[*708] Memorandum Opinion

On October 18, 2004, the Defendant Dover Area School Board of Directors passed by a 6-3 vote the following resolution:

Students will be made aware of gaps/problems in Darwin's theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of Life is not taught.

On November 19, 2004, the Defendant Dover Area School District announced by press release that, commencing in January 2005, teachers would be required to read the following statement to students in the ninth grade biology class at Dover High School:

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 no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

Intelligent Design is an explanation of the origin of life that differs from Darwin's [*709] view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

With respect to any theory, students are encouraged 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.

On December 14, 2004, Plaintiffs filed the instant suit challenging the constitutional validity of the October 18, 2004 resolution and November 19, 2004 press release (collectively, "the ID Policy"). It is contended that the ID Policy constitutes an establishment of religion prohibited by the First Amendment to the United States Constitution, which is made applicable to the states by the Fourteenth Amendment, as well as the Constitution of the Commonwealth of Pennsylvania. Plaintiffs seek declaratory and injunctive relief, nominal damages, costs, and attorneys' fees.

This Court's jurisdiction arises under 28 U.S.C. §§ 1331, 1343, and 42 U.S.C. § 1983. In addition, the power to issue declaratory judgments is expressed in 28 U.S.C. §§ 2201 and 2202. This Court has supplemental jurisdiction over Plaintiffs' cause of action arising under the Constitution of the Commonwealth of Pennsylvania pursuant to 28 U.S.C. § 1367. Venue is proper in this District under 28 U.S.C. § 1391(b) because one or more Defendants reside in this District, all Defendants reside in the Commonwealth of Pennsylvania, and the events or omissions giving rise to the claims at issue occurred in this District.

For the reasons that follow, we hold that the ID Policy is unconstitutional pursuant to the Establishment Clause of the First Amendment of the United States Constitution and Art. I, § 3 of the Pennsylvania Constitution.

We will now introduce the individual Plaintiffs and provide information regarding their acquaintance with the biology curriculum controversy. 1 Tammy Kitzmiller, [*710] resident of Dover, Pennsylvania is a parent of a child in the ninth grade and a child in the eleventh grade at Dover High School. 2 She did not attend any Board meetings until November 2004 and first learned of the biology curriculum controversy from reading the local newspapers. Bryan and Christy Rehm, residents of Dover, Pennsylvania are parents of a child in the eighth grade, a child in the second grade, a child in kindergarden in the Dover Area School District, and a child of pre-school age. They intend for their children to attend Dover High School. Bryan Rehm learned of the biology curriculum controversy by virtue of being a member of the science faculty at Dover Area High School. Before and after his resignation, he regularly attended Board meetings. His wife, fellow Plaintiff Christy Rehm learned of the biology curriculum controversy by virtue of discussions she had with her husband and also regularly attended Board meetings in 2004. Deborah F. Fenimore and Joel A. Leib, residents of Dover, Pennsylvania are the parents of a child in the twelfth grade at Dover High School and a child in the seventh grade in the Dover Area School District. They intend for their seventh grade child to attend Dover High School. Leib first learned of a change in the biology curriculum by reading local newspapers. Steven Stough, resident of Dover, Pennsylvania is a parent of a child in the eighth grade in the Dover Area School District and intends for his child to attend Dover High School. Stough did not attend any Board meetings until December 2004 and prior to that, he had learned of the biology curriculum change by reading the local newspapers. Beth A. Eveland, resident of York, Pennsylvania is a parent of a child in the first grade in the Dover Area School District and a child of pre-school age who intends for her children to attend Dover High School. Eveland attended her first Board meeting on June 14, 2004. Prior to that, she had learned of the issues relating to the purchase of the biology books from reading the York Daily Record newspaper. Cynthia Sneath, resident of Dover, Pennsylvania is a parent of a child in the first grade in the Dover Area School District and a child of pre-school age who intends for her children to attend Dover High School. Sneath attended her first Board meeting on October 18, 2004 and prior to that, she had learned of the biology curriculum controversy from reading the local newspapers. Julie Smith, resident of York, Pennsylvania is a parent of a child in the tenth grade at Dover High School. Smith did not attend a Board meeting in 2004; she learned of and followed the biology curriculum controversy by reading the local newspapers. Aralene (hereinafter "Barrie") Callahan and Frederick B. Callahan, residents of Dover, Pennsylvania are parents of a child in the tenth grade at Dover High School. Barrie Callahan learned of the biology curriculum controversy by virtue of her status of a former Board member and from attending Board meetings. Fred Callahan learned of the biology curriculum controversy based upon discussions with his wife Barrie and from attending Board meetings.

The Defendants include the Dover Area School District (hereinafter "DASD") and Dover Area School District Board of Directors (hereinafter "the Board") (collectively [*711] "Defendants"). Defendant DASD is a municipal corporation governed by a board of directors, which is the Board. The DASD is comprised of Dover Township, Washington Township, and Dover Borough, all of which are located in York County, Pennsylvania. There are approximately 3,700 students in the DASD, with approximately 1,000 attending Dover High School. (Joint Stip. of Fact P3).

The trial commenced September 26, 2005 and continued through November 4, 2005. This Memorandum Opinion constitutes the Court's findings of fact and conclusions of law which are based upon the Court's review of the evidence presented at trial, the testimony of the witnesses at trial, the parties' proposed findings of fact and conclusions of law with supporting briefs, other documents and evidence in the record, and applicable law. 3 Further orders and judgments will be in conformity with this opinion.

As we will review the federal jurisprudential legal landscape in detail below, we will accordingly render only an abbreviated summary of that terrain by way of an introduction at this juncture. The religious movement known as Fundamentalism began in nineteenth century America as a response to social changes, new religious thought and Darwinism. McLean v. Ark. Bd. of Educ., 529 F. Supp. 1255, 1258 (E.D. Ark. 1982). Religiously motivated groups pushed state legislatures to adopt laws prohibiting public schools from teaching evolution, culminating in the Scopes "monkey trial" of 1925. McLean, 529 F. Supp. at 1259; see Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927) (criminal prosecution of public-school teacher for teaching about evolution).

In 1968, a radical change occurred in the legal landscape when in Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968), the Supreme Court struck down Arkansas's statutory prohibition against teaching evolution. Religious proponents of evolution thereafter championed "balanced treatment" statutes requiring public-school teachers who taught evolution to devote equal time to teaching the biblical view of creation; however, courts realized this tactic to be another attempt to establish the Biblical version of the creation of man. Daniel v. Waters, 515 F.2d 485 (6th Cir. 1975).

Fundamentalist opponents of evolution responded with a new tactic suggested by Daniel's reasoning which was ultimately found to be unconstitutional under the First Amendment, namely, to utilize scientific-sounding language to describe religious beliefs and then to require that schools teach the resulting "creation science" [*712] or "scientific creationism" as an alternative to evolution.

In Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573, 96 L. Ed. 2d 510 (1987), five years after McLean, the Supreme Court held that a requirement that public schools teach "creation science" along with evolution violated the Establishment Clause. The import of Edwards is that the Supreme Court turned the proscription against teaching creation science in the public school system into a national prohibition.

Having briefly touched upon the salient legal framework, it is evident that as the cases and controversies have evolved over time, so too has the methodology that courts employ in evaluating Establishment Clause claims. We initially observe that the Establishment Clause of the First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. The prohibition against the establishment of religion applies to the states through the Fourteenth Amendment. Modrovich v. Allegheny County, 385 F.3d 397, 400 (3d Cir. 2004); see also Wallace v. Jaffree, 472 U.S. 38, 49-50, 105 S. Ct. 2479, 86 L. Ed. 2d 29 (1985). The parties are in agreement that an applicable test in the case sub judice to ascertain whether the challenged ID Policy is unconstitutional under the First Amendment is that of Lemon v. Kurtzman, 403 U. S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), (hereinafter "the Lemon test"). See Edwards, 482 U.S. 578, 107 S. Ct. 2573, 96 L. Ed. 2d 510 (applying Lemon test to strike down Louisiana's "Creationism Act"); see also Epperson, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (considering the purpose and the primary effect of an Arkansas statute forbidding the teaching of evolution in public schools). Defendants, however, object to using the endorsement test, first arguing that it applies only to religious-display cases and most recently asserting that it applies to limited Establishment Clause cases, including a policy or practice in question that involves: a facially religious display, an overtly religious group or organization using government facilities, the provision of public funding or government resources to overly religious groups engaged in religious activity, or the permission of an overtly religious practice.

After a searching review of Supreme Court and Third Circuit Court of Appeals precedent, it is apparent to this Court that both the endorsement test and the Lemon test should be employed in this case to analyze the constitutionality of the ID Policy under the Establishment Clause, for the reasons that follow.

Since a majority of the Supreme Court first implemented the endorsement test in County of Allegheny v. ACLU, 492 U.S. 573, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989), the Supreme Court and the Third Circuit have consistently applied the test to all types of Establishment Clause cases, notably cases involving religion in public-school settings. In Santa Fe Independent Sch. Dist. v. Doe, 530 U.S. 290, 120 S. Ct. 2266, 147 L. Ed. 2d 295 (2000), the Supreme Court applied the endorsement test to school-sponsored prayer at high school football games. In Santa Fe, the Supreme Court clearly defined the endorsement test by noting that "in cases involving state participation in a religious activity, one of the relevant questions is 'whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state [*713] endorsement of prayer in public schools.'" Id. at 308. The Supreme Court then provided a more concrete explanation of how the test functions in the public-school context, explaining that:

School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents 'that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.'

Id. at 309-10 (quoting Lynch v. Donnelly, 465 U.S. 668, 688, 104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984) (O'Connor, J., concurring)). In Zelman v. Simmons-Harris, 536 U.S. 639, 652-53, 122 S. Ct. 2460, 153 L. Ed. 2d 604 (2002), the Supreme Court applied the endorsement test to a school-voucher program. In Good News Club v. Milford Cent. Sch., 533 U.S. 98, 118-19, 121 S. Ct. 2093, 150 L. Ed. 2d 151 (2001), the Supreme Court applied the test to a school district's policy regarding a religious student club meeting on school property. In Mitchell v. Helms, 530 U.S. 793, 120 S. Ct. 2530, 147 L. Ed. 2d 660 (2000), and Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997), the Supreme Court applied the test to programs providing governmental aid to parochial schools. In Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 841-42, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995), the Supreme Court applied the endorsement test to a public university's policy regarding funding a religious student newspaper.

