At the heart of the controversy is the resolution passed by the Dover Area School Board in a 6-3 vote in October 2004. The resolution requires teachers to read a statement to students stating that Darwin's theory of evolution is "not a fact" and that there are "[g]aps in the theory…for which there is no evidence." The statement then refers students to a textbook called Of Pandas and People, which advocates the concept of "intelligent design," which suggests that all life originated from a supernatural force or being.
The plaintiffs in the case challenged the policy on the grounds that the intelligent design amounted to creationism repackaged with secular language. Agreeing with the plaintiffs, Jones wrote in his 129-page opinion that "the secular purpose claimed by the Board amount[s] to a pretext for the Board's real purpose, which was to promote religion in the public school classroom." Teaching creationism in public schools has been prohibited by the courts in prior cases because it would be a governmental endorsement of religion that would in effect "[compel] nonadherents to support the practices or proselytizing of favored religions and [convey] the message that those who do not contribute gladly are less than full members of the community."
In deciding the case, the court applied two tests, the endorsement test and the "Lemon test." In recent years, the "Lemon test" has not been applied to Establishment clause cases with any degree of consistency, but has been left up to the individual lower courts to decide upon its use. The "Lemon test" comes from a U.S. Supreme Court case called Lemon v. Kurzman, and consists of three tenets. All three must be satisfied in order for the government to avoid a constitutional violation of the separation of church and state. To pass the "Lemon test," the government must demonstrate that its actions: (1) have a legitimate secular purpose, (2) do not have the primary effect of either advancing or inhibiting religions, and (3) do not result in an "excessive entanglement" of the government and religion.
The endorsement test overlaps with the first two prongs of the "Lemon test," but is not meant to replace them. However, because Pennsylvania is part of the Third Circuit, the District Court treats the tests as two distinct tests. To determine if teaching intelligent design in opposition to evolution in ninth-grade biology classes would constitute government endorsement of religion, the court looked to see if a reasonable student and adult in the community would be impressed with the same through the school board's resolution. During the trial, evidence was in the form of letters from the community to editorials of local newspapers regarding the intelligent design controversy was introduced. Taking the aggregate of the letters, the court reasoned that they were reflective of the community as a whole. As such, the reasonable observer in the position of either a student or an adult would view the board's intelligent design policy as an endorsement of religion.
Additionally, the court rejected the argument that the purpose of the intelligent design policy was secular, thereby failing the first prong of the "Lemon test." In the opinion, the court stated that although the defendant's policy was "enacted for the secular purposes of improving science education and encouraging students to exercise critical thinking skills," the Board did not follow standard procedure before enacting the policy—a process that would have involved consultation of the scientific community.
With regard to the court's ruling, Jones defended his stance in the opinion, stating, "Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred, as this is manifestly not an activist court."
"Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on intelligent design, who in combination drove the board to adopt an imprudent and ultimately unconstitutional policy," he said.
Jones is an appointee of President Bush, who supports the teaching of intelligent design.
The court opinion can be found at http://www.pamd.uscourts.gov/kitzmiller/decision.htm.
