answered "yes." 35:115 (Baksa). Baksa then contradicted this testimony on re-direct and stated that he had never read the webpage. 36:45 (Baksa). This contradiction came after Baksa conferred with his counsel the previous evening while still subject to cross examination about the testimony he would give.
- O. Bonsell and Buckingham Secretly Arranged for Sixty Copies of Pandas to be Donated to the High School
  - 210. The October 4, 2004 board meeting agenda noted that Superintendent Nilsen had accepted a donation of 60 copies of Pandas. P78 at 9. There is no evidence that Bonsell or Buckingham or anyone else with knowledge of that donation disclosed the source of the donation at any time until it came out in litigation.
  - 211. At a board meeting in November 2004, former board member Larry Snook asked about the source of the donation of Pandas. 30:47 (Buckingham); 33:30 (Bonsell). Neither Bonsell, Buckingham, or anyone else provided any information about the source of the donation. 30:47-48 (Buckingham); 33:30-31 (Bonsell).
  - 212. At their depositions on January 3, 2005, which were taken pursuant to Court Order so that plaintiffs could decide whether to seek a temporary restraining order, plaintiffs' counsel asked both Buckingham and Bonsell about the source of the donation of Pandas. 30:50-56 (Buckingham); 33:31-35 (Bonsell). Neither Buckingham nor Bonsell provided any information about Buckingham's involvement in the donation or about a collection he took at his church. 30:50-56 (Buckingham); 33:31-35 (Bonsell).
  - 213. In fact, Buckingham made a plea for donations to purchase Pandas at his church, the Harmony Grove Community Church, on a Sunday before services. 30:38-40 (Buckingham). And the people at his church donated $850. 30:40.
  - 214. P80 is a check made out to Donald Bonsell drawn on Buckingham's account, jointly held with his wife in the amount of $850 with the notation Of Pandas and People. 30:46-47. Donald Bonsell is Alan Bonsell's father. 30:47. Buckingham gave the check to Alan Bonsell to give to his father. 30:47. Alan Bonsell admitted that Buckingham gave him a check for the purpose of buying the books. 33:29-30 (Bonsell).
  - 215. Alan Bonsell gave the money to Donald Bonsell, who purchased the books. 33:131-32 (Bonsell).
  - 216. Bertha Spahr received the shipment of books, unpacked the box, and discovered P144, a catalogue from the company that sold the books. 13:94 (Spahr). The catalogue lists Pandas under "Creation Science." 13:94-95 (Spahr); P144 at 29.
  - 217. Bonsell testified that his father served as the conduit for the funds from Buckingham's church because: "He agreed to he said that he would take it, I guess, off the table or whatever, because of seeing what was going on, and with Mrs. Callahan complaining at the Board meeting not using funds or whatever." 33:129 (Bonsell). In other words, they were trying to hide the source of the funds.
  - 218. Clearly, Buckingham and Bonsell tried to hide the source of the donations because they knew that it showed, at the very least, that they had taken extraordinary measures to ensure that students received a creationist alternative to Darwin's theory of evolution. As discussed infra at ¶ 271, both Buckingham and Bonsell failed to tell the truth about the subject of their depositions on January 3, 2005, which provides further compelling evidence that these two board members sought to conceal their blatantly religious purpose.
- P. October 7, 2004 The Board Curriculum Committee Drafted the Curriculum Change Without the Teachers Present to Object
  - 219. In September 2004, acting on the instructions of the Board, Baksa prepared a change to the biology curriculum, which stated: "Students will be made aware of gaps in Darwin's theory and of other theories of evolution." P73; 35:122 (Baksa). The draft curriculum change listed no reference text. P73. Baksa initiated these changes on assignment from the Board. 35:123-24 (Baksa). There is no evidence in the record that the Board asked him to initiate the changes to improve science education in the Dover schools. The teachers clearly did not initiate these changes. 35:123. As with the Pandas donation, the teachers reluctantly acquiesced to a request initiated by the Board. 35:119 (Baksa).
  - 220. On October 7, 2004, the Board Curriculum Committee met to discuss changing the biology curriculum. 35:124 (Baksa). The science teachers were not invited. 35:124 (Baksa). Casey Brown had an appointment with an eye surgeon and could not make the meeting, leaving Buckingham, Bonsell, and Harkins as the only board members present with Baksa. At the meeting, the participants discussed P81, a document showing various positions regarding the proposed curriculum change. 35:125 (Baksa); 29:113 (Buckingham). P82 is the same document, but with Bonsell's handwritten change to one of the alternatives. 29:113 (Buckingham).
  - 221. Ultimately, the Board Curriculum Committee adopted Bonsell's alternative, with the handwritten change: "Students will be made aware of gaps/problems in Darwin's theory and of other theories of evolution, including but not limited to intelligent design." P82; 35:125 (Baksa). The Board Curriculum Committee's proposed change also called for Pandas to be cited as a reference text. P82. Bonsell, Buckingham, and Harkins reached agreement on the curriculum change in a matter of minutes. 35:125 (Baksa).
  - 222. As of October 7, 2005, Buckingham thought all the board members except the Browns would support the proposed curriculum change. 29:113-17 (Buckingham). Only later did he learn that Wenrich did not support the change because of his concern that the Board disregarded the expertise and opinions of the science teachers. 29:125-27 (Buckingham).
  - 223. The curriculum change proposed by the Board Curriculum Committee along with the change proposed by administration and accepted by the science faculty, were circulated to the full Board by memoranda dated October 13, 2004. P84A; P84B.
- Q. October 18, 2004 The Board Forced the Curriculum Change
  - 224. On October 18, 2004, the Board passed by a 6-3 vote a resolution that amended the biology curriculum as follows:
    
    Students will be made aware of gaps/problems in Darwin's theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of Life is not taught.
    
