Here's an essay I just wrote on the subject, analyzing the usage of different forms of persuasion in advancing the arguments of each side. Interesting stuff, and a fun essay to write!
COM 471 - Persuasion
Court Case Analysis
July 21, 2008
Of Pandas, People, and the Law
Science has long called into question many of the basic tenets of religion, and the antagonistic relationship between those in each camp has continued in perpetuity for centuries. Ever since Galileo, the father of modern science, first theorized that the earth revolved around the sun (and not the other way around, as claimed by the Catholic Church), religious fundamentalists have struggled to maintain a supernatural world view despite an ever-expanding database of methodical observation and empirical data supporting natural science. The latest in this centuries-old battle is the debate between those who feel that creationism should be taught alongside (and in some cases instead of) Darwin's theory of evolution, and those who feel that creationism---being inherently religious and thus illegal under the First Amendment's Establishment Clause---has no place in the public school system.
In 2005, this battle came to a head in the Pennsylvania courtroom of John E. Jones, a federal district court judge who was tasked with rendering a verdict in the Kitzmiller v. Dover case. This was a landmark legal proceeding, pitting a group of skeptical parents and students against the overly zealous Dover School Board, intent on inserting a creationist textbook, Of Pandas and People, into the school library and forcing the science faculty to offer it as an alternative to evolution. This fascinating case, seen through the lens of the Aristotelian Theory of Rhetoric, illuminates many of the standard arguments used by both sides in this centuries-old struggle. According to Aristotle, rhetoric is “the ability, in each particular case, to see the available means of persuasion,” and under his theory, can be broken up into three forms: Ethos, which are appeals based on the character of the speaker; Pathos, which are appeals to emotion; and Logos, which are appeals based on logic. By analyzing each side's use of ethos, pathos, and logos in their closing legal arguments, as well as the judge's rational responses to each, one can paint a fairly detailed portrait of the motivation and nuance of the overall historical debate between science and religion.
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The lawyers for the plaintiffs begin their closing arguments with a logos-based, sound argument, painting the defense as implementing a curriculum change designed to "denigrate evolution and promote supernatural intelligent design as a competing theory." (p.28) At question is this theory of intelligent design. While couched in scientific language and jargon, and made to sound and look as scientific as possible, intelligent design is clearly not science, and the plaintiffs intend to prove that. Under the Constitution's First Amendment, which clearly bars any governmental entity "respecting an establishment of religion" (known colloquially as the "Establishment Clause"), any intentional or unintentional endorsement by a publicly-funded institution is expressly illegal. Thus, argue the plaintiffs, the Dover School Board's introduction of intelligent design as a "complementary theory" alongside the scientifically justified Theory of Evolution, should be prohibited. This is the underlying motivation behind the entire lawsuit, and it is appropriate, according to Aristotle, that it should be logical.
However, the plaintiffs definitely do not rely on logic alone as they continue their closing arguments. There is also a strong undercurrent of ethos-based arguments throughout the entirety of their case. The court, having established precedent placing the burden of proof on the plaintiffs to show not only effect, but also intent (the endorsement test as well as the Lemon test's "intent" prong), introduces a whole range of ethical arguments against certain individuals on the school board, peppering their narrative with juicy accounts of subversive and secretive actions taken by these individuals in their quest to skirt underneath the firm language of the First Amendment. The plaintiffs' lawyers take special care to call into question the credibility of many of the lead players on the Dover School Board, such as William Buckingham and Alan Bonsell, introducing evidence and testimony contrasting their private views of intelligent design as creationism, with their more public proclamations of intelligent design as science. They pull no punches in questioning this credibility:
"Many of the witnesses for the defendants did not tell the truth. They did not tell the truth at their depositions, and they have not told the truth in this courtroom... This court should infer from their false statements that defendants are trying to conceal an improper purpose for the policy they approved and implemented, namely an explicitly religious purpose." (p. 35; 37)
Interestingly, the plaintiffs' lawyers briefly touch on the bigger picture, tying the actions of the Dover School Board to the "actions of the intelligent design movement at large." (p. 38) Having failed at all attempts to introduce creationism into the public school curriculum since its explicit ban in the 1960s, religious fundamentalists have jumped from euphemism to euphemism, in an attempt to paint the expressly non-scientific creationist perspective as something more palatable to the scientific community. As the plaintiffs' evidence clearly indicates, even the textbook in question, Of Pandas and People, underwent a litany of grammatical changes after the McLean decision of 1987 doomed the previous creationist effort under the preceding term, "creation science." This logical argument is difficult to refute with any semblance of credibility.
