Judge Jones flunks history and philosophy as well as law and science

This article is a follow-up to "Judge Jones is hot speaker on the lecture circuit", which concerns his commencement address at his alma mater, Dickinson College. The full text of the speech is here. Here are excerpts from it:

As has been often written, our Founding Fathers were children of The Enlightenment. So influenced, they possessed a great confidence in an individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason. And that reason was best developed, they clearly believed, by a broad based liberal arts education that caused its recipients to engage the world by constantly questioning and persuading others.

Ironically, but perhaps fittingly for my purposes today, we see the Founders' ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

For starters, Jones' above statements are self-contradictory. He is essentially saying that the real purpose of the establishment clause -- which was supposed to prohibit the govennment from establishing a religion -- was to establish the founding fathers' "true religion" (i.e., their belief that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry") as the official state religion!

Also, Jones was stereotyping and misrepresenting the religious and philosophical beliefs of the founding fathers. The founding fathers were mostly not philosophers or theologians -- they were just mostly lawyers, planters, merchants, etc.. I believe that Jefferson was the only founding father who left behind much in the way of philosophical writings about religion, and he apparently gave no indication that his advocacy of the separation of church and state was even partly based on the one motivation that Judge Jones stated above. Also, it appears that the teleological argument of design was part of Jefferson's religion of Deism. As Bill Dembski said, "Who among our nation’s founding fathers believed that the essence of religion is an Enlightenment rationalism that eschews design? None of them. Even Jefferson would be on the ID side in the current debate." Also, the signers of the Constitution were not just big names like Washington, Madison, Franklin, and Hamilton, but included lesser-known men about whom much less is known (39 delegates signed the Constitution, and 16 did not sign). Presumably the signers of the Constitution had a broad range of views about religion. As for the Federalist Papers which promoted the Constitution, Federalist No. 84, by Alexander Hamilton, actually opposed a bill of rights.

Jones essentially said that the religious purpose of establishing this "true religion" of the founding fathers was their main if not their sole purpose for adding the establishment clause to the Bill of Rights. But the establishment clause at least had "legitimate secular purposes which were not a sham" -- the founding fathers were obviously aware that theocracies and the doctrine of the divine right of kings were threats to liberty, and the establishment clause was also consistent with and supportive of the free exercise clause. Some of the American colonies -- Massachusetts, Rhode Island, and Pennsylvania -- were founded by people seeking escape from religious persecution. Contrary to Jones' speech, it is doubtful that the establishment clause was solely, mainly, or even partly intended to promote abstract philosophical ideas about religion. And the founding fathers certainly did not intend the establishment clause to be used for the suppression of scientific ideas. The suppression of scientific ideas would not have met with the approval of Jefferson, who said, "I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man." It was wrong of Judge Jones to insinuate that the founding fathers would have approved of his Kitzmiller v. Dover decision.

Jones made no bones about the fact that his speech was just a self-serving effort to defend his Kitzmiller decision by wrapping himself in the mantle of the founding fathers. One wonders if Judge Jones' statements in his commencement address would have earned him a passing grade in an undergraduate history or philosophy course at his alma mater. Such is the supposedly great mind who wrote the supposedly brilliant Kitzmiller opinion.

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Panda's Thumb sucks

Panda's Thumb has 26 bloggers (called "contributors" or "crew" members on PT and called "team" members by blogger.com) and might also employ outside blog administrators, but either they are all ignorant about IP addresses or they don't care about the bad consequences of blocking IP addresses.

Rule 6 of the Panda's Thumb Comment Integrity Policy says:

6. Posting under multiple identities or falsely posting as someone else may lead to removal of affected comments and blocking of the IP address from which those comments were posted, at the discretion of the management.(emphasis added)

Panda's Thumb of course sometimes uses IP address blocking for other violations of PT's commenting rules.

An article titled "Why IP banning is useless" says:

Many proposals for eliminating comment spam are focused on banning or throttling comments from the IP address of the spammer. This is fundamentally flawed because it assumes IP addresses are both unique and hard to come by.

Banning an IP address can have severe consequences. Many ISPs (including AOL) and companies use a proxy server that makes it appear as if all users are coming from a single (or a handful) of IP addresses. By blocking an IP address, you might be preventing a substantial portion of AOL users from commenting.

That's how I was initially banned from PT -- I am an AOL user. The preceding article also says,

The other problem is that IP addresses are very easy to get or fake for spammers who care about such things. There are hundreds of ("or," not "of" ?) thousands of open proxies that will let anyone direct Web traffic through them. When I’m using an open proxy, my IP address is effectively masked.

The "open" proxies -- e.g., hidemyass.com -- are better known as "anonymous" proxies. Seeing the PT staff's obvious frustration as they continued their futile efforts to block my comments sent through these anonymous proxies was great fun. I think the next thing I'll do is subscribe to an email forwarding service to further hide my identity.

Ed Brayton, who runs his own blog -- "Dispatches from the Culture Wars" -- in addition to being a blogger on Panda's Thumb, has posted this blog article that shows his own ignorance about IP addresses.

No reputable blogger or blog service would block IP addresses. The only practical way to control comment content is to either delay the posting of comments until after inspection (this is called comment "moderation") or delete undesired comments after they are posted.

In addition to blocking IP addresses, the PT bloggers also arbitrarily delete comments and cut off discussions in the middle by closing threads. And PT's infamous "Bathroom Wall", where Panda's Thumb's bloggers dump comments on the pretext that the comments are "off-topic" when the real reason is suppression of ideas that the bloggers don't like, is -- in PT's own words -- "a PT tradition." Comments moved to the Bathroom Wall are generally ignored and moving comments there disrupts discussions. I have never seen any other blog or other Internet forum that has anything like the PT's BW. The BW is just a gimmick that enables the hypocritical PT bloggers to practice censorship while pretending that they don't.

I observed that Panda's Thumb got a 2005 web award from Scientific American magazine, so I once hoped that SA magazine could be persuaded to pressure PT into showing some minimal integrity that would show PT to be deserving of the award. I gave up on that idea when I discovered that the editor-in-chief of SA magazine, John Rennie, is himself a fanatical Darwinist crackpot who tried to persuade university presidents to sign a petition supporting Darwinism.

The irony of all this censorship crap that occurs on the Internet is that it undermines one of the Internet's great advantages -- a tremendous potential enhancement of the free exchange of ideas. It used to be that most of us ordinary citizens got almost no opportunity to publicize our views -- maybe once in a blue moon a newspaper or magazine would publish a brief letter from us or we would get a brief opportunity to comment on a radio talk show. But with the Internet, people are able to -- or would be able to, if it were not for all this drat censorship -- publicize comments of any length at any time.

This blog is well over a month old and now has about 30 articles on controversial subjects, and I am still waiting for the lousy sleazebags at Panda's Thumb to take a potshot at it.

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Close votes in Freiler case show shakiness of Selman and Kitzmiller decisions

A highly significant evolution-disclaimer case that preceded the Selman and Kitzmiller cases, Freiler v. Tangipahoa Parish Board of Education, 185 F. 3d 337 (5th Cir 1999), cert. denied, 530 US 1251 (2000), is virtually unknown today. However, the history of the Freiler case shows how shaky the Selman and Kitzmiller decisions really are. Despite the fact that the Freiler evolution disclaimer -- unlike the Selman and Kitzmiller disclaimers -- actually expressly mentions something religious, i.e., the Bible, the Freiler case fell just single votes short of being granted either an appellate rehearing en banc or certiorari (a rehearing en banc is a rehearing by all the judges of a court, except that 11-judge panels are used in the 9th circuit, and a grant of certiorari is acceptance for review by the Supreme Court). The overconfident Darwinists do not realize how close the Freiler decision came to being reversed.

