Darwinist law journal article about monkey trials: "Evolution and the Holy Ghost of Scopes: Can science lose the next round?"

A while back, a reader here brought to my attention a Darwinist Rutgers Journal of Law and Religion article about monkey trials: "Evolution and the Holy Ghost of Scopes: Can science lose the next round?" by Stephen A. Newman. I decided instead to review another article in the same journal edition. Looking at the opening sentence of the Newman article gives some idea of why I was not eager to review the article: "The society that allows large numbers of its citizens to remain uneducated, ignorant, or semiliterate squanders its greatest asset, the intelligence of its people." Furthermore, this article has no new information or ideas that I have not already covered in this blog. Also, because the article is of no particular interest to me, I especially feel no obligation to review it because this blog gets little or no credit for being an authority on legal issues concerning evolution education. This blog has about 150 articles specifically about those issues and there are many related articles (see sidebar for post labels). Also, many of this blog's articles are well researched and contain many references, unlike a lot of other blogs, which contain little or nothing more than the blogger's personal opinions. Yet when I asked the Law Blog Metrics blog to announce this blog as an authority on these legal issues, I was rudely ignored -- meanwhile, the Law Blog Metrics blog announced a law blog that contains practically nothing but complete copies of news articles. Also, some people won't cite this blog because of my holocaust revisionism. Ironically, once I decided to review Newman's article, I became more and more deeply involved and this article is one of the longest if not the the longest of over 400 articles that I have posted on this blog.

Newman's pro-Darwinist bias is clear. The article gushes,
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I will not attempt to set forth the arguments for the correctness of Darwin's theory of evolution. That has been done, with painstaking thoroughness, in many books and articles that can only be deemed completely dispositive of the issue. The theory of evolution, with some modern modifications to Darwin's formulation of it ("neo-Darwinism" today), has few peers in science. Darwin's theory ranks with those of Galileo and Newton in the history of scientific thought. One hundred fifty years of research following the 1859 publication of Origin of Species has established the theory as a foundational contribution to our understanding of the natural world. (page 3)

Challenges to the teaching of evolution are challenges to reason itself -- in science, the theory of evolution has unquestioned primacy. One preeminent twentieth century geneticist's statement, quoted in recent literature, succinctly sums up academic sentiment: "Nothing in biology makes sense except in the light of evolution." Evolution, academics say, is not a theory in the commonplace sense of that term; it is so well documented that it is scientific fact. (page 43)

Leonard Susskind, professor of theoretical theoretical physics at Stanford University, notes the "silly spectacle of the Kansas school board ... debating the scienitific merits of one of the greatest products of the human intellect: Darwin's theory of natural selection."
Intelligent design, on the other hand, has been roundly repudiated. Professor Daniel C. Dennett calls intelligent design "one of the most ingenious hoaxes in the history of science." (pages 43-44 of pdf file)

Consciously favoring ignorance over reason might, and should, grate on anyone who values knowledge and uses his brains for a living . . . . Scientific knowledge can be ignored, of course; Justice Scalia proved that in his dissent in Edwards. But other justices may value their (highly evolved) intelligence, and strongly resist the triumph of ignorance over reason that a ruling undermining the teaching of evolution would represent.(page 44)

In his above statements, Newman ignores the fact that there is no constitutional separation of ignorance (or stupidity) and state. Also, many judges do not want to settle scientific questions if they can avoid it -- for example, after being corrected by an attorney in an oral hearing on a lawsuit over regulation of greenhouse gases, Justice Scalia answered, "Troposphere, whatever. I told you before I'm not a scientist. (Laughter) That's why I don't want to have to deal with global warming, to tell you the truth." There are many reasons why judges should try to avoid deciding scientific questions.

As I have said before: For a theory that many Darwinists regard as a stroke of genius, Darwinism is surprisingly mickey mouse. All that Darwinism tells us is that natural selection -- the idea that fitter organisms are more likely to survive than less-fit organisms -- occurs (duh) and that random mutation occurs (duh again). Biologists have an inferiority complex because of the kind of attitude expressed by Lord Rutherford: "All science is either physics or stamp collecting." Because of this inferiority complex, biologists are waging a prestige war against other branches of science by boasting that biology has something that other branches of science don't have, a grand overarching unifying "theory of everything," Darwinism.

