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Darwin in the Dock

Intelligent design has its day in court.
December 5, 2005 |
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Courtroom battles about the teaching of evolution rarely have devoted much discussion to the science of evolution. This is partly because few working scientists have been willing to testify against evolutionary theory, and partly because judges have been reluctant to engage the heady question of what constitutes science. Even in the Scopes "Monkey Trial," of 1925, the judge, John Raulston, limited the issue at hand to whether John Scopes, a high-school teacher, had broken a Tennessee law against teaching "that man has descended from a lower order of animal." He refused to consider whether the law made any sense in scientific terms, and rebuffed efforts by the defense attorney, Clarence Darrow, to bring in an array of evolutionary scientists. In Epperson v. Arkansas, the landmark 1968 Supreme Court case in which a biology teacher named Susan Epperson successfully sought to overturn a state law banning the teaching of evolution, the trial in Little Rock lasted less than a day and did not include any scientific testimony. Edwards v. Aguillard, a 1987 case in which the Supreme Court struck down a statute requiring that creationism and evolution be taught side by side in public-school science classes, began in district court with a summary judgment against the Louisiana law, and thus had no testimony at all. Last spring, when the Kansas Board of Education held hearings on the teaching of evolution that were dominated by advocates of intelligent design, evolutionary scientists boycotted them, perhaps to their regret: in November, the Kansas board voted to include challenges to Darwinian theory in the state standards.

Nothing in the background of John E. Jones III-the judge who recently presided in a Harrisburg, Pennsylvania, courtroom over Kitzmiller v. Dover Area School District, the first case to test whether it is constitutional for public-school classes to present the argument of intelligent design-suggested that he would deviate from this pattern. Jones, who is fifty years old, was born in Pottsville, Pennsylvania. His family owns golf courses. In 1995, Tom Ridge, who was then the state's Republican governor, appointed him chairman of the state liquor-control board; in that post, he banned the sale of Bad Frog Beer, because its label shows a frog giving the finger. Yet the trial that Jones oversaw, which took place in a functional courtroom trimmed with teal and white panels, turned out to be rather like the biology class you wish you could have taken. Lawyers spent six weeks posing questions like "What is science?" and "Who was Charles Darwin?" Proponents of intelligent design--the argument that certain features of the natural world are so complex and intricately put together that they must have been deliberately fashioned--claimed that it was a bold new scientific idea that had been unfairly maligned. And scientists who believe that intelligent design is merely a repackaged version of creationism made a case for evolution that was thrilling in its breadth (evidence from homology, modern genetics, molecular biology, the fossil record) and satisfying in its detail (a recently excavated fossil of the oviraptor, a small carnivorous dinosaur of the kind that evolved into birds, depicts the creature brooding over its eggs like a hen).

The trial ended the first week of November. Jones has said that he will render his verdict by the first week in January, which is just before the ninth-grade biology students at Dover Senior High School are scheduled to start their unit on evolution. If Jones sides with the school district, the students will be read a four-paragraph statement casting doubt on the validity of Darwinian theory and touting intelligent design as an alternative. If Jones sides with the plaintiffs, he will establish the precedent that including intelligent design in a public-school curriculum represents a tacit endorsement of Christianity-thus violating the First Amendment, which states, in part, "Congress shall make no law respecting an establishment of religion."