A petition for a rehearing en banc of Freiler got seven yes votes from the 5th circuit appellate judges, just one vote short of the majority needed to grant the rehearing. The vote was so close that the 3-judge panel that decided the case did not dare report the actual tally. I determined from the records of service of 5th circuit appellate judges that there were 14 such judges in regular active service in 2000, so the vote was evenly split and there was no majority. A rehearing en banc is seldom granted. Also, the seven judges who voted yes submitted a long dissenting opinion. Furthermore, the Supreme Court fell just one vote short of the four votes needed to grant certiorari, and in a very rare action, Justice Scalia, joined by Justice Thomas, wrote a long dissenting opinion against the denial of certiorari -- normally denials of certiorari are made without comment. And Scalia did not mince words -- he said, "I would grant certiorari in this case if only to take the opportunity to inter the Lemon test once for all. Even assuming, however, that the Fifth Circuit correctly chose to apply the Lemon test, I believe the manner of its application so erroneous as independently to merit the granting of certiorari, if not summary reversal." These close votes and the accompanying dissenting opinions could be indications of how courts would vote in similar cases. The vote splits and dissenting opinions in court decisions are often considered to be of critical importance, as in Supreme Court abortion cases. The Kitzmiller decision will never be directly reviewed by a higher court, so speculation on how a higher court might rule on this case is moot, but the Selman case is still very much alive.

The Freiler case was cited six times in the Kitzmiller opinion (the name appeared eight times, but in two places the name appeared twice in one citation) and about seven times in the Selman opinion.

The disclaimer in the Freiler case was provided by the following resolution that was adopted in 1994 by the Tangipahoa Parish School Board:

Whenever, in classes of elementary or high school, the scientific theory of evolution is to be presented, whether from textbook, workbook, pamphlet, other written material, or oral presentation the following statement shall be quoted immediately before the unit of study begins as a disclaimer from endorsement of such [evolution] theory.

It is hereby recognized by the Tangipahoa Parish Board of Education, that the lesson to be presented, regarding the origin of life and matter, is known as the Scientific Theory of Evolution and should be presented to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation or any other concept.

It is further recognized by the Board of Education that it is the basic right and privilege of each student to form his/her own opinion or maintain beliefs taught by parents on this very important matter of the origin of life and matter. Students are urged to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion. (emphasis added)

The last sentence above, which urges students to question ideas that are based on religion, can hardly be considered to be an endorsement of religion. In fact, it is the opposite.

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Double standard for Darwinist and anti-Darwinist public officials

As I already noted on this blog, Judge John E. Jones III, the author of the infamous Kitzmiller v. Dover decision, has been spreading his Darwinist gospel as a hot speaker on the lecture circuit. He has given about a dozen speeches since the decision was released in December -- I gave examples in "Judge Jones is hot speaker on the lecture circuit", which is about his commencement address at his alma mater, Dickinson College, and "Judge Jones the hypocrite", which is about a recent speech he gave at the Gettysburg Lutheran Theological College. He also gave a speech to the Anti-Defamation League. Not all of his speech material has been in defense of the Dover decision in particular -- some of the material stressed the importance of keeping politics out of the courts -- but at least one of his speeches, at Dickinson College, expressed his personal philosophy about religion, and that speech was definitely a defense of his Dover decision in particular.

Is there anything wrong with judges expressing their personal opinions when outside the court (unfortunately, Judge Jones also expresses his personal opinions inside the court, as when his Kitzmiller opinion demagogically pandered to Darwinists by accusing the Dover defendants of "breathtaking inanity")? Don't judges have the same freedom of expression as the rest of us? OK, I agree that judges have a right to complete freedom of expression when they are not speaking in their official capacities as judges. But shouldn't other public officials also have the right of freedom of expression when they speak outside of their official capacities? Some people think that the answer is no when the public official is an anti-Darwinist top official of public education. A Lawrence Journal-World article titled "Evolution, religion comments put heat on department spokesman" says that David Awbrey, the director of communications for the Kansas State Department of Education, got into deep trouble for making anti-Darwinist statements as a panelist at a public forum (the article is followed by readers' comments). The article says, "At a Kansas City Press Club forum earlier this month, Awbrey argued that evolution proponents are practicing a religion. Supporting evolution, he said, is metaphysical speculation." Kansas Citizens for Science presents a recording and transcripts of the forum. Even though he believed that he was speaking as a private citizen, there were accusations that he represented the state Department of Education because he identified himself as the department's director of communications. Jack Krebs of Kansas Citizens for Science said of Awbrey, “They just didn’t invite him because he was an interesting journalist [Awbrey's former occupation]. He introduced himself as David Awbrey, director of communications.” So why couldn't Awbrey state his occupation just for identification purposes? When Judge Jones gave his public speeches, did the audiences have any illusions that he was not a federal judge? And would Jones have been invited to speak if it had not been for his prominence stemming from the Kitzmiller v. Dover case? Also, I doubt that Awbrey's statements would have been condemned had they supported Darwinism. Anyway, if the topic of the forum was so controversial that Awbrey was not free to speak his mind there, then maybe he should not have participated at all. However, even though Awbrey attended the forum on his own time and money, his boss, state education commissioner Bob Corkins, told him to attend.

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Disclaimer sticker for Selman v. Cobb County opinion

The following disclaimer sticker should be attached to all copies of Vol. 390 of the 2nd Edition of the Federal Supplement:

This book contains material on a court decision about Cobb County evolution-disclaimer textbook stickers. This decision is a theory, not a fact, regarding the existence of a petition and a letter that are the basis for the decision. This material should be approached with an open mind, studied carefully, and critically considered.

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Approved by Federal Appeals Court of the 11th Circuit, May 25, 2006

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Sticker shock -- appeals court ducks textbook sticker case

Speak of the devil ! It was less than a week ago that I wrote an analysis of the Selman v. Cobb County textbook sticker case, whose appellate decision had been held up for more than five months since the oral hearings, and now the decision has just been released! The opinion begins with the candid words, "This is the Cobb County, Georgia evolution sticker case," as though everyone is familiar with the case.

Basically, the district court's decision was vacated and remanded because of uncertainties about the evidence, but it is strange that it took the appeals court more than five months after the oral hearings to reach that determination. It has now been more than sixteen months since the district court decision. It just looks like procrastination to me. The National Center for Science Education's summary of the appellate decision said --

What primarily concerned the appeals court about the district court's decision was the evidence introduced at trial concerning the adoption of the stickers by the school board. The plaintiffs alleged, and the district court agreed, that a letter and a petition organized by a local creationist parent, Marjorie Rogers, affected the school board's decision to require the stickers. But, the appeals court states, "The evidence in the record before us does not establish that the Rogers letter was submitted to the board before it adopted the sticker. And the only petition in the record that resembles the one the court described came well after the board's action."

On Dec. 22, a week after the oral hearings, an attorney for the plaintiffs/appellees submitted a big 127-page report that said that there were two petitions -- one by Rogers, with more than 2,300 signatures delivered to the school board before the books were purchased, and a smaller petition delivered after the sticker plan was implemented. So it is apparent that great efforts to resolve these uncertainties about the letter and the petition failed during the appeal, and there is no reason to believe that the district court will do any better at resolving these uncertainties. It may very well be that these uncertainties will never be resolved. However, I am optimistic that the decision will eventually be reversed. The burden of proof is on the plaintiffs to show that the school board was unduly influenced by religiously-motivated citizens, and if the plaintiffs are not able to come up with enough evidence to show that, then it seems that the defendants should automatically win. Even if the plaintiffs can show that, they may lose anyway, because the appeals judges appeared to be leaning towards reversal for other reasons. Also, as I said, it is disturbing that so much importance has been attached to a single letter from a single citizen, Rogers.