    The board resolution also called for this subject to be covered in lecture format with Of Pandas and People as a reference book. 7:89-90 (C. Brown); P88; P209 at 1646; P84C.
  - 225. Bonsell, Harkins, Buckingham, Geesey, Cleaver, and Yingling voted for the resolution. Noel Wenrich and Casey and Jeff Brown voted against the resolution. 7:89-90 (C. Brown); P88.
  - 226. In passing the resolution, the Board deviated from its regular practice in important respects.
    - (a) Typically, the Board addressed curriculum changes an entire year in advance of implementation. 7:78-79 (C. Brown). The change to the biology curriculum was brought up during the 2004-05 school year to be effective that year: "The normal procedures were not followed at all in making this change." 7:79 (C. Brown).
    - (b) Standard board practice called for two meetings a month, a planning meeting followed by an action meeting, with items for consideration to be listed on the agenda for discussion at the planning meeting before listing them for resolution on the agenda at the action meeting later in the month. 7:24-25 (C. Brown). The change to the biology curriculum was placed on the Board's agenda for the first time during an action meeting; a number of witnesses recognized this as irregular. 26:11 (Nilsen); 4:3-5 (B. Callahan); 7:77-78 (C. Brown); 29:118 (Buckingham).
    - (c) Board practice also called for the District Curriculum Committee to meet to discuss the change. 7:72-73 (C. Brown). Superintendent Nilsen suggested that the District Curriculum Committee meet to discuss the proposed change, but the Board overruled that suggestion. 7:73 (C. Brown); 26:8-10 (Nilsen). This represented a deviation from the Board's standard practice. 25:73-76, 26:8-10 (Nilsen); 7:10-11 (C. Brown); 29:124 (Buckingham). The administration did send the proposed change to the District Curriculum Committee, and received feedback from two members. P151; D67; 7:80-82 (C. Brown); 35:7-8 (Baksa); P151; D67. One opposed the change and the other wanted the District Curriculum Committee to meet to discuss the proposed change. P151. There is no evidence that the Board acted on either suggestion.
    - (d) The teachers were not included in the process of drafting the language adopted by the Board Curriculum Committee; the Board chose not to follow the advice of their only science-education resource. 7:82-83 (C. Brown); 30:31-32 (Buckingham).
  - 227. Witnesses for defendants testified that the rush to bring the curriculum change to a vote occurred because the issue had been debated for the past six months, and the Board was about to lose two board members, Noel Wenrich and Jane Cleaver, who had been a part of those discussions. 26:10-12 (Nilsen); 33:113-14 (Bonsell). Their record contains no evidence of any public board meetings where the Board discussed intelligent design, but the evidence shows that the Board did discuss creationism within that six month period. See supra at ¶¶ 170-77. Moreover, Wenrich was opposed to the expedited vote, as reflected in his parliamentary measures to have the vote delayed until the community could properly debate the issue, and consider the science teachers' position. 29:125-28 (Buckingham). In reality, Buckingham wanted the Board to vote on the resolution on October 18 because he thought he had all the votes needed to pass the resolution adopted at the October 7 meeting of the Board Curriculum Committee. 29:113-16 (Buckingham).
  - 228. On October 18, prior to the board meeting, the science teachers learned that the Board intended to vote for the Board Curriculum Committee's proposed change, rather than the one submitted by the administration, to which the teachers had acquiesced. 7:82-83 (C. Brown); 35:12-14, 125 (Baksa). The teachers and administration prepared a third proposal, which included the text "Origins of Life is Not Taught," and added Pandas as a reference text in the curriculum guide. D68. This latest proposal was not preferred by the teachers over the first proposal, or over having no change at all, but rather as a last effort to avoid the Board Curriculum Committee's proposal, which called for presentation of intelligent design. 13:58-59 (J. Miller).
  - 229. At the October 18, 2004 meeting, science teachers Spahr and Miller, and other members of the public spoke up against the curriculum change. 13: 41-42 (J. Miller); 13:88-93 (Spahr). In her statement to the Board, Spahr made clear that the teachers' agreement to point out "flaws/problems with Darwin's theory," not to teach origins of life, and have Pandas available as a reference text, were all compromises with the Board Curriculum Committee, after what she described as "a long and tiresome process." 13:91-92 (Spahr). She also stated that the change was being railroaded through without input from the teachers or the District Curriculum Committee. 13:91-93. Neither Superintendent Nilsen nor Assistant Superintendent Baksa, nor any board member spoke up in disagreement with this description of events by the teachers. 35:126 (Baksa).
  - 230. Baksa testified that the teachers did not support Pandas in any way. The teachers' first preference would have been not to have Pandas at all, but they made compromises to insure the purchase of the biology book. 35:119-20 (Baksa).
  - 231. Any suggestion that the teachers supported any part of the curriculum change must be soundly rejected. 35:20-21 (Baksa). The evidence demonstrates that any "agreement" on the part of the teachers was done to compromise with board members who were trying to foist religion into the curriculum, and, in part, as quid pro quo for approval of a biology book that should have been provided as a matter of course. 35:119-20, 123 (Baksa).
  - 232. At the October 18 meeting, Spahr warned that intelligent design amounted to creationism and could not be taught legally. 24:102 (Nilsen); 35:14-15 (Baksa).
  - 233. During the October 18, 2004 meeting, the following language was added to the Board Curriculum Committee's recommended curriculum change: "Note: Origins of Life is Not Taught." From the Board's perspective, this change made it district policy that teachers were not permitted to teach major aspects of evolution, including macroevolution, speciation, and common ancestry, including that humans share common ancestors with other living creatures. 29:121-23 (Buckingham); Buckingham Dep. (3/31/05) at 71, 74; Bonsell Dep. (4/13/05) at 67-69.
  - 234. The 6-3 vote to approve the curriculum change occurred without any discussion by the Board about intelligent design or how presenting it to students would improve science education. 26:21 (Nilsen); 35:127-28 (Baksa); 8:36 (C. Brown); 8:76; 12:139-40 (J. Miller); 13:102 (Spahr); 32:25-26, 40; 30:23- 25 (Buckingham); 31:182-83 (Geesey); 34:124-26 (Harkins). No justification was offered by any board member for the change in the curriculum when it was adopted at the October 18, 2004, board meeting. 6:105-06 (Eveland); 8:36 (C. Brown); 8:76 (J. Brown); P88.
  - 235. Board members acknowledged that they did not have sufficient background in science to evaluate intelligent design themselves 31:175 (Geesey); 32:50 (Cleaver); 34:117-18 (Harkins) and most of them testified candidly that they did not understand the substance of the curriculum change that was adopted on October 18, 2004. 31:181-82 (Geesey); 32:49-50 (Cleaver); 34:124-25 (Harkins).
  - 236. Instead, other board members adopted the position of Bonsell and Buckingham for their information about intelligent design and their decision to incorporate it as part of the high school biology curriculum. 31:154-68 (Geesey).
  - 237. They did so in the face of strenuous opposition from the district's high school teachers. 31:186-90 (Geesey); 35:127-28 (Baksa).
  - 238. The Board never heard from any persons or organization with scientific expertise about the change to the curriculum, except the district's science teachers, who opposed the change. 29:109 (Buckingham). The only outside organizations the Board consulted prior to the vote were the Discovery Institute and TMLC, and they only consulted those organizations for legal advice, not information about science education. 33:111-12 (Bonsell); 29:130, 137-43, 30:10-14 (Buckingham). The Board received no materials, other than Pandas, to assist them in making their vote. 35:127-28 (Baksa); 8:36-37 (C. Brown); 33:112-14 (Bonsell).
  - 239. No one on the Board or in the administration ever contacted the National Academy of Sciences, the American Association for the Advancement of Science, the National Science Teachers' Association, the National Association of Biology Teachers, or any other organization for information about intelligent design or science education. 33:113 (Bonsell); 30:24-27 (Buckingham). All of these organizations have information about teaching evolution readily available on the Internet and they include statements opposing the teaching of intelligent design. 14:74-99 (Alters).
  - 240. Board members who voted for the curriculum change that testified at trial admitted they had no grasp of the concept of intelligent design. Cleaver testified that she did not understand the concept of intelligent design. 32:49-50 (Cleaver)⁵. Geesey testified that she did not understand the substance of the curriculum change. 31:181-82 (Geesey); 29:11-12 (Buckingham); Buckingham Dep. (1/3/05) at 59-61; 34:48-49 (Harkins); 33:112-113 (Bonsell); 26:21 (Nilsen). Buckingham admitted that he had no basis to know whether intelligent design amounted to good science. 30:32-33. As of the time of his first deposition, two and a half months after the policy was voted in. Nilsen's entire understanding of intelligent design was that "evolution has a design." 26:49-50.
  - 241. In voting for the curriculum change, Geesey deferred completely to Bonsell and Buckingham. 31:154-55, 161-62, 168, 184-87, 190 (Geesey). Cleaver voted for the change despite the objections of the teachers based on assurances from Bonsell. 32:23-25 (Cleaver). She did not know anything about Pandas except that Bertha Spahr had said it was not a good science book and should not be used in high school. 32:45-46 (Cleaver).
  - 242. Nilsen and Baksa opposed the curriculum change. (35:126). Baksa still feels the curriculum change was wrong. 35:127 (Baksa).
  - 243. Both Casey Brown and Jeff Brown resigned at the conclusion of the October 18, 2004 board meeting. In her resignation speech, Casey Brown stated:
    
    There has been a slow but steady marginalization of some board members. Our opinions are no longer valued or listened to. Our contributions have been minimized or not acknowledged at all. A measure of that is the fact that I myself have been twice asked within the past year if I was `born again.' No one has, nor should have the right, to ask that of a fellow board member. An individual's religious beliefs should have no impact on his or her ability to serve as a school board director, nor should a person's beliefs be used as a yardstick to measure the value of that service. However, it has become increasingly evident that is the direction the board has now chosen to go, holding a certain religious belief is of paramount importance.
    
    P680; 7:92-93 (C. Brown).
  - 244. At the next meeting, board member Noel Wenrich resigned and stated:
    
    I was referred to as unpatriotic, and my religious beliefs were questioned. I served in the U.S. Army for 11 years and six years on this board. Seventeen years of my life have been devoted to public service, and my religion is personal. It's between me, God, and my pastor.
    
    P810; 30:126-30 (Bernhard-Bubb); 4:11-12 (B. Callahan).
- R. Assistant Superintendent Baksa Developed the Statement Read to Students to Suit the Board and the Teacher's Refusal to Read It
  - 245. After the curriculum was changed, Assistant Superintendent Baksa was tasked with preparing a statement to be read to students before the evolution unit in biology. His first draft of the statement described Darwin's theory of evolution as the "dominant scientific theory." The Board removed this language from the final version. D91; (36:22-24). Baksa's draft also stated that "there are gaps in Darwin's theory for which there is yet no evidence." D91; (36:26-28). The Board edited out the word "yet" so that the statement reads "there are gaps in Darwin's theory for which there is no evidence." 36:26-28 (Baksa).
  - 246. Baksa instructed Jennifer Miller to review the statement. She suggested that language be added that stated there is a "significant amount of evidence" supporting Darwin's theory. D91. Baksa understood this to be an accurate statement about the theory of evolution, but edited it out because, based on the Board's treatment of his draft, he understood the Board would not approve this language. 36:24-26 (Baksa).
  - 247. Baksa testified that the final version of the statement communicated a very different message about the theory of evolution than the language he and Miller suggested. (36:27).
  - 248. The final version of the statement prepared by defendants to be read to students in 9^th grade biology class, stated:
    
    The state standards require students to learn about Darwin's Theory of Evolution and to eventually take a standardized test of which evolution is a part. Because Darwin's Theory is a theory, it is still being tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations. Intelligent design is an explanation of the origin of life that differs from Darwin's view. The reference book, Of Pandas and People, is available for students to see if they would like to explore this view in an effort to gain an understanding of what intelligent design actually involves. As is true with any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life up to individual students and their families. As a standards-driven district, class instruction focuses on the standards and preparing students to be successful on standards-based assessments.
    
