Case-law history of monkey trials

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Introduction

The Discovery Institute's Casey Luskin has written an excellent law-journal article about the case-law history of court cases concerning evolution education. The article is described here and the article itself -- in PDF format -- is here. Casey reviews 21 cases -- some are federal court cases and some are state court cases. Luskin's law-journal article shows that the case-law history of "monkey trials" is far more complex than the oversimplified, ignorant and cocky "you've always lost" and "you lost -- get over it" views of the Darwinists. Luakin shows that the legal position of Darwin critics is much stronger than most people realize -- he shows that the judicial opinions in these cases have many important findings that are in favor of Darwin critics even though the overall decisions were against the Darwin critics. One big fault of the paper is that it fails to show how close Freiler v. Tangipahoa Parish and Selman v. Cobb County came to being reversed on appeal. Also, IMO Luskin's paper should have included Comer v. Texas Education Agency, where a federal district-court judge upheld the right of a public education agency to maintain a policy of neutrality regarding evolution-education issues that are subjects of upcoming public hearings. [link].

Attorney Timothy Sandefur wrote a blog post that was highly critical of Luskin's law-journal article, but I think that Sandefur misses the point that the purpose of Luskin's article is not just advocacy but is also to present an objective overview of the case-law history.

Here I will make some additions and corrections to Luskin's law-review article. Unfortunately, URL links to some of my original references no longer work.
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Overview

The case law on evolution education is getting old. The last Supreme Court decision on evolution education, Edwards v. Aguillard (1987), was over twenty years ago, and the last definitive appeals court decision on evolution education, Freiler v. Tangipahoa Parish (2000), was nearly ten years ago (I am not counting Selman v. Cobb County because that decision was a vacation and remand), and the last federal district court decision, Kitzmiller v. Dover (2005), was 3½ years ago. As for precedential value, Supreme Court decisions of course have the most, federal appeals court decisions have a fair amount, and federal district court decisions have little or none. Why are there no current or very recent cases? Two reasons are: (1) curriculum-setting government bodies have learned how to "lawsuit-proof" criticisms of evolution, and (2) fear of the costs of attorney fee awards to the plaintiffs; because of incredibly tight-fisted taxpayers, this is a problem even where the potential financial burden to the government is negligible. An awful lot has changed since these cases were decided and it is high time to revisit them. It's is really a shame that there are no new cases, because new cases would give an opportunity to apply the many things that have been learned from previous cases.

Kitzmiller v. Dover (2005)

This blog has more posts directly and indirectly related to this case than for any other subject, as is evident from the post label list in the homepage's sidebar (post labels with Kitizmiller and Judge Jones). Luskin is of course highly critical of the Kitzmiller decision. I would like to make here some additions and corrections to what Luskin said about the case.

Casey classified Kitzmiller in the category "cases rejecting the teaching of alternatives evolution," but IMO Kitzmiller belongs in his category "cases rejecting disclaimers regarding the teaching of evolution." The Dover school board's Intelligent Design policy was just a one-minute oral statement -- no alternatives to evolution were actually taught, and the book referred to in the statement, "Of Pandas and People," was not required reading.

IMO the Kitzmiller decision is badly tainted because it is likely that Judge "Jackass" Jones showed a lack of restraint because he knew that his decision was not likely to be appealed because of the changeover in the school board membership. If an appeal had been anticipated, I doubt, for example, that Judge Jones would have copied the opinion's ID-as-science section nearly verbatim from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs. The often-heard claim that the defendants' arguments were so bad that there was no need to address them does not hold water -- if those arguments were really bad, all the more reason to attack them.

Judge "Jackass" Jones has charged that critics of his Dover decision have no respect for "the rule of law" and "judicial independence."[link] Judge Jones dodged the question of whether ID encourages critical thinking, which was a crucial question in determining whether the Dover ID policy satisfies the Lemon test's requirement of a "secular purpose that is not a sham." [link] He called judges' work "workmanlike," trying to give the false impression that any other judge would have written the same opinion that he did [link] [link] . Judge Jones showed extreme prejudice against intelligent design and the Dover defendants -- regardless of whether or not ID is a religious concept -- by saying in a Dickinson College commencement speech that his Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions:

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Jones said that he got the above "true religion" idea from his undergraduate days at Dickinson College, but the above statement is actually a quote mine that he plagiarized from a book that was published long after he graduated. [link]

Freiler v. Tangipahoa Parish (2000)

This little-known case is especially noteworthy because of how close it came to being overturned by an en banc (full court) appeals court and/or the US Supreme Court. [link]

Luskin wrongly stated that six 5th Circuit federal appeals court judges dissented from the vote to deny an en banc rehearing of Freiler -- the number given in the dissenters'opinion (page 2) is seven. It is hard to tell how many of the judges voted against an en banc rehearing -- the 5th Circuit had 17 authorized seats in 2000 but at least one and maybe tow or three of the seats were vacant [link] when the vote was taken. In any event, the vote was very close.