Actually, according to my analysis of the district court's opinion, the letter and the petition should not even have been issues at all. In the "purpose" prong analysis, the district court's opinion said --

...the Court does not rely on communications from these individuals, who apparently sought to advance religion, to determine whether the School Board itself sought to endorse or advance religion when it voted to place the Sticker in science textbooks. See Adler, 206 F.3d at 1086.(stating that courts should not discern legislative purpose from letters written by community members to school officials).

However, the district court's opinion said the opposite in the "effect" prong analysis. A more detailed discussion is in my analysis of the district court's opinion.

Also, the appellate opinion made a mistake when it said, "We intend no holding on any of the legal premises that may have shaped the district court’s conclusions on the three Lemon prongs." Actually, only two, not three, Lemon prongs were analyzed in the district court opinion. There was originally a third prong, the "entanglement" prong, but that has largely been incorporated into the "effect" prong.

A few other points --

I overlooked the following important statements in the district court decision (I made these points on my own, but until now had no precedents to back them up) --

Unlike the disclaimer in the Freiler case, the Sticker in this case does not contain a reference to religion in general, any particular religion, or any religious theory. This weighs heavily in favor of upholding the Sticker as constitutional. See Adler, 206 F.3d at 1083 ("For the most part, statutes which the Supreme Court has invalidated for lack of secular purpose have openly favored religion or demonstrated a religious purpose on their face."). Moreover, the Sticker here does not explicitly mention any alternative theories of origin.

Over on Panda's Thumb, Reed Cartwright wrote of the remand, "this gives the trial judge the opportunity to apply the ruling in Kitzmiller to Selman." LOL The irony that Cartwright seems to have missed is that Selman was named 15 times in the Kitzmiller opinion. So what should this mutual judicial backscratching be called? Judicial circularity? Judicial inbreeding? Judicial incest? How about "the blind leading the blind"? Anyway, if anything, the uncertainty over Selman puts a dent in Kitzmiller which will become much bigger if Selman is reversed.

The Discovery Institute's take on the decision was grossly overoptimistic in places. For example, DI started out by saying, "The U.S. Court of Appeals for the Eleventh Circuit has thrown out the trial court decision ruling that evolution disclaimers on science textbooks were unconstitutional." Correction: the trial court decision was just "remanded" -- "thrown out" is too strong a term. DI then tones down by saying that the three-judge panel "stopped short of deciding the constitutionality of the stickers, and instead sent the case back to the trial court judge with instructions to hold more evidentiary hearings on the issue." In the next paragraph, DI goes back to being overoptimistic again.

Of course, I was somewhat disappointed by the decision because the appeals judges appeared to be leaning towards reversal.

A related article is "Aptly named 'Lemon test' sucks".

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More shenanigans from Ed Brayton

This is a follow-up to my post titled STOP IMPERSONATING MY BROTHER. Ed just posted another lie -- "The Real Dave Fafarman Revealed" -- in which he falsely accuses me of impersonating my brother Dave! Dave tried to post a response on Ed's blog, but found that his post was held up for "moderation." So I decided to publish Dave's response below --

Ed Brayton wrote --

One of my friends in the NCSE office emailed Dave and put him in touch with me. Dave confirmed that he did indeed write the first comment under the Typekey username DaveFxxx, but did not write the comment with the Typekey user name Dave Fafarman.

Any combination of you, your friend, and "Dave" are lying. Since you obviously do not believe in the free exchange of ideas (you arbitrarily banned Larry for disagreeing with you), why should anyone trust you?

Notice that the IP addresses for the fake Dave and the two Larry comments are identical - 207.200.116.13.

Larry already explained why the IP addresses are identical, moron -- Larry and I share an AOL proxy with the same IP address.

Now, take a look at the ARIN whois information for that IP address and you'll see that, contrary to Larry's claim, this number is not a dynamic IP address:

What do you mean, "contrary to Larry's claim"? Larry already said that it is not a dynamic IP address.

Notice that Larry is on AOL, while Dave is on SBC. And Larry's IP is not portable, while Dave's IP is. And guess where the email from the real Dave came from? Yep - SBC, not AOL.

The fake Dave is on SBC. The real Dave -- me -- is on AOL.

When he said that his IP address changes every time he dials in, he was lying.

Larry said that his computer's local IP address changes every time he dials in, which is true. However, the IP address of the AOL proxy that he communicates through remains fixed -- and that is the IP address that the rest of the Internet sees.

You should consult someone who knows something about IP addresses.

==================================

For a more complete explanation of Dave's above response, see my following comment --

http://im-from-missouri.blogspot.com/2006/05/stop-impersonating-my-brother.html#c114858431986463769

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STOP IMPERSONATING MY BROTHER

Someone has been impersonating my brother on "Dispatches from the Culture Wars" and on this blog, and I demand that it cease forthwith.

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Judge Jones is hot speaker on the lecture circuit

As a result of his mixture of celebrity and notoriety stemming from the Dover trial, Judge Jones has become a hot speaker on the lecture circuit. I have already written about one of his speeches, in "Judge Jones the hypocrite". The York Daily Record's report on the commencement address that Jones gave to 500 graduates at his alma mater, Dickinson College, said,

"The founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry," said Jones, who was thrust into the national spotlight by last year's court fight over the teaching of evolution in the Dover school district.

The founding fathers -- from school namesake John Dickinson to Alexander Hamilton and Thomas Jefferson -- were products of the Enlightenment, Jones said.

"They possessed a great confidence in an individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason," he said.

"This core set of beliefs led the founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state."

For starters, how historically accurate are those statements? Others argue with equal fervor that the USA was founded as a Christian nation.

Because of Judge Jones' background, probably most people tacitly assume that his above statements have something to do with the controversies over Darwinism and intelligent design. His above statements imply that he views intelligent design as "something handed down by a church or contained in a Bible" (never mind that the Bible says nothing about irreducible complexity, bacterial flagella, blood-clotting cascades, etc.). But is there any major religious denomination in the USA where a particular view regarding the origin of species -- e.g., creationism, intelligent design, and even Darwinism -- is part of official doctrine? Were any of the 10,000+ Christian clergy members who signed the pro-Darwinist Clergy Letter charged with heresy?

Also, it has become fashionable lately to pretend to be a follower of the principles of the founding fathers. But a true follower of the founding fathers would embrace such things as the denial of citizenship and/or voting rights on the basis of race or sex. The founding fathers would not have been happy living under all of our principles and policies, so why should we be happy living under all of theirs? Furthermore, the founding fathers were not all-wise and all-knowing -- for example, many of the biggest issues today, e.g., environmental protection and privacy & free speech on the Internet, were not even on their radar screen. To me, there is nothing particularly special about the founding fathers -- they were just a group of men who happened to be in the right place at the right time.

BTW, Judge Jones, what would the founding fathers have thought about people who try to abuse the establishment clause for the purpose of suppressing scientific ideas that they disagree with -- or thought about a judge who went along with those people?

For more views on Judge Jones' speech at Dickinson College, see this article on uncommondescent.com.

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Important -- List of Comments

Unfortunately, unlike some other blog services, this blog service does not automatically provide a list of the latest comments (however, this service is free, so I am not going to look a gift horse in the mouth). As a result, many new comments here tend to go unnoticed, particularly when posted on older threads. I am therefore establishing this location where commenters may announce new comments. You can either provide the information needed to find your comment -- i.e., the title of the thread and the date & time of posting -- or you can post the direct link to your comment. To find the direct link to your comment, do the following:

(1) Click on the appropriate title in the list of "Recent Posts" in the left-hand sidebar. If the title is no longer listed, you can do the following: (i) click on the last title in the list, and then a list of previous titles will appear, or (ii) enter the title in the "search this blog" window in the top border of the screen.

