Georgetown Law Journal "note" on Kitzmiller case

This 40-page Georgetown Law Journal (Vol. 95:855) "note," "Divided by Design: Kitzmiller v. Dover Area School District, Intelligent Design, and Civic Education", by Kevin Trowel, assumes (1) that intelligent design is just a religious concept and (2) that there are only two possibilities, evolution and ID (this concept of only two possibilities was given the name "contrived dualism" by the opinion in McLean v. Arkansas Board of Education ), and therfore all scientific (or pseudoscientific) criticisms of evolution theory are parts of ID (as I have frequently pointed out, there are also non-ID criticisms of evolution, e.g., criticisms concerning co-evolution and the propagation of beneficial mutations in sexual reproduction).

This "note" says (the first page number is that of the pdf file and the second page number is that of the journal),
.

. . . . "the framers of the Constitution . . . cherished the Enlightenment ideal that science could illuminate everything from chemical reactions to political theory. But the framers were also descendants of people who had come to America in large part seeking religious freedom." This delicate balance between science and religion is part of what underlies the Establishment Clause. (page 14, page 868)

Here we go again with another example of stereotyping of the "true" religion of the founding fathers. The founding fathers have been called virtually everything from a bunch of godless bible-burning atheists to a bunch of bible-pounding holy rollers. Even if the founders were uniform in their religious beliefs and we could discern those beliefs today, we would still have no good reason for blindly following those beliefs. I am just sick and tired of hearing about the religious beliefs of the founding fathers.

The "note" says,

Intelligent design theory . . . . rejects the idea that science and religion can coexist.(page 16, page 870)

Wrong -- intelligent design says no such thing.

The "note" says,

Instead, intelligent design offers only a "negative argument against evolution." (page 16, page 870)

So what is wrong with that? When someone accused Thomas Edison of not making progress in his efforts to create a practical electric light, he answered, "I've made lots of progress -- I now know lots of things that don't work."

And why isn't evolution viewed as a "negative argument against intelligent design"? LOL

The "note" says,

The possibility that teaching creationist theories may limit students' educational opportunities reappeared recently when the University of California admissions department instituted a system-wide policy to reject all applicants taught from the Bob Jones University science text, which includes lessons in Biblical creationism. ( page 18, page 872 )

The Bob Jones University biology text also includes about 15 pages on evolution. Also, representatives of the University of California admitted that they had no evidence that freshmen who are graduates of fundy high schools are deficient in knowledge of science. See this and this.

The "note" says,

. . . standard "culture war" battle lines of ideology and religion alone are insufficient to explain the conflicts -- within the affected communities, both adherents and opponents of intelligent design tend to be conservative and religious. ( page 22, page 876 )

That is stereotyping.

The "note" says,

For the purposes of analyzing intelligent design controversies, this note will adopt the model of civic education described by Professor Sherry, who argues that students should learn "three major things: moral character, critical thinking, and cultural literacy." When intelligent design is examined against this standard, its failure to contribute to the creation of civic-minded citizens becomes clear. First, given the importance of science in American culture, students educated in antievolution classrooms will be deprived of true cultural literacy. They "will learn only a distorted version of the common culture." Second, critical thinking is necessary to provide children with the tools to "understand and to evaluate competing conceptions of the good life and the good society." Intelligent design, directly and as a proxy for Biblical literalism and the rejection of "secular standards of reasoning that make evolution clearly superior as a theory to creationism," is often explicit in its intent to undermine (emphasis in original) critical thinking . . . . . . Finally, "the most basic moral requirement of republican citizens, of course, is an inclination to participate in the republic, to engage in rational deliberation. " This Note has thus far attempted to demonstrate how intelligent design proponents may actively invite divisiveness and welcome their own social exclusion. Such exclusionary behavior undermines the republican idea. ( page 29, page 883 )

First, since questioning and disbelief of Darwinism are important parts of our common culture, the students who are not learning about the criticisms of Darwinism are the ones who are learning "only a distorted version of the common culture." Second, dogmatically teaching Darwinism to students by means of spoonfeeding and brainwashing them does not help them develop "critical thinking" skills. And finally, since public opinion polls show that the majority of the public questions or rejects Darwinism, it is the Darwinists who invite divisiveness and their own social exclusion by demanding that public schools dogmatically teach Darwinism while excluding criticisms of Darwinism.