During the trial, which did not have a jury, Jones sometimes joked, in his appealingly growly baritone, about all the science he and everyone else in the courtroom were contending with. One morning, he deadpanned that stopping for an early lunch break would allow for a "nice, long afternoon of expert testimony." After a few hours of instruction from Kenneth Miller, a biology professor at Brown University, Jones observed that his "friends in the jury box"--the reporters--looked "like they could use a little caffeine." When a lawyer for the plaintiffs, Witold Walczak, asked Miller how he would explain to his mother the microbiology he had just been laying out, Judge Jones chimed in, "Or me!" Jones has the rugged charm of a nineteen-forties movie star; he sounded and looked like a cross between Robert Mitchum and William Holden. (According to a local paper, the Judge's wife thinks that Tom Hanks should play him--a not entirely idle bit of speculative casting, since a representative from Paramount Pictures sat through the whole trial, filing dispatches to a potential screenwriter.) Despite his jokes, however, Jones not only allowed copious expert testimony but often seemed keenly interested in it, tilting his head toward the witnesses and raising his eyebrows in mild surprise. He seemed particularly engaged when Kevin Padian, a paleontologist at Berkeley, started showing slides of prehistoric animals-which he called, variously, "critters," "guys," and "paleozoic roadkill"--in order to illustrate that we have a lot of transitional fossils demonstrating the evolution of fish to amphibians and of dinosaurs to birds. And Jones clearly enjoyed Padian's remarks on the educational value of dissecting your Kentucky Fried Chicken (the pointy part of the wing shows where the individual digits of the dinosaur fused together in birds).

You sometimes hear it said that a courtroom is not a proper venue for debating science. In this case, it proved to be an ideal forum. For one thing, it allowed for the close questioning of Michael Behe, the Lehigh University biochemist who is the leading intellectual of intelligent design (and one of the movement's few working scientists). Under cross-examination by Eric Rothschild, a dogged lawyer for the plaintiffs, Behe conceded, for example, that a definition of science that could be expanded to embrace intelligent design could, by the same token, embrace astrology. And he was unable to name any peer-reviewed research generated by intelligent design, though the movement has been around for more than a decade.

The trial also allowed the lawyers to act as proxies for the rest of us, and ask of scientists questions that we'd probably be too embarrassed to ask ourselves. In a courtroom, you must lay an intellectual foundation in order to earn a line of questioning--and so the lawyers stripped matters neatly back to the first principles of science. Considering how often it is said that evolution is "just" a theory, for instance, it is clear that many people either do not know or do not accept the scientific definition of a theory. The lawyers for the pro-evolution side went to great lengths to make the point that, although all science is provisional, a scientific theory is a powerful explanation that unites a large body of facts and relies on testable hypotheses. As Padian testified, it is not "something that we think of in the middle of the night after too much coffee and not enough sleep."

Intelligent design is an argument by inference. If we walk down the beach and see the words "John loves Mary" in the sand--an example offered by the intelligent design textbook "Of Pandas and People"--we can infer that someone wrote them. We can make a similar inference, the textbook claims, when we look at the inner workings of some of nature's niftier products. In intelligent design's precursor forms--the nineteenth-century arguments of the Reverend William Paley, for instance, who rhapsodized about the mechanics of the human eye--the implied author is clearly God. The modern version of intelligent design, however, declines to specify who the master designer might be. Behe and other advocates will freely admit that, for them, the designer of life on earth is the God of Christianity. (Intelligent design, Behe has written, is "less plausible to those for whom the existence of God is in question, and is much less plausible for those who deny God's existence.") But, conceivably, the intelligent designer could be space aliens or a time traveller from the future. It's hard to believe that any proponents of the idea actually believe this.

The example that proponents of intelligent design dote upon is the bacterial flagellum, the outboard-motor-like apparatus that propels some bacteria. This tiny wonder isn't just machinelike, they argue; it is a machine, something that could never have been produced by random mutation and natural selection, no matter how many billions of years you gave it. (Behe has claimed that all its parts would need to be present and working at once for it to function.) During the trial, the flagellum was invoked dozens of times. The cumulative effect of all these return engagements was the opposite of the one intended, however: it began to seem as if the intelligent-design movement had hitched its wagon to one very tiny star--that on the side of evolution you had a vast accumulation of evidence from sundry disciplines, and on the other side you had . . . an extracellular appendage. To be fair, Behe cited a few other examples of "irreducible complexity," like the blood-clotting mechanism. But when one of the lawyers for Behe's side joked that "we could probably call this the Bacterial Flagellum Trial," he was hitting a little too close to home. Indeed, on the penultimate day of the trial, when Scott Minnich, a professor of microbiology at the University of Idaho who was testifying for the intelligent-design side, showed a slide of the bacterial flagellum, Judge Jones offered the dry understatement "We've seen that." Minnich, who up until then had struck a staid, even sombre tone, acknowledged the sentiment: "I kind of feel like Zsa Zsa Gabor's fifth husband. As the old adage goes, I know what to do, but I just can't make it exciting."

