Flast v. Cohen: Flaws and misinterpretations of major precedent concerning taxpayer standing in establishment clause cases

Flast v. Cohen, 392 U.S. 83 (1968), has been a major precedent on taxpayer standing to sue in establishment clause cases, yet it is badly flawed and has been widely misinterpreted. Flast said at 102-103,

" The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute . . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds [392 U.S. 83, 103] specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8. (emphasis added)

It is generally falsely assumed that the first requirement shown in bold ("It will not be sufficient to allege ...") was added by Hein v. Freedom from Religion Foundation [1] [2]. I was not even aware of that sentence in bold until I saw it cited in Caldwell v. Caldwell, which was decided before Hein. In Hein, even the majority in the appeals court decision ignored Flast's above statement in bold -- Supreme Court Justice Alito, in an opinion joined by two other justices, said,

A divided panel of the United States Court of Appeals for the Seventh Circuit reversed. 433 F. 3d 989. The majority read Flast as granting federal taxpayers standing to challenge Executive Branch programs on Establishment Clause grounds so long as the activities are “financed by a congressional appropriation.” 433 F. 3d, at 997. This was the case, the majority concluded, even where “there is no statutory program” enacted by Congress and the funds are “from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power.” Id.,at 994. According to the majority, a taxpayer has standing to challenge anything done by a federal agency or officer so long as “the marginal or incremental cost to the taxpaying public of the alleged violation of the establishment clause” is greater than “zero.” Id., at 995. . . . . .

. . . . . The Court of Appeals denied en banc review by a vote of seven to four. 447 F. 3d 988 (CA7 2006). Concurring in the denial of rehearing, Chief Judge Flaum expressed doubt about the panel decision, but noted that “the obvious tension which has evolved in this area of jurisprudence … can only be resolved by the Supreme Court.” Ibid.

BTW, the lead federal party when the case was in the appeals court was Chao and not Hein, so the correct citation for the appeals court decision is Freedom from Religion Foundation, Inc. v. Chao, 433 F. 3d 989 (7th Circuit 2006). Also, the district court decision in the case is designated as Freedom From Religion Foundation, Inc. v. Towey, No. 04–C–381–S (WD Wis., Nov. 15, 2004). All very confusing -- they should stick to one set of names for the parties.

Another appeals court judge said in the denial of the request for an en banc rehearing,
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The principal difficulty with arguments pro and con about taxpayer standing is that the doctrine is arbitrary. Taxpayers lack standing to complain about almost all expenditures. Flast v. Cohen, 392 U.S. 83 (1968), held that taxpayer suits about religious outlays are special . . . . To the extent that the Establishment Clause forbids taxation to support religion, people subject to the illegal levy may obtain relief, but plaintiffs in this litigation do not say that they have paid one extra penny because of the grant. Where's the concrete injury? The loss (if any) is mental distress that plaintiffs, who are bystanders to the challenged program, suffer by knowing about conduct that they deem wrongful. Article III does not permit courts to entertain such complaints. (citations omitted) . . . .Our panel's majority has concluded that the doctrine of taxpayer standing will be more logical if it covers administrative as well as legislative earmarks. I grant that proposition -- but comprehensiveness and rationality are not this doctrine's hallmarks. Why may taxpayers complain about outlays of cash but not about a distribution of real or personal property? (citation omitted) . . . . Why may taxpayers complain about modest expenditures (the grant in Laskowski was $500,000, or less than a cent per U.S. taxpayer) but not about slightly smaller ones? . . . .Perhaps Michael Newdow should have invoked his tax return, rather than his status as a father, to challenge the inclusion of "under God" in the Pledge of Allegiance. [my comment: the Supreme Court threw out Newdow's suit on the grounds of the technicality that he did not have legal custody of his biological daughter, his mascot in the suit] . . . .

But this arbitrariness is built into the doctrine as it comes to us . . . .The problem is not of our creation and cannot be solved locally. There is no logical way to determine the extent of an arbitrary rule. Only the rule's proprietors can bring harmony -- whether by extension or contraction -- or decide to tolerate the existing state of affairs. (emphasis added)

Regarding that statement in bold about mental distress not being grounds for standing to sue in federal courts: mental distress is the sole basis for many kinds of federal suits. Darwinists have failed to show why plaintiffs' mental distress alone was grounds for standing to sue in Kitzmiller v. Dover and Selman v. Cobb County but not in Caldwell v. Caldwell.

