Judge Jones dodged question of whether ID fosters "critical thinking"

Judge "Jackass" Jones' infamous Kitzmiller v. Dover decision is a dubious "gift" that keeps on giving -- over 2½ years after the release of the decision, I am still finding more flaws in it.

My point in this post is that the Kitzmiller opinion never answered the question of whether or not Intelligent Design fosters "critical thinking," and the answer to that question is crucial in determining whether or not the Dover school board's ID policy passes the "purpose prong" of the Lemon test.

A paragraph in the Dover opinion says (pages 88-89),

After this searching and careful review of ID as espoused by its proponents, as elaborated upon in submissions to the Court, and as scrutinized over a six week trial, we find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community. ID, as noted, is grounded in theology, not science. Accepting for the sake of argument its proponents', as well as Defendants' argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum. Moreover, ID's backers have sought to a void the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID. (pages 88-89)

I quoted the entire paragraph to show the contexts of the individual statements that I am next going to analyze:

Accepting for the sake of argument its proponents', as well as Defendants' argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum.

The expression "accepting for the sake of argument" normally means that a position about something has been stated and an exception to that position is being made "for the sake of argument" -- but Judge Jones did not previously state any position on whether ID encourages critical thinking, so his statement "for the sake of argument" makes an exception to a position that does not exist. And Judge Jones does not support his statement that ID would have utterly no place in a science curriculum even if it does encourage critical thinking. He is essentially saying that encouraging critical thinking has no place in a science curriculum. Simply put, Judge "Jackass" Jones is an anti-intellectual pseudo-intellectual who is opposed to encouraging critical thinking in our public schools.

Next:
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Moreover, ID's backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID. (emphasis added)

It is not clear whether Judge Jones is here trying to support his preceding statement that ID "has utterly no place in the science curriculum" -- the word "moreover" implies that he is starting a new topic. He still does not express any opinion here as to whether ID encourages critical thought -- he only says that encouraging critical thought is not the "goal" of the IDM (ID movement), just as Zachary Blount said that evolution of citrate-eating E. coli bacteria was "not a goal" of the long-term evolution experiment (but saying that Cit+ evolution was "not a goal" does not mean that it was not possible). BTW, if a mere one-minute evolution disclaimer statement in public-school science classes threatens to "foment a revolution which would supplant evolutionary theory with ID," then evolution theory must be a pretty weak theory indeed.

The Kitzmiller opinion says much later on pages 130-131,

Although as noted Defendants have consistently asserted that the ID Policy was enacted for the secular purposes of improving science education and encouraging students to exercise critical thinking skills, the Board took none of the steps that school officials would take if these stated goals had truly been their objective. The Board consulted no scientific materials. The Board contacted no scientists or scientific organizations. The Board failed to consider the views of the District's science teachers. (pages 130-131)

Jones' above statement again says nothing about whether or not ID actually encourages critical thinking skills. And if a purpose of ID is to encourage critical thinking skills, it does not matter whether ID is scientifically valid or not. Also, Jones' above statement does not support his previous statement (pages 88-89), "Accepting for the sake of argument its proponents', as well as Defendants' argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum." Also, another decision on an evolution disclaimer, Selman v. Cobb County, said that the school board's failure to seek out expert opinion was excusable because criticism of evolution was not actually taught:

Relying heavily upon McLean v. Arkansas Bd. of Educ., 529 F.Supp. 1255 (E.D.Ark.1982), a case in which a balanced treatment statute was held unconstitutional, Plaintiffs also assert that the Court should infer a purpose to advance religion by the School Board's failure to seek out expert opinion from scientists before adopting the Sticker. McLean, however, is distinguishable from the instant case because McLean involved a statute requiring the teaching of creation science, which was a substantial change to the curriculum. In this case on the other hand, the Sticker only speaks generally about evolution and does not change the curriculum. While the School Board may have acted more prudently by consulting educators and scientists to determine whether evolution should properly be referenced as a theory, fact, or combination thereof, and to get expert opinion regarding what impact, if any, the Sticker might have on the teaching of evolution, the School Board's failure to do so does not prove that the School Board sought to advance religion. (emphasis added)

Finally, it would help if Jones' statements about the "critical thinking" issue were in one place rather than being unnecessarily separated -- one important discussion about the issue is on pages 88-89 and another is on pages 130-131.

