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PHILADELPHIA � A federal judge in Harrisburg ruled Tuesday that a public school board’s policy on intelligent design was an unconstitutional endorsement of religion in violation of the First Amendment. Citing “overwhelming” evidence that intelligent design is a religious view, “a mere re-labeling of creationism, and not a scientific theory,” the judge concluded the concept has “utterly no place in a science curriculum.” Stephen Harvey, a Philadelphia lawyer who led the plaintiffs’ trial team, said the ruling reaffirmed the constitutional principle that public servants should not use their public office to impose their religion on others. The other plaintiffs’ lawyers were Eric Rothschild, who, like Harvey, practices at Pepper Hamilton in Philadelphia; Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania; and Richard Katskee, an attorney with the Americans United for Separation of Church and State. In his 139-page opinion in Kitzmiller v. Dover Area School District, U.S. District Judge John E. Jones III enjoined the Dover Area School Board from maintaining the intelligent design policy in any of its schools. The board required that biology students hear a four-paragraph statement noting gaps in Darwin’s theory of evolution and mentioning an “alternative theory of evolution” � intelligent design. “ID,” as it’s sometimes called, asserts that living things exhibit systems of such complexity that they must have been deliberately engineered by an intelligent agent. Jones noted the defendants could be liable for the plaintiffs’ attorneys fees, which have been estimated to exceed $1 million. John Witte Jr., who directs Emory University’s Center for the Study of Law and Religion, suggested that Kitzmiller v. Dover Area School District will be regarded as the Scopes case of the 21st century � “celebrated and lamented alike as the case that commanded not only the separation of church and state but also the alienation of religion and science.” The declaratory judgment is unlikely to be appealed by the new school board elected last month to replace those who instituted the divisive policy, the board president said Tuesday. If it is appealed, “I can’t think of any panel on the moderate Third Circuit who would think about overturning this thing,” said Gregory Magarian, who teaches constitutional law at Villanova University School of Law. The school board’s lawyer is Richard Thompson, president of the Thomas More Law Center in Ann Arbor, Mich. He told The Associated Press Tuesday that he would like to appeal the ruling, but the decision is up to the school board. “What this really looks like is an ad hominem attack on scientists who happen to believe in God,” Thompson said of Jones’ ruling. The Discovery Institute, a think tank that promotes intelligent design, issued a statement calling Jones an “activist federal judge.” It charged that Jones reached “well beyond the immediate legal questions before him” and mounted a soapbox to “offer his own views of science, religion and evolution.” Jones anticipated this attack, stating in the opinion that this is “manifestly not an activist court.” Rather, the case “came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the board to adopt an imprudent and ultimately unconstitutional policy.” Eleven parents sued the Dover Area School Board last year, charging that it violated the Establishment Clause of the First Amendment and a similar clause in the Pennsylvania Constitution when it voted to present “inherently religious” information to students, according to the complaint. The Dover board vigorously defended its policy during the six-week trial, saying ID is a scientific theory and that merely mentioning it at the start of a ninth-grade science unit on evolution does not infringe on constitutional rights. Legal experts said Jones’ constitutional analysis was thorough; sensitive to the context of the case; and largely followed standard, textbook logic. Jones conducted an endorsement test, which the Third Circuit has applied in recent years to help gauge whether challenged governmental conduct improperly endorses or disapproves of religion. The judge traced the history of the intelligent design movement and concluded that “it describes ID as a religious argument.” “Although proponents of the [intelligent design movement] occasionally suggest that the designer could be a space alien or a time-traveling cell biologist, no serious alternative to God as the designer has been proposed by members of the [movement], including defendants’ expert witnesses,” Jones wrote. In great detail, Jones described the history of the ID policy adoption, as well as its presentation in class and to the community via newsletter. He concluded that an objective student and an objective adult in the Dover community would view the school district’s disclaimer regarding intelligent design as a “strong official endorsement of religion.” He analyzed the four-paragraph statement read to biology students and found the disclaimer misrepresents the status of the theory of evolution in