Defendants maintain that this Court should not apply the endorsement test to the challenged ID Policy because the Supreme Court did not apply the test to the creationism statutes at issue in Epperson and Edwards. As Plaintiffs aptly state however, Epperson was decided in 1968, five years before Lemon, and accordingly nearly two decades before Justice O'Connor first began to articulate the endorsement test as a way to conceptualize Lemon. In addition, not only did Edwards likewise pre-date the test's adoption in Allegheny, but contrary to Defendants' assertion, the Supreme Court did invoke at least the endorsement concept in that case. See Edwards, 482 U.S. at 585 ("If the law was enacted for the purpose of endorsing religion, 'no consideration of the second or third criteria [of Lemon] is necessary.'") (quoting Wallace, 472 U.S. at 56). Moreover, it is notable that Edwards was a "purpose" case, so it would have been unnecessary for the Supreme Court to delve into a full-scale endorsement analysis even had the test existed at the time, as the test is most closely associated with Lemon's "effect" prong, rather than its "purpose" prong.

A review of the above cited Supreme Court cases reveals that none of them involve a challenge to a religious display, yet in each such case, the Supreme Court reviewed the challenged governmental conduct to ascertain whether it constituted religious endorsement. Additionally, in each cited case, the Supreme Court reviewed a public school district's, or public university's, policy touching on religion. It is readily apparent to this Court that based upon Supreme Court precedent, the endorsement test must be utilized by us in our resolution of this case.

Applicable Third Circuit Court of Appeals precedent regarding application of the endorsement test to cases involving public school policies confirms our conclusion regarding its applicability to the instant dispute. In Child Evangelism Fellowship v. Stafford Township Sch. Dist., 386 F.3d 514 (3d Cir. 2004), the Third Circuit employed the endorsement test in considering [*714] whether a public school district would violate the Establishment Clause if it permitted religious groups to access students through a take-home-flyer system or a back-to-school night event. Also, in ACLU v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996), the Third Circuit applied the endorsement test in considering a challenge to a school board policy concerning whether prayer would be included in high school graduation ceremonies. In Black Horse Pike, the Third Circuit clearly stated that its duty was to "determine whether, under the totality of the circumstances, the challenged practice conveys a message favoring or disfavoring religion." Id. at 1486.

Our next task is to determine how to apply both the endorsement test and the Lemon test to the ID Policy. We are in agreement with Plaintiffs that the better practice is to treat the endorsement inquiry as a distinct test to be applied separately from, and prior to, the Lemon test. In recent Third Circuit cases, specifically, Freethought Society v. Chester County, 334 F.3d 247, 261 (3d Cir. 2003), Modrovich, 385 F.3d at 401-04, 406-13, and Child Evangelism, 386 F.3d at 530-35, the court adopted the practice of applying both tests. The Third Circuit conducted the endorsement inquiry first and subsequently measured the challenged conduct against Lemon's "purpose" and "effect" standards. 4

We will therefore initially analyze the constitutionality of the ID Policy under the endorsement test and will then proceed to the Lemon test as it applies to this case.

The endorsement test recognizes that when government transgresses the limits of neutrality and acts in ways that show religious favoritism or sponsorship, it violates the Establishment Clause. As Justice O'Connor first elaborated on this issue, the endorsement test was a gloss on Lemon that encompassed both the purpose and effect prongs:

The central issue in this case is whether [the government] has endorsed [religion] by its [actions].

To answer that question, we must examine both what [the government] intended to communicate … and what message [its conduct] actually conveyed. The purpose and effect prongs of the Lemon test represent these two aspects of the meaning of the [government's] action.

Lynch, 465 U.S. at 690 (O'Connor, J., concurring).

As the endorsement test developed through application, it is now primarily a lens through which to view "effect," with purpose evidence being relevant to the inquiry derivatively. In Allegheny, the Supreme Court instructed that the word "endorsement is not self-defining" and further elaborated that it derives its meaning from other words that the Court has found useful over the years in interpreting the Establishment Clause. 492 U.S. at 593. The endorsement test emanates from the "prohibition against government endorsement of religion" and it "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." Id. (citations omitted) (emphasis in original). The test consists of the reviewing court determining what message a challenged governmental [*715] policy or enactment conveys to a reasonable, objective observer who knows the policy's language, origins, and legislative history, as well as the history of the community and the broader social and historical context in which the policy arose. McCreary County v. ACLU, 125 S. Ct. 2722, 2736-37, 162 L. Ed. 2d 729, 2005 U.S. LEXIS 5211 at *41 (2005) (objective observer "presumed to be familiar with the history of the government's actions and competent to learn what history has to show"); Santa Fe, 530 U.S. at 308 (objective observer familiar with "implementation of" governmental action); Selman v. Cobb County Sch. Dist., 390 F. Supp. 2d 1286 at 1306 (objective observer "familiar with the origins and context of the government-sponsored message at issue and the history of the community where the message is displayed").

In elaborating upon this "reasonable observer," the Third Circuit explained in Modrovich, 385 F.3d at 407, that "the reasonable observer is an informed citizen who is more knowledgeable than the average passerby." Moreover, in addition to knowing the challenged conduct's history, the observer is deemed able to "glean other relevant facts" from the face of the policy in light of its context. Id. at 407; accord Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 779-781, 115 S. Ct. 2440, 132 L. Ed. 2d 650 (1995) (O'Connor, J., concurring). Knowing the challenged policy's legislative history, the community's history, and the broader social and historical context in which the policy arose, the objective observer thus considers the publicly available evidence relevant to the purpose inquiry, but notably does not do so to ascertain, strictly speaking, what the governmental purpose actually was. See, e.g., Selman, 390 F. Supp. 2d at 1306-07. Instead, the observer looks to that evidence to ascertain whether the policy "in fact conveys a message of endorsement or disapproval" of religion, irrespective of what the government might have intended by it. Lynch, 465 U.S. at 690 (O'Connor, J., concurring) ("The central issue in this case is whether [government] has endorsed Christianity by its [actions]. To answer that question, we must examine both what [the government] intended to communicate … and what message [its conduct] actually conveyed. The purpose and effect prongs of the Lemon test represent these two aspects of the meaning of the [government's] action."); Freiler v. Tangipahoa Parish Bd. of Educ., 975 F. Supp. 819 (E.D. La. 1997), aff'd, 185 F.3d 337 (5th Cir. 1999); Selman, 390 F. Supp. 2d at 1305-06.

We must now ascertain whether the ID Policy "in fact conveys a message of endorsement or disapproval" of religion, with the reasonable, objective observer being the hypothetical construct to consider this issue. Lynch, 465 U.S. at 690 (O'Connor, J., concurring). As the endorsement test is designed to ascertain the objective meaning of the statement that the District's conduct communicated in the community by focusing on how "the members of the listening audience" perceived the conduct, two inquiries must be made based upon the circumstances of this case. Santa Fe, 530 U.S. at 308. First, we will consider "the message conveyed by the disclaimer to the students who are its intended audience," from the perspective of an objective Dover Area High School student. At a minimum, the pertinent inquiry is whether an "objective observer" in the position of a student of the relevant age would "perceive official school support" for the religious activity in question. Verbena United Methodist Church v. Chilton County Bd. of Educ., 765 F. Supp. 704, 711 (M.D. Ala. 1991) (quoting Bd. of Educ. of Westside Comm. Schools v. Mergens, 496 U.S. 226, 249, 110 S. Ct. 2356, 110 L. Ed. 2d 191 (1990)). We [*716] find it incumbent upon the Court to additionally judge Defendants' conduct from the standpoint of a reasonable, objective adult observer. This conclusion is based, in part, upon the revelation at trial that a newsletter explaining the ID Policy in detail was mailed by the Board to every household in the District, as well as the Board members' discussion and defense of the curriculum change in public school board meetings and in the media.

The history of the intelligent design movement (hereinafter "IDM") and the development of the strategy to weaken education of evolution by focusing students on alleged gaps in the theory of evolution is the historical and cultural background against which the Dover School Board acted in adopting the challenged ID Policy. As a reasonable observer, whether adult or child, would be aware of this social context in which the ID Policy arose, and such context will help to reveal the meaning of Defendants' actions, it is necessary to trace the history of the IDM.

It is essential to our analysis that we now provide a more expansive account of the extensive and complicated federal jurisprudential legal landscape concerning opposition to teaching evolution, and its historical origins. As noted, such opposition grew out of a religious tradition, Christian Fundamentalism that began as part of evangelical Protestantism's response to, among other things, Charles Darwin's exposition of the theory of evolution as a scientific explanation for the diversity of species. McLean, 529 F. Supp. at 1258; see also, e.g., Edwards, 482 U.S. at 590-92. Subsequently, as the United States Supreme Court explained in Epperson, in an "upsurge of fundamentalist religious fervor of the twenties," 393 U.S. at 98 (citations omitted), state legislatures were pushed by religiously motivated groups to adopt laws prohibiting public schools from teaching evolution. McLean, 529 F. Supp. at 1259; see Scopes, 154 Tenn. 105, 289 S.W. 363 (1927). Between the 1920's and early 1960's, anti-evolutionary sentiment based upon a religious social movement resulted in formal legal sanctions to remove evolution from the classroom. McLean, 529 F. Supp. at 1259 (discussing a subtle but pervasive influence that resulted from anti-evolutionary sentiment concerning teaching biology in public schools).

As we previously noted, the legal landscape radically changed in 1968 when the Supreme Court struck down Arkansas's statutory prohibition against teaching evolution in Epperson. 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228. Although the Arkansas statute at issue did not include direct references to the Book of Genesis or to the fundamentalist view that religion should be protected from science, the Supreme Court concluded that "the motivation of the [Arkansas] law was the same …: to suppress the teaching of a theory which, it was thought, 'denied' the divine creation of man." Edwards, 482 U.S. at 590 (quoting Epperson, 393 U.S. at 109) (Arkansas sought to prevent its teachers from discussing the theory of evolution as it is contrary to the belief of some regarding the Book of Genesis.).