    P124.
  - 249. On January 6, 2005, the teachers sent a memo to the Board by which they requested the Board release them from any obligation to read the statement. 36:97 (Linker). The memo states the teachers belief that "reading the statement violates our responsibilities as professional educators as set forth in the Code of Professional Practice." 36:97 The teachers' memo also states that "Central to teaching act and our ethical obligation is the solemn responsibility to teach the truth . . . the public educator may not knowingly and intentionally misrepresent subject matter and curriculum." 36:98. The memo concludes with the statement "To refer the students to Of Pandas and People, as if it is a scientific resource, breaches my ethical obligation to provide them with scientific knowledge that that is supported by recognized proof or theory." P121.
  - 250. The defendants read the statement to ninth graders at Dover high school in January 2005. 35:43 (Baksa). The teachers requested not to read the statement because it violated their professional ethics. 25:56-57 (Nilsen); P121. In their place, administrators of the DASD read the statement. 35:38 (Baksa).
  - 251. The administrators read the statement again in June 2005. 35:42 (Baksa); P131. By that time, the defendants had modified the statement to refer to other, unnamed books in the library that relate to intelligent design. P131. Pandas remains the only book identified by name in the statement. 35:40, 42 (Baksa). The defendants offered no evidence about where the other books can be found in the library, including whether they are placed near Pandas. 35:42-43 (Baksa).
  - 252. Evolution is the only theory taught in Dover science classes for which students are told it is a "theory not a fact," or that there are "gaps and problems." 36:30-32 (Baksa); 35:120 (Baksa). No board member or administrator explained why evolution was singled out in this manner. 13:102 (Spahr).
- S. The Board Published a Newsletter Denigrating Evolution and Advocating Intelligent Design to the Entire Dover Community
  - 253. In February, 2005, the Board published P127, a newsletter to the entire Dover community, which was prepared in conjunction with TMLC.
  - 254. Typically, the Board sent out a newsletter to the Dover area community approximately four times a year. 15:98-99 (C. Sneath). In February 2005, the Board unanimously voted to mail a specialized newsletter (P127) to the community. 15:136; P821. Although formatted like a typical district newsletter, it amounts to an aggressive advocacy piece denigrating the scientific theory of evolution and advocating intelligent design.
    - (a) As the very first question under "Frequently Asked Questions" the newsletter demeans the Plaintiffs for protecting their Constitutional rights. "A small minority of parents have objected to the recent curriculum change by arguing that the Board has acted to impose its own religious beliefs on students." P127 at 1.
    - (b) It mentions religion in the second Frequently Asked Questions, as follows: Students are told of the theory of Intelligent Design (ID). Isn't ID simply religion in disguise." Id.
    - (c) It suggests that opponents of the biology curriculum change are responsible for spreading misinformation. "Unfortunately, a great deal of misinformation has been spread regarding this policy." Id.
    - (d) It suggests that scientists engage in trickery and doublespeak about the theory of evolution. "The word evolution has several meanings, and those supporting Darwin's theory of evolution use that confusion in definition to their advantage." Id.
    - (e) It makes the grandiose claim that intelligent design is a scientific theory on a par with evolution and other scientific theories. "The theory of intelligent design (ID) is a scientific theory that differs from Darwin's view, and is endorsed by a growing number of credible scientists." Id. at 2.
    - (f) It denigrates evolution in a way and makes claims that have never been advanced much less proven in the scientific community. "In simple terms, on a molecular level, scientists have discovered a purposeful arrangement of parts, which cannot be explained by Darwin's theory. In fact, since the 1950s, advances in molecular biology and chemistry have shown us that living cells, the fundamental units of life processes, cannot be explained by chance." Id.
    - (g) It suggests that evolution has atheistic implications. "Some have said that before Darwin, `we thought a benevolent God had created us. Biology took away or status as made in the image of God'...or `Darwinism made it possible to be an intellectually fulfilled atheist.'" Id.
    - (h) It takes the obligatory cheap shot at the ACLU. "As the elected representatives of the citizens of Dover, the Board was determined to act in the best interest of students, despite threats from the ACLU." Id.
    - (i) It all but admits that intelligent design is religious. It quotes Anthony Flew, described as a "world famous atheist who now believes in intelligent design," as follows: "My whole life has been guided by the principle of Plato's Socrates: Follow the evidence where it leads." Id.
    - 255. In addition, on April 23, 2005, at the request of the school board, Michael Behe made a presentation on intelligent design to Dover citizens. Joint Stipulations of Fact ¶11.
- T. The Effect of the Board's Actions on the Plaintiffs
  - 256. Plaintiffs described the harm caused by the Board's policy on their children, their families, and themselves in consistent, but uniquely personal ways. They believe that intelligent design is an inherently religious concept and that its inclusion in the district's science curriculum interferes with their rights to teach their children about religion. 3:118-119 (Kitzmiller): 4:13-15 (Callahan); 6:77-78 (C. Rehm); 6:106 (Eveland); 16:26, 30 (Stough); 17:147-48 (Leib).
  - 257. Plaintiff Cynthia Sneath's testimony is representative:
    
    Well, you know, as a parent, you want to be proactive in your child's education. I mean, obviously I'm not an educator. I have no big degrees. I want to be proactive, but I depend on the school district to provide the fundamentals. And I consider evolution to be a fundamental of science. And I'm quite concerned about a cautionary statement. I am quite concerned about this intelligent design idea. I do think it's confusing. I don't think it adds to his education. And at the end of the day, I mean, in my mind, intelligent designer, I mean, the word `designer' is a synonym for Creator, and, you know, that takes a leap of faith for me, you know. And I think it's my privilege to guide them in matters of faith, not a science teacher, not an administrator, and not the Dover Area School Board.
    
    15:100-101.
  - 258. Plaintiffs also testified that their children confront challenges to their religious beliefs at school because of the Board's actions. For example, Christy Rehm testified that her daughter is upset by comments of other students who contend that evolution is against their religion. 6:77-78 (Rehm).
  - 259. Plaintiff Julie Smith explained how the Board's action have caused conflict in her own family and violated her religious beliefs:
    
    Late in `04 my daughter came home from school, and I was discussing kind of what was going on in the district with her. And she looked at me and said, Well, Mom, evolution is a lie, what kind of Christian are you, anyway, which I found to be very upsetting. I asked her why she said that, and she said in school what they had been talking about or amongst her friends and what's going on. She seemed to be under the impression that as a Christian, she could not believe that evolution was a science that, you know, was true. Well, it goes against my beliefs. I have no problems with my faith and evolution. They're not mutually exclusive."
    
    6:38-39.
  - 260. Other plaintiffs testified about discord in the community. Joel Leib, whose family has lived in Dover for generations, testified as follows:
    
    "Well, it's driven a wedge where there hasn't been a wedge before. People are afraid to talk to people for fear, and that's happened to me. They're afraid to talk to me because I'm on the wrong side of the fence."
    
    17:146-147.
  - 261. Board members opposing the curriculum change and its implementation have been confronted directly. Casey Brown testified that, following her opposition to the curriculum change on October 18, Buckingham called her an atheist and Bonsell told her she would go to hell. 7:94-95; 8:32. Angie Yingling was coerced into voting for the curriculum change by board members accusing her of being an atheist and un-Christian. 15:95-97 (Sneath). Both Bryan Rehm and Fred Callahan have been confronted in the same way. 4:93-96 (B. Rehm); 8:115-16 (F. Callahan). Teachers have also been confronted with the same kind of hostility. 14:34-35 (Spahr).
  - 262. Plaintiff Fred Callahan testified that the plaintiffs have been cast as "atheists" and intolerant" in the Dover community, and that is the reason why he brought this lawsuit as a plaintiff:
    
    We've been called atheists, which we're not. I don't think that matters to the Court, but we're not. We're said to be intolerant of other views. Well, what am I supposed to tolerate? A small encroachment on my First Amendment rights? Well, I'm not going to. I think this is clear what these people have done. And it outrages me.
    
    8:115-116.
- U. The Dover Community Perceives the Board As Having Acted to Promote Religion
  - 263. The Board's actions from June through October 18, 2004 were consistently reported in news articles in the two local papers, the York Daily Record and the York Dispatch. P44/P804, P45/P805, P46/P790, P47/P791, P51/P792, P53/P793, P54/P806, P55, P64, P682/P795, P683/P807, P679, P684/P809, P685/P796, P678/P797, and P686.
  - 264. In fact, most of the plaintiffs did not attend the 2004 board meetings that preceded the curriculum change and became aware of the Board's actions only after reading about them in the local papers. Tammy Kitzmiller, Beth Eveland, Cindy Sneath, Steven Stough, and Joel Leib all first learned of the Board's actions regarding the biology curriculum and textbook from the news articles. 3:114 (Kitzmiller); 6:93-94 (Eveland); 15:77-78 (Sneath); 15:113-14 (Stough); 17:143 (Leib). Stough testified he read the York Daily Record and the York Dispatch every day, including on the Internet while he was away on vacation, to follow the Board's actions relating to the change to the biology curriculum. 15:112-113; 16:4.
  - 265. The news reports in the York newspapers were followed by numerous letters to the editor and editorials published in the same papers. Plaintiffs provided the Court with summaries of the letters to the editor and editorials as part of exhibits P671, P672, P674, and P675.⁶
  - 266. A review of the contents of the letters to the editor and editorials published in the York papers between June 2004 and September 2005 demonstrates that the Dover community perceives the Board as having acted to promote religion, with many citizens lined up as either for the curriculum change, on religious grounds, or against the curriculum change, on the grounds that religion should not play a role in public school science class.
    - (a) The York Daily Record published 139 letters to the editor regarding the Board's actions. P671. Eighty-six of those letters addressed the issues in religious terms. 16:18-20 (Stough).
    - (b) The York Daily Record published forty-three editorials regarding the Board's actions. P674. Twenty-eight of those editorials addressed the issues in religious terms. 16:22-23 (Stough).
    - (c) The York Dispatch published eighty-six letters to the editor regarding the Board's actions. P672. Sixty of those letters addressed the issues in religious terms. 16:24 (Stough).
    - (d) The York Dispatch published nineteen editorials regarding the Board's actions. P675. Seventeen of those editorials addressed the issues in religious terms. 16:25 (Stough).
  - 267. The following excerpts are representative of the letters to the editor in the York newspapers in favor of the Board's actions on religious grounds:
    - (a) "Evolution is a theory while Christianity is truth and fact. . . . And yes, by all means teach intelligent design as a major part of the history of the great United States of America." P671, No. 39.
    - (b) "It's high time to put God back in our lives and inform others of what he has to offer. Try God. If you don't like him, Satan will gladly take you back." P671, No. 48.
    - (c) "God gave us the Bible as a guideline to live by, and in it, He also told us how he created the world." P672, No. 43.
    - (d) "No need to cloud your mind with science; just read Genesis, it will answer all your scientific questions." P672, No. 47.
  - 268. The following excerpts are representative of the letters to the editor in the York newspapers opposed to the Board's actions on the grounds that religion should not play a role in public school science class:
    - (a) "Creationism and its cousin, intelligent design, are devoid of scientific facts...a science classroom is not the place for theology." P671, No. 6.
    - (b) "As a concerned student and as a concerned human being, I say please and with all due respect, keep the religious out of my school because it has no place in the classroom." P671, No. 50.
    - (c) "God is at home. God is many places. God is not a part of public schools." P672, No. 18.
    - (d) "As scientists and educators, we urge the school board to exclude theism and the supernatural from their science curriculum." P672, No. 25.
  - 269. The following excerpts are representative of the editorials in the York newspapers in favor of the Board's actions on religious grounds:
    - (a) "Yes, I believe that creationism should be taught in schools because evolution is only a theory and the Bible is God's word which has stood the test of time." P674, No. 4.
    - (b) "In the meantime, we, the church will carry the torch of faith until all the world, even science, recognizes God as the creator of everything that is." P674, No. 30.
    - (c) "If intelligent design were taught: . . . Maybe the children wouldn't mar their bodies with all kinds of permanent markings: which by the way in the Bible, Leviticus 19:28 says, `You shall not make any cuttings in your flesh for the dead, nor (tattoo) any marks upon you; I am the Lord.'" P674, No. 41.
  - 270. The following excerpts are representative of the editorials in the York newspapers opposed to the Board's actions on the grounds that religion should not play a role in public school science class:
    - (a) "The Dover school board needs to reverse the `intelligent design' decision, or as I like to call it, `the design your own lawsuit that will gather national media attention, which will only hurt the children and the teachers, just for trying to put religion into a public school' decision." P674, No. 21.
    - (b) "ID is `modern' creationism. Intelligent design is a veiled strategy to teach religion instead of science." P674, No. 25.
    - (c) "Intelligent design is not a `theory' but strictly a religious concept that may have its place in Sunday school and in the home not in my high school biology class." P675, No. 19.
V. THE CLAIM THAT BOARD MEMBERS ACTED FOR THE PURPOSE OF IMPROVING SCIENCE EDUCATION IS A PRETEXT TO HIDE THE TRUE MOTIVE FOR CHANGING THE BIOLOGY CURRICULUM, WHICH WAS TO PROVIDE STUDENTS WITH A RELIGIOUS ALTERNATIVE TO THE THEORY OF EVOLUTION
- A. The Two Board Members Most Directly Involved in the Change to the Biology Curriculum Did Not Testify Truthfully, Consistently, or Believably
  - 271. Both Bonsell and Buckingham lied at their January 3, 2005 depositions about their knowledge of the source of the donation for Pandas.
    - (a) At his deposition on January 3, 2005, Bonsell failed to disclose that he had received a check from Buckingham or that Buckingham had any involvement with collecting money to purchase Pandas. 33:31-36, 127-33 (Bonsell). At his deposition, when asked "who donated the books," he initially replied "I don't know." 33:32. After follow-up questions, he supplied the name of his father, but no one else. 33:33. Counsel then asked him "how did you become aware that your father, as well as other individuals, intended to donate the Pandas book to the district?" 33:33. He provided no information about a check from Buckingham. Counsel asked him "who was the offer made to." 33:33. His answer: "I'm not sure." 33:33. Counsel asked "you have never spoken to anybody else who was involved with the donation?" 33:35. Answer: "I don't know the other people." 33:35. Question: "The only person you could have spoken to about the books was your father, correct?" 33:35. Answer: "Yes as far as donating the books. I guess they offered to pay for the books, and they got the books, and they gave them to the school district." 33:35. Question: "They offered to whom? How was the offer communicated?" 33:35. Answer: "That's what I am saying. I am trying to think about exactly how it was done. I don't remember exactly how it was said or done." 33:35.
    - (b) This testimony was untruthful. Bonsell knew that he had received a check from Buckingham, and yet he failed to disclose it on January 3, despite repeated questions that should have elicited that information. Upon questioning by the Court, Bonsell admitted that Buckingham gave him the check to pass to Bonsell's father and "this was money that he collected for donations to the book." 33:127. Bonsell then admitted that he did not tell the truth at his deposition; he claimed that he "misspoke," but he acknowledged that he should have identified Buckingham in response to Counsel's direct questions. 33:129.
    - (c) Buckingham lied at both the trial and his deposition about the donation of Pandas. 30:38-55. He claims he did not take up a "collection" at his church, even though he stood in front of the pews on a Sunday before service, told the congregation about a need for donations to purchase Pandas as a supplemental text, and accepted donations totaling $850. 30:38-40. His refusal to admit the obvious at trial is as untruthful as his failure to disclose the fact of the collection at his first deposition.
    - (d) At his first deposition, when asked "[d]o you know where that came from, who donated the money," Buckingham answered "No I don't." 30:50-51. Counsel followed up by asking: "You have had no idea?" and Buckingham responded "I have thoughts but I don't know." 30:50-51. Question: "What are your thoughts?" 30:51. Answer: "I think it could have a tie to Alan Bonsell." 30:51. Clearly Buckingham lied --he should have said he knew that people at his church donated $850.
    - (e) Buckingham compounded the lie in response to follow-up questions. He testified that although questions were raised at a board meeting, he was not curious and did not ask about the source. 30:51-52. Counsel then asked: "Why didn't you ask? And he responded: Didn't want to know." Question: Why didn't you want to know? Answer: Well, what purpose would it serve? Question: Well, because you're a board member and the school district is part of your responsibility and maybe where these books came from would be something that you should know." Answer: No, I think it was a wonderful gesture, and I didn't concern myself with where they came from." 30:52. Again, Buckingham clearly lied. He did not ask about the source of the donation for Pandas because he already knew the source, not because he did not want to know.
  - 272. In addition to failing to tell the truth about the source of the donation of Pandas, Bonsell failed to tell the truth about other subjects, hid behind convenient memory lapses and failed to admit the obvious.
    - (a) Bonsell failed to tell the truth about his recollection of Charlotte Buckingham speaking at the meeting of the Board on June 14, 2004 at his January 3 deposition. He testified at trial that he recalled her speaking on that day, that she went on for a great length of time, that he felt uncomfortable gaveling her down because she was the wife of a board member, that she probably mentioned creationism, and that her comments were very religious in nature. 33:37 (Bonsell). And yet, when asked at his deposition whether he recalled Charlotte Buckingham making religious statements at the meeting, as reported in P54, a June 15, 2004 article from the York Dispatch by Heidi Bernhardt-Bubb, Bonsell said: "I remember Mrs. Buckingham coming up and talking at public comment, but I don't remember what she said." 33:38.
    - (b) Bonsell also failed to tell the truth about his interest in creationism. His counsel stated during the opening statement that Bonsell "had an interest in creationism. He wondered whether it could be discussed in the classroom." 1:19. Yet in his testimony, Bonsell could not recall having any interest in creationism. 33:45-48. After numerous questions, the most he would say was that he "probably" had such an interest. 33:48.
    - (c) Bonsell claims not to recall raising the subject of creationism at either the 2002 or 2003 board retreat, even though documents show that he raised that subject. 33:44-45. At his deposition, he insisted he never raised creationism at any board meeting and at trial admitted that plaintiffs would have never learned that he raised the subject at those two board retreats if the documents had not been found. 33:53. He claimed that "we brought these papers forward," referring to the two board retreat documents showing the word "creationism" next to his name in 2002 and 2003. 33:53. But he did not find those documents; Nilsen found those documents. 33:53-54. And Nilsen turned the documents over to counsel, who properly produced them. 33:54. Bonsell cannot claim credit in any way for candor with respect to those documents. The fact remains that if those documents had not been found his "interest in creationism" might never have been discovered.
    - (d) Bonsell insists that he is not the board member referred to in the Trudy Peterman memo (P26) who wanted to teach creationism on a 50/50 basis with evolution in or around March 2003. 33:52. And yet it is perfectly clear from the testimony of Michael Baksa, Bertha Spahr, and Barry Callahan, combined with P21, P25, P26, and P641, that Bonsell is the board member who wanted to teach creationism on a 50/50 basis with evolution in and around March 2003. See supra at ¶¶ 138-43.
  - 273. Buckingham's testimony was riddled with inconsistencies, statements that do not ring true, and several proven lies, in addition to the lie discussed above about the source of the donation of Pandas.