Finally, it is very telling that the plaintiffs mostly shy away from the usage of pathos-based avenues of argument in their case. Other than expressing, at the outset, the initial outrage of the plaintiffs upon finding that religion had infiltrated their public schools, as well as an emotional concern that the teaching of intelligent design would stifle critical thinking, their case is mostly based on logical and ethical arguments, relying on actual evidence and data while not attempting to pull at the heartstrings of the judge. Other than some finely-tuned criticisms of the defense's expert witnesses (for example, at one point they question Michael Behe's motivations as not scientific but rather geared towards "book royalties and speaking engagements”), the plaintiffs present an almost emotionally-devoid case, which becomes even more astounding considering the attendant hype and coverage generated by this important trial. This reliance on data and hard fact, even in the face of pressing emotional distraction and religious fervor, mirrors the scientific community as a whole and clearly delineates the scientific world view from that of religion.
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The defense, on the other hand, not being saddled with the burden of proof, simply attempts to poke holes in the plaintiffs' case, employing a sly blend of ethos and pathos disguised as logos. The defense spends considerable time attempting to rehabilitate the reputations of both Bonsell and Buckingham, portraying them as "hardworking and upstanding" administrators, concerned only with the welfare of their students and engaged in a wholesome effort to simply provide them with an alternative to "stand alongside" Darwin's theory. (p. 64; 69) Disguised as ethos, the defense attempts to portray pro-intelligent design administrators and faculty as victims, arguing that they meant no harm and certainly didn't intend to do anything illegal. However, this line of reasoning does not very effectively conceal a blatant attempt at pathos, as the defense tries to remake the case by re-directing attention away from the real victims---the plaintiffs.
The defense expends great effort at trying to turn the plaintiffs' arguments against them, but as the judge later agrees, it is all based on extremely faulty logic when the overall context of the case is taken into account. The defense tries to portray Bonsell as a hero who is "not afraid of the truth. He is afraid of something that we have seen here, science taught as dogma." (p. 68) They even attempt to defend Buckingham as "fair" despite the litany of evidence to the contrary. And, perhaps most egregiously, they rail against the teachers themselves, who, according to the defense, “resisted implementation of the curriculum change on the grounds that they were not educated in or trained to teach intelligent design, but somehow... felt qualified to opine that it was not science." (p. 75) This disjunctive syllogism, appearing in such a high-visibility court case, is typical of the twisted logic used by those defending that which cannot be tested or proven. The intelligent design movement wants desperately to be taken seriously by the scientific community at large, but when told by those same scientists that what they are presenting is not real science, the response is not to further research the theory and offer new testable hypotheses, as befits the scientific method, but instead to criticize science itself as "dogmatic."
As the defense winds down its case, it even attempts to portray the actions of the board as innocuous and "with good intent," in a pathos-based attempt to again portray the scientific community as dogmatic and close-minded. They attempt to play down the effect of the four-paragraph disclaimer (directing students to the library to find Pandas) as harmless: "Your Honor, a four-paragraph statement, an informational statement which does not detail the claims of intelligent design, may serve to prompt the curiosity of students, may lead them to the library, but it does not advance religion." (p.82) Or, they play up the generally-accepted social notion that all knowledge is a good thing when asking "How can adding books to the library be a bad thing? It is not." (p.84) There are many seemingly-innocent pathos-based arguments within the defense's case, and taken all together they function as an illogical, disjunctive mess.
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No wonder, then, that Judge Jones, despite being openly Christian and having been appointed by the fundamentalist President George W. Bush, rules in favor of the plaintiffs, and in doing so proceeds to logically deconstruct the defense's case. At almost every turn, this obviously no-nonsense judge tends to agree with the plaintiffs' characterization of the events leading up to the installation of Pandas (and intelligent design policy) in the high school curriculum. In a logos-based section discussing the causal effect religious policy might have on a hypothetical objective observer, Jones sets up his own theory and proceeds to test it accordingly, finding through legal precedent as well as common sense that "the religious nature of intelligent design would be readily apparent." (p.24) He responds to the plaintiffs' accusations of religious endorsement, and defense claims of innocence, with striking clarity: "Anyone familiar with Western religious thought would immediately make the association that the tactically unnamed designer is God." (p.25) This statement recognizes that the plaintiffs' case as logically-based, while simultaneously rejecting the defense's claims of innocence as absurd. Throughout his summary, Judge Jones takes careful pains to note that there was a concerted and specific strategy in place---these weren't the actions of an unknowing bystander.