(2) When the title post and the thread appear, scroll down to your comment and click on the date & time at the bottom of your comment and the direct link will then appear in your URL (web address) window. Your comment may not appear in this list until some time after you submit it. Your comment will usually appear much sooner in the list on the comment entry screen, but you cannot get the direct link by clicking on the date & time on this screen.

Use of this list is of course optional, but if you want your comment to be noticed, you should announce it here. Please do not post the comments themselves here -- short titles or descriptions are OK.

As more title posts are added, I may move this list or create new lists from time to time.

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Brayton, Take 3

In another article, "Fafarman, Take 3", Good Ol' Ed Brayton says --

Here's the rule when you deal with cranks and trolls - if you engage them, it proves that their ideas have to be taken seriously; if you ignore them, it shows that you're afraid of their ideas. Heads they win, tails you lose.

Are Darwinists any different? If you don't answer them, then you lose the debate, and if you do answer them, you lose anyway because you don't know what you are talking about and your only reason for discussing anything with them is -- or should be -- to be "educated" by them. Yup, that's right -- heads they win, tails you lose.

Panda's Thumb does not even need to "engage" me -- supposedly all PT has to do is just post a link to my blog so that people can see for themselves how stupid my posts supposedly are. But PT has not even done that.

And banning and deleting commenters -- which Ed Brayton and Panda's Thumb do frequently -- are the surest signs of fear of their ideas.

Postscript:

It is apparent that many people who claim that I just post nonsense have been spending a lot of time reading my comments in great detail. I find that to be very strange, because when it becomes clear to me that someone else just posts nonsense, I very quickly stop wasting my time reading that person's comments.

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Using FRCP Rule 12 to moot Dover lawsuit

Discussions on the following webpages have already shown conclusively that the Dover school board's failure to repeal the ID policy in December is inexcusable --

(1) "Two-timing new members of Dover school board" on this blog

(2) The thread under the post Dover C.A.R.E.S. -- a wolf in sheep's clothing" on this blog

(3) "Did Dover Care About Taxpayer Money? A Response to Critics" on Evolution News & Views

(4) "Ed Brayton wrong again on Dover mootness issue" on this blog

(5) "Good Ol' Ed Brayton, Part 2" on this blog

Defenders of the Dover school board have been reduced to arguing that the claim for nominal damages -- $1 per plaintiff -- would have prevented Judge Jones from declaring the lawsuit to be moot! What a joke!

To gild the lily, I am now going to show how the school board could have applied Federal Rules of Civil Procedure (FRCP) Rule 12 in an action seeking dismissal of the Dover lawsuit on grounds of mootness.

FRCP Rule 12(b) says --

.....the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2)...., (3)...., (4)....., (5)...., (6) failure to state a claim upon which relief can be granted, (7) ......

......If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, ....

In the context of the Dover lawsuit, the "pleading" in the above rule was the original complaint of the plaintiffs. The new Dover school board could have repealed the ID policy prior to judgment and presented this repeal as a matter "outside" the complaint ("pleading") and then asked for a summary judgment dismissing the complaint on the grounds that as a result of the repeal the complaint failed to "state a claim upon which relief can be granted." One of the problems here is that under the above FRCP Rule 12(b) the court may exclude "matters outside the pleading," but it could be argued that the question of whether repeal of the ID policy moots the lawsuit is a matter that should be decided in the summary-judgment phase rather than by arbitrary exclusion of the repeal from consideration. There is one other problem, and that is that motions for defenses under FRCP Rule 12 are normally restricted to the first few weeks of a case, but FRCP Rule 12(h)(2) says that the preceding motion asserting defense (6) may be made "at the trial on the merits": "A defense of failure to state a claim upon which relief can be granted......may be made......at the trial on the merits", and under the legal definition of "trial," the trial period extends until the final judgment or verdict. Also, Rule 56, concerning summary judgments, allows defendants to immediately move for summary judgment with or without supporting affidavits.

There is nothing in the FRCP that says that a complaint that initially "state[s] a claim on which relief can be granted" cannot later, as the result of some event or discovery in the course of the trial, fail to state such a claim. In fact, it is obvious that FRCP Rule 12(h)(2) above, which extends until final judgment the time available for raising the defense that the complaint fails to state such a claim, was written for the express purpose of dealing with an event or discovery that could justify dismissal of a case at any time during a trial. In fact, it is surprising that FRCP Rule 12(h)(2) is not invoked more often both by defendants and sua sponte by judges.

The nice things about Rules 12(b) and 12(h)(2) are that they provide a formal means of mooting the case and a step-by-step procedure that Judge Jones would have been required to follow in dealing with the board's motion to dismiss the suit. Judge Jones could not have just dismissed the board's motion out of hand on the grounds that such a motion was irregular. He would have had to justify, for example, a decision to "exclude" repeal of the ID policy from consideration as a possible basis for dismissing the suit by summary judgment. And if he could not find reasonable grounds for excluding the repeal of the ID policy, then he would have been required to make the summary judgment. This judgment could either be a dismissal of the suit or -- pursuant to FRCP Rule 56 (d) (Case Not Fully Adjudicated on Motion) -- a decision to proceed to a judgment on the merits of the suit.

Sound farfetched? Not at all -- my proposal follows FRCP Rule 12 to the letter. Certainly my proposal is a lot less farfetched than, say, the actual attempt to use anti-racketeering laws against abortion clinic demonstrators (LOL). The Supreme Court has ruled that litigants may take advantage of a law or rule that was not intended to benefit them. However, it is obvious that the above provisions of Rule 12 were intended to benefit defendants seeking to moot a lawsuit on the basis of an event or discovery occurring at any time during the course of a trial.

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Good Ol' Ed Brayton, Part 2

Since I am banned on Ed Brayton's blog, I have to answer him here.

This is an update of my previous article, "Ed Brayton wrong again on Dover mootness issue"

In a new article, "Good Ol' Larry Fafarman, Part 2", Good Ol' Ed Brayton says,

Now Larry, I know that reading comprehension isn't your strong suit, nor is thinking for that matter. But even you must be able to recognize that I can't link to a post until after it's been posted.

You are the one with poor reading comprehension. I said that you did not post a link to this blog -- not that you did not post a link to my article, "Ed Brayton wrong again on Dover mootness issue." You could have posted a link to this blog without waiting for me to post that article first. And I have noticed that Panda's Thumb has not had a single article containing comments about the blog of PT's favorite troll. I have posted about 20 substantial articles here and I am wondering why PT has been in no hurry to attack a single one of them.

Anyway, Ed goes on to say,

the man is so dense that he doesn't see the difference between a judge not allowing an amended complaint to ask for damages after the grievance has been redressed and a judge not mooting a case in which nominal damages had been part of the original complaint

Well, you must be pretty dense, too, Ed, because you did not note this alleged "difference" in your original article, "A New Case on Mootness". In fact, according to what you said in that original article, the plaintiffs never asked for nominal damages at all. You said, "There was no request for nominal damages in the UNC case," which as you now indicate is untrue, because there was a request for nominal damages in the plaintiffs' unsuccessful motion to amend the complaint. And the judge also did not note this alleged "difference" between original and amended complaints in regard to nominal-damage claims -- the judge only said, "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar." There is no reason to believe that his decision to declare the nominal-damages claim to be moot would have been any different if the claim had been in the original complaint.

Ed, why don't you take your arguments to Dover and use them to campaign for re-election of the Dover school board members, and see how far you get.

Banning me from your blog, Ed, shows that you do not believe in the free exchange of ideas. That attitude is not going to help any of your causes.