    - (a) At his deposition, he initially denied that he made the statement that the 2002 edition of Biology was "laced with Darwinism." 29:36-37.
    - (b) Counsel forced him to admit that he advocated "creationism" in a statement to a television reporter for Channel Fox 43 in June 2004, but he continued to maintain the incredible position that he never used that word at any board meetings. 29:95-101; P145.
    - (c) At trial, he admitted that he opposed the purchase of Biology at the August 2, 2004 board meeting. 29:101-03. But at his deposition, he claimed he supported the purchase of Biology on August 2, 2004. 29:103-04.
    - (d) He claimed that he had not read any of the reports in the newspapers in June of 2004, even though both the York Dispatch and the York Daily Record were delivered to his door, and at one point the York Daily Record had an editorial praising him for his forthrightness in dealing with his Oxycontin problem and in advocating his views about creationism. 29:42, 87-89; P55.
    - (e) He testified that no one told him about the contents of the articles reported in the local papers in June 2004 except to say "you're in the paper again or the Board is in the paper again." 29:42-43. This was in conflict with his initial deposition testimony where he testified that no one, not his wife, his friends, or the people at his church told him what had been reported in the papers. 29:62-63. He changed that testimony at his second deposition to say that "people did tell me that there were articles in the paper, but I didn't look to see them, and I was just told that they were there." 29:63-64. In his testimony at trial, he clarified his testimony yet again to say "I won't say people at the Church would come up and tell me there were things in the paper, and sometimes they would blurt out something in passing, but there was never any in depth discussion of what's in an article. They might have just said `hey, they have you talking about creationism again.' And we didn't talk about that. We talked about intelligent design." But later in his testimony, after reviewing the Fox 43 videotape (P145) of him talking about "creationism" he blurted out the following: "And what happened was when I was walking from my car to the building, here's this lady and here's a camera man, and I had on my mind all the newspaper articles saying we're talking about creationism, and I had it in my mind to make sure, make double sure that nobody talks about creationism, we're talking intelligent design. I had it on my mind, I was like a deer in the headlights of a car, and I misspoke. Pure and simple, I made a human mistake. 29:96. (Emphasis added). Questioned further, he admitted that he knew from talking with board members about the reports the Board discussing creationism. 29:96-97. Buckingham's shifting testimony on this point and his ultimate admission show that he lied at his deposition and again at trial, most likely to provide a rationale why he never denied all the reports in the newspapers. The Court can and should assume that he read all the stories in the newspapers delivered to his door and falsely claimed that he did not read them, because he knew they were true and he never denied them.
- B. Other Witnesses for Defendants Also Failed to Testify Truthfully and Credibly
  - 274. Board member Geesey also lied at trial. At her deposition, Geesey testified that she could not recall what theory Buckingham discussed as an alternative to evolution at the June 7 meeting and that she did not recall discussion of the words "intelligent design" at the June 14 meeting. 31:178-181. At trial, she changed her story completely and claimed the Board discussed intelligent design at the board meetings in June. 31:161.
  - 275. As her explanation for this marked change in testimony, Geesey claimed that review of P56, plaintiff Eveland's letter to the editor of the York Sunday News dated June 20, 2004, and P60, her letter to the editor of the York Sunday News dated June 27, 2004, refreshed her recollection that the Board discussed intelligent design at the June 2004 board meeting. 31:180, 199-201. This testimony is not credible for two reasons: First, both letters discuss creationism, not intelligent design. P56; P60. Geesey failed to explain how references to "creationism" could remind her that the Board had discussed "intelligent design." She obviously concocted this story. Second, she reviewed P60 at her deposition in January, and was questioned about it at that time. 31:203-204. So any claim that it refreshed her recollection in preparation for testifying at trial is false.
  - 276. All of the board members who claimed that the Board never discussed "creationism" at the June board meetings -- in the face of all the evidence to the contrary --should not be believed on this or any other points because their testimony is incredible. 29:68 (Buckingham); 31:152,161 (Geesey); 32:95, 100 (Bonsell); 33:53, 96-97 (Bonsell); 34:44-45 (Harkins).
    - (a) With the exception of Baksa, none of the defendants' witnesses from the Board or administration admitted the truth about the board meetings in June 2004. They claim that the newspaper reports were false, and yet no one from the Board or administration ever sought a retraction or denied the reports in writing until after the plaintiffs filed the lawsuit, almost eight months later. 33:87-95 (Bonsell).
    - (b) The news reporters who covered the board's meetings in the summer and fall of 2004 testified that they were never asked for a retraction or to correct an article. 30:91-93 (Bernhard-Bubb); 31:72-73, 90 (Maldonado).
    - (c) If the board members or administration wanted to contest statements in the newspapers, all they had to do was transcribe the tapes of the meetings, which were available until July 12, 2004, long after the newspaper reports about the meetings on June 7 and 14. 33:106 (Bonsell); P63.
    - (d) The defendants cannot claim that they did not know about the newspaper reports --Bonsell acknowledged the reports, Buckingham admitted the Board knew of the reports, and Nilsen admitted that he clipped and read the articles. 33:71-79 (Bonsell); 29:96-98 (Buckingham); 25:101-02 (Nilsen).
    - (e) Geesey took proactive measures when she thought she had been misquoted in a news story about the board meeting on October 18, 2004. Nilsen testified that she contacted him the next day "immediately" upon learning of the news reports she disputed and she asked him to develop a verbatim transcript of the meeting to prove that she did not say what had been reported. 24:113-14 (Nilsen); 31:172 (Geesey). The failure of any board member to do the same with respect to the June reports provides additional strong evidence that the news reports were true and that the board members who at trial denied those reports are not being truthful.
  - 277. Bonsell, Buckingham, Harkins, and Nilsen molded their testimony to compliment each other. As discussed supra at 176(k), the York newspapers reported in June 2004 that Buckingham made a statement about a man dying on a cross 2,000 years ago at the June 14 board meeting. No one from the Board or administration ever denied this statement, even though they knew about the reports in the newspapers, until January 3, 2005, when plaintiffs took the depositions of Buckingham, Bonsell, Harkins, and Nilsen. 33:87-95 (Bonsell). At the January depositions, each of these witnesses testified that the statement was made at a board meeting in the fall of 2003 or that they could not recall when it was made. 33:96-100 (Bonsell); 29:71-72 (Buckingham); 34:94-95 (Harkins), 25:110-111 (Nilsen). At trial, Bonsell changed his testimony on this point; at his deposition he claimed not to be sure when Buckingham made the statement but at trial he was certain Buckingham made it in 2003. 33:85, 97-100.
  - 278. This testimony of all these witnesses flies in the face of all the evidence that Buckingham made that statement on June 14, 2004. P793/P53; P806/P54; 4:54-55 (B. Rehm); 6:73 (C. Rehm); 6:96 (Eveland); 7:26-27 (C. Brown); 8:63 (J. Brown); 8:105-06 (F. Callahan); 30:105, 107 (Bernhard-Bubb); 31:75, 78-79 (Maldonado); 12:126 (J. Miller); 13:85 (Spahr).
  - 279. Bonsell, Buckingham, Harkins, and Nilsen simply cannot be believed. Their testimony that Buckingham did not make this statement on June 14, 2004 but instead made it in the fall of 2003 could not be true unless two reporters for different newspapers falsely reported that Buckingham made the statement in June 2004 and no less than eight other witnesses -- two science teachers, two former board members, and four plaintiffs all agreed to engage in a conspiracy to lie.
  - 280. The evidence strongly suggests that it was Buckingham, Bonsell, Harkins, and Nilsen who colluded on an account that would mask the Board's religious purpose when they met to discuss their testimony on January 2, 2005 --the night before their depositions. 25:107 (Nilsen). Plaintiffs took those depositions pursuant to a Court Order permitting the depositions on an expedited basis so that plaintiffs could decide whether to seek a temporary restraining order.
  - 281. And when the depositions were concluded and the plaintiffs decided that the conflicts in the factual record prevented them from seeking a temporary restraining order, Nilsen congratulated the board members who had testified for the "great job" they had done testifying. 25:105-06 (Nilsen); P752. "The ACLU is doing a great job of putting a `positive spin' on the situation, but I cannot help but feel gratified that they could not stop the implementation and you know if they could, they would have." P752. In other words, mission accomplished.
- C. Bonsell and Buckingham and the Board Members Who Joined With Them Acted for the Purpose of Offering Students a Religious Alternative to the Theory of Evolution
  - 282. As discussed above, Bonsell and Buckingham clearly intended to change the biology curriculum for the purpose of promoting religion and offering students a religious alternative to the theory of evolution, which offends their personal religious beliefs.
  - 283. Indeed, Buckingham admitted that his primary goal was to provide students with an alternative to evolution to prevent them from accepting the theory of evolution as a fact. 29:39-40 (Buckingham). And Bonsell's concern about the teaching of evolution caused him to raise the subject of creationism at board retreats two years in a row and then meet with the teachers in the fall of 2003 to make sure they were not teaching common ancestry, a concept that offends his personal religious beliefs. See supra at ¶¶ 135-43, 154-55.
  - 284. As the two leaders of the Board the President and the Chair of the Board Curriculum Committee Bonsell's and Buckingham's motive should be attributed to all the Board members who supported the October 18 resolution. Several of those board members Geesey, Cleaver, and Harkins apparently placed their trust completely in Bonsell and Buckingham because they have no basis to question the theory of evolution and they did not understand intelligent design when they voted for it. 31:181-82 (Geesey); 32:49-50 (Cleaver); 34:117-18, 124-25 (Harkins).
  - 285. In addition, the evidence shows that other board members shared Buckingham's and Bonsell's religious motivation:
    - (a) Geesey wrote to the editor of York Sunday News on June 27, 2004, not to challenge the accuracy of a quotation attributed to Buckingham that "this country was founded on Christianity and our students should be taught as such" but to endorse it. 31:158-60, 192-93; P60; P56. Geesey agreed with Buckingham that "our country was founded on Christian beliefs and principles." She confirmed the gist of the Board's debate on the subject by also writing that the district could "teach creationism without its being Christianity. It can be presented as a higher power." 31:158-64 (Geesey); P60.
    - (b) Cleaver invited Charlotte Buckingham to a board meeting where she (Cleaver) intended to speak in favor of introducing prayer in schools, and Cleaver did speak in favor of introducing prayer. C. Buckingham Dep. (4/15/05) at 11-13.
  - 286. All of the facts about the June 2004 board meetings prove that the board members who supported the October 18 resolution acted in a religiously-charged atmosphere for a clearly religious purpose.
- D. Although the Defendants Claim to Have Acted for the Secular Purpose of Promoting Good Science Education, The Record Contains No Evidence That They Ever Had That Purpose
  - 287. Several of the defendants' witnesses claimed that the Board acted to promote good science education. And the defendants in their summary judgment submission claimed to have acted for a number of secular purposes. Defendants' Motion for Summary Judgment at 22.
  - 288. The defendants have never pointed to any evidence to suggest that they ever acted for any purpose other than the religious purpose Buckingham articulated, namely, to provide students with a religious alternative to the theory of evolution.
  - 289. On the contrary, all the evidence suggests that the Board did not have the purpose of promoting good science education:
    - (a) As noted supra at 234 the Board engaged in no discussion about the resolution or how it would promote good science education or any other secular purpose.
