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DOVER, Pa. (WHTM) — The risk of global embarrassment like a 2005 case, which attracted TV satellite trucks from around the world and mockery on The Daily Show — or much ado about nothing?
That’s the question in the Dover Area School District, whose board president confirmed the board has hired a firm called the Independence Law Center to work on unspecified policies at no charge to the district.
“The school board retained Independence Law Center to support our ongoing responsibility to protect and respect our entire educational community made up of the district administration and staff, the student body and the families that support them,” David Conley, the board’s president, told abc27 News in a statement.
Some Dover residents say the move is reminiscent — too much so, in their view — of the 2005 case, in which John Jones III, a now-retired federal judge who is president of Dickinson College, ruled against the district.
Jones’s characterization now of that case, officially known as Kitzmiller v. Dover Area School District?
“The majority of Dover’s school board at that time believed evolution shouldn’t be taught in public schools,” Jones said. “Well, they found out it had to be. It was in the state standards. So they grasped a concept that was known as ‘intelligent design,’ which was offered as the scientific alternative to evolution.”
Jones’s ruling, also in his words 19 years later?
“It was very clear … ‘intelligent design’ was nothing more than the successor to a concept that the Supreme Court had outlawed, and that’s teaching creationism in schools,” Jones said.
A big decision, considering all the global scrutiny and the precedent it could set for other cases around America. But a difficult one?
“The decision itself wasn’t tough at the end of the day,” Jones said.
Knowing what was going through Jones’s mind would have saved Barrie Callahan a lot of angst back then.
“I do not have the words of exhilaration for when that ruling came out, because truly, we did not know until it came out how it was going to go,” said Callahan, who had previously been on the school board and was a plaintiff in the lawsuit against the then-current board.
The controversy began more than a year before the ruling.
“This town was full of reporters,” said Kara Hetrick, who lived in the district than and has children in Dover schools now. “It was full of neighbors fighting with neighbors. There was a lot of chaos and anger and distraction, and the focus was not on our students.”
Hetrick said she and some other parents were concerned about an item on a recent school board agenda about hiring the Independence Law Center.
“The lawyer from the ILC was one of the lawyers involved in our intelligent design lawsuit 20 years ago,” she said, referring to Randall Wenger, the firm’s chief counsel.
“Independence Law Center provides legal representation to public schools seeking solutions that serve the entire school community and that protect the district from liability,” Wenger told abc27 News in a statement. “I was not involved in the creation of the policy at issue in the Kitzmiller case and only heard about what the district did after the fact. I encouraged the district and its attorneys to rescind the Kitzmiller policy, and when it did not, I represented a book publisher and non-profit to file a brief with the court on an issue separate from the district’s actions.”
“He’s a very accomplished, intelligent lawyer, but he has a perspective … that has to do with the Establishment Clause [of the U.S. Constitution] and with religious rights in general,” Jones said of Wenger.
Jones ran for Congress as a Republican and was appointed to the federal bench by President George W. Bush, a Republican, but is perhaps most famous judicially for two rulings that pleased liberals: the Dover case in 2005 and a ruling in 2014 overturning Pennsylvania’s ban on same-sex marriage.
Jones said the Supreme Courts rightward drift in recent years and whatever ILC plans to do in Dover are likely related.
“These law firms, such as Mr. Wenger’s, are looking for test cases to see if they can push that envelope a little bit further,” Jones said. “There have been people who say, for example, this opens the door to getting prayer back in schools. I don’t necessarily agree with that, but you can see the drift.”
But whatever Dover taxpayers think of the substance of whatever policies ILC works on in Dover — Jones, Callahan and Hetrick said they can only speculate what those might be, based on the firm’s work to advance conservative causes for other districts — at least the work will be free, right?
Callahan said the board had received the same assurance prior to the 2005 controversy.
“That pro-bono law firm cost us $1 million,” she said — plaintiffs’ legal costs the district had to pay after losing the case. “Is free ever really free?”
The district’s solicitor — Ben Pratt of the law firm Saxton & Stump — told the board at a Feb. 13 board meeting that an insurance policy would cover the costs of any eventual legal issues arising from ILC’s work.
“If in the end, something should happen, and you would have to pay, the insurance company’s going to do it instead of the district,” Pratt said.
Pratt told board members he had edited ILC’s proposed retainer agreement to protect the board in several ways, such as to stipulate that the board — not ILC — would always determine the scope of the firm’s work for the district.
Jones, Callahan and Hetrick all worried the insurance protection doesn’t mean the district might not ultimately pay.
“I’m sure our insurance has limits, and I’m sure our insurance premiums would go up if we got sued,” Hetrick said.
“So these decisions are not without costs,” Jones said. “And if you want to go boldly into a particular area, you really need to be careful about what you’re doing, because it can have a really damaging effect on the taxpayers of the district if you’re not careful.”
“What is Dover doing?” said Callahan, recalling hearing from friends who heard her talking about the intelligent design case on the radio while traveling in Australia and Malaysia back in 2005. “Don’t go down this path again.”
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