The article discusses the Freiler v. Tangipahoa Parish (page 15-16) and Selman v. Cobb County (pages 16-17) decisions that struck down evolution disclaimers, but like every other law journal article I have seen that discussed these cases does not mention how close these decisions came to being reversed. Freiler v. Tangipahoa Parish came within a single vote of getting an en banc (full court) appeals court rehearing and within a single vote of getting Supreme Court review, and the dissenting judges and justices wrote long dissenting opinions attacking the decision. In Selman v. Cobb County, the appeals court judges strongly indicated in an oral hearing that they were leaning towards reversal of the decision but then vacated and remanded it, and the case was finally settled out of court when the school board took a dive in December (the Newman article is not up-to-date because the out-of-court settlement is not mentioned). Judge Frank Hull, one of the three panelists in the Selman appeal, questioned how the federal district court could have found the evolution-disclaimer textbook sticker's language misleading to biology students when there was no evidence to support that view. And Judge Carnes, another panelist, told a plaintiffs' attorney, "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." These facts about Freiler and Selman are an "I'm from Missouri" exclusive. How these important facts can be ignored in these law journal articles is beyond me -- for example, in abortion case decisions, the voting splits of the courts and the dissenting opinions are very closely watched and analyzed. Newman's failure to mention the close votes in Freiler is especially surprising because a large part of his article discusses how the changing composition of the Supreme Court could affect future decisions concerning evolution education. Of the three justices who voted to review Freiler (four votes are normally needed to grant certiorari), two -- Scalia and Thomas -- are still on the court, and two conservative justices, Roberts and Alito, have since been added to the court. Also, the near misses in Freiler and Selman expose the myth that Kitzmiller v. Dover was a "slam-dunk" case. It is widely believed that the Dover Area school board members "knew" in advance that they were going to lose and that the school district therefore "deserved" to be socked with the exorbitant $1 million plaintiffs' attorney fee award. Anyway, a "slam-dunk" case should take maybe an hour to decide, at most.

The article says of the teachers in the Kitzmiller v. Dover case:

The local science teachers rebelled. They refused to read the statement to their classes on the grounds that intelligent design is not true science and that the book Of Pandas and People is not a valid scientific resource. In a letter addressed to the Board they wrote, "[It is] our considered opinion that reading the statement violates our responsibilities as professional educators as set forth in the Code of Professional Practice and Conduct for Educators." Due to the teachers' refusal, administrators at the high school read the statement to the students. (pages 17-18)

. . . they [i.e., the teachers] refused to even stay in the room when the statement was being read by school administrators to ensure that students did not think they endorsed its message. (page 23)

LOL. The teachers left the room to "ensure" that students did not think they endorsed the ID statement, as if their own refusal to read the statement to the class was not proof enough of that!

The article of course fails to mention that the teachers were reneging on a prior agreement with the board that Pandas could be used as a "supplemental" text instead of a "companion" text. The ID statement informed the students that copies of Pandas were available in the school library. Also, apparently there is nothing in the "Code of Professional Practice and Conduct for Educators" requiring teachers to follow school board policies that they disagree with. Also, the Darwinists see no inconsistency between their support of these teachers and their support of John E. Peloza v. Capistrano Unified School District (1994), where the 9th Circuit federal court of appeals ruled that a teacher could be required to teach Darwinism even if it conflicted with his beliefs. However, I think that the Dover teachers should have been given some say in the wording of the ID statement and that the statement unnecessarily disparaged Darwinism.

I was unaware that the books "Darwin's Black Box" and "Darwin on Trial" were banned from a school library. Newman wrote,

Consider the experience of two librarians who received copies of two intelligent design books, Darwin's Black Box by Michael Behe and Darwin on Trial by Philip Johnson, as donations to their high school collections. When the librarians refused to put the books on the library shelves, they were accused of censorship . . .

The donor complained to the School Board, which appointed a committee to investigate the matter. The committee recommended that one book be accepted by the library. It deadlocked on the other book. The Board of Education then heard from a variety of people, including scientists, parents, teachers, and ministers, who explained the difference between censorship and legitimate selection processes. Ultimately, after a three month battle, the Board supported the librarians and voted to reject both books. The librarians wrote about their experience in order to warn others in the field about the conflicts they might face from this sort of book donation tactic by anti-evolutionists. One wonders how often local librarians elsewhere yield to such pressure and quietly add these volumes to their school collections. (pages 21-22)

Newman really went off the deep end here by approving the banning of these two books from a school library. The Discovery Institute's Casey Luskin cited the following ruling of the Supreme Court:

Petitioners [the school board] rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner . . . Our Constitution does not permit the official suppression of ideas . . . If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' [school board's] decision, then petitioners have exercised their discretion in violation of the Constitution. Board of Educ. v. Pico, 457 U.S. 853, 870-71 (1982).

