I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Friday, May 26, 2006

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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6 Comments:

Blogger Colin said...

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.

Both the district and appellate courts are correct. There are three prongs to the Lemon test, but two of them are often analyzed with the same lens, so courts commonly conflate those prongs. But (to my knowledge) the Supreme Court hasn’t weighed in on the issue, other than with its official promulgation of the three prongs. The district court understood this, it merely collapsed two prongs into one analysis. It’s an accepted practice; I’m not aware of any appellate court requiring all three prongs to be addressed separately.

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?

“Judicial notice.” Nothing more than pointing out that another court has performed a persuasive analysis of a similar issue.

Anyway, if anything, the uncertainty over Selman puts a dent in Kitzmiller which will become much bigger if Selman is reversed.

I don’t see how. Kitzmiller didn’t rely on Selman, it merely discussed it. Even an outright reversal wouldn’t have “dented” Kitzmiller.

The Discovery Institute's take on the decision was grossly overoptimistic in places.

True. The DI is a media ministry, designed to create favorable public opinion regardless of the facts.

Friday, May 26, 2006 9:24:00 AM  
Blogger Larry Fafarman said...

Colin said ( 5/26/2006 09:24:25 AM ) --

>>>>>There was originally a third prong, the "entanglement" prong, but that has largely been incorporated into the "effect" prong.

Both the district and appellate courts are correct. There are three prongs to the Lemon test, but two of them are often analyzed with the same lens, so courts commonly conflate those prongs.<<<<<<

OK, the appellate opinion did say on page 20, "The court collapsed the third prong into the second, apparently believing that any action with a forbidden religious effect also constituted excessive entanglement" (this is common today -- the Dover decision also had a two-prong Lemon analysis but added the "endorsement test," which is sometimes considered to be a refinement of the Lemon test). However, to some people, particularly those who did not read or do not remember the preceding statement on page 20, the final section's statement on page 43 that the district court decision was based on "three Lemon prongs" appears to be a mistake. The district court opinion has two sections with the headings "A. Purpose" and "B. Effect," and there is no third section. Since the appellate opinion's final section did not elaborate, that section should have just referred to the "Lemon test" or "Lemon analysis."

>>>>>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?

“Judicial notice.” Nothing more than pointing out that another court has performed a persuasive analysis of a similar issue.<<<<<

Well, I think that the Kitzmiller opinion went far beyond mere "judicial notice" in referring to Selman. The Kitzmiller opinion did not merely say of Selman, "BTW, FYI here is a decision on a similar issue" -- KItzmiller cited Selman 13 times (Selman was actually named 15 times, but in two places the name appeared twice in one citation).

>>>>>Even an outright reversal wouldn’t have “dented” Kitzmiller.<<<<<<

Of course, a lot will depend on whether any of the findings of Selman that were cited in Kitzmiller are later struck down by the appeals court (the appeals court could even strike down individual findings while upholding the overall decision). But in the popular mind, a reversal of Selman would damage Kitzmiller, whether or not the appeals court strikes down individual findings of Selman that were cited by Kitzmiller.

>>>>>The Discovery Institute's take on the decision was grossly overoptimistic in places.

True. The DI is a media ministry, designed to create favorable public opinion regardless of the facts. <<<<<<

Well, this is the first good thing that has happened to anti-Darwinism in the courts since the 1925 Scopes trial, so I don't blame DI for celebrating a little.

BTW, an extraneous space in my coding caused a failure in the link to the appellate opinion. This mistake has now been fixed.

Friday, May 26, 2006 12:31:00 PM  
Blogger Larry Fafarman said...

Here is something else I discovered in regard to combining the 2nd and 3rd prongs of the Lemon test. This is from the Selman district court opinion -- the appeals court opinion did not mention this and did not give the complete reason as to why the district court combined the two prongs --

Both the Supreme Court and the Eleventh Circuit have acknowledged that the second and third prongs of the Lemon test are interrelated insofar as courts often consider similar factors in analyzing them. See Agostini v. Felton, 521 U.S. 203., 232-33, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); Holloman v, Harland, 370 F.3d 1252, 1284-85 (11th Cir.2004). In fact, the Eleventh Circuit, like several other circuit courts, has combined the second and third prongs of the Lemon analysis into a single "effect" inquiry. See Harland, 370 F.3d at 1285, accord Child Evangelism Fellowship of New Jersey, Inc. v. Stafford Township Sch. Dist., 386 F.3d 514, 534(3d Cir.2004), Commack Self-Service Kosher Meats Inc. v. Weiss, 294 F.3d 415, 424 (2d Cir 2002), Columbia Union College v. Clarke, 159 F.3d 151, 157 (4th Cir.1998). The Court will do the same in the instant Order.

Monday, June 05, 2006 12:29:00 PM  
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