Friday, November 25, 2005
Taking a Constitutional
All this wrangling over whether ID constitutes "religion" may, however, be beside the point. After all, although public schools cannot promote or advance or endorse or teach the truth of any religion, they are perfectly free to teach about religion as much as they want. They can teach about Christianity, about Judaism, about Zoroastrianism, and about Raelianism. Not only can they teach about religion, but they should teach about religion, and they do not teach about religion nearly enough. So, if public schools can teach about religion, why shouldn’t they be able to teach about ID? To some degree they certainly can. For example, if a public school chose to teach about the ID movement in a current affairs class, or about the philosophical claims of ID in a philosophy of science class, or about the truth claims of ID in a comparative religion class, most likely these choices would pose no constitutional problem at all. (p. 9)Beckwith has attempted to use the case of Edwards v. Aguillard to support the teaching of ID because, according to Beckwith, ID is historically and textually distinguishable from Genesis’s accounts and, therefore, from creation science, and because the Supreme Court in Edwards recognized that teaching scientific alternatives to evolution might be legitimate if there was a secular purpose. Wexler’s discussion of these claims is particularly useful.
Far from arguing that teaching ID is unconstitutional simply because it has some historical connection to the long-standing controversy over evolution, my argument rather is that under the Supreme Court’s endorsement test, singling out evolution from all the topics in the school curriculum for reform by teaching students a purportedly scientific critique of evolution that has no support within the scientific community will likely be understood by a reasonable observer as continuing the long tradition of trying to reform the school curriculum to promote a religious belief. (p. 12)
There may be some areas of law in which a party may be able to make small adjustments to its practices to fall outside the letter of a legal prohibition, but constitutional law, and certainly First Amendment law, is not one of them. For better or for worse, the Court has created an Establishment Clause doctrine that requires courts to use common sense to figure out what message the government sends through its actions. ... As the Supreme Court has made clear, one of the most important elements of this context is the practice’s historical background, which in the case of ID, means the entire history of religious opposition to evolution. (p. 12-13)
As to whether Edwards would allow ID to be taught if a secular purpose could be advanced, Wexler first notes:
[A] secular purpose is a necessary condition for a policy’s constitutionality, it is not a sufficient one. A statute or regulation or any other form of government action may be unconstitutional, even though it is animated by a secular purpose, if it advances or promotes or endorses religion. ... Second, Edwards clearly demonstrates that, at least in the area of teaching evolution in the public schools, the Court will not accept uncritically the government’s recitation of a secular purpose. Instead, the Court . . . will examine the actual relationship between the means of the policy and the purported secular goal of the policy to test whether that purported secular goal is in fact the real purpose underlying the policy.
The remainder of the article deals at length with Beckwith’s four suggestions for valid secular purposes:
1) to introduce students to an important new body of scholarship;
2) to "enhance and protect the academic freedom of teachers and students" who support ID or disagree with evolution;
3) to erase the perception that the curriculum favors, or endorses, an irreligious point of view; and
4) to maintain neutrality between religious belief and non-belief.
Mr. Thompson [the President and Chief Counsel of the Thomas More Law Center] recently cited language from a legal guidebook written by Discovery Institute Fellows in 1999 suggesting that it somehow sanctioned Dover's policy on intelligent design. But Mr. Thompson cited the language of the guidebook out of context. The guidebook focused on supporting teachers who wanted to teach about intelligent design, not on the defensibility of requiring teachers to teach about intelligent design. This is a crucial distinction. Indeed, the guidebook clearly states that "to summarize, the safest course is one in which a school board permits [not "requires"] a biology teacher to teach the full range of scientific theories about origins." Discovery Institute's central concern [is] protecting the academic freedom of teachers . . . Nowhere did it suggest that a school board would be on legally safe ground to require unwilling teachers to address intelligent design.
A recent article in the Lawrence Journal-World reports on the reaction to a less-than-politic e-mail by Paul Mirecki, chairman of Kansas University’s department of religious studies, who recently announced a new course about Intelligent Design titled "Special Topics in Religion: Intelligent Design, Creationisms and other Religious Mythologies." Reportedly, he said in the e-mail:
The fundies want it all taught in a science class, but this will be a nice slap in their big fat face by teaching it as a religious studies class under the category ‘mythology'.
As Shane pointed out, Shulenburger should have just said that the e-mail was an early fundraising document.
Thursday, November 24, 2005
Careful What You Wish For
KU has announced a new course entitled "Special Topics in Religion: Intelligent Design, Creationisms and other Religious Mythologies." Of course, the Ideologists had in mind throwing some hokum up against the wall in high school biology courses in hopes some will stick, while simultaneously taking time away from the precious little devoted to evolution in public school curricula, not a full academic treatment of ID in all its deficiencies.
