9th Circuit upholds UC's rejection of Christian high-school textbooks (ACSI v. Stearns)

The 9th Circuit federal appeals court has upheld the district court decision favoring the University of California in ACSI v. Stearns, a lawsuit which challenged UC's denial of accreditation to some Christian high-school courses which used Christianity-oriented textbooks which were rejected by UC. This blog has a large post-label group of articles about the case. The appeals court's decision is discussed on the Religion Clause blog, the NCSE website, and Ed Brayton's Dispatches from the Culture Wars blog.

I am not surprised by the appeals court's decision.

The NCSE article says,

Of particular interest in the preparation from the appeal was the California Council of Science and Technology's amicus curiae brief. Coauthored by attorneys from Pepper Hamilton LLP who were part of the legal team representing the plaintiffs in Kitzmiller v. Dover, the 2005 case over "intelligent design" creationism, the brief argued, "Students educated with these textbooks will not be adequately prepared for science courses."

However, an ACSI report of a meeting with UC personnel says,

When asked whether poor college performance by students from religious schools prompted the rejection of the textbooks, UC representatives responded negatively. They also acknowledged that UC did not have any objective evidence that students from religious schools are deficient in science when they arrive for their freshman year of college .....

IMO one of the main reasons why the fundy students are not unprepared to study college science is that most science does not conflict with the bible.

The California Council of Science and Technology's amicus brief is here.

The Darwinists, in their exultation over the decision, probably failed to notice that the opinion says at the top, "not for publication." Under the new FRAP (Federal Rules of Appellate Procedure) Rule 32.1, federal courts cannot prohibit or restrict citation of unpublished opinions issued after Jan. 1, 2007 (the 9th Circuit still restricts citation of unpublished opinions issued before that date), but unpublished opinions carry a lot less precedential weight than published opinions. Though the opinion is not going to be published, tremendous amounts of time and effort were spent on this case -- there were many plaintiffs, several expert witnesses, long court hearings, and a tremendous amount of evidence submitted (ACSI claimed that UC submitted 350,000 pages of documents). Here is a list of some of the documents that were filed in the case.

9th Circuit Rule 36-3 says,

Circuit Rule 36-3. Citation of Unpublished Dispositions or Orders

(a) Not Precedent. Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.

(b) Citation of Unpublished Dispositions and Orders Issued on or after January 1, 2007. Unpublished dispositions and orders of this court issued on or after January 1, 2007 may be cited to the courts of this circuit in accordance with FRAP 32.1.

(c) Citation of Unpublished Dispositions and Orders Issued before January 1, 2007. Unpublished dispositions and orders of this Court issued before January 1, 2007 may not be cited to the courts of this circuit, except in the following circumstances.

(i) They may be cited to this Court or to or by any other court in this circuit when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.

(ii) They may be cited to this Court or by any other courts in this circuit for factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorneys' fees, or the existence of a related case.

(iii) They may be cited to this Court in a request to publish a disposition or order made pursuant to Circuit Rule 36-4, or in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, dispositions, or orders.

FRAP Rule 32.1 says,

FRAP 32.1. Citing Judicial Dispositions

(a) Citation Permitted.

A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been;

(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and

(ii) issued on or after January 1, 2007.

Publication of the opinion can be requested under the following circuit rule, but the judges have probably already considered and rejected the idea of publication:

Circuit Rule 36-4. Request for Publication

Publication of any unpublished disposition may be requested by letter addressed to the Clerk, stating concisely the reasons for publication. Such a request will not be entertained unless received within 60 days of the issuance of this Court’s disposition. A copy of the request for publication must be served on the parties to the case. The parties will have 14 days from the date of service to notify the Court of any objections they may have to the publication of the disposition. If such a request is granted, the unpublished disposition will be redesignated an opinion. (Rev. 12/1/09)

In contrast, both the appeals court and district court opinions were published in Caldwell v. Caldwell (which also has a post-label group of articles on this blog), as noted in that case's petition for certiorari, even though Caldwell v. Caldwell was a much smaller case.

Here is a summary of my views about the case:

(1) IMO the Bob Jones University biology text (a 2-volume set) went too far when it said in the introduction, "If the conclusions contradict the Word of God, the conclusions are wrong, no matter how many scientific facts may appear to back them." IMO that statement discourages critical thinking and smacks of brainwashing, and I cannot condone that statement when one of my main reasons for supporting the teaching of scientific and pseudoscientific criticisms of evolution is to encourage critical thinking. IMO the statement is just as bad as the new Florida science standards' statement that "evolution is the fundamental concept underlying all of biology."

(2) For the following reasons, our courts should not be turned into textbook accreditation agencies: (i) judges often lack the specialized knowledge required to evaluate textbooks; (ii) questions of justiciability are raised; and (iii) textbook evaluation can be very time-consuming, taking time away from other cases.

(3) To me, the best way to avoid "viewpoint discrimination" is to require that specific viewpoints be presented only in supplemental materials and not be presented in main textbooks.

(4) The claim that denial of course accreditation meant that the students had to be in the top 2-4% of high school grads -- instead of the 12½-15% normally required for UC admission -- was false, because the students could have gotten credit for the courses just by getting satisfactory scores in subject or advanced-placement tests.

(5) The education of some Christian-school students is too narrowly focused on Christianity -- they study Christian-this and Christian-that. They are like the ultra-orthodox yeshiva students of Israel -- they are not being broadly educated for living in the real world.
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