Behe's testimony went on for three days--longer than that of any other witness. He certainly looked professorial, with his graying beard and oversized glasses. And he seemed authoritative when he discussed the recondite structures of microorganisms. But under cross-examination Behe sometimes sounded evasive and circumlocutious; he seemed to have trouble hearing challenging questions, and would put his hand to his ear and ask the lawyer to repeat them.

Eric Rothschild kept at him with cheerful mercilessness. "Let's start with the bacterial flagellum," he said at one point. "You've made a point about how complicated and intricate it is?" Behe nodded. Rothschild went on, in a deceptively reassuring gee-whiz tone: "And it really is! I mean, it looks remarkable. But a lot of biological life is pretty remarkable."

Behe saw what he was up to. "That makes me very suspicious," he said.

"You're suspicious about how remarkable biological life is?" Rothschild asked incredulously. Then he marched Behe through a list of biological marvels, whose marvellousness Behe duly acknowledged: photosynthesis; the stars and planets; flowers. Rothschild's point was that arguments expressing astonishment at nature's complexities are obvious and infinitely extendable--why limit yourself to the bacterial flagellum?--and generally considered insufficient as science, however pleasing they might be from a philosophical or aesthetic perspective. When Rothschild added "the entire human body" to his list, saying, "Now, that's an amazing biological structure," Behe gazed upward dreamily and joked, "I'm thinking of examples."

"Hopefully, not mine!" Rothschild responded.

"Rest assured," came the reply.

Rothschild then asked Behe how, exactly, the designer executed his handiwork. Behe declined to speculate, but Rothschild pressed him for specifics, just skirting absurdity. Was the designer limited to making "the blueprint"? ("Well, no, the designer would also have to somehow cause the plan to, you know, go into effect," Behe replied.) Did the designer make each and every protein in the flagellum? (That was a difficult question to address and would require "lots and lots of distinctions to be made.") Did the designer fashion every individual flagellum or just "the first lucky one"? And so on.

In his writings, Behe has noted that his claim that the bacterial flagellum could not have emerged through evolution is open to rebuttal: "To falsify such a claim, a scientist could go into the laboratory, place a bacterial species lacking a flagellum under some selective pressure (for mobility, say), grow it for ten thousand generations, and see if a flagellum--or any equally complex system--was produced." Rothschild asked Behe if he had attempted such an experiment. No, Behe said, with a weary smile; he doubted it would be fruitful, and he preferred to spend his time on other things.

Even if such an experiment were performed and failed to give rise to a bacterial flagellum, Rothschild suggested to Behe, it would hardly be dispositive. "It's entirely possible that something that couldn't be produced in the lab in two years or a hundred years, or even in a laboratory that was in operation for all of human existence, could be produced over three and a half billion years," he said. Behe conceded the point. And that, Rothschild concluded, is precisely why the age of the earth is crucial to any biological theory about the origins and development of life. And yet, Rothschild observed, "it doesn't matter to intelligent design" whether the earth is "billions of years old or ten thousand years old."

"Intelligent design is not a person," Behe retorted. "So it doesn't have feelings like you are describing."

