Review of final decision in ACSI v. Stearns
Previously, I said that I was not going to do any more analysis of ACSI v. Stearns because I concluded that the case should be declared non-justiciable and that the court should require that no special viewpoints -- including non-Christian viewpoints -- be allowed in any sole or main textbooks in UC-accredited high-school courses and that special viewpoints in those courses be allowed only in supplemental materials. My reasons for this conclusion are given here. However, I have now decided to post an analysis here. The reasons for my change of mind are: (1) a lot of misinformation about the decision is being posted on the Internet, particularly on Kevin Vicklund's blog; and (2) it is another opportunity to take a swipe at lousy judges, something I just love to do.
The only rejected textbook that I investigated very much was the Bob Jones Univ. 2-volume biology textbook. I finally agreed with UC's decision to reject this textbook -- I feel that the textbook's introduction just went too far when it said, "If the conclusions contradict the Word of God, the conclusions are wrong, no matter how many scientific facts may appear to back them." That statement discourages critical thinking and promotes spoonfeeding Christian dogma to the students. Even if one thinks that the bible is always right, it can be a useful mental exercise to try to figure out why the bible could be wrong. In the introduction, that statement not only attacks evolution but even attacks the possibility that a "'scientific' explanation of the biblical locust (grasshopper) plague in Egypt" could be correct. At least the more commonly quoted statement from the introduction, "The people who have prepared this book have tried consistently to put the Word of God first and science second," is open to the possibility that science could be correct and the bible wrong. I never liked the BJU biology text's introduction and I now feel no need to defend it because I decided that the case should be declared to be non-justiciable.
The final opinion is here. The review here is not intended to be complete -- I just touch upon what I consider to be the most important points:
The plaintiffs were: Calvary Chapel Christian School ("Calvary"), five Calvary students, and the Association of Christian Schools International ("ACSI") (page 1)
Definition of "summary judgment"
IMO the definition of "summary judgment" (page 2) is too vague and the term "summary judgment" should be eliminated from the law. "Summary judgment" supposedly means that there are no "genuine" issues concerning claims or material facts. But it is often necessary to thoroughly review facts and claims to determine that they are not "genuine" issues, and this thorough review is not "summary." There is no clear dividing line between summary and non-summary judgments. This decision here is called a "summary judgment," yet the decision thoroughly reviews five UC course rejections (pages 12-18). IMO all motions for final decisions should be titled "motion for final decision" to distinguish them from other kinds of motions.
Some plaintiffs' expert reports rejected as untimely
Defendants rejected more than 175 courses proposed by ACSI schools during the relevant time period -- only 38 rejections were challenged by the ACSI (page 8). The plaintiffs' expert witness reports analyzing each of the 38 challenged course rejections were rejected as untimely -- the reports were submitted in June 2008 and the discovery deadline passed in July 2007 ("Plaintiffs recently disclosed expert conclusions" -- pages 8-9). Plaintiffs conceded that they did not prepare for the 38 as-applied challenges (i.e., challenges to UC rejections of individual courses) because they expected the court to rule in their favor on the facial challenges (i.e., broad principles).(page 9). That was really careless. Only four challenged Calvary course rejections and one challenged non-Calvary course rejection were left for the court to review -- plaintiffs' expert reports for these courses were timely. (page 9)
ACSI's "associational standing"
After a lot of convoluted legal reasoning (pages 3-7), the opinion concludes (page 7),
Accordingly, ASCI does not have associational standing to pursue as-applied claims based on individual course rejections.
IMO this is just plain wrong -- IMO this was just a consolidation of 38 individual claims by ACSI members and ACSI has a right to be a legal representative on these claims. Anyway, this issue of ACSI's associational standing was rendered moot when the plaintiffs' expert reports on the 38 UC rejections were rejected as untimely.
