Was the Discovery Institute seeking a test case before Dover?

@swamidass’ recent post about Dover reminded me of this question, that had been bugging me since the last time that Dover came up on this forum.

Whilst the DI has since disavowed Dover (and was on record at the time as “oppos[ing] mandating [ID] in schools”), my (admittedly now fuzzy) memory was that, at the time, they were known to be seeking a test case on the issue. So I did some scratching around and came up with this from Barbara Forrest:

Philosophers expect to be in classrooms, not courtrooms. Yet in October 2005 I found myself in federal court as an expert witness for the plaintiffs in *Kitzmiller et al v Dover Area School District*. As the co-author of *Creationism’s Trojan Horse*, which documents that "intelligent design" (ID) is both a religious belief and an extension of traditional creationism, I was called to demonstrate this to Judge John E Jones III, who presided over this first ID legal case. While writing the book, my co-author Paul Gross and I knew that creationists at the Discovery Institute’s Center for Science and Culture (CSC) had worked for almost a decade to foment a legal test case. This is part of their plan to undermine the teaching of evolution and to "renew" American culture by restoring what they believe is the country’s properly religious foundation. We had therefore taken care to solidify our argument with the best evidence available: the words of ID creationists themselves. This evidence proved invaluable in my testimony as a *Kitzmiller* expert witness.

My Role in Kitzmiller v Dover | National Center for Science Education – my emphasis

Is it possible that the DI started off seeking a test case, but after finding the Dover Board, and offering DI Fellows as expert witnesses, got cold feet (due probably to the fact that the Board, on closer examination were too blatantly religious and too much loose cannons to be an ideal defendent, compounded by Thomas Moore’s involvement), so decided to disavow Dover and moderate their language on ID in schools? Then after Dover turned out to be such a disasterous defeat, abandoned the whole idea of a test case.

This would seem to be a reasonable explanation of the original involvement of five DI Fellows, including the director of their CSC.

Looking at Creationism’s Trojan Horse, I find three occasions where Forrest & Gross mention the possibility that the DI is looking for a test case, including this (still extant) direct quote from 2002:

"All we need is one state to stand up and say we are going to permit academic freedom on this issue, a test case." -- Mark Edwards, spokesman for the Discovery Institute

Am I missing something in this analysis?

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@puck_mendelssohn seems to be the authority on the DI’s court strategies.

I guess you are aware of the “wedge” document that leaked into the public domain in 1998.

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I was, but hadn’t read it in a number of years. I presume you mean the following passage:

Phase III. Once our research and writing have had time to mature, and the public prepared for the reception of design theory, we will move toward direct confrontation with the advocates of materialist science through challenge conferences in significant academic settings. We will also pursue possible legal assistance in response to resistance to the integration of design theory into public school science curricula.
(My emphasis)

Phases I & II were identified with “the next five years (1999-2003)”, so 2005 for a Phase III lawsuit doesn’t seem out of keeping.

It’s interesting that the original language was “time to mature” and the later disavowal of ID in school was stated as because its “a relatively new concept” ( AP Cites Discovery Institute’s Opposition to Dover School Board Policy | Discovery Institute ).

It would seem that they thought back in 2002 that their “research and writing” was sufficiently “mature” to provoke a lawsuit, but as one that they seemed to have helped provoke came into reality in late 2004, they decided that no it wasn’t.

One wonders if, now in 2020, they think their body of work is finally mature enough for a lawsuit. My overall impression is that ever since Dover they’ve been completely gun-shy on the topic.

Interestingly enough, Barbara Forrest wrote a review of Darwinism, Design, and Public Education for Integrative and Comparative Biology in 2004:

It explicitly mentions the DI’s Wedge-inspired desire for a test case. It also states the following:

Nonetheless, DeWolf et al. argue in DDPE that teaching ID in public schools is not only legal but mandatory, asserting that Edwards does not apply because “design theory is not based on a religious text or doctrine” (a claim I refute elsewhere). Conveniently for non-productive Wedge scientists, DeWolf et al. assert that “the legal and educational point at issue is not whether design theorists are right in their scientific claims but whether their work may be discussed in science classrooms of public high schools.” On the contrary, whether they are right on the science is at issue, and they are not right. But scientists will not be burdened with making that assessment: the authors place the responsibility of scientific peer-review on the backs of teachers and school boards, who must assess “the work of scientists such as [Michael] Behe, [Dean] Kenyon, [Charles] Thaxton, [Walter] Bradley, [Stephen] Meyer, [Paul] Chien, [Jonathan] Wells, [William] Dembski and others” to determine whether it has “a legitimate place in a public school biology classroom.” Among those named, Meyer and Dembski are not scientists at all; and the others, who are, have produced no ID science to review.