For the vast majority of scientists, the argument against intelligent design starts with the notion that science is bound by methodological naturalism--it looks for natural explanations for natural phenomena, and has nothing to say about the supernatural. This was the foundation the plaintiffs' lawyers had to lay, and they had an ideal craftsman in Kenneth Miller, the Brown biology professor. Miller is the co-author of a best-selling series of high-school and college biology textbooks; students who lug the books around in their backpacks typically refer to them by their cover photographs--the "dragonfly book," the "lion book," and the "elephant book." He is also one of the few prominent scientists willing to debate creation scientists and intelligent-design advocates. (Many mainstream scientists don't want to be bothered to debate something they find as uncontroversial as the theory of evolution. Miller has been doing it for years, aided, perhaps, by his experience as an umpire for N.C.A.A. softball. In that capacity, a recent article on Miller reported, he has had "every foul word in the book hurled at him, and some dirt, too.") He is also a practicing Catholic, and therefore embodies the notion that religion and science are, as Stephen Jay Gould once called them, "non-overlapping magisteria." Miller, who is slim and has a neatly trimmed salt-and-pepper beard, addressed counsel on both sides as "sir," made delicate scholarly jokes that weren't too geeky, and answered each question with undiminished energy, as though he'd heard it before, but not that day, so, really, it was as fresh and interesting as ever. He has a firm voice and a forthright way of putting things: after noting that 99.9 per cent of the organisms that have ever lived on earth are now extinct, for instance, he said that "an intelligent designer who designed things, 99.9 per cent of which didn't last, certainly wouldn't be very intelligent."

Under direct examination by Walczak, one of the plaintiffs' lawyers, Miller described the tenets of science: practitioners seek their explanations in what can be observed, tested, and replicated by others.

"These rules don't apply just in the United States?" Walczak asked.

"No, sir, they don't," Miller said. "I think science might be the closest thing we have on this planet to a universal culture."

"Why are these rules important?" Walczak said.

"If you don't have these rules, you don't have science," Miller explained. "If you invoke a nonnatural cause--a spirit force or something like that--in your research and I decide to test it, I have no way to test it. I can't order it from a biological-supply house. I can't grow it in my laboratory."

"So supernatural causation is not considered part of science?" Walczak asked.

"I hesitate to beg the patience of the court with this, but, being a Boston Red Sox fan, I can't resist," Miller said. "One might say, for example, the reason the Boston Red Sox were able to come back from three games down against the New York Yankees was because God was tired of George Steinbrenner and wanted to see the Red Sox win. In my part of the country, you'd be surprised how many people think that's a perfectly reasonable explanation for what happened last year. And you know what? It might be true. But it certainly is not science . . . and it's certainly not something we can test." Judge Jones, who did not interrupt this exchange, appeared to be suppressing a smile.

In the fall of 2003, the assistant superintendent of the Dover Area School District, a pleasant but persistent fellow named Mike Baksa, began making frequent visits to Dover High when the science teachers were having lunch. Bryan Rehm, who taught physics and environmental science at the time, recalled Baksa's talking to them about "biology, biology, biology"--in particular, about the board's concerns with the evolution unit. Bertha Spahr, a chemistry teacher who has taught at Dover for forty-one years, had heard from Baksa before. At the trial, she testified that he wanted to give her "a heads-up that there is a member of the school board who is interested in having creationism share equal time with evolution." The school-board official was Alan Bonsell, a conservative Christian who owns a radiator-and-auto-repair shop.

Spahr has short brown curls, an alert, birdlike manner, and, it seems, a strong aversion to what she considers nonsense. Her fellow-teachers call her Bert. "In Bert's class, it's her way or no way," her younger colleague Jen Miller told me. "But I can't tell you how many kids she's taught who have gone into chemistry or science because of her." On the stand, wearing a black pants suit with an austere gold pin, and replying precisely and astringently to cross-examination, Spahr recalled her annoyance with another member of the school board, Bill Buckingham, this way:

SPAHR: He had asked more than once if we teach man comes from a monkey. In response to that, in utter frustration, I looked at Mr. Buckingham and I said, "If you say man and monkey one more time in the same sentence, I'm going to scream." He did not do that, and I didn't have to. QUESTION: And that's because you're Italian, Mrs. Spahr, is that right? SPAHR: Sicilian.

It was in 2002, Spahr testified, that she first sensed a new and censorious attitude toward evolution in Dover, a town of nineteen thousand people in a largely rural corner of York County. That August, she learned that a janitor had removed and burned a student's classroom mural depicting the ascent of man-hominid ancestors evolving into modern humans. She testified that when she complained to the school superintendent, Richard Nilsen, she was told to mind her own business.