    - (b) Other than a legal presentation by the Discovery Institute, the Board received no information or presentation about intelligent design. 33:112 (Bonsell); 30:23 (Buckingham).
    - (c) Harkins, Cleaver, and Geesey did not understand intelligent design when they voted on it, as discussed supra ¶¶ 235, 240-41 and neither did Buckingham. All he could say about intelligent design is that "intelligent design teaches that something, molecules or amoeba possibly, evolved into the complexities of life we have now." 29:11-12 (Buckingham).
    - (d) Neither Bonsell or Buckingham ever spoke to the board members about why they should support the resolution. 33:112 (Bonsell); 30:23 (Buckingham).
    - (e) No materials were made available to the Board to assist in its decision other than a book and a video from the Discovery Institute and there is no evidence that any board members reviewed them. 33:112-113 (Bonsell).
    - (f) No one on the Board or in the administration ever contacted National Academy of Sciences, the American Association for the Advancement of Science, the National Science Teachers' Association, the National Association of Biology Teachers, or any other organization for information about intelligent design or science education. See supra at ¶ 239.
    - (g) Buckingham in his dealings with the Discovery Institute and TMLC never sought any advice about science education he only sought legal advice. 29:133-34; 30:12-14 (Buckingham). This says everything about his motive and the motive of the other board members who supported the resolution if they had truly acted to promote science education there should be some evidence they sought out scientific advice, not legal advice, about whether intelligent design should be included in the curriculum.
    - (h) The Board ignored the advice of the school district science teachers, the Board's only resource on questions of science education. The science teachers did not want to mention intelligent design. 30:31-32 (Buckingham).
    - (i) Bonsell and Buckingham tried to hide the source of the donation of Pandas. See supra at ¶ 271.
    - (j) The Board limited the teaching of evolution to exclude common ancestry, speciation, and macroevolution, all of which conflict with a literal reading of the Bible. See supra at ¶ 233.
  - 290. Given the absence of any evidence that the Board acted to promote good science education or for any other secular purpose, and the plethora of evidence that suggests that the Board in fact had no such secular purpose but instead intended to promote a religious alternative to the theory of evolution, the Court must conclude that the secular purposes claimed by the Board amount to a pretext for the Board's real purpose, which was to promote religion.
- E. Dover's Curriculum Change Does Not Improve Science Education
  - 291. While defendants asserted various alleged interests to justify their intelligent-design policy in their opening statement, 1:24-27, the evidence shows that the board never discussed any interests to justify the curriculum change.
  - 292. Furthermore, the alleged interests justifying the policy, identified in the opening statement, 1:24-27, were unsupported by any testimony from experts in the field of science education or even just general education, as defendants withdrew both of their education experts, Warren Nord and Dick Carpenter, during the trial.
  - 293. Consequently, the testimony of plaintiffs' science-education expert, Dr. Brian Alters, is unrebutted. Additionally, Dr. Miller, as a high-school-biology-textbook author, 1:40-47, and Dr. Padian, who has a masters in education, taught middle-school science for three years and has worked on California's science-curriculum standards and textbook-review committee, 16:43-44, 59, both of whom have also been science teachers at the university level for several decades, are qualified by virtue of their experience in these areas to comment on the Dover policy.
  - 294. Dr. Brian Alters testified for plaintiffs as an expert in the field of science education, particularly the teaching of evolution. Dr. Alters, who has joint appointments at McGill University and Harvard University, has published numerous refereed articles and other writings on science education, has extensive experience in training science educators at all levels, has substantial responsibility for grant programs in the United States and Canada affecting the teaching of science, and has interviewed over a thousand high-school students to understand the how religious views can affect science education. 14:50-68 (Alters); P182 (curriculum vitae). Dr. Alters has also authored several textbooks about how to teach evolution at both the college and high-school levels. 14:62-67. In short, Dr. Alters is eminently qualified to proffer opinions on science education generally, and more specifically about teaching evolution.
  - 295. Pedagogy is the art and science of teaching. 14:70-71. Good pedagogy entails not promoting misconceptions. 14:71. According to Dr. Alters, "There would hardly be anything worse for a science teacher to do than engender needless misconceptions." Id.
  - 296. Both facets of the Dover policy, i.e.,
    - (a) undermining the status of evolutionary theory and (b) promoting intelligent design as a scientific alternative, engender misconceptions because both propositions are inconsistent with the positions taken by every scientific and science-education association in the country.
  - 297. Dr. Alters echoed Dr. Miller's testimony that every major scientific association opposes efforts both to undermine evolution and to promote intelligent design as a scientific alternative. 14:75-78.
  - 298. Dr. Alters testified that every science-education organization has taken a position mirroring those of the scientific associations, namely, opposing efforts to diminish the status of evolution and to promote intelligent design as a scientific alternative. For example, the largest science-teachers' organization in the country, the National Science Teachers Association (NSTA), has taken the position that "'creation science' or related concepts, such as so-called `intelligent design,' `abrupt appearance,' and `arguments against evolution'" should not be taught in science class. P183; 14:90-91. Moreover, NSTA has decried efforts to "diminish" the teaching of evolution through political and community pressure and intimidation. P183; 14:81-85. Specifically, NSTA has stated that requiring teachers to teach that evolution is "only a theory" is "bad educational policy" that will cause "science literacy itself [to] suffer." P183, at 4. The country's largest biology-teachers' organization, the National Association of Biology Teachers (NABT) has taken the same position. P186. Specifically, NABT has said that "intelligent design theory" is "outside the realm of science and not part of a valid science curriculum." Id. Dr. Alters was unaware of any science-education groups that support Dover's policy. 14:99. In sum, Dover's policy finds no support among any scientific or science-education organizations.
  - 299. A further reflection that Dover's policy is unsupported by the scientific or the science-education community can be found in the fact that the only high-school biology texts that promote teaching intelligent design are distributed by religious publishers: the Christian Liberty University Press and Bob Jones University Press. 14:106-107 (Alters). To his knowledge, neither is used in any public school. Id. Dr. Alters is not aware of any college-level biology textbook that teaches evolution as itself controversial, or that supports the teaching of intelligent design. Those that mention intelligent design teach students that it is not science. 14:108-109 (Alters).
  - 300. Contrary to defendants' claim, the Pennsylvania academic standards for teaching science do not support the Dover policy. The Pennsylvania standards require that science teaching be consistent with the consensus in the scientific community. P210; 14:102-103 (Alters). The Pennsylvania standards treat evolution like other scientific theories, and do not single it out for particular scrutiny or treatment as controversial. 14:104-105 (Alters). The Pennsylvania standards do not call for teaching intelligent design. Indeed, the standards require that "theories and laws" must "have been verified by the scientific community," a test that would directly prohibit introducing intelligent design, since every scientific and science-education organization opposes it. P210 at 4; 14:102-105 (Alters). Finally, the requirement in the standards that students be able to "[c]ritically evaluate the status of existing theories" does not support the Dover policy. It does not single out evolution for special, critical treatment, and it certainly does not promote intelligent design. 14:104-05. Consequently, the Pennsylvania academic standards do not justify or support the Dover policy.
  - 301. In Dr. Alters' view, the Dover curriculum change and the four-paragraph statement promulgated to implement it do not promote good science education. 14:109-20. The statement read to students singles out evolution for special and negative treatment. It misleads students about the status of evolution by asserting that it is not a fact and by suggesting that evidence for evolution is controversial. Evolution is "extraordinarily well accepted" by the scientific community, thereby making the second paragraph misleading. Defendants philosophy expert, Stephen Fuller, agreed that telling students that evolution is a theory, not a fact, is "misleading." Fuller Dep, at 111. The third paragraph implies that intelligent design suffers from none of these deficiencies; instead, without any reference to the consensus against teaching intelligent design in the scientific and education community, students are referred to Pandas, which advocates intelligent-design creationism. 14:109-117 (Alters). The curriculum and statement engender misconceptions in students about science education and generally misprepare students for further science education. 14:117 (Alters). The engendering of misconceptions is poor pedagogy. 14:118-19.
  - 302. Professor Ken Miller expressed very similar opinions about the Dover statement. As a prominent high-school-textbook author, Dr. Miller explained that, in his opinion, the policy misleads students about the status of evolution as a scientific theory and that there is simply no scientific basis for introducing students to intelligent design. 2:47-55 (Miller). It "drives a wedge" between students and the practice of science by encouraging great skepticism about science and scientists. 2:53-54. Similarly, Dr. Padian believes the statement is bound to confuse students about science generally and evolution in particular. In his blunt words, it makes them "stupid." 17:48-52 (Padian).
  - 303. Furthermore, the phrasing and juxtaposition of the four paragraphs augments students' perception that evolution is suspect and that the school endorses intelligent design. The first paragraph tells students that they will learn about evolution because state law mandates it. 2:47 (Miller). The second paragraph will be interpreted as "we don't really believe this stuff (evolution), it's a theory not a fact. There are gaps. There's no evidence. We're very skeptical of this." Id. By contrast, the third paragraph discussing intelligent design contains none of the negative and denigrating language attached to evolution, creating the impression that the school supports it. 2:47-48. And the fourth paragraph encourages students to discuss all this with their parents and that, by the way, they are learning about evolution only because it is required by Pennsylvania law. 2:48. Since the lesson on evolution is the only time that students will hear such a disclaimer or warning, the obvious reaction is that this subject matter is suspect. Id. Dr. Alters advanced a similar analysis. 14:109-17.
  - 304. More significantly, Dr. Alters and Dr. Miller agreed that introducing intelligent design invites religion into the science classroom. This was Dr. Alters' "biggest concern." 14:143. Introducing intelligent design sets up what will be perceived by students as a "God-friendly" science, the one that mentions an intelligent designer, and that other science, evolution, that takes no position on religion. 14:144-45. Injecting religious views into the classroom and thus encouraging students to have to take sides about which "science" to accept is "probably the worst thing I've heard of in science education." 14:145.
  - 305. Dr. Miller, who in addition to his many other accomplishments wrote the trade-publication, Find Darwin's God: A Scientist's Search for Common Ground Between God and Evolution, testified that students would "get the message in a flash. ... You got your God consistent theory, and over on the other side, you got your atheist theory, which is evolution. It produces a false duality. And it tells students ... quite explicitly, choose God on the side of intelligent design or choose atheism on the side of science." 2:54-55. Introducing such a religious conflict into the classroom is "very dangerous" because it forces students to "choose between God and science," not a choice schools should be foisting on students. 2:55.