Reaction has been predictable, if laughable. An early comment by Kansas State Senator Kay O’Connor (R-Olathe) shows that she never got the memo from the Discovery Institute about the "Designer" not being God and especially not being the God of Christianity:
Why poke a stick in somebody’s eye if you don’t have to? If you’re going to have an intelligent design course and call it mythology, I think in the very least it’s a slap in the face to every Judeo-Christian religion that’s out there.
Naturally, the Senator is ignorant of the academic usage of "mythology" (not her only failing when it comes to academics, I suspect) and is no doubt offended by the "common usage" meaning of the term as something false and superstitious. All I can say to the senator is: think Joseph Campbell.
All this would be merely amusing if the fangs behind ID’s smile weren’t coming out. Threats to the funding of KU are already circulating and Sen. O’Connor, after noting that anything was possible in the Legislature, said:
If they press forward in this area and continue to kick sand, the ultimate will be a negative of some sort. I don’t know what the negative will be ... You can’t kick sand in someone’s face and then expect a positive. And that’s what this is -- a sand-kicking contest..
Tuesday, November 22, 2005
What Would Thomas Do?
A number of questions arise as to whether the Dover School Board was informed of all the fine print involved, such as the possibility of the District having to pay $1,000,000 or more in legal fees in the legal challenge that was almost certain to follow the board’s action. Also, was the board given a reasonable estimate of the chances in the lawsuit (though it apparently was told something along those lines by their own lawyer)? There is a certain duty upon an attorney to protect a client from its own folly, no matter how much you'd like them, for your own reasons, to play the fool.
Perhaps the most interesting question is what the Law Center was really after and what did they tell the board about it? If the Law Center intended to win this case under present law, there is serious question of the competency of its investigation and/or its appreciation of the facts and the law in the case.
If they wanted to bring a test case to change the law (in hopes, say, that Justice Scalia's dissent in Edwards v. Aguillard would be adopted) did they tell the board this? If so, that opens the individual board members up to potential personal liability for the legal fees.
The board members are only protected from liability for their actions if they are acting in good faith in the interests of the school district. Using the district as a guinea pig, and potentially forcing it to incur significant liability, in order to advance the board members' own religious and political interests (as their testimony makes painfully clear) is, in my book, as much a misuse of the district's resources as it would be to have district employees use district supplies to build houses for the board.
If the Law Center hoped to make new law but didn't tell the board that or didn't tell them of their potential personal liability if things went wrong, they were committing malpractice, at least, if not outright fraud.
Wednesday, November 16, 2005
Meet the Fockers, Part Deux
The latest round concerns the surprise attempt by one of the outgoing Board members, David Napierskie, to get the Board to drop the policy that brought on the lawsuit. The President and Chief Counsel of the Thomas More Center, Richard Thompson, is now claiming that Mr. Napierskie may have been pushed into the attempt by the Discovery Institute. Napierskie agreed that he had talked to representatives from the Institute but said they didn't influence his decision. Maybe Thompson’s extensive experience with the personal honesty of the outgoing board members is what leads him to doubt that.
In any case, Napierskie says he had a local attorney, Andrew Shaw, prepare a legal analysis that -- surprise, surprise! -- opined that there was "a substantial risk that the judge would rule against the board". Shaw apparently suggested that certain actions might make the case moot, ending the matter and freeing the board from the possibility of having to pay the plaintiff’s legal fees. For reasons I already addressed here and here, the likelihood is that virtually nothing short of an agreement to settle by the plaintiffs would moot the case.
Which brings us to this quote from Thompson:
The case was tried with the assumption that regardless of who won or lost an appellate court and maybe ultimately the (U.S.) Supreme Court would take a look at it and change the law. If they don't appeal, what they've done is short-circuit the entire legal strategy that was put in place by the Thomas More Law Center.
The only issue that is out there is what happens if the case is lost and the ACLU says, 'OK, pay our attorney fees. We don't pay the ACLU's attorney fees.
Which brings me back to the title of one of my earlier posts. The school board, district and, ultimately, the taxpayers of Dover were seduced by the Thomas More Law Center. Then they were abandoned when their champions rode off to tilt with their own windmills.
But that doesn’t mean everybody in Dover won’t still get . . .
Sunday, November 13, 2005
Fallout of the Fallout II
We'll go through a lot of drafts to make sure we got it right. I welcome the opportunity to write this decision. I've been given the opportunity to preside over one of the most important trials [on the] First Amendment and the Establishment Clause.
Saturday, November 12, 2005
Fallout of the Fallout
Considering its expertise in the area of spin and its opposition to the Dover School Board’s approach, this silence on the part of the Discovery institute is puzzling. A quick peek at the Thomas More web site shows that it is much less sophisticated on the public relations end of ID than Da Boyz From Seattle and the Center’s silence may just be due to a simple loss for words.
Be that as it may, just what does the change in the Board bode for the case?
The question that arises immediately is what will happen if the new School Board decides to rescind the policy and end any mention of ID in 9th grade biology classes. Does that render the case moot? The short answer is: "probably not completely".
First, some quick background:
Federal Courts are deemed to be restricted, by Article III, Section 2 of the Constitution, to "cases or controversies". Unlike state courts, the Federal Courts are not permitted to issue "advisory decisions", anticipating cases that may arise, but must only entertain real controversies between real parties. If, during the course of a case, circumstances should arise that end the controversy, such as a settlement between the parties, the court may not continue with the case just out of a desire to render a final determination.
On the other hand, the courts are not required to play the fool. Defendants may not short-circuit the judicial process simply by announcing that they will no longer do what the plaintiffs complained of, render the case moot and free themselves to resume the conduct once the case is dismissed. The test of whether subsequent circumstances have rendered a case moot is said to be a "stringent" one.  It must be absolutely clear that the wrongful action could not reasonably be expected to recur. By the very nature of the political process, where a change every bit as profound as the one that just happened in Dover may be no further away than the next election, a strong argument can be made that any reversal of the policy may itself be reversed in very foreseeable circumstances.
The trial court judge will have considerable discretion in determining what counts as 'not reasonably expected to recur'. In addition, as a practical matter, the stage the case is in will affect the court’s decision in these matters. If the election had taken place shortly after the complaint was filed and the policy was reversed right away, before any great effort had been expended or expense incurred, the court would probably have been much more receptive to an argument that the case had been mooted than it will be now. On just a human level it is hard to believe that Judge Jones, after having sat through all that testimony, will be quick to give up his chance to render a famous and influential decision. All things considered, I would be incredibly surprised if this case ends with a ruling that it is moot.
Naturally, should Judge Jones rule in favor of the plaintiffs, it seems likely that the new Board will not pursue any appeal. Those in favor of good science education may feel unsatisfied if a decision from a higher court (or even the Supreme Court) is not forthcoming. But the Dover case may still do major damage to the ID Movement by scaring off other boards that may be thinking of anything similar. The prospect of paying the opponent’s huge legal fees, the negative publicity that will likely be generated and the prospective political fallout may be enough to serve as a deterrent to future attempts to overtly put ID in science classes. On the down side, this may just encourage the sub rosa means the Discovery Institute has been hinting at: "encouraging" teachers (including, perhaps, hiring only those teachers who don’t need much encouraging) to bring up ID "on their own" while the school board remains "neutral".
A completely different set of possibilities open up if Judge Jones rules in favor of the policy, including the possibility of a settlement that would permanently bar the Dover School District (but only that district) from installing ID programs in exchange for the release of the District from liability for the plaintiff’s legal fees.
But we should leave a few unmet bridges uncrossed.
 A leading case with facts close to those in Dover is: City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982)
Thursday, November 10, 2005
The (Sour) Milk of Human Kindness
Who, you may ask, is so intimate with the mind of the Author of the Universe as to be able to relay His political wishes when it comes to school board elections?I'd like to say to the good citizens of Dover: if there is a disaster in your area, don't turn to God, you just rejected Him from your city.
And don't wonder why He hasn't helped you when problems begin, if they begin. I'm not saying they will, but if they do, just remember, you just voted God out of your city. And if that's the case, don't ask for His help because he might not be there.
Need a hint? Well, he is an expert in international affairs, specializing in the proper approach to negotiations with South American heads of state.
That’s right! I am speaking of that font of Christian charity and love who, when he is not wishing hurricanes and earthquakes on cities that allow gays to put up rainbow flags, is recommending the assassination of foreign officials: Pat Robertson.
Perhaps the Discovery Institute can remind Robertson that "the Designer" isn’t God . . . for Constitutional purposes, at least.
[I]f you don't cough up, well, Lew here might have a little accident with your car, or your house, or your little girl. And then Mr. Big wouldn't be able to do nothin' for you. He doesn't mean nothing by it, he likes you, see, but if you don't show him a little respect, you can't expect him to trouble himself with your worries, OK? Me and Vinnie'll be by tomorrow, and you will have that little donation ready...
Tuesday, November 08, 2005
As You Sow . . .
Saturday, November 05, 2005
Seduced, Abandoned, But Still Getting . . .
Now the DI has fired back [replacement link], claiming that the DI’s legal guidebook "focused on supporting teachers who wanted to teach about intelligent design, not on the defensibility of requiring teachers to teach about intelligent design". It is certainly true that "Intelligent Design in Public School Science Curricula" makes the rather bizarre argument that individual teachers can teach ID based on their First Amendment guarantee of free speech and argues that "the safest course is one in which a school board permits a biology teacher to teach the full range of scientific theories about origins". But the guide also says:
The freedom of school boards to determine what can be included in their curricula is a long-established prerogative. No Supreme Court decision about biological origins has questioned this freedom. In fact, the Court has upheld the principle that a school board has the right to decide what subjects will be taught in its schools, and within broad limits, how those subjects are to be taught.So the DI’s rather strange advice was for school boards to abrogate their duty to control the curriculum and to insure the quality of instruction by "encouraging" individual teachers to exercise their political right of speech inside the classrooms. One can only assume that the DI is angry that people like William Buckingham aren’t bright enough to get the "Nudge, nudge, wink, wink, know what I mean?" The More Center, on the other hand, may have a different agenda altogether.
Maybe there is design in the universe. After all, I was praying that this would get uglier . . .
The Eclecticness of Non-Existent Words
If you are in the mood . . . and if you never are, I feel sorry for you . . . there is a wonderful little site called The Science Creative Quarterly that is "not technically a ‘quarterly,’ was once a ‘fortnightly’ . . ., but now has evolved (or dare we say intelligently designed) into a daily."
It aims to be "different, creative, charming and yet informative" and, as far as I've seen, it is succeeding. You might want to check out "Mother Goose and the Scientific Peer Review Process" by David Ng for starters.
Tuesday, November 01, 2005
Wanted: A Better Class of Politicians
. . . it's really a sad day for America when public officials can no longer lie convincingly enough to get it past a federal judge.
I blame the public schools. I mean, just look at some of the bozos in charge of them.
Seduced and Abandoned . . . Redux
The Thomas More Center, seeming to sense the iceberg looming out of the darkness ahead of the good ship Dover , may be practicing its lifeboat drills . . . err . . . preparing its exit strategy from its role as defender of Intelligent Design in public schools.
It seems that all is not well in Designland. At a forum titled "Science Wars" sponsored by the American Enterprise Institute, the Chief Counsel of the Thomas More Law Center, Richard Thompson, who has been leading the defense of the Dover Pennsylvania School Board in the suit claiming that its policy to introduce ID to biology students is unconstitutional, had the following to say about the Big Kahuna of the movement, the Discovery Institute:
They wrote a book, titled "Intelligent Design in Public School Science Curricula." The conclusion of that book was that, um:
"Moreover, as the previous discussion demonstrates, school boards have the authority to permit, and even encourage, teaching about design theory as an alternative to Darwinian evolution -- and this includes the use of textbooks such as Of Pandas and People that present evidence for the theory of intelligent design." ...and I could go further. But, you had Discovery Institute people actually encouraging the teaching of intelligent design in public school systems. Now, whether they wanted the school boards to teach intelligent design or mention it, certainly when you start putting it in writing, that writing does have consequences.
In fact, several of the members, including Steve Meyer, agreed to be expert witnesses, also prepared expert witness reports, then all at once decided that they weren't going to become expert witnesses, at a time after the closure of the time we could add new expert witnesses. So it did have a strategic impact on the way we could present the case, cause they backed out, when the court no longer allowed us to add new expert witnesses, which we could have done.
Now, Stephen Meyer, you know, wanted his attorney there, we said because he was an officer of the Discovery Institute, he certainly could have his attorney there. But the other experts wanted to have attorneys, that they were going to consult with, as objections were made, and not with us. And no other expert that was in the Dover case, and I'm talking about the plaintiffs, had any attorney representing them.
So that caused us some concern about exactly where was the heart of the Discovery Institute. Was it really something of a tactical decision, was it this strategy that they've been using, in I guess Ohio and other places, where they've pushed school boards to go in with intelligent design, and as soon as there's a controversy, they back off with a compromise. And I think what was victimized by this strategy was the Dover school board, because we could not present the expert testimony we thought we could present.
 I was toying with comparing this affair to stressed-out rats eating their young like they were pizzas . . . but, to my surprise, I do have some shame left.