Also, though the Supreme Court granted the Flast plaintiffs standing to sue, the suit did not satisfy Flast's above condition that "[i]t will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute," because the federal statute in Flast did not expressly authorize the alleged unconstitutional expenditure of tax funds -- Flast said (392 U.S. 83, 85-87),

Appellants filed suit in the United States District Court for the Southern District of New York to enjoin the allegedly unconstitutional expenditure of federal funds under Titles I and II of the Elementary and Secondary Education Act of 1965, 79 Stat. 27, 20 U.S.C. 241a et seq., 821 et seq. (1964 ed., Supp. II). The complaint alleged that the seven appellants had as a common attribute that "each pay[s] income taxes of the United States," and it is clear from the complaint that the appellants were resting their standing to maintain the action solely on their status as federal taxpayers. 1 The appellees, who are charged by Congress with administering the Elementary and Secondary Education Act of 1965, were sued in their official capacities.

The gravamen of the appellants' complaint was that federal funds appropriated under the Act were being used to finance instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks [392 U.S. 83, 86] and other instructional materials for use in such schools. Such expenditures were alleged to be in contravention of the Establishment and Free Exercise Clauses of the First Amendment. Appellants' constitutional attack focused on the statutory criteria which state and local authorities must meet to be eligible for federal grants under the Act. Title I of the Act establishes a program for financial assistance to local educational agencies for the education of low-income families. Federal payments are made to state educational agencies, which pass the payments on in the form of grants to local educational agencies. Under 205 of the Act, 20 U.S.C. 241e, a local educational agency wishing to have a plan or program funded by a grant must submit the plan or program to the appropriate state educational agency for approval. The plan or program must be "consistent with such basic criteria as the [appellee United States Commissioner of Education] may establish." The specific criterion of that section attacked by the appellants is the requirement

"that, to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate . . . ." 20 U.S.C. 241e (a) (2).

Under 206 of the Act, 20 U.S.C. 241f, the Commissioner of Education is given broad powers to supervise a State's participation in Title I programs and grants. Title II of the Act establishes a program of federal grants for the acquisition of school library resources, textbooks, [392 U.S. 83, 87] and other printed and published instructional materials "for the use of children and teachers in public and private elementary and secondary schools." 20 U.S.C. 821. A State wishing to participate in the program must submit a plan to the Commissioner for approval, and the plan must

"provide assurance that to the extent consistent with law such library resources, textbooks, and other instructional materials will be provided on an equitable basis for the use of children and teachers in private elementary and secondary schools in the State . . . ." 20 U.S.C. 823 (a) (3) (B).

While disclaiming any intent to challenge as unconstitutional all programs under Title I of the Act, the complaint alleges that federal funds have been disbursed under the Act, "with the consent and approval of the [appellees]," and that such funds have been used and will continue to be used to finance "instruction in reading, arithmetic and other subjects and for guidance in religious and sectarian schools" and "the purchase of textbooks and instructional and library materials for use in religious and sectarian schools." Such expenditures of federal tax funds, appellants alleged, violate the First Amendment because "they constitute a law respecting an establishment of religion" and because "they prohibit the free exercise of religion on the part of the [appellants] . . . by reason of the fact that they constitute compulsory taxation for religious purposes." The complaint asked for a declaration that appellees' actions in approving the expenditure of federal funds for the alleged purposes were not authorized by the Act or, in the alternative, that if appellees' actions are deemed within the authority and intent of the Act, "the Act is to that extent unconstitutional and void."

Also, I dispute the second bolded statement in the Flast quote at the top of the post, i.e., "the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8." I fail to see the big difference between (1) being "generally beyond" Congress's taxing and spending powers enumerated in Art 1, Sec. 8 and (2) exceeding "specific constitutional limitations imposed upon the exercise of" those powers. Is the list of congressional taxing and spending powers in Art. 1 section 8 just a list of suggestions, or is it also a limitation on the powers of Congress? And how is the Establishment Clause the only "specific constitutional limitation upon . . . the exercise of those powers" that is grounds for taxpayer standing to sue? In his dissent in Hein, Justice Scalia -- joined by Justice Thomas -- said, as described in the syllabus --

The Court's taxpayer standing cases involving Establishment Clause challenges to government expenditures are notoriously inconsistent because they have inconsistently described the relevant "injury in fact" that Article III requires. Some cases have focused on the financial effect on the taxpayer's wallet, whereas Flast and the cases that follow its teaching have emphasized the mental displeasure the taxpayer suffers when his funds are extracted and spent in aid of religion. There are only two logical routes available with respect to taxpayer standing. If the mental displeasure created by Establishment Clause violations is concrete and particularized enough to constitute an Article III "injury in fact," then Flast should be applied to (at a minimum) all challenges to government expenditures allegedly violating constitutional provisions that specifically limit the taxing and spending power; if not, Flast should be overturned.