Luskin failed to note that the Supreme Court's three votes in favor of granting certiorari (Scalia, Thomas, and Chief Justice Rehnquist) was just one vote short of the four votes normally required for a grant of certiorari. Luskin also failed to note that Scalia's long opinion (joined by Thomas and Rehnquist) dissenting from the denial of certiorari was unusual -- denials of certiorrari are usually made without comment (the frequency of dissents from denials of certiorari is discussed below). In his dissent, Scalia minced no words -- in addition to Luskin's quotations of Scalia's dissent, Scalia also said,

I would grant certiorari in this case if only to take the opportunity to inter the Lemon test once for all. Even assuming, however, that the Fifth Circuit correctly chose to apply the Lemon test, I believe the manner of its application so erroneous as independently to merit the granting of certiorari, if not summary reversal. (emphasis added)

BTW, it is widely known that Supreme Court's denials of certiorari are normally made without comment, but the frequency of dissents from certiorari is generally not known -- however, I managed to find some statistics on that frequency, though the statistics are old. There are three possible outcomes for dissents from certiorari: (1) the dissenting opinion is first circulating among the justices and if it succeeds in causing a reversal of the denial, the dissent is of course not published; (2) the dissent fails to cause a reversal, and a decision is made to publish the dissent (Scalia's dissent here is an example of this type), and (3) the dissent fails, and a decision is made to withdraw the dissent. Here are the statistics for the period 1971-1981: total number of dissents, 385; dissent fails and is published, 273 (70.9%); dissent fails and is withdrawn, 29 (7.5%); dissent succeeds, 83 (21.6%). [link -- see page 31] That works out to an average of 27.3 published dissents from cert denial per year for the period 1971-1981, or an average of about three per year per justice. However, some of the dissenting opinions may be trivial -- for example, I have seen just a statement from a justice that he is opposed to the death penalty. Dissents from denials of certiorari are discussed in here, for those that are interested.

Selman v. Cobb County(2005/2006)

This blog has a whole post-label group of articles for Selman [link]. Post labels are listed in the sidebar of the homepage.

Casey fails to mention that before vacating and remanding the decision because of missing evidence, the appeals court panel indicated that it was leaning towards reversal even if the missing evidence were found [link] Appeals Judge Ed Carnes said that the three-sentence disclaimer seemed to him to be "literally accurate" and told the attorney representing the opponents of the stickers, "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." [link] Judge Frank Hull questioned how the district-court judge could have found the sticker's language misleading to biology students when there was no evidence to support that view.

Luskin's paper says,

Like Hurst [Hurst v. Newman], this case represents a school district being forced to abandon what it believed was a constitutional policy over threats of an ongoing and expensive lawsuit

Casey is just plain wrong here. The Cobb County school district is big and rich, unlike the El Tejon school district of Hurst and the Dover Area school district of Kitzmiller, which are small and poor. Cobb County was getting free legal representation in its appeal and received offers of more free legal assistance. The Cobb County school district's actual and potential legal expenses were much lower than the ~$1 million paid by the Dover Area school district. [link] Furthermore, before vacating and remanding the decision because of missing evidence, the appeals court panel indicated in an oral hearing that it was leaning towards reversal even if the missing evidence were found. The Cobb County school board simply took a dive.

Attorney Edward Sisson's open letter about the Selman decision is also good. The letter's "political insider/outsider" idea appears to be based on Justice O'Connor's "endorsement test" as originally described in her concurring opinion in Lynch v. Donnelly:

The . . . . more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.

Comer v. Texas Education Agency (2008)

As I said in the introduction to this post, IMO Luskin's paper should have included Comer v. Texas Education Agency, where a federal district-court judge upheld the right of a public education agency to maintain a policy of neutrality regarding evolution-education issues that are subjects of upcoming public hearings. [link]. Apparently the decision was not appealed. Unfortunately, this case does not fit into any of the three categories devised by Luskin: (1) Cases upholding the right to teach evolution; (2) Cases rejecting the teaching of alternatives to evolution; and (3) Cases rejecting disclaimers regarding the teaching of evolution. This blog has a post-label group of articles about Chris Comer (post labels are listed in the sidebar of the homepage).

Justiciability of scientific questions concerning evolution

I am not aware of any judicial opinion that has addressed the issue of the justiciability of scientific questions concerning evolution, but I nonetheless consider this to be a very important issue. IMO the courts should declare these questions to be non-justiciable -- many of these questions are like the question of how many angels can dance on the head of a pin. Questions are non-justiciable when there is “a lack of judicially discoverable and manageable standards.” Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004). Also, appellate courts are unsuited for reviewing days or weeks of scientific testimony -- appellate courts are mainly suited for deciding questions about points of law. This blog has several articles about justiciability.
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