Post -Epperson, evolution's religious opponents implemented "balanced treatment" statutes requiring public school teachers who taught evolution to devote equal time to teaching the biblical view of creation; however, such statutes did not pass constitutional muster under the Establishment Clause. [*717] See, e.g., Daniel, 515 F.2d at 487, 489, 491. In Daniel, the Sixth Circuit Court of Appeals held that by assigning a "preferential position for the Biblical version of creation" over "any account of the development of man based on scientific research and reasoning," the challenged statute officially promoted religion, in violation of the Establishment Clause. Id. at 489.

Next, and as stated, religious opponents of evolution began cloaking religious beliefs in scientific sounding language and then mandating that schools teach the resulting "creation science" or "scientific creationism" as an alternative to evolution. However, this tactic was likewise unsuccessful under the First Amendment. "Fundamentalist organizations were formed to promote the idea that the Book of Genesis was supported by scientific data. The terms 'creation science' and 'scientific creationism' have been adopted by these Fundamentalists as descriptive of their study of creation and the origins of man." McLean, 529 F. Supp. at 1259. In 1982, the district court in McLean reviewed Arkansas's balanced-treatment law and evaluated creation science in light of Scopes, Epperson, and the long history of Fundamentalism's attack on the scientific theory of evolution, as well as the statute's legislative history and historical context. The court found that creation science organizations were fundamentalist religious entities that "consider[ed] the introduction of creation science into the public schools part of their ministry." Id. at 1260. The court in McLean stated that creation science rested on a "contrived dualism" that recognized only two possible explanations for life, the scientific theory of evolution and biblical creationism, treated the two as mutually exclusive such that "one must either accept the literal interpretation of Genesis or else believe in the godless system of evolution," and accordingly viewed any critiques of evolution as evidence that necessarily supported biblical creationism. Id. at 1266. The court concluded that creation science "is simply not science" because it depends upon "supernatural intervention," which cannot be explained by natural causes, or be proven through empirical investigation, and is therefore neither testable nor falsifiable. Id. at 1267. Accordingly, the United States District Court for the Eastern District of Arkansas deemed creation science as merely biblical creationism in a new guise and held that Arkansas' balanced-treatment statute could have no valid secular purpose or effect, served only to advance religion, and violated the First Amendment. Id. at 1264, 1272-74.

Five years after McLean was decided, in 1987, the Supreme Court struck down Louisiana's balanced-treatment law in Edwards for similar reasons. After a thorough analysis of the history of fundamentalist attacks against evolution, as well as the applicable legislative history including statements made by the statute's sponsor, and taking the character of organizations advocating for creation science into consideration, the Supreme Court held that the state violated the Establishment Clause by "restructur[ing] the science curriculum to conform with a particular religious viewpoint." Edwards, 482 U.S. at 593.

Among other reasons, the Supreme Court in Edwards concluded that the challenged statute did not serve the legislature's professed purposes of encouraging academic freedom and making the science curriculum more comprehensive by "teaching all of the evidence" regarding origins of life because: the state law already allowed schools to teach any scientific theory, which responded to the alleged purpose of academic freedom; and if the legislature really had intended to make science education [*718] more comprehensive, "it would have encouraged the teaching of all scientific theories about the origins of humankind" rather than permitting schools to forego teaching evolution, but mandating that schools that teach evolution must also teach creation science, an inherently religious view. Id. at 586, 588-89. The Supreme Court further held that the belief that a supernatural creator was responsible for the creation of human kind is a religious viewpoint and that the Act at issue "advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety." Id. at 591, 596. Therefore, as noted, the import of Edwards is that the Supreme Court made national the prohibition against teaching creation science in the public school system.

The concept of intelligent design (hereinafter "ID"), in its current form, came into existence after the Edwards case was decided in 1987. For the reasons that follow, we conclude that the religious nature of ID would be readily apparent to an objective observer, adult or child.

We initially note that John Haught, a theologian who testified as an expert witness for Plaintiffs and who has written extensively on the subject of evolution and religion, succinctly explained to the Court that the argument for ID is not a new scientific argument, but is rather an old religious argument for the existence of God. He traced this argument back to at least Thomas Aquinas in the 13th century, who framed the argument as a syllogism: Wherever complex design exists, there must have been a designer; nature is complex; therefore nature must have had an intelligent designer. (Trial Tr. vol. 9, Haught Test., 7-8, Sept. 30, 2005). Dr. Haught testified that Aquinas was explicit that this intelligent designer "everyone understands to be God." Id. The syllogism described by Dr. Haught is essentially the same argument for ID as presented by defense expert witnesses Professors Behe and Minnich who employ the phrase "purposeful arrangement of parts."

Dr. Haught testified that this argument for the existence of God was advanced early in the 19th century by Reverend Paley and defense expert witnesses Behe and Minnich admitted that their argument for ID based on the "purposeful arrangement of parts" is the same one that Paley made for design. (9:7-8 (Haught); Trial Tr. vol. 23, Behe Test., 55-57, Oct. 19, 2005; Trial Tr. vol. 38, Minnich Test., 44, Nov. 4, 2005). The only apparent difference between the argument made by Paley and the argument for ID, as expressed by defense expert witnesses Behe and Minnich, is that ID's "official position" does not acknowledge that the designer is God. However, as Dr. Haught testified, anyone familiar with Western religious thought would immediately make the association that the tactically unnamed designer is God, as the description of the designer in Of Pandas and People (hereinafter "Pandas") is a "master intellect," strongly suggesting a supernatural deity as opposed to any intelligent actor known to exist in the natural world. (P-11 at 85). Moreover, it is notable that both Professors Behe and Minnich admitted their personal view is that the designer is God and Professor Minnich testified that he understands many leading advocates of ID to believe the designer to be God. (21:90 (Behe); 38:36-38 (Minnich)).

Although proponents of the IDM 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 [*719] of the IDM, including Defendants' expert witnesses. (20:102-03 (Behe)). In fact, an explicit concession that the intelligent designer works outside the laws of nature and science and a direct reference to religion is Pandas' rhetorical statement, "what kind of intelligent agent was it [the designer]" and answer: "On its own science cannot answer this question. It must leave it to religion and philosophy." (P-11 at 7; 9:13-14 (Haught)).

A significant aspect of the IDM is that despite Defendants' protestations to the contrary, it describes ID as a religious argument. In that vein, the writings of leading ID proponents reveal that the designer postulated by their argument is the God of Christianity. Dr. Barbara Forrest, one of Plaintiffs' expert witnesses, is the author of the book Creationism's Trojan Horse. She has thoroughly and exhaustively chronicled the history of ID in her book and other writings for her testimony in this case. Her testimony, and the exhibits which were admitted with it, provide a wealth of statements by ID leaders that reveal ID's religious, philosophical, and cultural content. The following is a representative grouping of such statements made by prominent ID proponents. 5

Phillip Johnson, considered to be the father of the IDM, developer of ID's "Wedge Strategy," which will be discussed below, and author of the 1991 book entitled Darwin on Trial, has written that "theistic realism" or "mere creation" are defining concepts of the IDM. This means "that God is objectively real as Creator and recorded in the biological evidence …" (Trial Tr. vol. 10, Forrest Test., 80-81, Oct. 5, 2005; P-328). In addition, Phillip Johnson states that the "Darwinian theory of evolution contradicts not just the Book of Genesis, but every word in the Bible from beginning to end. It contradicts the idea that we are here because a creator brought about our existence for a purpose." (11:16-17 (Forrest); P-524 at 1). ID proponents Johnson, William Dembski, and Charles Thaxton, one of the editors of Pandas, situate ID in the Book of John in the New Testament of the Bible, which begins, "In the Beginning was the Word, and the Word was God." (11:18-20, 54-55 (Forrest); P-524; P-355; P-357). Dembski has written that ID is a "ground clearing operation" to allow Christianity to receive serious consideration, and "Christ is never an addendum to a scientific theory but always a completion." (11:50-53 (Forrest); [*720] P-386; P-390). Moreover, in turning to Defendants' lead expert, Professor Behe, his testimony at trial indicated that ID is only a scientific, as opposed to a religious, project for him; however, considerable evidence was introduced to refute this claim. Consider, to illustrate, that Professor Behe remarkably and unmistakably claims that the plausibility of the argument for ID depends upon the extent to which one believes in the existence of God. (P-718 at 705) (emphasis added). As no evidence in the record indicates that any other scientific proposition's validity rests on belief in God, nor is the Court aware of any such scientific propositions, Professor Behe's assertion constitutes substantial evidence that in his view, as is commensurate with other prominent ID leaders, ID is a religious and not a scientific proposition.

Dramatic evidence of ID's religious nature and aspirations is found in what is referred to as the "Wedge Document." The Wedge Document, developed by the Discovery Institute's Center for Renewal of Science and Culture (hereinafter "CRSC"), represents from an institutional standpoint, the IDM's goals and objectives, much as writings from the Institute for Creation Research did for the earlier creation-science movement, as discussed in McLean. (11:26-28 (Forrest)); McLean, 529 F. Supp. at 1255. The Wedge Document states in its "Five Year Strategic Plan Summary" that the IDM's goal is to replace science as currently practiced with "theistic and Christian science." (P-140 at 6). As posited in the Wedge Document, the IDM's "Governing Goals" are to "defeat scientific materialism and its destructive moral, cultural, and political legacies" and "to replace materialistic explanations with the theistic understanding that nature and human beings are created by God." Id. at 4. The CSRC expressly announces, in the Wedge Document, a program of Christian apologetics to promote ID. A careful review of the Wedge Document's goals and language throughout the document reveals cultural and religious goals, as opposed to scientific ones. (11:26-48 (Forrest); P-140). ID aspires to change the ground rules of science to make room for religion, specifically, beliefs consonant with a particular version of Christianity.

In addition to the IDM itself describing ID as a religious argument, ID's religious nature is evident because it involves a supernatural designer. The courts in Edwards and McLean expressly found that this characteristic removed creationism from the realm of science and made it a religious proposition. Edwards, 482 U.S. at 591-92; McLean, 529 F. Supp. at 1265-66. Prominent ID proponents have made abundantly clear that the designer is supernatural.

Defendants' expert witness ID proponents confirmed that the existence of a supernatural designer is a hallmark of ID. First, Professor Behe has written that by ID he means "not designed by the laws of nature," and that it is "implausible that the designer is a natural entity." (P-647 at 193; P-718 at 696, 700). Second, Professor Minnich testified that for ID to be considered science, the ground rules of science have to be broadened so that supernatural forces can be considered. (38:97 (Minnich)). Third, Professor Steven William Fuller testified that it is ID's project to change the ground rules of science to include the supernatural. (Trial Tr. vol. 28, Fuller Test., 20-24, Oct. 24, 2005). Turning from defense expert witnesses to leading ID proponents, Johnson has concluded that science must be redefined to include the supernatural if religious challenges to evolution are to get a hearing. (11:8-15 (Forrest); P-429). Additionally, Dembski agrees that science is ruled by methodological naturalism and argues that [*721] this rule must be overturned if ID is to prosper. (Trial Tr. vol. 5, Pennock Test., 32-34, Sept. 28, 2005).

Further support for the proposition that ID requires supernatural creation is found in the book Pandas, to which students in Dover's ninth grade biology class are directed. Pandas indicates that there are two kinds of causes, natural and intelligent, which demonstrate that intelligent causes are beyond nature. (P-11 at 6). Professor Haught, who as noted was the only theologian to testify in this case, explained that in Western intellectual tradition, non-natural causes occupy a space reserved for ultimate religious explanations. (9:13-14 (Haught)). Robert Pennock, Plaintiffs' expert in the philosophy of science, concurred with Professor Haught and concluded that because its basic proposition is that the features of the natural world are produced by a transcendent, immaterial, non-natural being, ID is a religious proposition regardless of whether that religious proposition is given a recognized religious label. (5:55-56 (Pennock)). It is notable that not one defense expert was able to explain how the supernatural action suggested by ID could be anything other than an inherently religious proposition. Accordingly, we find that ID's religious nature would be further evident to our objective observer because it directly involves a supernatural designer.

A "hypothetical reasonable observer," adult or child, who is "aware of the history and context of the community and forum" is also presumed to know that ID is a form of creationism. Child Evangelism, 386 F.3d at 531 (citations omitted); Allegheny, 492 U.S. at 624-25. The evidence at trial demonstrates that ID is nothing less than the progeny of creationism. What is likely the strongest evidence supporting the finding of ID's creationist nature is the history and historical pedigree of the book to which students in Dover's ninth grade biology class are referred, Pandas. Pandas is published by an organization called FTE, as noted, whose articles of incorporation and filings with the Internal Revenue Service describe it as a religious, Christian organization. (P-461; P-28; P-566; P-633; Buell Dep. 1:13, July 8, 2005). Pandas was written by Dean Kenyon and Percival Davis, both acknowledged creationists, and Nancy Pearcey, a Young Earth Creationist, contributed to the work. (10:102-08 (Forrest)).

As Plaintiffs meticulously and effectively presented to the Court, Pandas went through many drafts, several of which were completed prior to and some after the Supreme Court's decision in Edwards, which held that the Constitution forbids teaching creationism as science. By comparing the pre and post Edwards drafts of Pandas, three astonishing points emerge: (1) the definition for creation science in early drafts is identical to the definition of ID; (2) cognates of the word creation (creationism and creationist), which appeared approximately 150 times were deliberately and systematically replaced with the phrase ID; and (3) the changes occurred shortly after the Supreme Court held that creation science is religious and cannot be taught in public school science classes in Edwards. This word substitution is telling, significant, and reveals that a purposeful change of words was effected without any corresponding change in content, which directly refutes FTE's argument that by merely disregarding the words "creation" and "creationism," FTE expressly rejected creationism in Pandas. In early pre- Edwards drafts of Pandas, the term "creation" was defined as "various forms of life that began abruptly through an intelligent agency with their distinctive features intact — fish with fins and scales, birds with feathers, beaks, and [*722] wings, etc," the very same way in which ID is defined in the subsequent published versions. (P-560 at 210; P-1 at 2-13; P-562 at 2-14, P-652 at 2-15; P-6 at 99-100; P-11 at 99-100; P-856.2.). This definition was described by many witnesses for both parties, notably including defense experts Minnich and Fuller, as "special creation" of kinds of animals, an inherently religious and creationist concept. (28:85-86 (Fuller); Minnich Dep. at 34, May 26, 2005; Trial Tr. vol. 1, Miller Test., 141-42, Sept. 26, 2005; 9:10 (Haught); Trial Tr. vol. 33, Bonsell Test., 54-56, Oct. 31, 2005). Professor Behe's assertion that this passage was merely a description of appearances in the fossil record is illogical and defies the weight of the evidence that the passage is a conclusion about how life began based upon an interpretation of the fossil record, which is reinforced by the content of drafts of Pandas.

The weight of the evidence clearly demonstrates, as noted, that the systemic change from "creation" to "intelligent design" occurred sometime in 1987, after the Supreme Court's important Edwards decision. This compelling evidence strongly supports Plaintiffs' assertion that ID is creationism re-labeled. Importantly, the objective observer, whether adult or child, would conclude from the fact that Pandas posits a master intellect that the intelligent designer is God.

Further evidence in support of the conclusion that a reasonable observer, adult or child, who is "aware of the history and context of the community and forum" is presumed to know that ID is a form of creationism concerns the fact that ID uses the same, or exceedingly similar arguments as were posited in support of creationism. One significant difference is that the words "God," "creationism," and "Genesis" have been systematically purged from ID explanations, and replaced by an unnamed "designer." Dr. Forrest testified and sponsored exhibits showing six arguments common to creationists. (10:140-48 (Forrest); P-856.5-856.10). Demonstrative charts introduced through Dr. Forrest show parallel arguments relating to the rejection of naturalism, evolution's threat to culture and society, "abrupt appearance" implying divine creation, the exploitation of the same alleged gaps in the fossil record, the alleged inability of science to explain complex biological information like DNA, as well as the theme that proponents of each version of creationism merely aim to teach a scientific alternative to evolution to show its "strengths and weaknesses," and to alert students to a supposed "controversy" in the scientific community. (10:140-48 (Forrest)). In addition, creationists made the same argument that the complexity of the bacterial flagellum supported creationism as Professors Behe and Minnich now make for ID. (P-853; P-845; 37:155-56 (Minnich)). The IDM openly welcomes adherents to creationism into its "Big Tent," urging them to postpone biblical disputes like the age of the earth. (11:3-15 (Forrest); P-429). Moreover and as previously stated, there is hardly better evidence of ID's relationship with creationism than an explicit statement by defense expert Fuller that ID is a form of creationism. (Fuller Dep. at 67, June 21, 2005) (indicated that ID is a modern view of creationism).

Although contrary to Fuller, defense experts Professors Behe and Minnich testified that ID is not creationism, their testimony was primarily by way of bare assertion and it failed to directly rebut the creationist history of Pandas or other evidence presented by Plaintiffs showing the commonality between creationism and ID. The sole argument Defendants made to distinguish creationism from ID was their assertion that the term "creationism" applies only to arguments based on the [*723] Book of Genesis, a young earth, and a catastrophic Noaich flood; however, substantial evidence established that this is only one form of creationism, including the chart that was distributed to the Board Curriculum Committee, as will be described below. (P-149 at 2; 10:129-32 (Forrest); P-555 at 22-24).

Having thus provided the social and historical context in which the ID Policy arose of which a reasonable observer, either adult or child would be aware, we will now focus on what the objective student alone would know. We will accordingly determine whether an objective student would view the disclaimer read to the ninth grade biology class as an official endorsement of religion.

The Supreme Court instructed in Edwards that it has been particularly "vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools." 482 U.S. at 583-84. The Supreme Court went on to state that:

Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary.

Id. (citing Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 383, 105 S. Ct. 3216, 87 L. Ed. 2d 267 (1985); Wallace, 472 U.S. at 60 n.51).

In ascertaining whether an objective Dover High School ninth grade student would view the disclaimer as an official endorsement of religion, it is important to note that a reasonable, objective student is not a specific, actual student, or even an amalgam of actual students, but is instead a hypothetical student, one to whom the reviewing court imputes detailed historical and background knowledge, but also one who interprets the challenged conduct in light of that knowledge with the level of intellectual sophistication that a child of the relevant age would bring to bear. See, e.g., Child Evangelism, 386 F.3d at 531 ("A reasonable observer, 'aware of the history and context of the community and forum,' would know that [the school district] has a policy of assisting a broad range of community groups, that [the district] plays no role in composing the flyers that are sent home and does not pay for them, and that [the district's] teachers do not discuss the flyers in class." This detailed, sophisticated knowledge was imputed to elementary-school students.) (internal citations omitted); Good News, 533 U.S. at 119 (Admonished not to proscribe religious activity "on the basis of what the youngest members of the audience might perceive.").

Plaintiffs accurately submit that reviewing courts often make no distinction between an adult observer and a student observer when deciding whether a public school's conduct conveys an unconstitutional message of religious endorsement. However, when such a distinction is drawn, as is appropriate to do under the circumstances of this case, courts have recognized that because students are more impressionable than adults, they may be systematically less effective than adults at recognizing when religious conduct is unofficial and therefore permissible. See, e.g., Selman, 390 F. Supp. 2d at 1311 (textbook sticker stating that evolution was theory was particularly likely to convey message of endorsement "given the Sticker's intended audience, impressionable school [*724] students"); Joki v. Bd. of Educ., 745 F. Supp. 823, 831 (N.D.N.Y. 1990)("To an impressionable student, even the mere appearance of secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular religious creed."). Accordingly, the objective student standard is a means to ensure that courts exercise the particular vigilance that the Supreme Court has mandated for protecting impressionable children from religious messages that appear to carry official imprimatur; it is not a tool for excluding or ignoring material evidence.

After a careful review of the record and for the reasons that follow, we find that an objective student would view the disclaimer as a strong official endorsement of religion. Application of the objective student standard pursuant to the endorsement test reveals that an objective Dover High School ninth grade student will unquestionably perceive the text of the disclaimer, "enlightened by its context and contemporary legislative history," as conferring a religious concept on "her school's seal of approval." Selman, 390 F. Supp. 2d at 1300; Santa Fe, 530 U.S. at 308; Edwards, 482 U.S. at 594 (in addition to "the plain meaning of the [enactment's] words, enlightened by their context and the contemporaneous legislative history," the Supreme Court also looks for legislative purpose in "the historical context of the [enactment], and the specific sequence of events leading to [its] passage") (internal citations omitted); see also Santa Fe, 530 U.S. at 308 ("Regardless of the listener's support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school's seal of approval.").

We arrive at this conclusion by initially considering the plain language of the disclaimer, paragraph by paragraph. The first paragraph reads as follows:

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.

P-124. The evidence in this case reveals that Defendants do not mandate a similar pronouncement about any other aspect of the biology curriculum or the curriculum for any other course, despite the fact that state standards directly address numerous other topics covered in the biology curriculum and the students' other classes, and despite the fact that standardized tests cover such other topics as well. Notably, the unrefuted testimony of Plaintiffs' science education expert Dr. Alters, the only such expert to testify in the case sub judice explains, and the testimony of Drs. Miller and Padian confirms, the message this paragraph communicates to ninth grade biology students is that:

We have to teach this stuff[.] The other stuff we're just going to teach you, but now this one we have to say the Pennsylvania academic standards require[] students to … eventually take a test. We'd rather not do it, but Pennsylvania academic standards … require students to do this.

Trial Tr. vol. 14, Alters Test., 110-11, Oct. 12, 2005.

Stated another way, the first paragraph of the disclaimer directly addresses and disavows evolutionary theory by telling students that they have to learn about evolutionary theory because it is required by "Pennsylvania Academic Standards" and it will be tested; however, no similar disclaimer prefacing instruction is conducted regarding any other portion of the biology [*725] curriculum nor any other course's curriculum.

The second paragraph of the disclaimer reads as follows:

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 no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

P-124. This paragraph singles out evolution from the rest of the science curriculum and informs students that evolution, unlike anything else that they are learning, is "just a theory," which plays on the "colloquial or popular understanding of the term ['theory'] and suggest[ing] to the informed, reasonable observer that evolution is only a highly questionable 'opinion' or a 'hunch.'" Selman, 390 F. Supp. 2d at 1310; 14:110-12 (Alters); 1:92 (Miller). Immediately after students are told that "Darwin's Theory" is a theory and that it continues to be tested, they are told that "gaps" exist within evolutionary theory without any indication that other scientific theories might suffer the same supposed weakness. As Dr. Alters explained this paragraph is both misleading and creates misconceptions in students about evolutionary theory by misrepresenting the scientific status of evolution and by telling students that they should regard it as singularly unreliable, or on shaky ground. (14:117 (Alters)). Additionally and as pointed out by Plaintiffs, it is indeed telling that even defense expert Professor Fuller agreed with this conclusion by stating that in his own expert opinion the disclaimer is misleading. (Fuller Dep. 110-11, June 21, 2005). Dr. Padian bluntly and effectively stated that in confusing students about science generally and evolution in particular, the disclaimer makes students "stupid." (Trial Tr. vol. 17, Padian Test., 48-52, Oct. 14, 2005).

In summary, the second paragraph of the disclaimer undermines students' education in evolutionary theory and sets the groundwork for presenting students with the District's favored religious alternative.

Paragraph three of the disclaimer proceeds to present this alternative and reads as follows:

Intelligent Design is an explanation of the origin of life that differs from Darwin's view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

P-124. Students are therefore provided information that contrasts ID with "Darwin's view" and are directed to consult Pandas as though it were a scientific text that provided a scientific account of, and empirical scientific evidence for, ID. The theory or "view" of evolution, which has been discredited by the District in the student's eyes, is contrasted with an alternative "explanation," as opposed to a "theory," that can be offered without qualification or cautionary note. The alternative "explanation" thus receives markedly different treatment from evolutionary "theory." In other words, the disclaimer relies upon the very same "contrived dualism" that the court in McLean recognized to be a creationist tactic that has "no scientific factual basis or legitimate educational purpose." McLean, 529 F. Supp. at 1266. 6 [*726] The overwhelming evidence at trial established that ID is a religious view, a mere re-labeling of creationism, and not a scientific theory. As the Fifth Circuit Court of Appeals held in Freiler, an educator's "reading of a disclaimer that not only disavows endorsement of educational materials but also juxtaposes that disavowal with an urging to contemplate alternative religious concepts implies School Board approval of religious principles." Freiler, 185 F.3d at 348.

In the fourth and final paragraph of the disclaimer, students are informed of the following:

With respect to any theory, students are encouraged 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.

P-124.

Plaintiffs accurately submit that the disclaimer mimics the one that the Fifth Circuit struck down as unconstitutional in Freiler in two key aspects. First, while encouraging students to keep an open mind and explore alternatives to evolution, it offers no scientific alternative; instead, the only alternative offered is an inherently religious one, namely, ID. Freiler, 185 F.3d at 344-47 (disclaimer urging students to "exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion" referenced "Biblical version of Creation" as the only alternative theory, thus "encourag[ing] students to read and meditate upon religion in general and the "Biblical version of Creation" in particular.) Whether a student accepts the Board's invitation to explore Pandas, and reads a creationist text, or follows the Board's other suggestion and discusses "Origins of Life" with family members, that objective student can reasonably infer that the District's favored view is a religious one, and that the District is accordingly sponsoring a form of religion. Second, by directing students to their families to learn about the "Origins of Life," the paragraph performs the exact same function as did the Freiler disclaimer: It "reminds school children that they can rightly maintain beliefs taught by their parents on the subject of the origin of life," thereby stifling the critical thinking that the class's study of evolutionary theory might otherwise prompt, to protect a religious view from what the Board considers to be a threat. Id. at 345 (because disclaimer effectively told students "that evolution as taught in the classroom need not affect what they already know," it sent a message that was "contrary to an intent to encourage critical thinking, which requires that students approach new concepts with an open mind and willingness to alter and shift existing viewpoints").

A thorough review of the disclaimer's plain language therefore conveys a strong message of religious endorsement to an objective Dover ninth grade student.

The classroom presentation of the disclaimer provides further evidence that it [*727] conveys a message of religious endorsement. It is important to initially note that as a result of the teachers' refusal to read the disclaimer, school administrators were forced to make special appearances in the science classrooms to deliver it. No evidence was presented by any witness that the Dover students are presented with a disclaimer of any type in any other topic in the curriculum. 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, as will be discussed below. (Trial Tr. vol. 25, Nilsen Test., 56-57, Oct. 21, 2005; Trial Tr. vol. 35, Baksa Test., 38, Nov. 2, 2005). This would provide the students with an additional reason to conclude that the District is advocating a religious view in biology class.

Second, the administrators made the remarkable and awkward statement, as part of the disclaimer, that "there will be no other discussion of the issue and your teachers will not answer questions on the issue." (P-124). Dr. Alters explained that a reasonable student observer would conclude that ID is a kind of "secret science that students apparently can't discuss with their science teacher" which he indicated is pedagogically "about as bad as I could possibly think of." (14:125-27 (Alters)). Unlike anything else in the curriculum, students are under the impression that the topic to which they are introduced in the disclaimer, ID, is so sensitive that the students and their teachers are completely barred from asking questions about it or discussing it. 7

A third important issue concerning the classroom presentation of the disclaimer is the "opt out" feature. Students who do not [*728] wish to be exposed to the disclaimer and students whose parents do not care to have them exposed it, must "opt out" to avoid the unwanted religious message. Dr. Alters testified that the "opt out" feature adds "novelty," thereby enhancing the importance of the disclaimer in the students' eyes. 8 (14:123-25 (Alters)). Moreover, the stark choice that exists between submitting to state-sponsored religious instruction and leaving the public school classroom presents a clear message to students "who are nonadherents that they are outsiders, not full members of the political community." Santa Fe, 530 U.S. at 309-10 (quotation marks omitted). Accordingly, we find that the classroom presentation of the disclaimer, including school administrators making a special appearance in the science classrooms to deliver the statement, the complete prohibition on discussion or questioning ID, and the "opt out" feature all convey a strong message of religious endorsement.

An objective student is also presumed to know that the Dover School Board advocated for the curriculum change and disclaimer in expressly religious terms, that the proposed curriculum change prompted massive community debate over the Board's attempts to inject religious concepts into the science curriculum, and that the Board adopted the ID Policy in furtherance of an expressly religious agenda, as will be elaborated upon below. Additionally, the objective student is presumed to have information concerning the history of religious opposition to evolution and would recognize that the Board's ID Policy is in keeping with that tradition. Consider, for example, that the Supreme Court in Santa Fe stated it presumed that "every Santa Fe High School student understands clearly" that the school district's policy "is about prayer," and not student free speech rights as the school board had alleged, and the Supreme Court premised that presumption on the principle that "the history and ubiquity" of the graduation prayer practice "provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion." Santa Fe, 530 U.S. at 315; Allegheny, 492 U.S. at 630; see also Black Horse Pike, 84 F.3d at 1486.

Importantly, the historical context that the objective student is presumed to know consists of a factor that weighed heavily in the Supreme Court's decision to strike down the balanced-treatment law in Edwards, specifically that "out of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects." 482 U.S. at 593. Moreover, the objective student is presumed to know that encouraging the teaching of evolution as a theory rather than as a fact is one of the latest strategies to dilute evolution instruction employed by anti-evolutionists with religious motivations. Selman, 390 F. Supp. 2d at 1308.