the scientific community. Jones said the statement also causes students to doubt evolution’s validity without scientific justification and presents them with a “religious alternative masquerading as a scientific theory.” However, Witte said Jones imputed “rather remarkably detailed and discerning knowledge of current events” to the average high schooler in Dover. That is, Jones describes students and Dover citizens much like those in Garrison Keillor’s Lake Wobegone � “considerably better than average” � in understanding what was really going on in the case. “It is hard to square this judgment with the court’s repeated statements that many of the school board members themselves” didn’t have full access to the facts and were misled by a small faction of religious zealots, Witte said. Magarian thought Jones did a good job of reading the case from the perspective of a “real-life, flesh-and-blood 14-year-old.” For example, a student would notice that a disclaimer isn’t read before other topics are discussed in class. Jones wrote: “An objective student observer would accordingly be observant of the fact that the message contained in the disclaimer is special and carries special weight. In addition, the objective student would understand that the administrators are reading the statement because the biology teachers refused to do so on the ground that they are legally and ethically barred from misrepresenting a religious belief as science.” Jones found the district’s conduct also failed the test articulated by the 1971 U.S. Supreme Court in Lemon v. Kurtzman by consciously choosing to change the biology curriculum to advance religion. The board attempted to persuade the judge that each board member who voted for the curriculum change did so for the secular purpose of improving science education, but Jones found this incredible. “Any asserted secular purposes by the board are a sham and are merely secondary to a religious objective,” Jones wrote. He added that the citizens of the Dover area were “poorly served” by the board members who voted for the ID policy, noting the irony that “several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID policy.” Jones devoted a substantial chunk of his opinion to why ID � although an “interesting theological argument” � is not science. Witte said this analysis “seems unnecessary.” “The First Amendment question is not whether ID is a science but whether it is a religion,” Witte said. “Having decided that ID is a religion, and thus can have no place in the public school, should have been the end of the constitutional inquiry.” But Jones highlighted how the ID concept has failed to appear in peer-reviewed scientific journals or gain acceptance in the scientific community. “Notably, every major scientific association that has taken a position on the issue of whether ID is science has concluded that ID is not, and cannot be considered as such,” Jones explained. Defense experts admitted that the ID movement aspires to change and broaden the ground rules of science to allow consideration of supernatural forces. They conceded that ID is not a theory as defined by the National Academy of the Sciences and that it is “at best” a fringe science, Jones observed. “It is therefore readily apparent to the court that ID fails to meet the essential ground rules that limit science to testable, natural explanations,” he concluded. Furthermore, just because scientists today can’t explain how biological systems evolved doesn’t mean they can’t or won’t be able to explain them tomorrow, Jones said. That is, the absence of evidence to explain all details of evolution doesn’t mean that evidence doesn’t exist. Jones discredited the argument of the lead defense expert, microbiologist Michael Behe of Lehigh University, that the irreducible complexity of some biological systems supports ID. Jones was also unconvinced by the assertion that the design of biological systems can be inferred by the “purposeful arrangement of parts.” “ID is reliant upon forces acting outside of the natural world, forces that we cannot see, replicate, control or test, which have produced changes in this world,” Jones reasoned. “While we take no position on whether such forces exist, they are simply not testable by scientific means and therefore cannot qualify as part of the scientific process or as a scientific theory.” Jones reiterated that he was expressing no opinion on the veracity of ID as a “supernatural explanation.” ID’s proponents urge educators to “teach the controversy” among the alternatives to Darwin’s theory of evolution, arguing this is a valid secular purpose permitted under the law. Jones said this is an attempt to “avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class,” Jones wrote. “This tactic is at best disingenuous, and at worst a canard. The goal of the (intelligent design movement) is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID.” The Associated Press contributed to this report. Melissa Nann Burke is a reporter with a Recorder affiliate based in Philadelphia.

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