DeWolf et al. close on a further deceptive note, suggesting that prohibiting ID in public schools makes a lawsuit more likely than allowing it. Casting the issue as one of academic freedom and “viewpoint discrimination,” they assure readers that “a school board that encouraged an open discussion of the issue [Wedge code for teaching ID], consistent with the best science, would reduce the likelihood of litigation by any party.” The Discovery Institute's goal, however, is not to prevent but to precipitate a lawsuit. The Wedge strategy is to persuade school boards that “teaching the controversy” will reduce the likelihood of litigation—knowing full well that a board's adoption of ID under any guise virtually guarantees it.
(My emphasis) The highlighted passages would make it rather difficult for the DI to claim that they always opposed teaching ID in public schools.
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That’s the one. I relate my internet addiction to the build-up to the Dover trial from about August 2005 which I followed avidly mainly via Pandas Thumb. For example!

My interest in Creationism watching goes back only slightly further to the Kansas Board hearings earlier that year.

I caught the tail-end of those proceedings. I was very impressed with Mr Irigonegaray who I see is still in business in case he’s needed again.

Certainly possible, and it does not look to me as though the DI ever really had the benefit of experienced litigation counsel, which is what they needed. David DeWolf graduated in '79, and by '88 he was on faculty at Gonzaga but I’m not sure whether he had any relevant experience in the intervening years. As far as I am aware, the DI’s other lawyer-types have been non-practicing.

Here’s the thing. If you are interested in a test case, you really want it to be a setpiece battle. Cases encountered in the wild each have their own characteristics and a little something can make the outcome turn on issues you didn’t want as a part of your test case. As a litigator I always tried to find cases where I could more or less isolate legal issues, as opposed to factual issues, that I could win – because as soon as you’re stuck trying issues of fact, that’s a huge randomizer right there. A test case needs to be framed just so, and Dover was not a good choice.

I think that if the DI had recognized the Dover case for what it was at the outset, it would have taken another tack. The whole story of their attitude toward it is strange; in particular, the statements by Seth Cooper that, in order to dissuade the Board from adopting the policy, he sent them ID Creationist materials! Clearly one would expect, and one did get, the exact opposite effect: a further whipping up of the creationist frenzy at the Board.

A litigator on staff at DI would have known that this case looked like a disaster. In particular, the fact that Buckingham had been advocating for “creationism,” only changing the terminology to “intelligent design” for legal/tactical reasons, meant that the whole Lemon analysis was liable to wind up turning more on the Board’s motives than on the merits of ID Creationism. And one thing any experienced litigator knows is that any trial judge will tend to find against the losing party on multiple issues, because this makes reversal on appeal less likely. Once the issue of the Board’s motives is lost, the whole ship is likely to go down, and even if there HAD been evidence that ID Creationism was scientific rather than religious in nature, that evidence probably wouldn’t have carried the day.

The ideal test case would have been one involving a permissive policy and a crazy teacher. Crazy teacher brings ID Creationism to the students, but not in audio-recorded form, so that the teacher can lie about what it is he actually taught; he then defends first on the basis of some vague “academic freedom” notions, second on the basis that exploring alternative views is an important part of developing critical thinking skills, and only thirdly on the basis that ID Creationism really is good science. Assuming that the teacher’s grasp of litigation strategy, and skill in deception, were of a higher grade than his scientific judgment, this might work. It’s an as-applied challenge, which is tougher for the challengers; the problem is that you have to rely upon someone to bring the challenge.

Or, there’s the other way, which allows one to choose the battlefield more easily. Encourage the crazy teacher to VIOLATE curriculum standards by teaching ID Creationism, and then when the teacher is disciplined or fired, attack the discipline/firing decision as being motivated by religious prejudice coupled with a misjudgment about whether ID Creationism is really religion or science.

That’s quite remarkable, and it makes me think DeWolf didn’t have a lot of experience in litigation. When, and in what context, and for what reason, is a court going to say that a school MUST teach ID Creationism?

I think something like that is what actually happened. They made a miserably poor judgment; they goaded the Board into the policy it adopted by sending them more ID Creationist materials, and they went into the test case whole-hog before realizing they’d signed up for a voyage on a sinking ship. They should have been trying harder to fool school officials into thinking that ID Creationism actually WAS science, instead of trying to fool a US District Judge into thinking that a policy adopted by a bunch of wild-eyed fundies on a mission from god was really a bona fide educational choice.

