JURIST Guest Columnist David DeWolf says that the Kitzmiller intelligent design case may settle whether the Pennsylvania school district that put "intelligent design" into its curriculum was acting under impermissible religious animus, but it may not settle whether teaching the origins controversy is actually unconstitutional…

On Friday, November 4, the trial of Kitzmiller v. Dover Area School Board came to a close. Barry Lynn, Executive Director of Americans for Separation of Church and State, has predicted that Kitzmiller "will prove to be the death knell for intelligent design . . . it will put an end to intelligent design in public schools." Is he right?

To begin with, what is actually at stake in Kitzmiller? The plaintiffs have made two basic claims. The first is that the policy adopted by the school board resulted from religious animus. One of the board members, Bill Buckingham, was quoted as having said, "Two thousand years ago, someone died on a cross. Can't someone take a stand for him?" At trial Buckingham denied that this statement was made in reference to the policy regarding intelligent design, but Judge Jones will ultimately weigh the facts to determine whether the policy had a secular purpose. Although both sides have predicted that the case could go all the way to the US Supreme Court, if the judgment is based on factual findings that are not clearly erroneous, a successful appeal is unlikely. If the policy resulted from religious animus, it is unconstitutional. But such a finding (if it were made) would say nothing about the nature of intelligent design itself. By analogy, suppose the school board hired only Norwegians, and the judge found that this was a result of discriminatory animus; would anyone argue that it had been shown that it was unconstitutional to hire Norwegians?

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But the plaintiffs have made a second, broader claim. Their witnesses testified that intelligent design is not science; that it had "evolved" from creationism in order to evade the legal impact of Edwards v. Aguillard; and that it is an inherently religious belief that has no place in a science curriculum. By contrast, the school board presented witnesses who explained the scientific basis of design theory (the application to biology of clearly established methods for detecting the action of an intelligent agent); the benefit to science of permitting minority views; and the benefit to students from developing critical thinking skills. Fascinating as the trial testimony was, it is unclear that Judge Jones will answer the questions that formed the title of an article my co-authors and I published five years ago in the Utah Law Review, Teaching the Origins Controversy: Science, Or Religion, Or Speech? [PDF]. If Judge Jones does answer these questions, then the losing party will likely appeal the decision, and the Supreme Court could revisit some of the questions that were first raised in Edwards v. Aguillard.

If it does, we can predict one thing with confidence: the court will not say, as it blithely did in Edwards, that the proffered secular purpose of the state's action–to protect the academic freedom of teachers — was a "sham" because teachers already possess the flexibility "to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life." In Dover the ACLU denied that even the school board had such freedom. Defense of the right to teach evolution has devolved into what I sometimes refer to as "compulsory chapel for Darwinism." Although this state of affairs appears not only acceptable but obligatory in the eyes of major science organizations, it continues to irritate the public, i.e. the voters. When the state boards of education in Ohio and Kansas were presented with the "teach-the-controversy" alternative, despite massive lobbying they ultimately gave the people what they wanted. And when Senator Rick Santorum introduced an amendment to the No Child Left Behind Act in support of teaching the controversy, it passed 91-8.

Meanwhile, a new battlefront has opened up: higher education. In the past, the proposals to present ID to high school students was criticized as premature until ID had established itself in the academic and scientific communities. But now censorship is applied even to the few scientists who are brave enough to publicly promote ID. Recently the president of the University of Idaho issued a letter instructing students, faculty and staff that "[t]eaching of views that differ from evolution . . . is inappropriate in our life, earth, and physical science courses." Similarly, Cornell University's Interim President devoted his 2005 "State of the University" Address to a condemnation of intelligent design, claiming it is "not valid as science" and "a religious belief masquerading as a secular idea." He called on the Cornell community to study "the background conditions that have put rational thought under attack." Instead of denouncing a clear assault on academic freedom, Jonathan Knight from the AAUP stated that whether something is scientifically grounded is determined "by what the community of scholars determines by decades of testing." In other words, you have academic freedom — to teach what the majority thinks. On the Animal Farm of academia, apparently, all pluralism is equal, but some pluralism is more equal than others. Ironically, studies show that students actually learn evolution much better when they are taught using a "teach the controversy" approach (see, for example, a recent study in Bioscience reported at www.EurekAlert.org). And by escalating the campaign to suppress the controversy, ID opponents have only strengthened the case for public intervention to protect the right to teach the controversy. The stage is now set for a broad defense of academic freedom, one that the public heartily supports. The ACLU will be hard put to show that such an approach is unconstitutional.

Five years ago when my co-authors and I published our law review article on "teaching the origins controversy," we proposed a hypothetical "John Spokes", a latter-day John Scopes of &quot
;Monkey Trial" fame who wanted to teach the controversy but sought guidance from his school board as to whether he was on legally safe ground. Kitzmiller is unlikely to answer his question; but sooner rather than later the answer is likely to be "Yes."

David DeWolf is a law professor at Gonzaga University School of Law and a Senior Fellow of the Discovery Institute
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