Anyway, the fact is that Judge Jones never states any position on whether or not ID encourages "critical thinking." But it would be difficult for him to argue that ID does not encourage "critical thinking," considering that he spent several days hearing expert testimony on the question of whether ID is science.

The question of whether ID encourages critical thinking -- a question that Judge Jones weaseled out of answering -- is crucial in the "purpose prong" analysis of the Lemon test, because even something that is partly religious in nature can pass the purpose prong if there is a secular purpose that is not a sham, and encouraging critical thinking is such a purpose. Selman v. Cobb County, which was about an evolution-disclaimer textbook sticker, says (page 21),

"The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion." Lynch, 465 U.S. at 690 (O'Connor, J., concurring). To survive this Establishment Clause challenge, the Sticker in dispute must have a "clearly secular purpose." Wallace, 472 U.S. at 56, Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464, 1469 (11th Cir.1997). However, the purpose of the Sticker "need not be exclusively secular." Bown, 112 F.3d at 1469 (citing Lynch, 465 U.S. at 681 n. 6). The Sticker runs afoul of the Establishment Clause only if it is "entirely motivated by a purpose to advance religion." Wallace, 472 U.S. at 56, King, 221 F.3d at 1278, Bown, 112 F.3d at 1469. Thus, it logically follows that a state-sponsored message may satisfy this first prong "even if it is motivated in part by a religious purpose." Adler, 206 F.3d at 1084 (quoting Wallace, 472 U.S. at 56)). However, the religious purpose must not be preeminent. Stone, 449 U.S at 41.

The court should defer to a state's articulation of a secular purpose, so long as the statement is sincere and not a sham. Edwards, 482 US. at 586-87. (emphasis added)

As for the statement, "the religious purpose must not be preeminent," I assert that incidental religious connotations, which basically just involve a "right" to not be offended (though this "right" is implicit in the establishment clause, so I cannot say that this "right" does not exist here), should not be permitted to override the importance of encouraging critical thinking in students.

Selman v. Cobb County was settled out of court after being vacated and remanded by the appeals court and is therefore not a legal precedent, but it nonetheless contains a lot of useful information and ideas.

The judge in Selman ruled that the evolution disclaimer in question in that case fostered "critical thinking" (pages 24-25):

Fostering critical thinking is a clearly secular purpose for the Sticker, which the Court finds is not a sham. First, it is important to note that prior to the adoption of the new textbooks and Sticker and the revision of the related policy and regulation, many students in Cobb County were not being taught evolution or the origin of the human species in school. Further, the School Board was aware that a large population of Cobb County citizens maintained beliefs that would potentially conflict with the teaching of evolution. Against this backdrop, the Sticker appear to have the purpose of furthering critical thinking because it tells students to approach the material on evolution with an open mind, to study it carefully, and to give it critical consideration. The other language on the Sticker, which states that evolution is a theory and not a fact, somewhat undermines the goal of critical thinking by predetermining that students should think of evolution as a theory when many in the scientific community would argue that evolution is factual in some respects. However, the testimony of the School Board members persuades the Court that the School Board did not seek to disclaim evolution by encouraging students to consider it critically. Rather, the School Board sought to encourage students to analyze the material on evolution themselves and make their own decision regarding its merit. (pages 24-25) (emphasis added)

BTW, I disagree with the statement in bold. If only part of evolution is a theory, then evolution as a whole is a theory, and if evolution were entirely factual, telling the students that it is a theory would just be lying to them, not undermining critical thinking.

Though Selman is mentioned 15 times in Kitzmiller, Judge Jones did not explain why Kitzmiller differed markedly from Selman on some important issues.

Html versions of Kitzmiller and Selman are here and here, respectively. The html versions are more readable -- less scrolling is required -- but don't have page numbers like the pdf versions do (some html opinions have page numbers, but these do not).

Fostering critical thinking in school is not just a matter of developing critical thinking skills -- opportunities for critical thinking stimulate student interest and help students learn and retain the material by using what they have learned.
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