The opinion said,
Defendants argue that Plaintiffs waived any animus argument when Plaintiffs' counsel stated "We do not intend to argue the case based on proving animus" at the hearing on the parties' first round of summary judgment motions (Tr. of Feb. 14, 2008 MSJ Hearing 39.) Plaintiffs dispute this argument, explaining that they did not intend to argue animus until this Court used that term to describe the punishment of disfavored viewpoints prohibited by National Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998). (page 10)
Now I am really confused -- why did the plaintiffs waive any animus argument at the first round of hearings on summary judgment motions in February 2008? A news article said,
The lawsuit against UC alleges that the university accepts courses from other schools taught from a particular viewpoint, such as feminist, African-American or countercultural, so the school can't discriminate against "a viewpoint of religious faith."
The original complaint goes into further detail on pages 44-55.
Wasn't this claim of discrimination against Christian viewpoints -- and also Christian content -- an animus argument? And this claim seems to me to be one of the best animus arguments that the plaintiffs could make. I thought that this claim was central to the lawsuit.
The opinion said,
Regardless of whether Plaintiffs waived this issue, they fail to present evidence of animus sufficient to raise a genuine issue of material fact . . . . .
Here, Plaintiffs provide no evidence of animus(pages 10-11)
Well, as I said, I thought that UC's general pattern of approving textbooks and courses with narrow non-Christian viewpoints and content while rejecting textbooks and courses with Christian viewpoints and content was evidence of animus.
Plaintiffs essentially argue that Defendants had no rational basis for their actions and therefore they must have been motivated by animus. (page 11)
The opinion does not counter this argument.
This argument adds nothing to the constitutional analysis; if Defendants had no rational basis, the Court need not reach the issue of animus.(page 11)
Well, the Court has here reached the issue of animus by deciding that the Plaintiffs provided no evidence of animus, so contrary to the above statement, the Court reached the issue of animus without first deciding that the Defendants had no rational basis.
Anyway, the reason why the Court would not reach the issue of animus if the defendants' had no rational basis is that the lack of rational basis would be sufficient to decide the case, not that the animus issue is unimportant.
Accordingly, there is no genuine issue of material fact as to this issue. Defendants' decisions to reject the courses challenged by Plaintiffs were not motivated by animus.
As noted above, the judge said that he was not even supposed to decide the question of animus, and here he is ruling that the Defendants were not motivated by animus. The judge wants to have his cake and eat it too. I don't know what charges of animus the plaintiffs made now, but I am disappointed that the judge did not rule here on the original complaint's charge that UC discriminated by accepting textbooks and courses with narrow non-Christian viewpoints and content while rejecting textbooks and courses with Christian viewpoints and content.
Rational basis review of five UC course rejections
Here is where the opinion reviews the five UC course rejections -- four Chapel courses plus one non-Chapel biology course -- where the plaintiffs' expert reports were accepted as timely (pages 12-18). I lost interest in this section when I decided that the case should be declared non-justiciable. However, I may later read and maybe review Michael Behe's expert report on the biology textbooks. Kevin Vicklund got screwed up on this section of the opinion -- he said, "The untimely expert witness reports excluded as untimely, ACSI had no admissible evidence that any of the four [actually five] courses were unreasonably rejected" (the "reasonableness" section on Kevin's blog). The judge held that plaintiffs' expert reports for 38 other courses were untimely but held that plaintiffs' expert reports for these 5 courses were timely. Anyway, I am glad to see that pettifogging troll and cyberbully (he is always trying to get me kicked off of other blogs) Kevin Vicklund has his own blog now -- hopefully this means that he will have less time to troll this blog.
The National Center for Science Education's website has a good collection   of documents for ACSI v. Stearns up to October 2007. To see later documents other than the final decision, a PACER account may be needed.
Well, we had Judge "Jackass" Jones (Kitzmiller v. Dover), Judge "Blooper" Cooper (Selman v. Cobb County), Judge TJ "Mad" Hatter (Fafarman v. Calif. and US EPA -- smog impact fee case), and now we also have Judge "Bozo" Otero (ACSI v. Stearns).