Also, the plaintiffs in Kitzmiller v. Dover did not even attempt to have the ID book "Of Pandas and People" banned from the school library but only sought to have the book and the book's mention -- along with the rest of the ID statement -- banned from the science classrooms. In opposing the Rutherford Institute's application to intervene in the case, the Dover plaintiffs actually bent over backwards by arguing against banning the book from the school library:

. . .Applicants can allege a colorable constitutional claim only by mischaracterizing plaintiffs’ complaint. Applicants claim that plaintiffs “seek to remove supplemental textbooks from the school library.”. . .This misreads the complaint, which seeks only to remove the book Of Pandas and People from the High School’s ninth grade biology class. See Compl. at 22-23. (Prayer for Relief). The mischaracterization is not surprising because the Third Circuit distinguishes removing books from a library and removing books from a classroom: “‘special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students,’ for the library, unlike the school classroom, is a place for voluntary inquiry and study.” See Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1254 (3d Cir. 1992) (Plaintiffs’ Response to Rutherford Institute Motion to Intervene, pp. 10-11. Filed February 4, 2005)

The Darwinists are of course going to again move the goalposts for the definition of "banned book." Before, the Darwinists claimed that Judge Jones did not really ban "Of People and Pandas" because he only removed the book from classrooms but did not remove it from the school library. Now the Darwinists are going to hocus-pocus that "Darwin's Black Box" and "Darwin on Trial" were not really "banned" from a school library but were merely "rejected" by what Newman calls "legitimate selection processes." Or they will hocus-pocus that these two books do not officially qualify as "banned books" because they were not banned by a judge. I am not going to waste my time trying to get those Wikipedia control freaks to add these two books to the Wikipedia list of "banned books."

The Newman article also discussed the judicial independence controversy:

Another part of the anti-evolution strategy is to join in right wing political attacks against the judiciary. These attacks, focusing on judges who do not subscribe to the conservative religious agenda, have been strident, coupling charges of "judicial tyranny" and a judicial "war on faith" with demands for impeachment of judges and threats of reprisals. (page 24)

Judge Jones has tried to discredit criticism of his Kitzmiller decision by accusing the critics of being opposed to judicial independence and "the rule of law." He has been criss-crossing the country giving his critics "civics lessons" about judicial independence and "the rule of law." He has also charged that his critics call him an "activist judge" merely because they disagree with his Kitzmiller decision.

Newman's article said,

An anti-evolution case could be a vehicle for the abandonment of the Lemon test. (page 41)

Yes -- in his dissent against the denial of certiorari to Freiler, Justice Scalia said, "I would grant certiorari in this case if only to take the opportunity to inter the Lemon test once for all."

The Newman article said,

Several other Justices have expressed reservations about Lemon over the course of its existence, although the case has not been disavowed by a Supreme Court majority up to this point. Lower courts regard it as binding authority, even though, as one circuit court put it, it has been "widely criticized and occasionally ignored." (page 41)

In 1993, Scalia wrote in a concurring opinion,

. . .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 . .

So according to Scalia, in 1993 at least 5 and maybe 6 justices -- a majority -- had condemned the Lemon test. And the Supreme Court can hardly complain about lower courts ignoring the Lemon test when the Supreme Court itself has done so on occasion.

The Newman article says,

What Scalia would replace Lemon with is not clear, but it certainly would be a more pliant test permitting considerable latitude to government to recognize, encourage, and even promote religion (pages 41-42)

That's ridiculous -- no establishment clause test "promotes" religion. IMO the Lemon test is inappropriate for evolution education cases because the motivations of public officials can be a deciding factor under this test, and as a result it is impossible to establish any universally applicable rule. Some other establishment clause tests are the endorsement test, the coercion test, and the neutrality test. Sometimes combinations of tests are (mis)used in decisions -- e.g., the Kitzmiller decision used the Lemon test and the endorsement test. Sometimes the endorsement test is considered to be incorporated into the Lemon test. However, one of the problems with having different tests to choose from is that instead of choosing the best test, judges might tend to choose the test that gives the results they want. This tendency was noted by Justice Scalia when he said of the Lemon test, "...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.... " The same Rutgers journal edition has an article titled, "Van Orden, "Inconsistent Guideposts: Van Orden, McCreary County, and the Continuing Need for a Single and Predicable Establishment Clause Test". I may review that article in the future.

IMO evolution disclaimers are constitutional under the endorsement test because they make those opposed to Darwinism feel less like "political outsiders" and also because evolution disclaimers should have a low level of scrutiny under the establishment clause because they don't actually teach criticisms of Darwinism.

The Newman article says,

A final concern with the Scalia dissent concerns a matter he simply ignores: stare decisis. Whatever the fate of the Lemon test, the fact remains that twice the Supreme Court has ruled anti-evolution statutes to be unconstitutional. Both cases were decided by substantial majorities. The history of the campaign against evolution was clearly shown in these cases to be religiously based; it continues to be religiously based today. (page 42)

Often cases on the same subject are substantially different, so a court is not necessarily being inconsistent when it rules in different ways in different cases on the same subject. One of those two Supreme Court decisions, Epperson v. Arkansas, was about a law prohibiting the teaching of evolution; the other, Edwards v. Aguillard, was about balanced treatment of evolution and creation science. Evolution disclaimers, which don't actually teach criticism of evolution, are different again.

If we adhered strictly to stare decisis, then the separate-but-equal segregationist doctrine of Plessy v. Ferguson -- decided by a solid 8-1 majority -- would still be with us. IMO, one of the considerations in whether to overturn precedent is whether such overturning would result in substantial tangible losses (as opposed to psychological losses) to those who have relied on the precedent. Ironically, fundy schools stand to lose a lot financially if the courts allow criticism of Darwinism in the public schools, because presumably one of the reasons for attending a fundy school is to avoid the one-sided teaching of Darwinism in the public schools. I wonder -- if a law were passed requiring that creationism and only creationism be taught in the public schools, would the fundy schools be among the plaintiffs challenging the law? LOL

The Newman article says,

The values of education and academic inquiry are especially likely to be respected by members of the nation's highest court. Few government institutions rely as heavily on personnel who have attended the nation's foremost universities as does the U.S. Supreme Court. Five of the nine justices are Harvard Law School graduates (Roberts, Kennedy, Souter, Breyer, and Scalia), two graduated from Yale Law School (Alito and Thomas), and one each from Columbia (Ginsberg) and Northwestern (Stevens). The colleges they attended are similarly elite: Harvard, Princeton, Standford, Cornell, the University of Chicago, Georgetown, and Holy Cross. Some have served as law school faculty members. Allowing the teaching of evolution to be undermined betrays the academic values -- values widely shared in soclety -- that helped the Justices attain their present status atop the nation's legal pyramid. Again, it is not impossible to ignore those values: Justice Scalia has distanced himself from his own academic roots by his dissent in Edwards and by denigrating his highly educated and professionally trained colleagues as merely part of a ruling professional "elite." (pages 45-46)

Yes, I too have noted the Supreme Court's grotesque overrepresentation of Ivy League law school grads (Stevens is the only grad of a non-Ivy League Law school) and Harvard Law School grads in particular (BTW, Ginsberg also attended Harvard Law School but graduated from Columbia Law School). Also, Harvard and other Ivy League law schools are overrepresented in court citations of law journal articles.

The Newman article says,

The strength of the religious right in the nation's politics, and two new appointments to the Court, raise the possibility that the precedent that last supported the teaching of evolution, Edwards v. Aguillard, will not survive. A new ultraconservative set of justices, including Justices Thomas, Alito, Roberts, and Scalia, forms a block that might adhere to Justice Scalia's dissenting opinion in Edwards. (pages 51-52)

So Newman is admitting here that these monkey trials are not "slam-dunk" cases for the Darwinists. One thing is for sure and that is that the Supreme Court is not going to be hearing a case on public-school evolution education anytime soon -- there are now no such cases on the horizon. Selman v. Cobb County was on the horizon until a few months ago but -- as I said -- the school board took a dive. There is the fundy schools' lawsuit against the Univ. of California but that involves only private schools and not public schools. Also, the wheels of justice (or injustice) turn very slowly nowadays -- for example, after Selman was decided by the district court, it took 16 months for the appeals court to decide just to vacate and remand the decision because of missing evidence. There is a fair chance that Scalia will be replaced before another evolution education case reaches the Supreme Court.
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