Mr. VanEngen, a member of the Protestant Reformed Church of Hull, Iowa, is a practicing attorney.

In December of 2005, the Federal District Court for the Middle District of Pennsylvania issued its decision in the case of Kitzmiller v. Dover Area School District.¹ The case received national attention as one of the first challenges to the teaching of “Intelligent Design” as an alternative to the theory of Evolution. The district court’s opinion was not appealed, and therefore the decision is not binding precedent for other districts. However, the decision and the rationale behind it have already been relied on by others in making challenges to perceived intrusions of religion into the public sector. This article will first examine the facts of the Kitzmillercase, and then the history of the struggle between teaching of evolution and creation in the public schools. Finally, we will look at the implications of the decision and the reasoning behind it for Christians.

The facts of the case are as follows. On October 18, 2004, the Board of the Dover Area School District (DASD) passed a resolution stating:

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.

The Board later announced that students in ninth grade biology class would be read a statement stating:

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 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.

The theory of Intelligent Design (ID) is a theory that the world was made by some intelligent being who created all things. Some of the parents of children in the school district filed suit to stop the teaching of ID. They argued that it was actually thinly veiled creationism, was not actually science, and was unconstitutional under the Establishment Clause.

The Legal History of Evolution in the Classroom

To understand the current legal landscape surrounding the issue of the public teaching of creation or evolution, one must look at the history and development of Supreme Court jurisprudence in this area. The court’s 139-page decision in Kitzmiller discusses this history in some detail. A brief review of this history reveals a changing trend from a time when teaching creation was accepted and teaching evolution was illegal, to the point that the opposite is true.

The court noted that “[t]he religious movement known as Fundamentalism began in nineteenth century America as a response to social changes, new religious thought, and Darwinism.”² The court attributed laws prohibiting the teaching of evolution to this rise of fundamentalism. In 1925, this culminated in the famous Scopes “monkey trial,” in which a public school teacher was tried and convicted for teaching evolution.³

In 1968, the legal landscape changed dramatically when the United States Supreme Court struck down Arkansas statutes prohibiting the teaching of evolution.4 Proponents of creation sought at least to counterbalance the teaching of evolution by introducing creation as an alternative, but the courts rejected this as violating the Establishment Clause.5 Opponents of evolution then sought to introduce creation as a form of science, but the United States Supreme Court ruled in 1987 that this too violated the Establishment Clause.6 The prohibition against teaching evolution had come full circle to a prohibition against teaching creation.

The Court’s Decision

The court in Kitzmiller ruled that the DASD Board’s policy regarding ID violated the Establishment Clause as well. The court found that the resolution and statement, as quoted above, promoted biblical Christianity over other religions. In reaching this conclusion, the court applied both the Endorsement Test, which has been used in some First Amendment cases, and the three-part test set out in the Lemoncase.7

The court looked at the context in which the policy arose. The court considered evidence of Board members’ statements in newspapers, board minutes, and other sources to find that there had been statements that certain board members wanted to get Christianity back into the public school classroom. The court also considered the traditional battle of fundamentalism against the teachings of evolution. Based on this evidence, the court found that the “objective observer” under the Endorsement Test would know of the opposition to evolution and interpret the board’s actions as an endorsement of Christianity.

The court then spent a considerable amount of time addressing the “purpose” of the board’s actions under the Lemon test. The court looked at the actions and statements of individual board members, such as an offering collected by the church of one board member for the alternative textbook, Of Pandas and People. The court found that all of this evidence demonstrated that the policy had a religious, rather than secular, purpose. The court also ruled that the effect upon the children of the school district was to advance Christianity over other religions, in violation of the “effect” prong of the Lemon test.

Analysis of the Court’s Decision

The court’s decision has the effect of keeping the teaching of ID out of the classroom, but the public school classroom has never been the best place to teach children about the origins of the universe. Instead, the most troubling aspect of this decision is that it is part of a continuing line of case law in which the courts fail to see or acknowledge that the state endorsement of evolution impinges on the religious freedom of Christians, which is also a violation of the First Amendment.

Under the court’s analysis, any public action supported by “fundamentalist” Christians is somewhat suspect, because fundamentalism is by nature a reaction against modern philosophies. Case law, as interpreted by theKitzmiller court, demonstrates a presumption that fundamentalist Christians seek to oppose evolution and replace it with biblical teachings. This places Christians at a disadvantage because, when the “objective observer” element of the Endorsement Test, or the “purpose” prong of the Lemon test are applied, there is almost a presumption that action by Christians is taken to promote biblical Christianity over other religions. In this case, the DASD policy was strikingly neutral on its face, merely indicating that other theories were possible and that evidence does not exist to support every part of the theory of evolution. The statement certainly does not advance a belief in biblical creation as we know it. But the court looked at the prior case law prohibiting any teaching of creation and the intentions of Board members as gleaned from newspaper articles, board minutes, and testimony of others, and ruled the policy unconstitutional.

Even more disturbing is the establishment of evolution as official state teaching, regardless of its incompatibility with biblical Christianity or any other religion. The DASD policy as stated merely allowed room for ID, Creation, or other theories. The court in Kitzmiller purported to analyze the criticisms of evolution and ID, and proceeded to rule that while ID was unscientific, evolution had no real “gaps” that could generate doubt about its truth. The court took great pains to explain that it was not taking a position on whether outside forces produce changes in the world,8 but then proceeded to confirm the theory of evolution as the only theory that could legally be taught. This logic is striking in that it is the equivalent of saying “It is possible that God created all things, but the schools will only teach that He did not.” No alternative to evolution could even be suggested.

The Kitzmiller case is unique in that some of the DASD board made very strong statements about getting Christianity into the public schools. It is possible that a policy of suggesting an alternative to evolution could be upheld if such strong language were not present. But under the reasoning of the Kitzmiller case, any available information will be searched to determine whether the policy could possibly be motivated by fundamentalist thinking or opposition to evolution. This leaves Christians in the position of having to hide their true motives in desiring that an alternative to evolution be allowed. Although this reasoning has been limited thus far to public school teaching about evolution, the rationale could apply just as easily to other areas of public life.

Current case law in this area is extremely one-sided in its allowing the promotion of evolution at the expense of the free exercise of Christianity or other religions. This is illustrated by a quote from the Kitzmiller court in describing the effect of the DASD policy on the families protesting the policy. The court stated:

Plaintiffs believe that ID is an inherently religious concept and that its inclusion in the District’s science curriculum interferes with their rights to teach their children about religion. (Citations omitted). Plaintiffs additionally testified that their children confront challenges to their religious beliefs at school because of the Board’s actions, that the Board’s actions have caused conflict within the family unit, and that there is discord in the community.9

The exact same argument could be made about the effects of the teaching of evolution on Christian families. If parents wish to teach their children that a triune God created all things by merely calling them into being, that instruction is undercut by the teaching of the public school. The children are confronting challenges to their religious beliefs unless the children believe the instruction they are given in school, in which case there would be conflict within the family unit. The Kitzmiller court quotes Phillip Johnson, the founder of the ID movement, as saying 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.” 10 However, in the court’s view, this statement only proves that Christianity is incompatible with evolution, and therefore must not be allowed in the classroom.

The Kitzmiller court’s concern for parental instruction seems also to conflict with the ruling in the case of Fields v. Palmdale School District,11 discussed in this rubric in the March 1, 2006 issue of the Standard Bearer. In that case, the Ninth Circuit Court of Appeals dismissed parents’ complaints that their children were given information of a sexual nature because the right to control their instruction “does not extend beyond the threshold of the school door.”


The court’s decision in Kitzmiller illustrates a trend in American jurisprudence in which courts fail to see intrusions on Christians’ free exercise of religion by theories such as evolution. When Christians seek to leave room at least for the exercise of Christianity, courts suspect that this is an attempt to force Christian teachings in place of the supposedly “neutral” teachings of the world. The dominance of Judeo-Christian thought in public life seems to be steadily being replaced with philosophies and worldviews which are incompatible with Christianity.

¹ Kitzmiller v. Dover Area School Dist., No. 04cv2688 (M.D.Penn. filed Dec. 20, 2006).

² Kitzmiller, at 7-9.

³ Scopes v. State, 154 Tenn. 105 (1927).

4 Epperson v. Arkansas, 393 U.S. 97 (1968).

5 Daniel v. Waters, 515 F.2d 485 (6th Cir. 1975).

6 Edwards v. Arkansas, 482 U.S. 578 (1987).

7 Lemon v. Kurtzman, 403 U.S. 602 (1970).

8 Kitzmiller, at 82.

9 Kitzmiller, at 129.

10 Kitzmiller, at 27.

11 Fields v. Palmdale School District, No. 03-56499 (Ninth Cir. filed Nov. 2, 2005).