In summary, the disclaimer singles out the theory of evolution for special treatment, misrepresents its status in the scientific community, causes students to doubt its validity without scientific justification, presents students with a religious alternative [*729] masquerading as a scientific theory, directs them to consult a creationist text as though it were a science resource, and instructs students to forego scientific inquiry in the public school classroom and instead to seek out religious instruction elsewhere. Furthermore, as Drs. Alters and Miller testified, introducing ID necessarily invites religion into the science classroom as it sets up what will be perceived by students as a "God-friendly" science, the one that explicitly mentions an intelligent designer, and that the "other science," evolution, takes no position on religion. (14:144-45 (Alters)). Dr. Miller testified that a false duality is produced: It "tells students … quite explicitly, choose God on the side of intelligent design or choose atheism on the side of science." (2:54-55 (Miller)). Introducing such a religious conflict into the classroom is "very dangerous" because it forces students to "choose between God and science," not a choice that schools should be forcing on them. Id. at 55.

Our detailed chronology of what a reasonable, objective student is presumed to know has made abundantly clear to the Court that an objective student would view the disclaimer as a strong official endorsement of religion or a religious viewpoint. We now turn to whether an objective adult observer in the Dover community would perceive Defendants' conduct similarly.

The Court must consider whether an objective adult observer in the Dover community would perceive the challenged ID Policy as an endorsement of religion because the unrefuted evidence offered at trial establishes that although the disclaimer is read to students in their ninth grade biology classes, the Board made and subsequently defended its decision to implement the curriculum change publicly, thus casting the entire community as the "listening audience" for its religious message. Santa Fe, 530 U.S. at 308. We are in agreement with Plaintiffs that when a governmental practice bearing on religion occurs within view of the entire community, the reasonable observer is an objective, informed adult within the community at large, even if the specific practice is directed at only a subset of that community, as courts routinely look beyond the government's intended audience to the broader listening audience. Otherwise, government would be free and able to sponsor religious messages simply by declaring that those who share in the beliefs that it is espousing are the message's only intended recipients. See Allegheny, 492 U.S. at 597 ("when evaluating the effect of government conduct under the Establishment Clause, we must ascertain whether 'the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choice'") (quoting Ball, 473 U.S. at 390). 9 Accordingly, not only are parents and other Dover citizens part of the listening audience for the Board's curriculum change, [*730] but they are part of its "intended audience" as well.

First, the Board brought the public into the debate over whether to include ID in the curriculum as it proposed, advocated, and ultimately approved the ID Policy in public school board meetings. These meetings were such that members of the public not only attended them, but also had the opportunity to offer public comment on the proposal. In those Board meetings, open to the public at large, several Dover School Board members advocated for the ID Policy in expressly religious terms, with their comments reported extensively in the local newspapers, as will be discussed in detail below. Second, at least two Board members, William Buckingham and Heather Geesey, defended the proposed curriculum change in the media in expressly religious terms.

Moreover, it is notable that the Board sent a newsletter to every household in Dover in February 2005 "produced to help explain the changes in the biology curriculum" and prepared in conjunction with defense counsel, the Thomas More Law Center. (P-127). Typically, the Board sent out a newsletter in the Dover area approximately four times a year and in February 2005, the Board unanimously voted to mail a specialized newsletter to the community. (Trial Tr. vol. 15, C. Sneath Test., 98-99, 136, Oct. 12, 2005; P-82). Although formatted like a typical district newsletter, an objective adult member of the Dover community is presumed to understand this mailing as an aggressive advocacy piece denigrating the scientific theory of evolution while advocating ID. Within this newsletter, the initial entry under the heading "Frequently Asked Questions" demeans Plaintiffs for protecting their Constitutional rights as it states, "A small minority of parents have objected to the recent curriculum change by arguing that the Board has acted to impose its own religious beliefs on students." (P-127 at 1). Religion is again mentioned in the second "Frequently Asked Question" as it poses the question "Isn't ID simply religion in disguise?" Id. The newsletter suggests that scientists engage in trickery and doublespeak about the theory of evolution by stating, "The word evolution has several meanings, and those supporting Darwin's theory of evolution use that confusion in definition to their advantage." Id. The newsletter additionally makes the claim that ID is a scientific theory on par with evolution and other scientific theories by explaining, "The theory of intelligent design (ID) is a scientific theory that differs from Darwin's view, and is endorsed by a growing number of credible scientists." Id. at 2. Evolution is subsequently denigrated and claims that have not been advanced, must less proven in the scientific community, are elaborated upon in the newsletter. "In simple terms, on a molecular level, scientists have discovered a purposeful arrangement of parts, which cannot be explained by Darwin's theory. In fact, since the 1950s, advances in molecular biology and chemistry have shown us that living cells, the fundamental units of life processes, cannot be explained by chance." Id. The newsletter suggests that evolution has atheistic implications by indicating that "Some have said that before Darwin, 'we thought a benevolent God had created us. Biology took away our status as made in the image of God' … or 'Darwinism [*731] made it possible to be an intellectually fulfilled atheist.'" Id. Finally and notably, the newsletter all but admits that ID is religious by quoting Anthony Flew, described as a "world famous atheist who now believes in intelligent design," as follows: "My whole life has been guided by the principle of Plato's Socrates: Follow the evidence where it leads." Id.

The February 2005 newsletter was mailed to every household in Dover. Even those individuals who had no children, never attended a Dover Board meeting, and never concerned themselves with learning about school policies, were directly confronted and made the "listening audience" for the District's announcement of its sponsorship of a religious viewpoint. Thus, the February 2005 newsletter was an astonishing propaganda discourse which succeeded in advising the few individuals who were by that time not aware that a firestorm had erupted over ID in Dover.

In addition to being aware of the public debate, over whether to include ID in the biology curriculum, the public board meetings where such proposed curriculum change was advanced in expressly religious terms, and receiving a newsletter providing detailed information about the ID Policy, the District assigned Dover parents a special role regarding the ID Policy. Parents of ninth grade biology students who are subject to the ID Policy are sent a letter when their children are taking biology, "asking if anyone has a problem with the [disclaimer] statement," and calling on them to decide whether to allow their children to remain in the classroom and hear the religious message or instead to direct their children to leave the room. (P-124). When parents must give permission for their children to participate in an activity, the Supreme Court has held that the parents are the relevant audience for purposes of the endorsement. See Good News, 533 U.S. at 115 (parents are relevant audience for determining whether presence of after-school Bible club at public elementary school conveyed message of religious endorsement because the parents had to give children permission to participate in club); see also Rusk v. Crestview Local Sch. Dist., 379 F.3d 418, 421 (6th Cir. 2004) (parents are audience for flyers distributed to elementary-school students because parents must give permission for children to participate in advertised activities). The converse must also be true, when parents must decide whether to withhold permission to participate in an activity or course of instruction, they remain the relevant audience for ascertaining whether government is communicating a message favoring religion.

An objective adult member of the Dover community would also be presumed to know that ID and teaching about supposed gaps and problems in evolutionary theory are creationist religious strategies that evolved from earlier forms of creationism, as we previously detailed. The objective observer is therefore aware of the social context in which the ID Policy arose and considered in light of this history, the challenged ID Policy constitutes an endorsement of a religious view for the reasons that follow.

First, the disclaimer's declaration that evolution "is a theory … not a fact" has the cultural meaning that the Selman court explained: "Whether evolution [is] referenced as a theory or a fact is … a loaded issue with religious undertones," reflecting "a lengthy debate between advocates of evolution and proponents of religious theories of origin[.]" It is "one of the latest strategies to dilute evolution instruction employed by anti-evolutionists with religious motivations." Selman, 390 F. Supp. 2d at 1304, 1307-08 (citing Edwards, [*732] 482 U.S. at 624) (Scalia, J., dissenting) (noting that balanced-treatment act's sponsor opposed evolution being taught as fact because it would communicate to students that "science has proved their religious beliefs false"); Freiler, 975 F. Supp. at 824 (noting school board members' concern with teaching evolution as fact because many students in district believed in biblical view of creation). A reasonable observer is presumed to know the social meaning of the theory-not-fact deliberate word choice and would "perceive the School Board to be aligning itself with proponents of religious theories of origin," thus "communicating to those who endorse evolution that they are political outsiders, while … communicating to the Christian fundamentalists and creationists who pushed for a disclaimer that they are political insiders." Selman, 390 F. Supp. 2d at 1308.

Second, the Dover School Board singles out the scientific theory of evolution, specifically and repeatedly targeting it as a "theory" with "gaps," "problems," and inadequate empirical support. In singling out the one scientific theory that has historically been opposed by certain religious sects, the Board sent the message that it "believes there is some problem peculiar to evolution," and "in light of the historical opposition to evolution by Christian fundamentalists and creationists[,] … the informed, reasonable observer would infer the School Board's problem with evolution to be that evolution does not acknowledge a creator." Id. at 1309.

Third, it is readily apparent to the Court that the entire community became intertwined in the controversy over the ID Policy. The Board's actions from June 2004 through October 18, 2004, the date the Board approved the curriculum change, were consistently reported in news articles in the two local newspapers, the York Daily Record and the York Dispatch. (P-44/P-804; P-45/P-805; P-46/P-790; P-47/P-791; P-51/P-792; P-53/P-793; P-54/P-806; P-55; P-795; P-807; P-809; P-797). 10 Most of the Plaintiffs testified that they did not attend the 2004 Board meetings that preceded the curriculum change and became aware of the Board's actions only after reading about them in the local newspapers. Tammy Kitzmiller, Beth Eveland, Cindy Sneath, Steven Stough, and Joel Lieb all first learned of the Board's actions regarding the biology curriculum and textbook from the news articles. 11 (Trial Tr. vol. 3, Kitzmiller Test., 114, Sept. 27, 2005; Trial Tr. vol. 6, Eveland Test., 93-94, Sept. 28, 2005; 15:77-78 ©. Sneath); 15:113-14 (Stough); Trial Tr. vol. 17, Leib Test., 143, Oct. 14, 2005).