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Ed Brayton wrong again on Dover mootness issue

Ed Brayton, in an article titled "A New Case on Mootness" on his blog "Dispatches from the Culture Wars," is now arguing that a new federal district-court decision, Alpha Iota Omega Christian Fraternity v. Hamm, does not support the idea that the Dover school board could possibly have mooted the Dover lawsuit and thereby avoided attorney fees by repealing the ID policy prior to judgment. He got it wrong again.

In that new decision, the judge ruled that the case was moot as a result of a change in policy by the University of North Carolina while the case was pending. Ed vainly tried to distinguish this case from the Dover case.

Ed made the following arguments:

A. There was no request for nominal damages in the UNC case. Indeed, the judge's ruling specifically notes that fact because, if it had been otherwise, it would have demanded a ruling on the merits.

Wrong. The plaintiffs amended the complaint by adding a claim for nominal damages and other new claims (page 23 of opinion). The opinion said, "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar." (page 29 of opinion)

B. No trial had taken place in the case. The judge had issued a preliminary injunction against the university, but the actual trial had not taken place on the merits of the case yet. In Dover, the trial was over and a ruling was a mere few days away.

As for no trial having taken place in the case, the courts have never ruled that the stage of the litigation should be a consideration in deciding whether a case should be declared to be moot. After great expenditures of time and money by the parties involved, the Supreme Court dismissed the Marco DeFunis reverse-discrimination case as moot because he was about to graduate from the law school whose admission policies he challenged. The Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001) case was declared to be moot after the plaintiff had incurred considerable legal expenses, and the Supreme Court ruled that the "catalyst theory" (the notion that when a case is dismissed as moot because of the defendant's voluntary cessation of the challenged action, the plaintiff is entitled to a statutory award of attorney fees on the grounds that the lawsuit allegedly caused the voluntary cessation) did not entitle the plaintiff to an award of attorney fees.

C. There was far less chance of the new policy being reversed, for several reasons. First, because university administrations do not change every year (or two years) the way school boards do. Second, because the judge's injunction clearly told the university that if they reversed themselves, they'd get hauled into court and almost certainly lose.

As for the statement "There was far less chance of the new policy being reversed," judgment of the likelihood of repetition is subjective and speculative. In the Dover case, there were the following major disincentives for re-instatement of the ID policy or something similar: (1) the ID policy and the lawsuit had deeply divided the community and brought notoriety to the community; and (2) there was the possibility of more legal expenses. As for the statement that the judge told the defendants in Alpha Iota Omega that they would "almost certainly lose" another lawsuit, Ed Brayton's quote of the opinion said nothing of the kind. All this quote said was that the judge was satisfied that the possibility of re-instatement of the challenged policy was "unlikely" and that the defendants could be "trusted" to not re-instate it. Also, a judge telling defendants that they would "almost certainly lose" another lawsuit would have been improperly giving legal advice to the defendants. Also, the purpose of a preliminary injunction is not to send a message to a defendant of likely loss of a lawsuit -- the purpose of a preliminary injunction is to provide temporary relief or prevent irreparable harm pending further rulings by the court. To grant a preliminary injunction, a judge does not even necessarily need to be convinced that the suit has merit.

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I would like to post these rebuttals on "Dispatches from the Culture Wars," but I cannot. I have been banned there. Ed Brayton has just posted an article there -- "Good Ol' Larry Fafarman" -- that brazenly brags about banning me and that ridicules me for thinking that he might have the decency to change his mind by considering at least some of my comments for posting. However, he didn't carry out his threat to post a link to this blog -- apparently he is afraid to do that. The bloggers and their handpicked commenters on Panda's Thumb and Dispatches from the Culture Wars congratulate each other when they easily win debates after opposing arguments have been censored.

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"Traipsing into breathtaking inanity" II: analysis of Selman v. Cobb County

While waiting for release of the appeals court's decision in the Selman v. Cobb County evolution-disclaimer textbook stickers case, I decided to occupy myself by writing an analysis of the district court's opinion.

Background material for this post is given in "What happened to the Cobb County textbook sticker case?" and "Aptly named 'Lemon test' sucks" on this blog.

The Selman opinion made the following statement in the "purpose" prong analysis --

Evidence in the record suggests that the idea of placing a sticker in the textbooks originated with parents who opposed the presentation of only evolution in science classrooms and sought to have other theories, including creation theories, included in the curriculum. Namely, Marjorie Rogers wrote a letter to the School Board over two weeks before the adoption of the Sticker recommending, among other things, that the School Board place a disclaimer in each book. Moreover, Ms. Rogers and over 2,300 other Cobb County citizens submitted a petition to the School Board also asking the School Board to place a statement at the beginning of the text that warned that the material on evolution was not factual. There is no dispute that a large number of Cobb County citizens opposed the teaching of evolution in a rigid fashion, and it is clear to the Court that many of these citizens were motivated by their religious beliefs. However, the Court does not rely on communications from these individuals, who apparently sought to advance religion, to determine whether the School Board itself sought to endorse or advance religion when it voted to place the Sticker in science textbooks. See Adler, 206 F.3d at 1086 (stating that courts should not discern legislative purpose from letters written by community members to school officials). (emphasis added)

Note that the court said, "the Court does not rely on communications from these individuals, who apparently sought to advance religion, to determine whether the School Board itself sought to endorse or advance religion." I think that this statement is good (though as shown below, this statement was unfortunately contradicted in the effect prong analysis), but it is was wrong to assume that the petition's signers were motivated by religion -- some people may have signed the petition for non-religious reasons (a lot depends on how the petition was worded). Anyway, the judge ruled that the textbook stickers passed the "purpose" prong of the Lemon test.

The opinion made the following statement in the "effect" prong analysis --

....... the basis for this Court's conclusion that the Sticker violates the effects prong is not that the School Board should not have called evolution a theory or that the School Board should have called evolution a fact. Rather, the distinction of evolution as a theory rather than a fact is the distinction that religiously-motivated individuals have specifically asked school boards to make in the most recent anti-evolution movement, and that was exactly what parents in Cobb County did in this case. By adopting this specific language, even if at the direction of counsel, the Cobb County School Board appears to have sided with these religiously-motivated individuals.

So there it is -- the sole reason why it was unconstitutional for the school board to adopt the language of the textbook stickers is that religiously-motivated individuals asked the board to do it! The judge even conceded that the statement that evolution is a theory and not a fact does not inherently violate the effect prong of the Lemon test. The court held that the reason why the statement violates the effect prong is that a lot of people support that statement for religious reasons. In the oral hearings at the appeals court, Judge Carnes told an attorney something like, "I don't think y'all can contest any of the sentences [of the textbook stickers]. It's a theory and not a fact -- the book supports that."

Also, the "purpose" and "effect" prong analyses are glaringly inconsistent: the purpose prong analysis says that the "Court does not rely on communications from these individuals" (i.e., citizens who supported the stickers by means of a petition and a letter submitted to the board) and cited precedent in support of that position, but the effect prong analysis says that the Court did rely on communications from these individuals. Also, it is very disturbing that such great importance is attached to a single letter from just one citizen, Marjorie Rogers, even though that citizen was apparently an activist. Also, controversies over the following matters have apparently still not been settled: the letter could not be found, there was confusion over whether the petition was submitted before or after the stickers were adopted, and the petition was not entered into the evidence. Information about these controversies is here, here, here, and here.

Also, the opinion says, "the Cobb County School Board appears to have sided with these religious-motivated individuals," but there is no evidence to support that conclusion. In fact, in the "purpose" prong analysis, the opinion said, "The School Board sought to show consideration for their constituents' personal beliefs regarding the origin of life while still maintaining a posture of neutrality towards religion."

