Kitzmiller v. Dover Area School District, -- F. Supp. 2d -- (M.D. Pa. 2005): with all the reporting on this case, I thought I might offer specific commentary on Kitzmiller as a case about false representations.
The court’s analysis of the statement required to be read to Dover high school biology students, or “disclaimer,” resembled inquiries into other arguably misleading statements. One notable feature of the case, in contrast to commercial misrepresentation cases, is that the objective reasonable observer standard used to evaluate whether an establishment violation has occurred assumes an awful lot more knowledge and analytic sophistication than even the most rigorous reasonable consumer standard. I would argue that consumer protection law has the better of the argument – if we’re going to have an endorsement test for establishment clause violations, it should look to ordinary, median observers rather than observers who’ve undertaken extensive political, social and religious inquiries into the situation. Be that as it may, in this case every iota of information known to an observer pointed to the religious intent behind the disclaimer.
The disclaimer begins: “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.” The court points out that the standards require students to learn a lot of things, only one of which is singled out for special attention. This is a type of framing; like an ad that calls attention to a product feature, it is a message that this feature of the curriculum matters more than other aspects. Here, the message is “we’d rather not teach you this, but we have to do so.”
The disclaimer continues: “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 [sic] no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.” The court pointed out that this set of statements singles out evolution, unlike everything else on the curriculum, as “just a theory,” and plays on the popular definition of “theory” as something unproven. This is akin to implicit falsity, or perhaps falsity by necessary implication: Though “theory” has several possible meanings, by singling out evolution alone for designation as theory, the disclaimer conveys that it is untrustworthy, unlike other aspects of the biology course. The reference to “gaps,” without any suggestion that other scientific theories have gaps, further solidifies this intended meaning. (Compare also the statement “Gaps in the Theory exist for which there is no evidence” to the proposal of one science teacher, recruited to draft the disclaimer, to say “there are gaps in Darwin’s theory for which there is yet no evidence” (emphasis added); the teacher also proposed to say that there was a “significant amount of evidence” supporting evolution, and a draft description of evolution as the “dominant” scientific theory was eliminated. These changes also supported the court’s conclusion that there was a deliberate attempt to denigrate evolution by comparison to supernatural explanations).
The message about evolution’s exceptional status is even more blatant because, when science teachers refused to read the disclaimer to their classes, administrators came in especially to do so. And the administrators then told students not to discuss the matter further and not to ask the teacher questions, which is surely more effective than buzz marketing in getting students to pay attention. As if that weren’t enough to ensure that the message was received as highly salient, the school also sent home an opt-out form so that students could leave while the disclaimer was read, which itself served to highlight the intended message.
The court accepts plaintiffs’ expert’s characterization of the statements in the disclaimer as misleading about the scientific status of evolutionary theory: evolution is not on particularly shaky ground; to the contrary, it is widely accepted, and students hearing the disclaimer will be confused about the level of support for evolution. (I note that all the experts were experts in their substantive fields, whether biology or theology; there does not appear to have been expert testimony on message reception, though the various professors did have pedagogical experience.) Is there an analogy to materiality here, the way “ceremonial deism” on our money, proclamations and buildings has been treated as too trivial to constitute an establishment clause violation? If there is, the confusion is probably still material, precisely because so much attention has been paid to the disclaimer – deliberate dissemination of a message and foregrounding it in advertising is often held to create a presumption of materiality.
But wait, there’s more to the disclaimer: “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.” This follows a rather traditional advertising model: problem (evolution is just a theory), followed by solution (ID is an explanation). As the court notes, the disclaimer contrasts a shaky “theory”/“view” with an “explanation,” with its implication of greater coherence and objectivity. There’s no disclaimer about the unconfirmed status of ID. Like the comparison in Tambrands, Inc. v. Warner-Lambert Co., 673 F.Supp. 1190 (S.D.N.Y. 1987), between a “one-step” pregnancy test and a “multi-step” test that used different standards to count steps for each test, the disclaimer doesn’t even offer evolution a level playing field. The juxtaposition confirms that the disclaimer operates to disparage evolution in favor of religious ideas.
The final paragraph of the disclaimer is: “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.”
Again, the court sees a problem of framing: Though the disclaimer encourages an open mind, the only alternative to evolution offered is ID, which the court finds to be inherently religious. One wonders whether the Flying Spaghetti Monster is an alternative the Dover board wanted students to consider.
A deeper question is to what extent the definition of “science” is up for debate, or whether it is an already-settled concept against which claims to scientific validity, like ID’s, must be tested. Advertising law tends to reject the idea that individual market participants can take non-trademark terms and make them mean something idiosyncratic – one example is “low tar,” a concept I’ll take up when I get around to blogging last week’s big false advertising case rejecting consumer fraud claims against tobacco companies. But if meaning is a matter of social consensus, as ID’s Wedge Strategy insists, then a sufficiently successful campaign should be able to redefine a term, even if purists object. For an ordinary language example, consider the change in the pronouns for an unknown person from “him/his” to “their” over the last generation. The question whether a single company can take a generic term (Thermos, Singer, Opry) out of the language by adding enough secondary meaning may be conceptually the same as whether anti-evolution forces can redefine science so that it doesn’t require natural explanations for natural phenomena, as they’ve done in Kansas.
One final point: the decision emphatically finds one particular belief “utterly false,” to wit, the belief that commitment to the truth of evolution conflicts with commitment to the existence of a divine being. That’s not exactly the same as a belief that shark cartilage cures cancer, but rejecting that belief is necessary to defeat the claim that there’s no neutral baseline – that teaching evolution is as hostile to religion as teaching ID is hostile to those who believe that science can explain natural phenomena without reference to an interventionist God.