The news reports in the York newspapers were followed by numerous letters to the editor and editorials published in the same papers. (P-671; P-672; P-674; P-675). Although Defendants have strenuously objected to Plaintiffs' introduction of the letters to the editor and editorials from the York Daily Record and the York Dispatch addressing the curriculum controversy, we will admit such materials into evidence and consider them pursuant to the endorsement test and Lemon's effect prong. The letters and editorials are not offered for the truth of what is contained therein, but they are probative of the perception [*733] of the community at large. They reveal that the entire community has consistently and unwaveringly understood the controversy to concern whether a religious view should be taught as science in the Dover public school system. Moreover, and as will be explained below, the letters to the editor and editorials are relevant and probative of the community's collective social judgment that the challenged conduct advances religion. Epperson, 393 U.S. at 108 n.16. 12 As previously noted, the Supreme Court held in Santa Fe that a public school district's conduct touching on religion should be evaluated under the endorsement test from the standpoint of how the "listening audience" would view it; and, if members of the listening audience would perceive the district's conduct as endorsing religion or a particular religious view, then the conduct violates the Establishment Clause. Santa Fe, 530 U.S. at 308. Because the endorsement inquiry is not about the perceptions of particular individuals, Plaintiffs do not argue before the Court that any particular letter or editorial, or the views expressed therein, can or should supplant this Court's consideration of the curriculum change from the standpoint of a reasonable observer. See Pinette, 515 U.S. at 779 (O'Connor, J., concurring in part and concurring in judgment). Instead, the Court looks to the hypothetical reasonable observer as a "personification of a community ideal of reasonable behavior, determined by the [collective] social judgment." Id. at 780.

The 225 letters to the editor and sixty-two editorials that Plaintiffs have offered constitute what Plaintiffs' counsel believe to be the entire set of such materials published in the York newspapers serving the Dover community during the period from June 1, 2004 through September 1, 2005, which includes the time period from the first Board meetings in which the proposal to change the biology curriculum was announced through the approximate starting date of the trial in this case. We have been presented with no reason to doubt this assertion. The York Daily Record published 139 letters to the editor regarding the Board's actions and eighty-six of those letters addressed the issues in religious terms. (16:18-20 (Stough)). The York Daily Record published forty-three editorials regarding the Board's actions and twenty-eight of such editorials addressed the issues in religious terms. (P-674; 16:22-24 (Stough)). The York Dispatch published eighty-six letters to the editor regarding the Board's actions, sixty of which addressed the issue in religious terms. (16:24 (Stough)). The York Dispatch published nineteen editorials regarding the Board's actions, seventeen of which addressed the issues in religious terms. Id. at 25.

The 225 letters to the editor and sixty-two editorials from the York Daily Record and York Dispatch that Plaintiffs offered at trial and which we have admitted for consideration in our analysis of the endorsement test and Lemon's effect prong, show that hundreds of individuals in this small community felt it necessary to publish their views on the issues presented in this case for the community to see. Moreover, a review of the letters and editorials at issue reveals that in letter after letter and editorial after editorial, community members postulated that ID is an inherently religious concept, that the writers viewed the decision of whether to incorporate [*734] it into the high school biology curriculum as one which implicated a religious concept, and therefore that the curriculum change has the effect of placing the government's imprimatur on the Board's preferred religious viewpoint. (P-671-72, 674-75). These exhibits are thus probative of the fact that members of the Dover community perceived the Board as having acted to promote religion, with many citizens lined up as either for the curriculum change, on religious grounds, or against the curriculum change, on the ground that religion should not play a role in public school science class. Accordingly, the letters and editorials are relevant to, and provide evidence of, the Dover community's collective social judgment about the curriculum change because they demonstrate that "regardless of the listener's support for, or objection to," the curriculum change, the community and hence the objective observer who personifies it, cannot help but see that the ID Policy implicates and thus endorses religion.

It is additionally important to note that our determination to consider the letters and editorials is in line with the Supreme Court's decision in Epperson. In Epperson, the Supreme Court pointed to letters to the editor in a local newspaper as support for its conclusion that "fundamentalist sectarian conviction was and is" the reason that Arkansas enacted its statutory prohibition against teaching evolution in public schools. Epperson, 393 U.S. at 108. The Supreme Court quoted from three letters published in the Arkansas Gazette to show that the public "feared that teaching of evolution would be 'subversion of Christianity,' and that it would cause school children 'to disrespect the Bible.'" Id. at 108 n.16. 13

Accordingly, taken in the aggregate, the plethora of letters to the editor and editorials from the local York newspapers constitute substantial additional evidence that the entire community became intertwined in the controversy of the ID Policy at issue and that the community collectively perceives the ID Policy as favoring a particular religious view. As a result of the foregoing analysis, we conclude that an informed, objective adult member of the Dover community aware of the social context in which the ID Policy arose would view Defendants' conduct and the challenged Policy to be a strong endorsement of a religious view.

We have now found that both an objective student and an objective adult member of the Dover community would perceive Defendants' conduct to be a strong endorsement of religion pursuant to the endorsement test. Having so concluded, we find it incumbent upon the Court to further address an additional issue raised by Plaintiffs, which is whether ID is science. [*735] To be sure, our answer to this question can likely be predicted based upon the foregoing analysis. While answering this question compels us to revisit evidence that is entirely complex, if not obtuse, after a six week trial that spanned twenty-one days and included countless hours of detailed expert witness presentations, the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.

After a searching review of the record and applicable caselaw, we find that while ID arguments may be true, a proposition on which the Court takes no position, ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980's; and (3) ID's negative attacks on evolution have been refuted by the scientific community. As we will discuss in more detail below, it is additionally important to note that ID has failed to gain acceptance in the scientific community, it has not generated peer-reviewed publications, nor has it been the subject of testing and research.

Expert testimony reveals that since the scientific revolution of the 16th an 17th centuries, science has been limited to the search for natural causes to explain natural phenomena. (9:19-22 (Haught); 5:25-29 (Pennock); 1:62 (Miller)). This revolution entailed the rejection of the appeal to authority, and by extension, revelation, in favor of empirical evidence. (5:28 (Pennock)). Since that time period, science has been a discipline in which testability, rather than any ecclesiastical authority or philosophical coherence, has been the measure of a scientific idea's worth. (9:21-22 (Haught); 1:63 (Miller)). In deliberately omitting theological or "ultimate" explanations for the existence or characteristics of the natural world, science does not consider issues of "meaning" and "purpose" in the world. (9:21 (Haught); 1:64, 87 (Miller)). While supernatural explanations may be important and have merit, they are not part of science. (3:103 (Miller); 9:19-20 (Haught)). This self-imposed convention of science, which limits inquiry to testable, natural explanations about the natural world, is referred to by philosophers as "methodological naturalism" and is sometimes known as the scientific method. (5:23, 29-30 (Pennock)). Methodological naturalism is a "ground rule" of science today which requires scientists to seek explanations in the world around us based upon what we can observe, test, replicate, and verify. (1:59-64, 2:41-43 (Miller); 5:8, 23-30 (Pennock)).

As the National Academy of Sciences (hereinafter "NAS") was recognized by experts for both parties as the "most prestigious" scientific association in this country, we will accordingly cite to its opinion where appropriate. (1:94, 160-61 (Miller); 14:72 (Alters); 37:31 (Minnich)). NAS is in agreement that science is limited to empirical, observable and ultimately testable data: "Science is a particular way of knowing about the world. In science, explanations [*736] are restricted to those that can be inferred from the confirmable data — the results obtained through observations and experiments that can be substantiated by other scientists. Anything that can be observed or measured is amenable to scientific investigation. Explanations that cannot be based upon empirical evidence are not part of science." (P-649 at 27).

This rigorous attachment to "natural" explanations is an essential attribute to science by definition and by convention. (1:63 (Miller); 5:29-31 (Pennock)). We are in agreement with Plaintiffs' lead expert Dr. Miller, that from a practical perspective, attributing unsolved problems about nature to causes and forces that lie outside the natural world is a "science stopper." (3:14-15 (Miller)). As Dr. Miller explained, once you attribute a cause to an untestable supernatural force, a proposition that cannot be disproven, there is no reason to continue seeking natural explanations as we have our answer. Id.

ID is predicated on supernatural causation, as we previously explained and as various expert testimony revealed. (17:96 (Padian); 2:35-36 (Miller); 14:62 (Alters)). ID takes a natural phenomenon and, instead of accepting or seeking a natural explanation, argues that the explanation is supernatural. (5:107 (Pennock)). Further support for the conclusion that ID is predicated on supernatural causation is found in the ID reference book to which ninth grade biology students are directed, Pandas. Pandas states, in pertinent part, as follows:

Darwinists object to the view of intelligent design because it does not give a natural cause explanation of how the various forms of life started in the first place. 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.

P-11 at 99-100 (emphasis added). Stated another way, ID posits that animals did not evolve naturally through evolutionary means but were created abruptly by a non-natural, or supernatural, designer. Defendants' own expert witnesses acknowledged this point. (21:96-100 (Behe); P-718 at 696, 700 ("implausible that the designer is a natural entity"); 28:21-22 (Fuller) ("… ID's rejection of naturalism and commitment to supernaturalism …"); 38:95-96 (Minnich) (ID does not exclude the possibility of a supernatural designer, including deities).

It is notable that defense experts' own mission, which mirrors that of the IDM itself, is to change the ground rules of science to allow supernatural causation of the natural world, which the Supreme Court in Edwards and the court in McLean correctly recognized as an inherently religious concept. Edwards, 482 U.S. at 591-92; McLean, 529 F. Supp. at 1267. First, defense expert Professor Fuller agreed that ID aspires to "change the ground rules" of science and lead defense expert Professor Behe admitted that his broadened definition of science, which encompasses ID, would also embrace astrology. (28:26 (Fuller); 21:37-42 (Behe)). Moreover, defense expert Professor Minnich acknowledged that for ID to be considered science, the ground rules of science have to be broadened to allow consideration of supernatural forces. (38:97 (Minnich)).