The Selman decision, in ruling that a particular thing that does not mention anything connected to religion and that contains no religious symbols is nonetheless a government endorsement of religion, is arbitrary in the extreme. Such a decision must be unique in the annals of establishment clause jurisprudence. Even in the Dover lawsuit, the ID statement that was read to the students arguably had a religious connotation because the word "design" implies the existence of a supernatural "designer."

Despite these excesses of the Selman decision, the Darwinists of course will not concede that the court went too far. In fact, the Darwinists filed an amicus brief urging the court to rule against the defendants.

BTW, the title "Traipsing into breathtaking inanity" is a combination of words used in the Kitzmiller v. Dover opinion. This title was inspired by the title of the Discovery Institute's new book, "Traipsing into Evolution."

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Forgive Them, Lord, For They Know Not What They Do (response to "Why We Do This")

A Panda's Thumb article titled "Why We Do This" reported that Patricia Princehouse, leader of Ohio Citizens for Science, has received a Hugh M. Hefner First Amendment Award from the Playboy Foundation for her contribution to the successful campaign to have an evolution lesson plan deleted from the Ohio state standards for science education.

The interest of the Playboy Foundation in the 1st Amendment is probably based on: (1) the protection that pornography has under the 1st Amendment rights of freedom of symbolic expression and freedom of the press; and (2) the establishment clause's protection from state religions that might seek to censor pornography.

In her acceptance speech for the award, Princehouse said, "freedom of religion is the bedrock foundation of liberty in this country." I disagree. The right that was saved in Ohio is basically the "right" to not be offended, which is not even in the Constitution. This "right" to not be offended was saved at the expense of the principle of the free exchange of ideas which is embodied in the 1st Amendment right of freedom of expression. That does not seem like good priorities to me. And Darwinists are abusing the 1st Amendment's establishment clause for the purpose of suppressing scientific ideas that they disagree with.

Incidentally, I opposed the Ohio evolution lesson plan for reasons having nothing to do with the absurd notion that it is based on creationism or ID.

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Aptly named "Lemon test" sucks

The infamous "Lemon test", named for the Supreme Court decision of Lemon v. Kurtzman where it originated, is a set of judicial tests that has been frequently used for many years in deciding Establishment Clause cases. The test originally consisted of three parts or "prongs," though often just the first two prongs are used now. The first prong is often called the "purpose" prong and the second prong is often called the "effect" prong. The Lemon test was used in both the Kitzmiller v. Dover and the Selman v. Cobb County (textbook sticker) cases.

The ambiguity and subjectivity of the Lemon test often lead to inconsistent results, and either scrapping or modifying the test has been strongly considered. Consider the "purpose" prong, for example. This is generally defined as follows: "The government's action must have a legitimate secular purpose." But must this "legitimate secular purpose" be an intended purpose, or can it be a commonly perceived purpose or even just any arguable purpose? How are intentions to be determined? Is it the purpose of just the government officials, or can it also be the purpose of the constituents who influence the government officials? Which and how many government officials or members of the public should be included when determining the purpose? Should the intended "purpose" be considered at all, since different people have different purposes and what really counts anyway is the "effect"? How can a decision be universally applicable if it is wholly or partly based on people's purposes or motives? These questions have been answered in different ways by different decisions that have used the Lemon test. And even after these questions are answered, there is a lot of subjectivity in applying the chosen definition of "purpose."

A judicial test called the "endorsement test" has also been used in establishment clause cases, sometimes as a refinement of the Lemon test.

The judges are supposed to apply the Lemon test from the standpoint of an imaginary "objective observer," sometimes called a "reasonable observer." But how well informed should the imaginary objective observer be about the challenged action: just minimally informed, well informed, or very well informed (as was Judge Jones after hearing about three weeks of expert testimony in the Dover case)? Should the objective observer be familiar with the local history of the challenged action? One hundred years from now, would it matter to an objective observer what the current local history of the challenged action is?

It has been argued -- correctly, I believe -- that the Lemon test actually conflicts with the Constitution's Free Exercise Clause. For example, to avoid being charged with religious motivation under the Lemon test, people will tend to avoid free exercise of their right to express religious belief. This avoidance goes beyond merely avoiding expressing religious belief in connection with something that might be considered to be an Establishment Clause violation; to avoid a charge of religious motivation, people will tend to avoid all statements of religious belief and avoid connections with religious organizations, including church attendance. There is a double standard here -- Darwinists like Kenneth Miller are free to express their religious beliefs and say that their belief in Darwinism is consistent with and even based upon their religious beliefs, but critics of Darwinism do not have this freedom. Religious motivation is not fatal under the Lemon test, because religious motivation is OK if a legitimate secular purpose can be shown, but it is safest to avoid charges of religious motivation altogether. The Lemon test has other conflicts with the Free Exercise Clause -- see "Why Separation Is Not the Key to Church-State Relations".

Application of the Lemon test went completely berserk in the Kitzmiller v. Dover and Selman v. Cobb County decisions, where this test was (1) used to ban things that neither mentioned anything religious nor contained any religious symbols and (2) used to ban things for a reason having nothing to do with religion, that reason being to suppress scientific ideas that some people disagree with.

Many of the supporters of the Dover and Cobb County decisions think or pretend to think that these decisions were inevitable, but judges have a lot of latitude in making decisions. And these supporters of the decisions see no conflict between their belief that the decisions were inevitable and their inability to exactly predict the decisions.

Please don't get me wrong -- I am a strong supporter of church-state separation. For example, I am strongly opposed to school prayer. However, I think that church-state separation often goes too far. Often the fear of government promotion of religion does not just border on paranoia but is paranoia.

I am no great fan of Supreme Court Justice Antonin Scalia, but I found his description of the Lemon test to be especially apt: "Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again .....no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart...and a sixth has joined an opinion doing so........When we wish to strike down a practice it forbids, we invoke it....when we wish to uphold a practice it forbids, we ignore it entirely.......I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced." Citations omitted. -- from Concurrence in Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993). Justice Scalia wrote those words way back in 1993, and now it is 2006 and this "ghoul" still haunts us.

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What happened to the Cobb County textbook sticker case?

The appeal of the Selman v. Cobb County evolution-disclaimer textbook sticker decision has been almost completely overshadowed by the Kitzmiller v. Dover circus and the ensuing controversy. It has now been five months since the oral hearings in the Selman appeal were held, and nobody ( well, almost nobody) is wondering why the decision has not been released yet. There was also a very long delay in holding the appeals hearings -- the district court's decision was released on January 2005 -- so it has already been sixteen months since the case was decided in the district court.

Here is some information about the case and the appeal --

Background of case and summary of district-court decision

Information about the appeal itself is here, here, here, and here.


At the oral hearing in the appeals court, the judges were very critical of the lower court's decision. Appeals Judge Ed Carnes said that the three-sentence disclaimer seemed to him to be "literally accurate" and told the attorney representing the opponents of the stickers, "Your difficulty is that you've got to take something that actually is reflective of the content of this textbook you like so much, and say it violates the First Amendment." Judge Frank Hull questioned how the district-court judge could have found the sticker's language misleading to biology students when there was no evidence to support that view. There was also a big controversy over the district court's finding that a public petition and a citizen's letter pressured the Cobb County school board into adding the stickers to the textbooks. The letter could not be found, there was confusion over whether the petition was submitted before or after the stickers were adopted, and the petition was not entered into the evidence. I don't know if the controversies over this letter and petition were ever resolved.

It would be a real shame if the ruling on the constitutionality of the textbook stickers hinged on just this letter and petition. This is another good reason why it is long past time to drive a stake through the evil heart of the aptly-named "Lemon test, " which has been falling out of favor but which is still widely used to decide establishment clause cases (including the Dover and Cobb County cases). Supreme Court Justice Antonin Scalia likened the Lemon test to "some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried" ( see Scalia quotes under the heading, "On the Establishment Clause"). The bloodsucking Lemon test "sucks" in more ways than one.

