Kitzmiller v. Dover Area School District:
The ‘Intelligent Design’ Case
Hamilton LLP served as lead counsel to the plaintiffs in the landmark
“intelligent design” case of Kitzmiller v. Dover Area School District
that was decided in Pennsylvania in December 2005 (Kitzmiller v. Dover Area School
District, 400 F. Supp. 2d 707 (M.D. Pa. 2005)).
Pepper, along with lawyers from the ACLU of Pennsylvania and Americans United for
Separation of Church and State, successfully represented in federal court eight
families who challenged the Dover policy that included intelligent design in the
curriculum. Pepper handled the case as part of its
pro bono and public service program.
An overview of the case and the judge’s decision appear below:
Additional information is available at:
Overview of the Case
In October 2004, the Dover Area School District in central Pennsylvania was thrust
into the national and international spotlight when it became the first district
in the country to include in its biology curriculum the concept of intelligent design
– the idea that life had to have been created by an intelligent, supernatural actor
because it is too complex to have developed through natural processes.
The Dover School Board had voted to require biology teachers at the high school
to read a statement to students that asserted that the scientific theory of evolution
was just a theory, not a fact, and presented “intelligent design” as
an alternative to the theory of evolution.
Parents of students in the school district filed a federal lawsuit in December 2004
challenging the intelligent design policy.
A bench trial took place in the fall of 2005 in Harrisburg, Pa., before the Hon.
John E. Jones, III of the U.S. District Court for the Middle District of Pennsylvania,
and ran for six weeks, from September 26, 2005 through November 4, 2005.
Stephen G. Harvey were lead counsel on the Pepper trial team. Also part
of the Pepper trial team were Alfred H. Wilcox,
Thomas B. Schmidt, III and paralegals Katherine E. Henson and Hedya
Aryani, with assistance from associates Christopher J. Lowe, Stacey
I. Gregory, Joseph M. Farber, Benjamin M. Mather and
Eric J. Goldberg, paralegal Justene G. Hill, and the entire Harrisburg
office of the firm.
At trial, Pepper and the rest of the plaintiffs’ team argued that the intelligent
design policy was an attempt to bring creationism and religion into the classroom,
and they contested the school district’s argument that intelligent design
is a valid scientific alternative to the theory of evolution.
The trial is being touted as the first legal test of the constitutionality of teaching
intelligent design as science, and the most significant case on religious issues
in public school science classes since 1987, when the U.S. Supreme Court ruled against
the teaching of creation science.
The Judge’s Decision
Dover’s intelligent design policy was overturned on December 20, 2005, when
Judge Jones issued a 139-page
opinion, ruling in favor of the plaintiffs. He found that intelligent design
is a religious, non-scientific proposition, and that teaching intelligent design
in public schools violates the Establishment Clause of the First Amendment.
The judge’s opinion reads, in part:
“The proper application of both the endorsement and Lemon tests to the facts
of this case makes it abundantly clear that the [School] Board’s ID [‘intelligent
design’] Policy violates the Establishment Clause. In making this determination,
we have addressed the seminal question of whether ID is science. We have concluded
that it is not, and moreover that ID cannot uncouple itself from its creationist,
and thus religious, antecedents….As stated, our conclusion today is that it is unconstitutional
to teach ID as an alternative to evolution in a public school science classroom...
. The breathtaking inanity of the Board’s decision [to adopt the ID Policy]
is evident when considered against the factual backdrop which has now been fully
revealed through this trial. The students, parents, and teachers of the Dover Area
School District deserved better than to be dragged into this legal maelstrom, with
its resulting utter waste of monetary and personal resources.” (pages 136–138)
Media Attention and Speaking Engagements
The Dover case has been covered extensively by regional, national and international
media, with articles appearing in the New York Times,
the Wall Street Journal, the Washington Post, the Boston Globe,
the Chicago Tribune, the San Francisco Chronicle, the Philadelphia
Inquirer, the York Daily Record, the York Dispatch, and
many other daily and weekly papers.
Several magazines also have written long essays on the case, including Time
(August 15, 2005), Harper’s (February 2006) and The New Yorker
(December 5, 2005), which featured a full-page caricature of Mr. Rothschild cross
examining the defendants’ lead witness “with cheerful mercilessness.”
Mr. Rothschild and Mr. Harvey have appeared on The News Hour with Jim Lehrer,
Lou Dobbs Tonight, National Public Radio, and other U.S. and foreign media
outlets to discuss the Kitzmiller case and issues relating to the teaching
They also have been invited to speak about the case
and related issues by the National Academy of Sciences, the National Science Teachers
Association, the National Constitution Center, the Society for the Study of Evolution,
major universities, bar associations, and other legal, religious and community groups
across the country. They have been sharing the factual and legal background of the
case, and discussing whether intelligent design is science or religion, why the
teaching of the scientific theory of evolution continues to generate controversy,
and how the controversy implicates important issues of religious freedom.
Rothschild and Harvey
Mr. Rothschild and Mr. Harvey are partners in Pepper’s Litigation and Dispute
Resolution Department, resident in the Philadelphia office.
Mr. Rothschild concentrates his practice in complex litigation, including product
liability law, constitutional and civil rights issues, and fraud and other commercial
Mr. Harvey concentrates his practice in complex litigation and trial practice, including
commercial disputes, consumer class actions, and banking and financial services.
Pepper Hamilton LLP is a multi-practice law firm with more than 500
lawyers in seven states and the District of Columbia. The firm provides corporate,
litigation and regulatory legal services to leading businesses, governmental entities,
nonprofit organizations and individuals throughout the nation and the world. The
firm was founded in 1890.
For more information about intelligent design and the Dover case, please visit: