New Item Added on 4-27-06: Item #20Many Darwinists have praised Judge Jones
` written opinion and procedural rulings in the
Kitzmiller v. Dover case as flawless and brilliant. Nothing could be further from the truth. Many flaws can be found without even considering Jones` reasoning on the issues of whether ID is science and whether ID appears to be an endorsement of religion. Flaws in Jones` rulings on those issues are presumably covered in a new book titled "Traipsing into Evolution," prepared by the Discovery Institute. My criticisms below concentrate mainly on the other flaws in Jones
` rulings. The page numbers shown refer to the Dover opinion. The Dover opinion is on
http://www2.ncseweb.org/kvd/all_legal/2005-12-20_kitzmiller_decision.pdf and other documents in the case may be found on
http://www2.ncseweb.org/kvd/ .
While lavishly praising Judge Jones' rulings, the Darwinists have been very intolerant of criticism of those rulings, acting as if the losers do not have the right to criticize.
Here are my criticisms of Judge Jones` rulings in the Dover case --
(1) For perhaps only the second time in American history (the
Selman v. Cobb County evolution-disclaimer textbook sticker case was possibly the first), a judge ruled that something — irreducible complexity in this case — that makes no mention of anything related to religion and that contains no religious symbols constitutes a government endorsement of religion. Whether or not irreducible complexity is bogus science is irrelevant, because there is no constitutional separation of bogus science and state.
(2) It was not necessary to rule on the scientific merits of ID at all. Jones had the following other options: (i) ruling against the defendants solely on the basis of their religious motivations, or (ii) ruling that irreducible complexity is not religious because it does not mention anything related to religion. An additional reason for ruling on narrow grounds was that the original defendants could not appeal because they were voted off the school board. If the new school board -- consisting mostly of anti-ID members who had replaced former pro-ID members -- had rescinded the ID policy and offered a complete out-of-court settlement before the release of the decision, Jones would arguably have had grounds for declaring the case to be moot.
(3) Jones arrogantly assumed that his opinions are conclusive and that other judges should not bother to independently judge the same issues. The Dover opinion said, “[W]e will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.“(pages 63-64) Presumably one of the reasons for this ballyhoo of the Dover opinion was that Judge Jones knew that the case was not likely to be appealed and hence the opinion would likely have little intrinsic precedential value as just an unreviewed district-court opinion.
(4) Jones‘ blanket prohibition of any scientific criticism of Darwinism in Dover public-school science classes directly contradicts the Supreme Court‘s following statement in
Edwards v. Aguillard: “We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught.“ In the conclusion section of the Dover opinion, Jones said that one of the three prohibitions that he intended to include in the official order was a prohibition against “requiring teachers to denigrate or disparage the theory of evolution“ (Page 138. This specific prohibition was not actually included in the official order, but that is beside the point).
(5) Though the case was supposed to be about intelligent design in general and not about a particular book about intelligent design, Jones treated the book selected by the Dover school board,
Of Pandas and People, as central to the case. There are several books about ID, but I believe that only one other book about ID was discussed in the case,
Darwin`s Black Box by defense expert witness Michael Behe. The name of the
Pandas book appears 74 times in the 139-page opinion, about half the appearances concerning the book`s contents and about half concerning the school board`s selection of the book. A large part of the Dover opinion is essentially a highly unfavorable book review of
Pandas.
(6) Jones denied the
Pandas book publisher‘s motion to enter the case as an intervenor and then he thoroughly panned the book in his written opinion. Jones called the motion untimely, even though the motion was filed only a month after the plaintiffs subpoenaed the publisher, Foundation for Thought and Ethics, and a whopping four months before the start of the trial. The publisher should have been admitted as an intervenor to give it the right to file an independent appeal, if for no other reason. Considering that the book was thoroughly trashed in the written opinion and that the publisher had no opportunity to file an independent appeal, the claim that the publisher‘s interests were adequately protected is especially hollow. Court documents on the publisher's motion to intervene are
here. In a comment thread titled
"Jon Buell and the Dover ruling" , I demolished Judge Jones' reasons for denying the publisher's motion to intervene, particularly in my last comment in the thread ( I commented under the name LarryFarma ).
(7) Jones rejected an amicus brief from the Discovery Institute on the grounds that this brief was a “back door“ way of introducing the "unrebutted" ideas of Dembski and Meyer — who had withdrawn as expert witnesses for the defense — into the case file. A revision of DI`s amicus brief was later admitted to the record. Jones accepted a brief that replied to DI`s amicus brief ( briefs replying to amicus briefs are expressly prohibited only at the Supreme Court level ) and amicus briefs carry far less weight than oral trial testimony, so there was no advantage to using this “back door“ approach. References --
http://www2.ncseweb.org/kvd/index.php?path=all_legal%2Famicus/(8) The Dover opinion gauged public opinion about the school board‘s ID rule by counting editorials and letters to the editor in local newspapers (pages 58-63). Jones` counts of the editorials and letters were made on the basis of whether or not they mentioned religion, so an editorial or letter asserting that ID is not an endorsement of religion counted the same as one asserting that ID is an endorsement of religion. A less meaningful way of gauging public opinion on this issue could scarcely be imagined. The Dover opinion presented very little precedent for this public-opinion polling method of counting editorials and letters to the editor (page 62).
(9) Showing blatant prejudice, the Dover opinion said that the answer to the question of “whether ID is science … can likely be predicted“ by the opinion‘s determination that “both an objective student and an objective adult member of the Dover community would perceive Defendants‘ conduct to be a strong endorsement of religion pursuant to the endorsement test “ (page 63). The two analyses -- on whether ID is science and whether an objective observer would perceive ID as an endorsement of religion -- are supposed to be completely independent, and the results of one are not supposed to "likely predict" the results of the other. For example, astrology and alchemy are not science but an objective observer would probably not perceive them to be endorsements of religion.
(10) The Dover opinion quoted a normally-privileged attorney-client message that was received by the defendants and used this message to bash them, and gave no explanation as to how this message lost its privilege (pages 111-112). It was revealed in the trial testimony that the defendants gave the message to the plaintiffs ( I have no idea why -- the message was very damaging to the defendants )
(11) Jones created confusion by stating in the conclusion section that three specifically-worded prohibitions were going to be included in the official order and then including only one of them in the official order (pages 138-139). The two omitted prohibitions were not covered by the one prohibition that was included.
(12) Jones appeared to take unfair advantage of the fact that the ousted original school board members and their legal representatives had no chance to have the decision reviewed by a higher court. Jones might have shown more restraint in his written opinion had there been a reasonable chance of appeal.
(13) Jones said that the school board election results -- where pro-ID members were replaced by anti-ID members -- would have no effect on his decision. This statement constituted giving unnecessary legal advice to the new school board members and possibly helped discourage them from considering a former board member`s proposal -- presented at the first meeting of the new board on Dec. 5 -- to seek an out-of-court settlement with the plaintiffs.
(14) Jones pandered to both the ID policy`s opponents and concerned taxpayers by accusing the defendants of "activism" (while denying that he himself was an activist), "breathtaking inanity," and dragging the students, parents, and teachers of the Dover Area School District "into this legal maelstrom, with its resulting utter waste of monetary and personal resources." (pages 137-138). He should not have put his negative personal opinions of the defendants into the opinion. He wrote the opinion to be -- in the words of Kansas University Prof. Paul "Evil Dr. P." Mirecki -- a "nice slap in the big fat face of the fundies."
(15) The Dover opinion contains dogmatic statements of opinion on questions that are really philosophical rather than legal or constitutional. For example, the Dover opinion says --
"Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs' scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator. " (page 136)
(16) Jones apparently signed the plaintiffs‘ original calculated $2 million+ attorney fee award request, even though there was no need for him to do so because the parties had reached an out-of-court settlement of $1 million. One of the plaintiffs‘ attorneys admitted that the purpose of having the judge sign the request for the larger amount was to help blackmail other school boards in the future.
(17) Only "reasonable" attorney fee awards are allowed under the law, but Jones never said that he was going to reduce the plaintiffs` calculated fee award on the grounds that they had a grossly excessive number of attorneys of record, 9-10, with at least five of those attorneys being in the courtroom on every day of the 6-week trial ( see
ttp://www.philly.com/mld/inquirer/13928874.htm ). In contrast, the defendants had just 4 attorneys of record -- three from the Thomas More Law Center and one local attorney ( who might not have played an important role in the case ).
(18) There ought to be a general principle that judges should not rule on the scientific merits of ideas unless doing so is absolutely essential to reach a decision in the case. Such rulings are essential in, say, product liability cases, but -- as shown above -- such a ruling was not essential in the Dover ID case. Courts have no general legal or constitutional authority to settle disputes on scientific issues, and the courts are ill-suited to settle such disputes, e.g., the Supreme Court said in
Daubert v. Merrell Dow Pharmaceuticals, "....there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly." Eighty-five scientists filed an
amicus brief in the Dover case urging the judge to refrain from ruling on the scientific merits of ID.
(19) If Judge Jones had followed the precedent of the
Edwards v. Aguillard creation-science case, he would have refused to hear expert witness testimony on the grounds that none of the expert witnesses had participated in or contributed to the enactment of the Dover school board's ID policy. The
syllabus of Edwards v. Aguillard said, "The District Court, in its discretion, properly concluded that the postenactment testimony of these experts concerning the possible technical meanings of the Act's terms would not illuminate the contemporaneous purpose of the state legislature when it passed the Act. None of the persons making the affidavits produced by appellants participated in or contributed to the enactment of the law
. Pp. 594-596." (the "appellants" were government officials of Louisiana). The Dover school board members showed that they were motivated by religion and furthermore that they could not possibly have intended a legitimate secular purpose because their testimony showed that they did not understand what ID really is. There is no such thing as an "unintentional" purpose -- purposes are by definition intentional. So there was no purpose in judging the scientific merits of ID to see if ID had some "unintended" secular purpose.
(20) New Item (added 4-27-06) -- Ironically, the
Dover decision, itself just an unreviewed district-court decision, relies very heavily on other unreviewed district-court decisions. Two other unreviewed district-court decisions,
McLean v. Arkansas Board of Education and
Selman v. Cobb County (now under appeal), were named in the
Dover opinion 28 times and 15 times, respectively ( I say "named" rather than "cited" because the name may sometimes appear more than once in a single citation). In comparison, two Supreme Court decisions,
Edwards v. Aguillard (incorrectly named
Edwards v. Arkansas in the first citation) and
Epperson v. Arkansas, were named in the
Dover opinion just 35 times and 18 times, respectively. An unreviewed opinion of a single district-court judge will reflect that judge's unrestrained prejudices, whims, and eccentricities. Furthermore, when a district-court decision is unreviewed, there is of course no review of criticism of that decision, and some of a judge's reasoning in the opinion may have been a complete surprise. District-court opinions' value as precedent is so questionable that the huge 9th circuit federal court of appeals had a rule -- I don't know if this rule is still in effect -- prohibiting citation of a district-court opinion in any court of the 9th circuit. Hence, the
Dover opinion's numerous citations of
McLean and
Selman would not have even been allowed under this 9th circuit rule, which still might be in effect.
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"The world must construe according to its wits. This court must construe according to the law." -- Sir Thomas More, in the play "A Man for All Seasons."
Labels: Kitzmiller v. Dover (2 of 2)
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