A reversal of the Selman decision, which appears to be a strong possibility, would put another big dent in Kitzmiller v. Dover, to add to the long list of existing dents (see "Traipsing into breathtaking inanity" on this blog). Dover relied heavily on Selman, which is named 15 times in the Dover opinion (I say "named" rather than "cited" because some single citations name a court case more than once).

I predict that if Selman is reversed, which now appears to be a very strong possibility, similar textbook stickers will start appearing all over the country, maybe even in the Dover Area school district, right under the nose of Judge Jones, bearding the lion in his den (his Dover decision said nothing about textbook stickers).

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Dover C.A.R.E.S. -- a wolf in sheep's clothing

Dover C.A.R.E.S. ( Citizens Actively Reviewing Educational/Economic Strategies ) was apparently established for the purpose of opposing the Dover school board's ID policy. Dover C.A.R.E.S. ran a slate of anti-ID school board candidates who won most of the seats on the board.

After strenuously denying during the school-board election campaign that they were in cahoots with the ACLU, once in office the newly elected school board members did exactly what the ACLU wanted them to do -- reject a former board member's proposal to try to end the Dover lawsuit and avoid attorney fees by repealing the ID policy prior to the decision (see my post titled, "Two-timing new members of the Dover school board"). Everyone knew that early December was the last chance to try the proposal, so the new board's apparently unanimous decision to schedule the January meeting for discussion of the proposal was for all practical purposes a decision to kill the proposal. The proposal was not new -- it had been presented at the mid-November board meeting, the last meeting of the old school board. Some of the new members said at that time that they did not want the judge to dismiss the suit!

Though the website of Dover C.A.R.E.S. mentions nothing about the evolution controversy, two of only four non-governmental URL links on the website (most of the links connect to government bodies or politicians) connect to virulently pro-Darwinist organizations, the National Center for Science Education and Pennsylvania Citizens for Science (both of which are exclusively dedicated to promoting Darwinism and suppressing criticism of Darwinism, despite the seeming generality and innocuousness of their titles).

Also, ironically, Dover C.A.R.E.S. holds its regular meetings at a church. If a pro-ID group held its regular meetings at a church, all hell would break loose. Also, purchasing the Of Pandas and People ID books with funds raised at a church seriously hurt the Dover defendants in the lawsuit (and not just because they lied about it). I think that there is an obvious double standard here.

The new board members who represent Dover C.A.R.E.S. were in a precarious position to start with, since they all won their seats by relatively small margins. Their popularity will decline further as more Dover residents realize that the new school board muffed a lucky opportunity to try to avoid the attorney fees by repealing the ID policy in early December. Ironically, it is believed that a lot of the votes for the new members came from people who were primarily concerned about the attorney fees. There is a good chance that the Dover school board -- a future school board if not the present one -- will seek ways to circumvent the Kitzmiller v. Dover decision, as by adopting the Cobb County evolution-disclaimer textbook stickers if the Selman v. Cobb County decision is reversed, which is a strong possibility.

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Unnatural selection in racehorses

We keep hearing of all the wonderful applications of evolution theory. Well, one area where evolution theory is not applied is in the breeding of racehorses. A 2002 New York Times article, titled "Winning Races, but Not Records", reports that the speed of racehorses has been stagnant for several decades ( indeed, it has even been theorized that racehorses are actually getting slower because the speeds have been stagnant while race courses have been getting faster). Why is that? Horsebreeders seem clueless. Well, they should be told, "it's like this, stupid": a perverse result of exorbitant stud fees -- as high as $½ million for the best stud horses -- is that the fastest horses transmit their superior running abilities to few offspring. The high fees in combination with the great financial risk to the buyers of the stud services greatly limit the numbers of offspring. Usually the only thing that is guaranteed in exchange for these huge stud fees is a live foal -- there is no guarantee that the foal will ever earn a single dime. Furthermore, apparently no discount is offered if a filly rather than a colt is born. Fillies rarely win the biggest races -- for example, only 38 fillies have started in the Kentucky Derby and only three have won. The fastest horses do have some excellent traits to transmit to offspring -- for example, the legendary Secretariat had a heart approximately three times normal size.

Of course, racehorse breeders should not be blamed for trying to get as much for stud services as the market will bear. However, they are just going about it the wrong way. The smart thing to do would be to offer the stud services of the fastest horses for just a nominal charge or even for free, in exchange for a share of the future winnings of the offspring. This would maintain high incomes for the stud-service providers while eliminating the risk for the buyers of the stud services. The result would be a general increase in the speed of race horses, and interest in horse racing could be increased by offering prizes for breaking race-course records.

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Is the party almost over for ACLU and AUSCS?

Gigantic rip-offs and blackmail by the ACLU and the AUSCS (Americans United for Separation of Church and State) in establishment-clause lawsuits and threats of lawsuits may soon be things of the past. A Congressional bill to bar attorney fee awards in establishment-clause lawsuits has been gaining steam.

The Darwinists, while shedding crocodile tears over the $1 million attorney fee award's great burden upon the Dover Area school district, have been exploiting this award as an example for the purpose of intimidating school boards and state legislatures that wish to add any criticism of evolution to public school curricula. Furthermore, the Darwinists have been abusing the establishment clause as a means of suppressing scientific ideas that they don't like.

IMO, while some establishment-clause lawsuits may be justified, many others are not. For example, the ACLU has threatened to sue over a tiny cross in the Los Angeles County seal. This cross, displayed along with the Hollywood Bowl bandshell, could be interpreted as symbolizing the Easter sunrise services at the Bowl, but could also be interpreted as symbolizing the role that the Spanish missions played in the history of the county. The cross has a legitimate secular purpose as a historical symbol and is not large enough to make non-Christians feel like outsiders. It would be impractical to purge our public sphere of everything with religious connections, even if we wanted to do it -- for example, our secular calendar and 7-day week are religious in origin.

If the bill passes, establishment-clause lawsuits are likely to continue but will probably be much more modest in nature. The cost-no-object Kitzmiller v. Dover lawsuit was a veritable orgy of extravagance, with 9-10 plaintiffs' attorneys of record and at least five of them in the courtroom on every day of a six-week trial. The previous Dover school board members have been made into scapegoats for the extravagances of the ACLU et al..

By seeking exorbitant attorney fee awards, the ACLU and the AUSCS may soon find that they killed the goose that laid the golden eggs.

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Judge Jones the hypocrite

In a speech on April 26, Judge Jones said that politics should be kept out of the courts. Yet the conclusion section of his own Kitzmiller v. Dover opinion was highly political in nature. This conclusion section attacked elected officials, i.e., the Dover school board members who voted for the ID policy, saying "The citizens of the Dover area were poorly served by the members of the Board who voted for the ID policy" and "the students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources," and accusing the former board members of "breathtaking inanity." So far as I know, no other judicial opinion dealing with the evolution controversy has attacked public officials so maliciously. I agree that the behavior of the Dover school board members left a lot to be desired, but Judge Jones should have kept his negative opinions about them to himself. His attacks on them do nothing to enhance the credibility of the opinion.