Prominent IDM leaders are in agreement with the opinions expressed by defense expert witnesses that the ground rules of science must be changed for ID to take hold and prosper. William Dembski, for instance, an IDM leader, proclaims that science is ruled by methodological naturalism and argues that this rule must [*737] be overturned if ID is to prosper. (5:32-37 (Pennock)); P-341 at 224 ("Indeed, entire fields of inquiry, including especially in the human sciences, will need to be rethought from the ground up in terms of intelligent design.").

The Discovery Institute, the think tank promoting ID whose CRSC developed the Wedge Document, acknowledges as "Governing Goals" to "defeat scientific materialism and its destructive moral, cultural and political legacies" and "replace materialistic explanations with the theistic understanding that nature and human beings are created by God." (P-140 at 4). In addition, and as previously noted, the Wedge Document states in its "Five Year Strategic Plan Summary" that the IDM's goal is to replace science as currently practiced with "theistic and Christian science." Id. at 6. The IDM accordingly seeks nothing less than a complete scientific revolution in which ID will supplant evolutionary theory. 14

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. (1:98-99 (Miller); 14:75-78 (Alters); 37:25 (Minnich)). Initially, we note that NAS, the "most prestigious" scientific association in this country, views ID as follows:

Creationism, intelligent design, and other claims of supernatural intervention in the origin of life or of species are not science because they are not testable by the methods of science. These claims subordinate observed data to statements based on authority, revelation, or religious belief. Documentation offered in support of these claims is typically limited to the special publications of their advocates. These publications do not offer hypotheses subject to change in light of new data, new interpretations, or demonstration of error. This contrasts with science, where any hypothesis or theory always remains subject to the possibility of rejection or modification in the light of new knowledge.

P-192 at 25. Additionally, the American Association for the Advancement of Science (hereinafter "AAAS"), the largest organization of scientists in this country, has taken a similar position on ID, namely, that it "has not proposed a scientific means of testing its claims" and that "the lack of scientific warrant for so-called 'intelligent design theory' makes it improper to include as part of science education …" (P-198). Not a single expert witness over the course of the six week trial identified one [*738] major scientific association, society or organization that endorsed ID as science. What is more, defense experts concede that ID is not a theory as that term is defined by the NAS and admit that ID is at best "fringe science" which has achieved no acceptance in the scientific community. (21:37-38 (Behe); Fuller Dep. at 98-101, June 21, 2005; 28:47 (Fuller); Minnich Dep. at 89, May 26, 2005).

It is therefore readily apparent to the Court that ID fails to meet the essential ground rules that limit science to testable, natural explanations. (3:101-03 (Miller); 14:62 (Alters)). Science cannot be defined differently for Dover students than it is defined in the scientific community as an affirmative action program, as advocated by Professor Fuller, for a view that has been unable to gain a foothold within the scientific establishment. Although ID's failure to meet the ground rules of science is sufficient for the Court to conclude that it is not science, out of an abundance of caution and in the exercise of completeness, we will analyze additional arguments advanced regarding the concepts of ID and science.

ID is at bottom premised upon a false dichotomy, namely, that to the extent evolutionary theory is discredited, ID is confirmed. (5:41 (Pennock)). This argument is not brought to this Court anew, and in fact, the same argument, termed "contrived dualism" in McLean, was employed by creationists in the 1980's to support "creation science." The court in McLean noted the "fallacious pedagogy of the two model approach" and that "in efforts to establish 'evidence' in support of creation science, the defendants relied upon the same false premise as the two model approach … all evidence which criticized evolutionary theory was proof in support of creation science." McLean, 529 F. Supp. at 1267, 1269. We do not find this false dichotomy any more availing to justify ID today than it was to justify creation science two decades ago.

ID proponents primarily argue for design through negative arguments against evolution, as illustrated by Professor Behe's argument that "irreducibly complex" systems cannot be produced through Darwinian, or any natural, mechanisms. (5:38-41 (Pennock); 1:39, 2:15, 2:35-37, 3:96 (Miller); 16:72-73 (Padian); 10:148 (Forrest)). However, we believe that arguments against evolution are not arguments for design. Expert testimony revealed that just because scientists cannot explain today how biological systems evolved does not mean that they cannot, and will not, be able to explain them tomorrow. (2:36-37 (Miller)). As Dr. Padian aptly noted, "absence of evidence is not evidence of absence." (17:45 (Padian)). To that end, expert testimony from Drs. Miller and Padian provided multiple examples where Pandas asserted that no natural explanations exist, and in some cases that none could exist, and yet natural explanations have been identified in the intervening years. It also bears mentioning that as Dr. Miller stated, just because scientists cannot explain every evolutionary detail does not undermine its validity as a scientific theory as no theory in science is fully understood. (3:102 (Miller)).

As referenced, the concept of irreducible complexity is ID's alleged scientific centerpiece. Irreducible complexity is a negative argument against evolution, not proof of design, a point conceded by defense expert Professor Minnich. (2:15 (Miller); 38:82 (Minnich) (irreducible complexity "is not a test of intelligent design; it's a test of evolution"). Irreducible complexity additionally fails to make a positive scientific case for ID, as will be elaborated upon below.

[*739] We initially note that irreducible complexity as defined by Professor Behe in his book Darwin's Black Box and subsequently modified in his 2001 article entitled "Reply to My Critics," appears as follows:

By irreducibly complex I mean a single system which is composed of several well-matched, interacting parts that contribute to the basic function, wherein the removal of any one of the parts causes the system to effectively cease functioning. An irreducibly complex system cannot be produced directly by slight, successive modifications of a precursor system, because any precursor to an irreducibly complex system that is missing a part is by definition nonfunctional … Since natural selection can only choose systems that are already working, then if a biological system cannot be produced gradually it would have to arise as an integrated unit, in one fell swoop, for natural selection to have anything to act on.

P-647 at 39; P-718 at 694. Professor Behe admitted in "Reply to My Critics" that there was a defect in his view of irreducible complexity because, while it purports to be a challenge to natural selection, it does not actually address "the task facing natural selection." (P-718 at 695). Professor Behe specifically explained that "the current definition puts the focus on removing a part from an already-functioning system," but "the difficult task facing Darwinian evolution, however, would not be to remove parts from sophisticated pre-existing systems; it would be to bring together components to make a new system in the first place." Id. In that article, Professor Behe wrote that he hoped to "repair this defect in future work;" however, he has failed to do so even four years after elucidating his defect. Id.; 22:61-65 (Behe).

In addition to Professor Behe's admitted failure to properly address the very phenomenon that irreducible complexity purports to place at issue, natural selection, Drs. Miller and Padian testified that Professor Behe's concept of irreducible complexity depends on ignoring ways in which evolution is known to occur. Although Professor Behe is adamant in his definition of irreducible complexity when he says a precursor "missing a part is by definition nonfunctional," what he obviously means is that it will not function in the same way the system functions when all the parts are present. For example in the case of the bacterial flagellum, removal of a part may prevent it from acting as a rotary motor. However, Professor Behe excludes, by definition, the possibility that a precursor to the bacterial flagellum functioned not as a rotary motor, but in some other way, for example as a secretory system. (19:88-95 (Behe)).

As expert testimony revealed, the qualification on what is meant by "irreducible complexity" renders it meaningless as a criticism of evolution. (3:40 (Miller)). In fact, the theory of evolution proffers exaptation as a well-recognized, well-documented explanation for how systems with multiple parts could have evolved through natural means. Exaptation means that some precursor of the subject system had a different, selectable function before experiencing the change or addition that resulted in the subject system with its present function (16:146-48 (Padian)). For instance, Dr. Padian identified the evolution of the mammalian middle ear bones from what had been jawbones as an example of this process. (17:6-17 (Padian)). By defining irreducible complexity in the way that he has, Professor Behe attempts to exclude the phenomenon of exaptation by definitional fiat, ignoring as he does so abundant evidence which refutes his argument.

[*740] Notably, the NAS has rejected Professor Behe's claim for irreducible complexity by using the following cogent reasoning:

Structures and processes that are claimed to be 'irreducibly' complex typically are not on closer inspection. For example, it is incorrect to assume that a complex structure or biochemical process can function only if all its components are present and functioning as we see them today. Complex biochemical systems can be built up from simpler systems through natural selection. Thus, the 'history' of a protein can be traced through simpler organisms … The evolution of complex molecular systems can occur in several ways. Natural selection can bring together parts of a system for one function at one time and then, at a later time, recombine those parts with other systems of components to produce a system that has a different function. Genes can be duplicated, altered, and then amplified through natural selection. The complex biochemical cascade resulting in blood clotting has been explained in this fashion.

P-192 at 22.

As irreducible complexity is only a negative argument against evolution, it is refutable and accordingly testable, unlike ID, by showing that there are intermediate structures with selectable functions that could have evolved into the allegedly irreducibly complex systems. (2:15-16 (Miller)). Importantly, however, the fact that the negative argument of irreducible complexity is testable does not make testable the argument for ID. (2:15 (Miller); 5:39 (Pennock)). Professor Behe has applied the concept of irreducible complexity to only a few select systems: (1) the bacterial flagellum; (2) the blood-clotting cascade; and (3) the immune system. Contrary to Professor Behe's assertions with respect to these few biochemical systems among the myriad existing in nature, however, Dr. Miller presented evidence, based upon peer-reviewed studies, that they are not in fact irreducibly complex.

First, with regard to the bacterial flagellum, Dr. Miller pointed to peer-reviewed studies that identified a possible precursor to the bacterial flagellum, a subsystem that was fully functional, namely the Type-III Secretory System. (2:8-20 (Miller); P-854.23-854.32). Moreover, defense expert Professor Minnich admitted that there is serious scientific research on the question of whether the bacterial flagellum evolved into the Type-III Secretary System, the Type-III Secretory System into the bacterial flagellum, or whether they both evolved from a common ancestor. (38:12-16 (Minnich)). None of this research or thinking involves ID. (38:12-16 (Minnich)). In fact, Professor Minnich testified about his research as follows: "we're looking at the function of these systems and how they could have been derived one from the other. And it's a legitimate scientific inquiry." (38:16 (Minnich)).

Second, with regard to the blood-clotting cascade, Dr. Miller demonstrated that the alleged irreducible complexity of the blood-clotting cascade has bee