Could Kitzmiller Have Happened Five Years Earlier? Part 2

In part 1, I described how Kanawha County, West Virginia, almost anticipated Dover, Pennsylvania, in provoking the first legal case over the constitutionality of teaching “intelligent design” in the public schools. After a proposed equal-time-for-creation-science policy was unsuccessful in 1999, local Kanawha creationists regrouped with a campaign to press for the purchase of copies of the creationist textbook Of Pandas and People. NCSE was asked to inform the school district about what was wrong with the textbook, and complied, with Molleen Matsumura sending a superb detailed letter and plenty of supporting information to the superintendent of schools. What was the upshot?

In April 2000, the superintendent announced that the books would not be purchased, over the laments of the Discovery Institute and the author of the letter to the editor of the Charleston Gazette, quoted in part 1. Undaunted, creationists in the district next proposed purchasing fifty copies of Pandas and donating them to the local libraries. I couldn’t find in our files any indication whether this had actually occurred, but if it had, it would have been only one book per county school library, which is not something to worry about. Assembling enough books for a whole classroom implies intent to present the material; while the presence of one book in the library is relatively innocuous. (It’s still not a good idea for school libraries to afford space to creationist books, since there usually is limited space, and unlike public libraries, school libraries need to support the curriculum.) In any case, that seemed to be the end of the matter.

As I perused the file on the Kanawha incident, I kept noticing the parallels to the Dover, Pennsylvania, story. Dover Area School Board members first proposed teaching both creationism and evolution “as theories,” or to “balance” each other. When that failed, they proposed purchasing Pandas, but there was pushback from teachers as well as some community members. To avoid controversy over spending district money, a board member arranged for sixty copies of Pandas to be donated to the district. Initially intended for the classroom, they wound up in the library! The final important similarity is the offer of legal representation for the board by the Thomas More Law Center—pro bono, of course. Other parallels exist: NCSE advised citizens in the county and in Dover, and we also worked in both communities with the state ACLU and Americans United for Separation of Church and State.

Well, most of you know how Dover turned out (if you don’t, there’s lots of information on the Kitzmiller v. Dover decision and supporting materials on NCSE’s website here). The Dover Area School District lost resoundingly and ended up paying over a million dollars in costs. But five years previously, a district in West Virginia had flirted with purchasing Pandas and teaching “intelligent design.” Wisely, it decided not to do either. But what if Kanawha County had not had the good sense to reject “intelligent design”? What if the test case for the constitutionality of teaching “intelligent design” had occurred in 2000 in West Virginia rather than in 2005 in Pennsylvania? I’d like to think that the result would have been the same: our legal position still is superior to theirs, but there is more to a legal decision than the quality of arguments (shocking as that may seem!).

Would we have had a judge as fair-minded as John E. Jones III? Perhaps. Perhaps not. I recall once meeting a federal district court judge who was fully persuaded that “intelligent design” was a valid scientific position. What if we had been assigned a judge whose mind was already made up? Having the best arguments is important, but it’s important that those arguments be heard fairly. The facts of the case are also critical, and the facts would of course be different. The egregious behavior of some of the Dover board members—including even outright lying under oath—contributed to the decision as well, and although the scientific and pedagogical testimony would be the same, the legal devil is in those factual details.

My gut feeling is that the result might have been quite different with a different case in West Virginia, even if the science would not have been. I think we still would have won—but I’m glad we got the case we got. Ten years on, the decision in Kitzmiller v. Dover stands as a crushing rebuke to the ambitions of the “intelligent design” movement to have what are, fundamentally, creationist attacks on and misrepresentations of evolution taught as scientifically credible in the public schools.