Would they like a test case now? I think they would not. They know that they have soiled ID Creationism’s nest so badly with Kitzmiller that it must be viewed, as it now seems to be, purely as a revenue-from-rubes program.


By the way, just one clarifying note: I do sometimes see people who suggest that the Kitzmiller decision settles this once and for all. It really doesn’t. The main preclusive effects of the decision flow to the parties themselves. Another school district is perfectly free to relitigate the issue before another judge. And this being a District Court decision, never appealed to a higher court, its value as precedent is only advisory – another court can simply rule that Jones got it wrong, or just disregard the Kitzmiller ruling entirely. To the extent it’s an issue of fact, it can always be retried by other parties (but not, generally, by the SAME parties); to the extent it’s an issue of law, the ruling binds no other court.

But, that said, a well-crafted and well-reasoned decision’s persuasive impact can be tremendous even if its “authority” is very little. It’s fair to say that anyone who wishes to get around Kitzmiller will have to explain why the decision in THIS case should not be the same as the decision there. That’s one reason the DI would not probably want a similar test case.

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Yes, according to Forrest (in CTH) the DI had something along those lines in the form of Roger DeHart, a high school science teacher in Burlington, Washington, who taught ID (including from Pandas) to his science classes, and was heavily involved with the DI. However, after about 5 years of controversy, he resigned without sparking a lawsuit.

I’m afraid you’d have to read Darwinism, Design, and Public Education for the answer to that conundrum. :slight_smile:

Addendum: it can be found here:


(Hat-tip @Jonathan_Burke)

I agree, and even before that they’d need to find a client willing to be put through this wringer.

The DI’s legal strategy since Dover, with its emphasis on state ‘Academic Freedom’ legislation seems aimed at avoiding further lawsuits – providing creationist teachers a bit of cover for teaching anti-evolution views, while giving the law itself cover (in terms of disclaimers like “Nothing in this act shall be construed as promoting any religious doctrine, promoting discrimination for or against a particular set of religious beliefs, or promoting discrimination for or against religion or non-religion.”) in case any of these teachers get into trouble for being too blatantly religious.

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Exactly. There already are a lot of crazy teachers to enlist, so the object is to give the teachers cover against being disciplined for teaching pseudoscience while making it hard to attribute the teacher’s misconduct up to the school district. The enormous amount of fuss and bother that the poor parents had to go through to get rid of DeHart is absolutely disgusting, and that’s the kind of frustration the DI wants to impose on every parent who would like to see kids getting a good science education.

So, instead of a top-down policy which can be attacked generally, it’s a “mosquito fleet” approach: unleash every nut-case in every school and let the creationism drip from every crack in the walls.


And even the school district is itself a “mosquito” (albeit a rather larger one). It would be the Academic Freedom Act itself that would need to be found unconstitutional by a court in order to stop the teaching of pseudoscience. And I suspect (correct me if I’m wrong), that due to their vagueness and no-religion disclaimers, it would be hard to demonstrate at trial that the these laws are unconstitutional.

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That’s the tricky bit. Sometimes courts will not inquire into legislative motive, and if you cannot get the court to do that, it doesn’t matter how smarmy and obvious the creationism is at that level. So you’re then limited to arguing the effects of the statute, but in a facial challenge you have to show that the statute cannot be implemented in a constitutional manner.

The difficulty there is that one COULD teach about creationism or other pseudosciences as a lesson in critical thinking, illuminating why these inane critiques of biology fall not only far short of the mark, but outside the boundaries of science and beyond the interest of reasoning and civilized people. It wouldn’t be a lesson which the creationists would like, in that case, but it could certainly be done, and it would violate nobody’s rights.

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After Dover, didn’t DI kind of shift to a “teach the strengths and weakness” strategy? That dovetailed nicely with other conservative objectives for science classrooms. Teach the “strengths and weaknesses” of evolution, climate change, whatever. No agenda here, just making sure students are fully informed, your honor.

Not immediately. The best I can piece this together (and it’s been some years since I looked into it), “Teach the Controversy” (which pre-existed Dover and was described by the decision as “at best disingenuous, and at worst a canard”) morphed into “Critical Analysis of Evolution” in 2006. “Strengths and weaknesses” language seems to have been around at least since Texas SBOE in 2003. The DI seem to have started using the phrase in 2008 with their “Academic Freedom” petition and model legislation, legislation that has been introduced in a number of states, and passed in two: Louisiana and Tennessee.