Judge Jones also positively (and often sarcastically) responds to the plaintiffs' ethos-based arguments which questioned the credibility of many of the defendants. In fact, the Judge often goes to even greater pains than the plaintiffs' lawyers did to paint defendants such as Buckingham and Bonsell as non-credible. In one biting passage noting the testimony of Professor Behe, who had claimed that belief in intelligent design was dependent on belief in God, Jones reminds that no "other scientific proposition's validity rests on belief in God." (p.28) Jones even takes his inquiry a step further than required by the case itself, and spends a large portion of his summary in an effort to establish that intelligent design is in fact not real science, and in doing so he renders useless the credibility of nearly all of the defense's expert witnesses on the matter. He establishes three simple and logical reasons for this, which again are almost impossible to refute (logos-based arguments rarely 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 1980s; and (3) ID's negative attacks on evolution have been refuted by the scientific community.” (p.64)
The judge rarely, if ever, even acknowledges the defense's case, except when to criticize it for its impropriety. He doesn't seem concerned with the portrayal of proponents of intelligent design as victims, noting with special fervor that many of the Board members who had voted for the curriculum change testified at trial that they had utterly no grasp of ID. The defense's continued pathos-based claims fall on deaf ears, while the judge focuses only on the law itself. He dismisses the defense's claims that the curriculum change was designed only to offer an alternative theory to evolution, since they were not actively teaching intelligent design. Jones skips directly around that faulty argument with a clear and incontrovertible declaration: “Accordingly, we find that the secular purposes claimed by the Board amount to a pretext for the Board's real purpose, which was to promote religion in the public school classroom, in violation of the Establishment Clause.” (p.132)
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After all is said and done, the judge's written decision greatly simplifies a massively complex case into one clear, logical message, despite all of the legal jargon and redundant arguments supplied on both sides: intelligent design is not science but religion, and as such should not be taught in the public schools. While he clearly sides with the plaintiffs, and even takes great pains to establish precedent to prevent future appeals and wasteful lawsuits, it is still interesting and enlightening to view the arguments of both sides from Aristotle's perspective, parsing each side's rhetoric to further understand their respective motivations and tactics. In this case, the plaintiffs stick to logos- and ethos-based arguments, metaphorically representing the intentions and methods of the greater scientific community as a whole. Their arguments, and the judge's subsequent decision, work in much the same way as the scientific method itself: establish a hypotheses, then gather evidence and data to test that hypotheses. The defense, on the other hand, notwithstanding the fact that they didn't bear the burden of proof, argues from the completely opposite position, using pathos-based arguments to claim innocence and ignorance, and portraying themselves as the real victims in the matter---a sort of modern-day David story against the Goliath of big science. Aristotle would have criticized the lack of logic in the defense's case, and the judge does just as much. Fortunately, the attempt to inject religious belief into the publicly-funded school system was thwarted this time around, but if history is any indication, arguments such as these aren't going away any time soon. Each side in this epic, historic struggle between science and religion would do well to pay attention to the rhetorical tactics in this case, both successful and unsuccessful, as they greatly help to illuminate the framework for this classic debate as it moves into the 21st Century.
Bibliography
Middle District Court of Pennsylvania. Tammy Kitzmiller, et al. v. Dover Area School District, et al. 2005. http://www2.ncseweb.org/kvd/trans/2005_1104_day21_pm.pdf
Crewell, Dustin. Learning How to Use the Three Main Rhetorical Styles. Rensselaer Polytechnic Institute. 1996. www.rpi.edu/dept/llc/webclass/web/project1/group4
Simons, Herbert. Persuasion in Society. Sage Publications, London. 2001
Judgment Day: Intelligent Design on Trial. PBS Nova Special. Paula S. Apsell, Executive Producer. 2007.
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