  - 306. Dr. Padian raised other potential religious implications attending the introduction of intelligent design to students. Students are likely to ask whether the inability of animals to evolve naturally points to the imperfection of the creator. 17:50. What does it say about the Creator's ability to intervene in natural processes, and if he (or she or they or it) has that capability why don't they intervene more often to alleviate pain and suffering in the world. Id. In other words, intelligent design invites theological questions, something which is inappropriate for a science class. 17:51.
  - 307. Dr. Alters rejects Dover's explanation that its curriculum change and the statement implementing it are not teaching. He finds, to the contrary, that substantive misconceptions about the nature of science, evolution, and intelligent design are conveyed to students; in his words, the statement "facilitates learning." 14:120-123 (Alters). The statement is a "mini lecture," that may not be good teaching, but is nonetheless a form of teaching. 15:57-59.
  - 308. According to Dr. Alters, the circumstances surrounding the introduction of the evolution unit in ninth grade biology, including the reading of the statement by an administrator, the opportunity that students have to opt-out of hearing that reading, and the text of the statement itself, all heighten the students' learning that evolution is controversial and that intelligent design is being promoted by the district. 14:123-125.
  - 309. Dr. Alters also testified that the school's ban on any discussion of intelligent design, beyond the reading of the statement, by students and teachers gives students the impression that intelligent design is a "secret science." 14:126. Pedagogically, introducing students to a concept and then prohibiting discussion about it is "absurd." 14:127. Defendants' philosophy (but not education) expert, Stephen Fuller, agreed that the ban on discussion undermines the Dover policy's pedagogical value. 28:14.
  - 310. In Dr. Alters' view, the curriculum change and its implementation do not enhance critical thinking, but rather stifle it. 14:127-129 (Alters). It confuses students and engenders misconceptions about the very nature of science. 14:127-32, 142-43.
  - 311. In light of the defendants' failure to present any evidence by Dover officials identifying a secular justification for the policy beyond just "balance the teaching of evolution," and the absence of any expert testimony rebutting plaintiffs' science-education experts who condemned the policy as indefensible from either a scientific or pedagogical perspective, this Court finds that the defendants did not have a valid secular purpose for the intelligent-design policy.
VI. PROPOSED ULTIMATE FINDINGS OF FACT
- - 312. Intelligent design is a religious, non-scientific concept.
  - 313. Intelligent design promotes the religious belief that a supernatural actor intervened in natural history and acted directly to design and create living things.
  - 314. Intelligent design is not only religious, it is sectarian. It promotes the particular religious views held by some but not all believers in Christianity.
  - 315. Intelligent design is a form of creationism, but one that does not expressly identify the designer and creator of living things as the God of the Bible. By description, if not label, however, the intelligent designer also referred to by intelligent-design proponents as the intelligent agent, intelligent actor, master intellect is obviously God.
  - 316. The textbook Of Pandas and People was prepared as a creationist textbook. In drafts of the book, the words "intelligent design" were inserted in place of "creation" and its cognates in numerous places throughout the text following the Supreme Court's 1987 decision in Edwards v. Aguillard, without any meaningful change in content.
  - 317. Intelligent design is part of a national religious and cultural-renewal strategy, as evidenced by the Wedge Document and statements by leaders of the intelligent-design movement, such as Phillip Johnson and William Dembski.
  - 318. Intelligent design posits a supernatural actor as the source of life and the complexity of biological life.
  - 319. Intelligent design does not qualify as science for a variety of reasons:
    - (a) It violates the ground rules of science, as they have been practiced for hundreds of years since the scientific revolution, because it i) posits a supernatural actor as an explanation for natural phenomena and ii) it cannot be tested.
    - (b) It has been universally rejected as science by the scientific community.
    - (c) It finds no support in the peer-reviewed scientific literature.
    - (d) It is not the subject of scientific testing and research.
    - (e) It makes no predictions and offers no explanations other than "the intelligent designer did it."
    - (f) It is primarily a negative argument against evolution.
    - (g) The arguments made against evolution distort and misrepresent the real state of scientific knowledge.
  - 320. Intelligent-design proponents seek to advance intelligent design not to explain the natural world, but as a means of challenging accepted scientific knowledge that they believe conflicts with their religious values.
  - 321. Board members expressed a desire to teach creationism in science class as an alternative to the scientific theory of evolution on numerous occasions, including public meetings in June 2004.
  - 322. Statements attributed to board members and administrators in June 2004 by the York Dispatch and York Daily Record were in fact said by those board members and administrators, as reported.
  - 323. Witnesses who testified on behalf of the defendants did not testify truthfully or accurately about the June 2004 school board meetings and about other events, statements, and circumstances relating to the change to the biology curriculum.
  - 324. The lack of truthfulness by some witnesses for the defendants, including board members, demonstrates an intent to conceal an improper religious purpose.
  - 325. Board members who supported the October 18, 2004 board resolution to change the biology curriculum and the February 2005 newsletter wanted to promote to students at Dover High School and throughout the Dover community a religious alternative to the scientific theory of evolution.
  - 326. Board members ensured that the teaching of evolution at Dover High School would be limited to propositions that did not conflict with their religious beliefs, and prevented the teaching of key aspects of the theory that did conflict with their religious beliefs, such as macroevolution, speciation, and common ancestry.
  - 327. Board members who supported the October 18, 2004 resolution and the February 2005 newsletter sought to denigrate the scientific theory of evolution and promote intelligent design as an alternative because evolution conflicts with their personal religious beliefs.
  - 328. The Board had no secular purpose for changing the biology curriculum.
  - 329. There can be no secular purpose for promoting a religious, non-scientific proposition like intelligent design.
  - 330. Prior to passage of the October 18, 2004 resolution, the Board did not discuss the substance of intelligent design or how promoting it and denigrating the scientific theory of evolution would promote good science education or any other secular purpose.
  - 331. The secular purpose(s) advanced by defendants' counsel as the supposed grounds for the Board's actions are not supported by the evidence and constitutes a pretext to mask the Board's religious purpose.
  - 332. Prior to passage of the October 18, 2004 resolution, the Board did not engage in any investigation or ask any questions that would be expected if its purpose was to improve science education, but instead it rejected the strongly- held views of the district's science teachers, did not consult any other persons with expertise in science education, and relied solely on legal advice from two organizations with religious, cultural, and legal missions, i.e., the Discovery Institute and the Thomas More Law Center.
  - 333. A reasonable objective observer would perceive intelligent design as endorsing a particular religious belief.
  - 334. A reasonable objective observer would perceive the intelligent designer of the intelligent-design movement to be God.
  - 335. A reasonable objective observer would perceive intelligent design as the most recent manifestation of creationism.
  - 336. A reasonable objective observer would perceive that the Dover Area School District Board of Directors devised its intelligent-design policy, including the change to the biology curriculum, the four-paragraph statement read to students and the newsletter sent to the entire Dover community, because it had religious objections to the scientific theory of evolution and wanted to provide students with a religious, or "God-friendly" alternative.
  - 337. A reasonable objective observer would perceive intelligent design, as described in Of Pandas and People and the February 2005 newsletter published by the Board, as referring to God and promoting a particular religious view.
  - 338. A reasonable objective observer would perceive the statement read to students in biology class about intelligent design as religious because the science teachers will not read the statement on ethical grounds, students are told intelligent design should be pursued at home, and the students are not permitted to ask questions about intelligent design or discuss it in class.
  - 339. A reasonable objective observer would perceive Of Pandas and People to be a creationist textbook.
  - 340. The change to the biology curriculum, and the statement read to students, do not enhance science education, and, in fact, harms science education by about how science works, about the status of evolution in the scientific community, and by teaching them that the religious argument of intelligent design is scientific.
  - 341. The change to the biology curriculum harms students by placing science education and scientific knowledge in conflict with religious beliefs.
  - 342. The change in biology curriculum harms students by favoring a particular religious viewpoint, with which some students and their families may disagree.
  - 343. The defendants' actions have had a divisive effect on the Dover community, with many members taking sides in favor of or in opposition to the Board's actions because they either favor or opposed religion in public schools.
  - 344. The plaintiffs, parents of children in the Dover schools, have been harmed by the Board's actions because they interfere or threatens to interfere with their right to instruct their children on matters of faith and religion and because they have been cast as outsiders in the Dover community because they oppose the Board's actions.
VII. PLAINTIFFS' PROPOSED CONCLUSIONS OF LAW
- - 345. The Court has jurisdiction over the parties and the controversy.
  - 346. Plaintiffs have standing to bring their claims.
  - 347. The curriculum change adopted by defendants endorses religion, in violation of the Establishment Clause of the First Amendment to the United States Constitution, 42 U.S.C. § 1983, and Art. I, Sec. 3 of the Pennsylvania Constitution.
  - 348. Defendants' purpose in adopting the curriculum change was to introduce a religious view of biological origins into the biology course, in violation of the Establishment Clause, 42 U.S.C. § 1983, and Art. I, Sec. 3 of the Pennsylvania Constitution.
  - 349. The effect of the defendants' actions in adopting the curriculum change was to impose a religious view of biological origins into the biology course, and broadcast that view to the Dover community in violation of the Establishment Clause, 42 U.S.C. § 1983, and Art. I, Sec 3 of the Pennsylvania Constitution.
  - 350. So-called "intelligent design" is merely a sanitized version of "creationism" or "creation science," and as such may not be taught in public schools, consistent with the Establishment Clause of the First Amendment and Art. I, Sec. 3 of the Pennsylvania Constitution.
  - 351. In order to preserve the separation of church and state mandated by the Establishment Clause, and Art. I, Sec. 3 of the Pennsylvania Constitution, it is necessary and appropriate to enter an order enjoining defendants from implementing their biology curriculum change, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to an alternative theory known as "intelligent design." It is also necessary and appropriate to issue a declaratory judgment that plaintiffs' rights under the Constitutions of the United States and the Commonwealth of Pennsylvania have been violated by defendants' actions.
  - 352. The actions of the defendants in violation of Plaintiffs' civil rights as guaranteed to them by the Constitution of the United States and 42 U.S.C. § 1983 subjects defendants to liability not only with respect to injunctive and declaratory relief, but also for nominal damages and the reasonable value of plaintiffs' attorneys' services and costs incurred in vindicating plaintiffs' constitutional rights.

