As the lead attorney for the plaintiffs in the Dover school-board case, law alumnus Eric Rothschild demolished the arguments of intelligent design’s proponents—including one fellow Penn grad.

It was day three of the Kitzmiller v. Dover trial. Eleven parents had brought a lawsuit in federal court challenging the constitutional validity of a Dover school-board policy critical of evolutionary theory. The board’s new approach to teaching science offered the district’s biology classes “an explanation of the origin of life that differs from Darwin’s view.”

Now the parents all sat in a row of chairs as their team of dark-suited attorneys huddled with legal assistants who’d wheeled hand trucks stacked with boxes of files, books, and documents into U.S. Middle District Court in Harrisburg, Pennsylvania. Technical assistants were setting up laptops loaded with “evidence,” text from publications and remarks that would be projected onto a screen as the lawyers built their case—fact by fact and expert by expert—against the Dover board.

One of the parents, Barrie Callahan, a stay-at-home mom with an impossible mop of curly blond hair, was reading a newspaper with a headline that screamed, “The worst job: Teaching science in Dover.” The article had a photo of Bryan Rehm, a one-time science teacher at Dover High School. He and Callahan had testified the day before.

Rehm had recounted how teachers came under pressure from board members not to teach “monkeys-to-man” evolution. When he tried to explain how fundamental the theory is to modern science and how solid its acceptance is among scientists, he was dismissed as “an atheist,” despite being a churchgoer and bible-school teacher. He would eventually resign.

Callahan, a former board member, told the court of a June 2003 retreat with Alan Bonsell, then head of the curriculum committee, who said he didn’t believe in evolution and wanted biology instruction to balance creationism and evolution “50/50.” She also testified that another—and especially pugnacious—board member, William Buckingham, had complained at a June 2004 meeting that a new biology textbook being considered was “laced with Darwinism.” He later declared, “Two thousand years ago, someone died on a cross. Can’t someone take a stand for him?”

Later that year, in October 2004, after months of rankling and divisive community debate, the Dover school board did take a stand.

“What the board did was add creationism to the biology curriculum under its new name: intelligent design,” said Eric Rothschild L’93, in his opening statement at the trial. Intelligent Design (ID) posits a “master intellect” behind the screen of nature and maintains that the complexity of life cannot be explained by the random operation of genetic mutation and natural selection. That discovery, ID proponents say, is the fruit of scientific inquiry and represents the latest challenge to evolutionary theory by a small band of upstart scientists. And while the data supporting a design is clear, they add, it is insufficient to identify the designer that brought the world to life. Those claims would come under close scrutiny in this hearing.

Rothschild, a Philadelphia lawyer and partner with the big firm Pepper Hamilton, was lead counsel for the plaintiffs. His job was to pull together and make sense of all the facts and expert testimony to persuade federal judge John E. Jones III, a Republican appointee of President Bush, that the Dover school board had violated the First Amendment’s Establishment Clause, which throws up a “wall of separation” between church and state. Rothschild headed a team of attorneys from his own firm and from the American Civil Liberties Union and Americans United for the Separation of Church and State.

Rothschild has rectangular glasses and a quick, inverted-triangle smile. His specialty is commercial litigation—complicated, multimillion-dollar contract disputes between insurance companies and the corporations that insure them. As an associate, he cut his trial-attorney teeth on Pepper’s Three Mile Island litigation, where he learned to absorb lots of science and use it to try cases. “The legal process is not identical to the scientific process, but it does really put whatever proposition you are advocating under the microscope,” he said at an interview in Pepper’s dark-wood and polished-brass-and-marble offices. “Cross-examination is a pretty remarkable engine for finding things out and exposing weaknesses in an argument.”

In 1999, when the Kansas Board of Education barred evolution from the state’s science classrooms, Rothschild got in touch with the National Center for Science Education. “If you need lawyers,” he told them, “here I am.” NCSE tracks anti-evolution activity and is a clearinghouse for scientific and legal information and advice on keeping evolutionary theory in the public schools and creationism out. He joined the group’s legal-advisory panel. As the dispute in Dover boiled over, NCSE and other watchdog groups began to get calls from members of the community looking for representation. “I wanted to be part of that,” Rothschild says. “I wanted the firm to be part of that.” At his urging, Pepper Hamilton put its formidable resources behind Kitzmiller v. Dover as a pro-bono case.

“I’ve always felt comfortable as a member of a religious minority in this country,” says Rothschild, who is a practicing Jew and a product of the public-school system. “Different religious groups have a comfort level here that I think is, to a large extent, attributable to the fact that we don’t force religion on each other or favor one religion over another.

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©2006 The Pennsylvania Gazette
Last modified 03/01/06

Intelligent Demise
By Peter Nichols

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