The "note" says of the "endorsement test,"

As Judge Jones explained in Kitzmiller, the endorsement test as currently formulated "consists of the reviewing court determining what message a challenged governmental policy or enactment conveys to a reasonable, objective observer who knows the policy's language, origins, and legislative history, as well as the history of the community and the broader social and historical context in which the policy arose." Justice O'Connor's opinion in Lynch [i.e., Lynch v. Donnelly] makes clear that divisiveness could be considered evidence of an observer's perception of endorsement; as the endorsement test has developed, it has become clear, in turn, that an observer's perception of endorsement is sufficient to render a policy unconstitutional. Therefore, it appears that a sufficient showing of divisiveness may play a significant role in considering the constitutionality of a government action under the endorsement test. (pages 36-37, pages 890-891 )

If "an observer's perception of endorsement is sufficient to render a policy unconstitutional," then any policy can arbitrarily be "rendered" unconstitutional, including policies that are not religious at all. Judge Jones in fact banned all official criticism -- whether religious or not -- of Darwinism in public schools: " . . we will enter an order permanently enjoining Defendants . . . from requiring teachers to denigrate or disparage the scientific theory of evolution . . ." So Judge Jones also banned, for example, criticisms of co-evolution theory. However, intelligent design is not necessarily part of the criticisms of co-evolution theory. And without intelligent design, there is no supernatural designer. Without a supernatural designer, there is no god. Without a god, there is no religion. Without religion, there is no establishment clause violation.

Also, this "note" focuses on the "divisiveness" aspect of the endorsement test. However, teaching Darwinism in the public schools is itself divisive, so divisiveness cannot be avoided just by dogmatically teaching Darwinism in the public schools while suppressing all criticism of Darwinism there. I feel that attorney Edward Sisson correctly focused on the "political insider/outsider" aspect of the endorsement test instead of the "divisiveness" aspect. An open letter he wrote about the Selman v. Cobb County evolution disclaimer textbook sticker case says,

The fact that all available textbooks teach evolution, and that the Cobb County school board chose the most hard-line pro-evolution text, and chose to include that evolution material in the curriculum, clearly communicates to those who endorse evolution that they have become the dominant political insiders, and the Sticker merely shows that they do not have absolute monopoly control -- yet.

It is deeply disturbing that the trial court felt that failure to give the pro-evolution side absolute monopoly control was equal to sending a message to the pro-evolution side that they are "political outsiders." Nonsense. Denying someone monopoly control of an issue is not the same as declaring that person a political outsider on that issue. That the trial court could judge such a record to have such an effect bespeaks an extreme bias.

This post has a longer discussion of the "endorsement test."

The "note" says,

. . . proponents of creationism have in recent months attempted to answer courts' concerns about the lack of peer review of intelligent design. But peer review alone cannot and should not be sufficient to render legal a policy that is otherwise violative of the Establishment Clause. Although factors like the absence of peer review may be relevant to courts' Establishment Clause analysis, such factors have become false targets in a cat-and-mouse game between the courts and the theory's proponents. (pages 39-40, pages 893-894 )

"A cat-and-mouse game between the courts and the theory's proponents"? So now there is an adversarial relationship between the courts and proponents of ID? Should the Dover case have been titled "Jones v. Dover" instead of "Kitzmiller v. Dover"?

And I thought that "peer review" was the gold standard of the Darwinists. Saying now that peer review doesn't matter is not just moving the goalposts -- it is removing the goalposts altogether.

Regarding why this 40-page paper is called just a "note" rather than an "article" (the author himself calls it a "note" ) -- I have been informed that the only law journal papers that are called "articles" are those written by law school graduates -- the papers of others are just called "notes." The author of this paper was not yet a law school graduate when he wrote the paper (his bio at the bottom of the first page says that he expects to receive his J.D. degree this year). To me, this distinction between an "article" and a "note" is very elitist and snobbish. I cannot think of any other field where there is such a distinction based on the educational credentials of the author. Ironically, law is one field where someone with little or no formal professional education can write a good paper -- I cannot say that the same is generally true of my field, engineering.
.