⁵During her testimony, Cleaver consistently referred to the concept as "intelligence design" although the trial transcript records her as saying "intelligent design." See e.g., 32:17 (Cleaver). [Return]
⁶The letters to the editor and editorials that are exhibits P671, P672, P674, and P675 are relevant to show that the effect of the Board's actions is the promotion or endorsement of religion and thus they should be admitted into evidence for the reasons set forth in the Memorandum of Law in Support of Admissibility of Editorials and Letters to the Editor in the York Daily Record and York Dispatch From the Period June 1, 2004 September 1, 2005, which was filed on October 28, 2005. [Return]

              
                                        Respectfully submitted, 
                                                
                                                
                                        /s/ Eric Rothschild                      
                                        Eric Rothschild (PA 71746) 
                                        Stephen G. Harvey (PA 58233) 
                                        Alfred H. Wilcox (PA 12661) 
                                        Christopher J. Lowe (PA 90190) 
                                        Stacey I. Gregory (PA 90290) 
                                        Pepper Hamilton LLP 
                                        3000 Two Logan Square 
                                        18^th & Arch Streets 
                                        Philadelphia, PA 19103 
                                        (215) 981-[removed] 
                                        rothschilde@[removed] 
                                        harveys@[removed] 
                                        wilcoxa@[removed]  
                                        lowec@[removed] 
                                        gregorys@[removed] 
 
                                        Thomas B. Schmidt, III (PA 19196) 
                                        Pepper Hamilton LLP 
                                        200 One Keystone Plaza 
                                        North Front and Market Streets 
                                        P.O. Box 1181 
                                        Harrisburg, PA 17108 
                                        (717) 255-[removed] 
                                        schmidtt@[removed] 


                                                                                      

                                        Witold J. Walczak (PA 62976) 
                                        ACLU of Pennsylvania 
                                        313 Atwood Street 
                                        Pittsburgh, PA 15213 
                                        412-681-[removed] 
                                        vwalczak@[removed] 
 
                                        Paula K. Knudsen (PA 87607) 
                                        ACLU of Pennsylvania 
                                        105 N. Front St., Suite 225 
                                        Harrisburg, PA 17101 
                                        (717) 236-[removed] 
                                        pknudsen@[removed] 
                                         
                                        Ayesha Khan (adm. phv) 
                                        Richard B. Katskee (adm. phv) 
                                        Alex J. Luchenitser (adm. phv) 
                                        Americans United for Separation of  
                                                Church and State 
                                        518 C St., NE 
                                        Washington, DC 20002 
                                        (202) 466-[removed]
                                        akhan@[removed] 
                                        katskee@[removed]
                                        luchenitser@[removed]
                                         
                                         
                                        Attorneys for plaintiffs:  
                                        TAMMY KITZMILLER; BRYAN AND 
                                        CHRISTY REHM; DEBORAH 
                                        FENIMORE AND JOEL LIEB; STEVEN 
                                        STOUGH; BETH EVELAND; CYNTHIA 
                                        SNEATH; JULIE SMITH, AND 
                                        ARALENE ("BARRIE") D. AND 
                                        FREDERICK B. CALLAHAN 
                                         
 
 
 
Dated:  November 23, 2005

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Kitzmiller v. Dover Area School District

Plaintiffs' Findings of Fact and Conclusions of Law (continued)