Judge Jones derogatory remarks about the Dover school board members indirectly attack ID, all proponents of ID (particularly public officials), and all science-based challenges to evolution theory. An amicus brief submitted by 85 scientists in support of the defendants said, "....the scientific theory of intelligent design should not be stigmatized by the courts as less scientific than competing theories.......Doubts as to whether a theory adequately explains the evidence should be resolved by scientific debate, not by court rulings........As this litigation demonstrates, opponents of intelligent design frequently resort to ad hominem attacks, asserting that because some scientists hold religious views, their scientific work should be dismissed as merely 'religious.' " But Judge Jones paid no heed to that advice when he made his derogatory remarks about ID proponents. The opinion's following disclaimer does not compensate for those derogatory remarks: "....we do not question that many of the leading advocates of ID have bona fide and deeply held beliefs which drive their scholarly endeavors. Nor do we controvert that ID should continue to be studied, debated, and discussed."

Also, there has been a lot of ballyhoo about the fact that Judge Jones was featured on the cover of Time magazine as one of the 100 most influential people. Being on the cover of Time is not necessarily a desirable distinction -- past honorees of the Time Person of the Year award have included Adolf Hitler (1938), Josef Stalin (1939, 1942), and Ayatollah Khomeini (1979).

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Two-timing new members of Dover school board

IMPORTANT UPDATE --

This controversy has been revived on the following webpages --

http://www.evolutionnews.org/2006/05/did_dover_care_about_taxpayer_1.html

http://scienceblogs.com/dispatches/2006/05/francisco_and_dover_take_2.php

http://www.pandasthumb.org/archives/2006/05/a_little_knowle.html

One thing for sure is that the defenders of the board are starting to waffle. They are no longer speaking of the "voluntary cessation" doctrine in terms of absolute certainty, but are speaking of "maybes," "possibles," and "exceptions." In any case, the voluntary cessation doctrine was never a valid argument for not repealing the ID policy in December.

Colin, you have been adding insult to injury by attacking me by name where I have been banned, Panda's Thumb. I don't think that is very ethical.

Also, it is of course very unfair that regular commenters at Panda's Thumb are free to come over here and leave comments while I cannot leave comments over there (at least not under my real name).

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A recent American Enterprise Online article condemned the new members of the Dover school board -- who had campaigned on an anti-ID platform -- for missing an opportunity to possibly save legal fees for the school district. At the new school board's first meeting on Dec. 5, the board ignored a former board member's proposal to try to save legal fees by repealing the ID policy before the release of the Kitzmiller v. Dover decision, which was due in late December or early January (the decision was released on Dec. 20). Defenders of the board's inaction have argued that the school district would have been liable for the plaintiffs' attorney fees even if the judge had declared the case to be moot as a result of a repeal of the ID policy. However, this argument is contradicted by the following ruling of the US Supreme Court --

Numerous federal statutes allow courts to award attorney’s fees and costs to the "prevailing party." The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. We hold that it does not. (emphasis added)
From Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001)

Hence, if Judge Jones had declared the Dover case to be moot, then according to the above ruling the plaintiffs would not have been eligible for an award of attorney fees. I possibly would have found this precedent sooner had I been able to get down to the Los Angeles County Law Library to do research.

Defenders of the board's inaction have also cited the "voluntary cessation" principle, which holds that a lawsuit is not mooted by voluntary cessation of a challenged action which could later be resumed (the "voluntary cessation" principle is also discussed in the Wikipedia article on "mootness" ). However, the syllabus of the above case, Buckhannon Board & Care Home, noted that this case was declared moot as a result of the state legislature's voluntary cessation of the challenged statute: "The state legislature then eliminated the 'self-preservation' requirement, and the District Court granted respondents’ motion to dismiss the case as moot." The state legislature did not agree to a consent decree promising to not re-instate the challenged statute, and I don't see how the legislature would have the authority to agree to such a consent decree. So obviously the voluntary cessation principle is not airtight, either in regard to the issue of mootness or the eligibility of the plaintiffs for an award of attorney fees. Maybe the courts tend to treat governmental and private defendants differently in regard to the "voluntary cessation" principle.

Here are some more thoughts about this matter --

(1) The new board would have had nothing to lose by following the former board member's proposal to try to save court costs by repealing the ID policy immediately, unless the board wanted to appeal (they did not). To me, this is the most important thing, and what makes the board`s inaction inexcusable.
(2) The new board scheduled Jan. 3 for discussion of the issue, which everyone knew would be too late to try the proposal because the decision was due in late December or early January. There were several ways that the board could have legally handled the matter before then. Pennsylvania law does not require advance notice of items that are discussed and voted on by public bodies, and the board could have scheduled a "special meeting" with short notice.
(3) Several newly elected board members indicated in mid-November that they did not want an out-of-court settlement even if they could get one -- they wanted to hear what the judge had to say in the case. See http://www.ydr.com/doverbiology/ci_3223198 This article, which is about the last meeting of the old board in November, was also my source for points #4 and #10 below.
(4) The proposal had already been presented at the mid-November meeting (the last meeting of the old board), so there had already been plenty of time to review the proposal.
(5) The fact that almost all of the board members were new and bore no responsibility for the actions of their predecessors might have been considered to be a mitigating factor by the courts.
(6) The board`s inaction assured that the mootness question could never be considered by any court.
(7) Courts are completely unpredictable. For example, who would have imagined that the Supreme Court would approve display of the 10 Commandments on public property in one case and at the same time disapprove it in another ?
(8) The new board members had already been accused -- during the election campaigning -- of being in cahoots with the ACLU, which they strenuously denied. Yet once elected, they acted just like stooges of the ACLU.
(9) The old board could have done just as good a job of doing nothing as the new board. And even if the old board had been re-elected and decided to appeal, potential legal expenses would not have increased very much because an appeal would have been much cheaper than the district-court action.
(10) Also, as I already pointed out, Judge Jones improperly gave legal advice to the new school board when he said that the results of the board elections would not affect his decision.

Also, an article titled "The Discovery Institute really needs better Lawyers", written by an attorney, completely misrepresents the decision in Buckhannon (cited above), stating, "the court specifically upheld the palitff's entitlement to attorneys' fees for settlements and any other court orders that awarded plaintiffs relief." The exact opposite is true. Also, the American Enterprise Online article's false insinuation -- later retracted -- that one of the new board members, Bryan Rehm, was guilty of conflict-of-interest was blown way out of proportion.

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There is an important update at the top of this post.

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Posts that are unlisted in side-bar; link list added; "Darwinian Fundamentalism" blog

On the main (home) and archive pages, the list of posts in the left side-bar contains only the 10 most recent posts, and apparently there is no way to increase the number. This means that some of the posts on these pages may not be listed in this side-bar list -- old posts have already started disappearing from this list. I tried correcting this problem by switching from monthly to weekly archiving but it did not work, so I went back to monthly archiving. So, here is what you need to do --

If a post you are looking for is not listed in the side-bar of the main (home) page or the appropriate archive page, see if you can find the post by scrolling down the page. Alternatively, you can search for the post by using the "search" window in the top border of the blog screen. I had a hell of a time finding this window. A lot of blogs use this blog service (its logo is just to the left of the search window and the domain name of the blogs is "blogspot"), so it is important to know where this window is.

Also, I have added a list of links to the left sidebar (yes, JAD, I have included links to your blogs on prescribed evolution). I have discovered a great blog, "Darwinian Fundamentalism," which I have added to the link list.

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To commenters who have been messing up this blog

JAD, you are of course welcome to post comments here, but many of your comments are just unnecessarily repetitive. VoiceInWilderness, unlike JAD you have not been addressing the issues here but have just been making comments that attack me personally, and many of these comments have been repetitive. Also, some commenters have been impersonating other commenters.

I have gone to a great deal of trouble to build this blog and I am very resentful that some people are messing it up with these comments. Visitors are not going to want to wade through all of your junk to reach the comments that actually discuss the issues. You have been taking unfair advantage of my no-deletions policy. That is very discourteous.

I don't want to discourage people from speaking their minds here, but I feel that some self-control is in order.

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