At the trial, Rehm said that he and his colleagues kept telling Baksa, "We're not going to balance evolution with creationism. It's an inappropriate request...There's no educational purpose for it." Yet "the next day or two days later," he said wonderingly, Baksa would be "back at lunch again with the same questions and the same concerns." Eventually, school-board members started passing on to the teachers, via Baksa, various materials, among them a video called "Icons of Evolution," a critique of Darwin based on a book that has been roundly dismissed by mainstream scientists, and a list of biology textbooks used by Christian schools. Jen Miller, a Dover biology teacher for thirteen years, testified that Bill Buckingham complained to her about a note in the teachers' edition of the biology textbook suggesting that students discuss what adaptations humans might undergo if they were sent to other planets. Buckingham didn't like the idea, Miller said, because "if we were asking students to do that, it showed man evolved and that kind of thing."

Miller started reconsidering lesson plans that had worked well for her in the past. She had been fond of a time-line exercise in which she took her students into the hall and laid a long thin strip of tape on the floor; everybody helped write in dates for the origins of the earth and of various species. The exercise made explicit the standard scientific theory about the age of the earth: four and a half billion years, as opposed to the six to ten thousand years generally proposed by creationists. Miller, who found the relentless push and pull with the board stressful, dropped the time line. "I had never experienced anything like this before," she told me. "Up till then, I had always been very comfortable in my own classroom."

Robert Linker, an amiable and generally relaxed young biology teacher, who was also the school's wrestling coach, was getting nervous, too. Typically, he had started off the evolution unit by drawing a line on the blackboard. On one side he'd write "Evolution" and on the other side "Creationism." Evolution was based on the fossil and DNA record, and creationism was based on the Bible. Evolution, he'd say, is what we discuss in this class. Creationism was something to take up elsewhere--at home or in church. Feeling pressure from the school board, he stopped doing that. "I just felt there was some controversy, because I had to go to two meetings and, for the first time, tell how I taught a particular subject," Linker testified. "I didn't know if I was really doing something wrong with writing that 'creationism' word on the board."

By June, 2003, what had been unfolding as a behind-the-scenes struggle at Dover High was becoming public. At a June 7th meeting, the school board discussed adopting a new biology textbook, and Buckingham complained that the book-co-authored by Kenneth Miller-was "laced with Darwinism." Max Pell, a former Dover High student and current Penn State student, stood up to protest; according to several witnesses, Buckingham asked him if he'd ever heard of brainwashing, and suggested that it was happening at places like Penn State, which taught evolution over and over until it was accepted as fact. At a June 14th meeting, which was attended by a hundred Dover residents, the two local newspapers reported that Buckingham said, "Two thousand years ago, someone died on a cross. Can't someone take a stand for Him?" After the meeting, he told a reporter, "This country wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity, and our students should be taught as such." On the stand, Buckingham admitted that he had made those statements, but claimed that he had made them at an earlier board meeting. A number of witnesses recalled his making both statements. And virtually everyone who spoke at the trial about that June meeting recalled that during public comment Buckingham's wife, Charlotte, had delivered a long and emotional speech in which she quoted Scripture and declared evolution to be incompatible with the Bible. Some people recalled her asking how Dover could teach anything but creationism.

This summer, Buckingham quit the school board and moved to North Carolina, several months after announcing that he was in rehab for an addiction to the painkiller OxyContin. On the stand in Harrisburg, Buckingham, who wore a tan blazer with a pin of an American flag within a cross, was subdued, at times to the point of inaudibility. He insisted that he had wanted intelligent design, not creationism, to be taught in the Dover schools. He and two other board members, Alan Bonsell and Sheila Harkins, all testified that they simply wanted students to be aware of flaws in the Darwinian model; even if they themselves knew little or nothing about intelligent design--on the stand, Harkins acknowledged that she didn't have a definition of intelligent design in mind when she voted for it, adding, "I still don't today"--they thought that awareness of the argument would foster critical thinking. Buckingham said, "I didn't want the students to hear just [about evolution] because they would accept it as fact when there is another viable scientific theory out there called intelligent design. I wanted them to have more of a well-rounded education."

At one point, under cross-examination, Buckingham staunchly maintained that no board member had ever spoken in public, or to another board member, about creationism. This was an awkward moment, since two witnesses-one for the defense and one for the plaintiffs-had already testified that the board's president, Alan Bonsell, had mentioned creationism and school prayer at a board retreat. It became more awkward still when a lawyer for the plaintiffs showed a video clip from the local FOX affiliate, in which Buckingham, who was being interviewed, clearly says, "It's O.K. to teach Darwin, but you have to balance it with something else, such as creationism." Buckingham claimed that this comment had been accidental: he had been "like a deer in the headlights," trying so hard not to say the word "creationism" that he couldn't help but blurt it out. A Freudian slip? the plaintiffs' lawyer Steven Harvey asked him. No, Buckingham replied: a "human one."

In the end, it wasn't very hard for the plaintiffs to make the case that several of the school-board members had been eager to see creationism added to the curriculum and, after discovering that the idea was legally problematic, had latched on to the term "intelligent design." For example, in June, 2004, a board member named Heather Geesey sent a letter to one of the local papers, in which she argued, "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 speculation 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."

On October 4, 2004, Alan Bonsell announced at a school-board meeting that the district had received an "anonymous" donation of sixty copies of the textbook "Of Pandas and People," by Percival Davis and Dean H. Kenyon. (A typical paragraph reads, "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.") Bonsell later admitted, in a deposition, that the donor was his father.

At the trial, Bill Buckingham revealed that he had been involved in the acquisition of the textbooks. He testified that he had stood up in front of his church one Sunday and said that there was "a need" for money to purchase copies of "Pandas." ("I said, 'If you want to give money, fine. I'm not asking for any, I'm not telling you to give any, it's up to you,'" he recalled on the stand.) The congregation donated eight hundred and fifty dollars, which Buckingham gave to Bonsell, who handed it over to his father. In his deposition, Bonsell had not been forthcoming about where the money came from--nor was he candid about the matter at another board meeting, when he was asked who the donor was. (By the end of the trial, counsel for the plaintiffs had said "That's not what you said in your deposition" so many times that one of them finally made a joke out of it. When Eric Rothschild asked Mike Baksa whether something had caused his "antennae" to go up, Baksa joked that he didn't have antennae. "That's not what you told me at your deposition," Rothschild intoned portentously.)

On October 18th, the school board voted to make students "aware of gaps/problems in Darwin's theory and of other theories of evolution, including, but not limited to, intelligent design." Teachers of ninth-grade biology would have to read their students the following statement:

The Pennsylvania Academic Standards require students to learn about Darwin's Theory of Evolution and eventually to take a standardized test of which evolution is a part. Because Darwin's Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the theory exist for which there is not evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations. Intelligent Design is an explanation of the origins of life that differs from Darwin's view. The reference book "Of Pandas and People" is available in the library along with other resources for students who might be interested in gaining an understanding of what Intelligent Design actually involves. With respect to any theory, students are required to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.

It was, as its defenders like to point out, a one-minute statement. Plenty of students would just tune it out. It was also a statement that, as its detractors argued, was singular in the high-school curriculum. Evolution was the only scientific theory that the Dover school district was expressing any reluctance about teaching. Of all the scientific theories that the students would learn about in ninth-grade biology, only this one was declared to be riddled with "gaps"--gaps for which, confusingly, there was "not evidence."

Over the next several months, four board members--including Angie Yingling, who had initially voted with the majority, then reversed her position-announced their resignations, claiming that Buckingham and his supporters were accusing them of atheism or a lack of patriotism. Yingling said at the time that she saw a religious agenda "spiralling out of control."

In a tense exchange with the school board, the teachers at Dover High had tried to modify the language of the disclaimer that was to be read to students. They liked a sentence that Mike Baksa, the perennial middleman, had written into the draft of the statement: "Darwin's theory of evolution continues to be the dominant scientific explanation of the origin of the species." They also supported including the word "yet" before the word "evidence" in the sentence "Gaps in the theory exist for which there is not evidence." The board declined to adopt these compromises. Students would be allowed to leave the classroom when the statement was read, but the teachers consid

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