And Justice Harlan said in his dissenting opinion in Flast, (392 U.S. 83, 130),

I am quite unable to understand how, if a taxpayer believes that a given public expenditure is unconstitutional, and if he seeks to vindicate that belief in a federal court, his interest in the suit can be said necessarily to vary according to the constitutional provision under which he states his claim.

. . . .Apparently the Court, having successfully circumnavigated the issue, has merely returned to the proposition from which it began. A litigant, it seems, will have standing if he is "deemed" to have the requisite interest, and "if you . . . have standing, then you can be confident you are" suitably interested. (citation omitted)

Judges spend more time and effort trying to duck real questions than they spend trying to answer them.
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Establishment clause suit against UC Berkeley evolution website

"So I'm the bad guy. How did that happen?"

-- D-Fens in movie "Falling Down"



Background --
Federal courts have ruled that taxpayer status alone generally does not give standing to sue on an allegation that a government expenditure violates the Constitution. In Flast v. Cohen, 392 U. S. 83 (1968), the Supreme Court made an exception by saying that taxpayer standing is available in establishment clause lawsuits in particular. Then in Hein v. Freedom from Religion Foundation (2007), a three-justice plurality of the nine-justice Supreme Court held that taxpayer standing in establishment clause lawsuits should be available only for Congressional allocations of tax funds and not for executive branch allocations of tax funds -- even Fatheaded Ed Brayton called this arbitrary and nitpicking distinction between Congressional and executive-branch funding allocation "silly." These three justices, in combination with two more justices who held that the establishment-clause taxpayer standing granted by Flast should be eliminated completely (Justice Scalia, joined by Justice Thomas, wrote, "Flast should be overruled"), formed a court majority that ruled against granting standing to sue in the case. Hein is discussed here, here, and here on this blog.

In his concurring opinion in Hein, Justice Scalia wrote,

Overruling prior precedents, even precedents as disreputable as Flast, is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring *stare decisis* requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive. Even before the addition of the new meaningless distinction devised by today’s plurality, taxpayer standing in Establishment Clause cases has been a game of chance. In the proceedings below, well-respected federal judges declined to hear this case en banc, not because they thought the issue unimportant or the panel decision correct, but simply because they found our cases so lawless that there was no point in, quite literally, second-guessing the panel.

Fast-forward: The website of the Pacific Justice Institute says,

May 12, 2008 - Pacific Justice Institute will present arguments this week to the Ninth Circuit Court of Appeals in a case challenging a federally-funded UC Berkeley website which promotes selected religious denominations that support evolution.

The lawsuit, filed by PJI in 2005, centers around a website designed by UC Berkeley to help teachers combat so-called misconceptions about evolution. The website tackles the "misconception" that religion and evolution are incompatible by claiming that "most" religious groups have no problem with evolution, and by directing visitors to statements from selected religious groups that support evolution. Meanwhile, the website derides religious beliefs that "contradict science" by teaching six-day creation. The site also warns teachers that student questions which expose the weaknesses of evolution "may be designed to disrupt the learning process" and should not be given the same respect as "legitimate" questions.

PJI is arguing that the taxpayer-funded UC Berkeley website unconstitutionally promotes certain religious groups at the expense of others. PJI Chief Counsel Kevin Snider, who will be presenting oral arguments to the Ninth Circuit on Wednesday, commented, "Whatever one's views on the origin of life or the theory of evolution, it is completely inappropriate for the government to declare that some religious denominations are better than others. The Supreme Court has long held that government must not decree what is orthodox in religion, and we are seeking to hold UC Berkeley to that standard."

Brad Dacus, president of Pacific Justice Institute, stated, 'Government actions that demean a group's faith clearly express state hostility toward religion and must be contested."

The title of the lawsuit is Caldwell v. Caldwell -- plaintiff Caldwell and defendant Caldwell are not related. The district-court opinion dismissing the suit is discussed in an article on Fatheaded Ed Brayton's blog. Fatheaded Ed does not allow me to leave any comments on his blog, so I can only make my comments here.

I assert that because of the following reasons, including reasons why Hein does not apply to Caldwell, the Caldwell decision is wrong:

(1) In Hein, the federal government was sued (Hein was the director of the White House Office of Faith-based and Community Initiatives) whereas Caldwell is just a suit against a state entity.

(2) In Hein, the plaintiffs challenged the expenditure of tax funds. However, the plaintiffs in Caldwell are not challenging the National Science Foundation funding of the UC Berkeley website but are challenging how the NSF funds -- and state funds -- are used by the UC Berkeley website. Hence, taxpayer standing in Caldwell is irrelevant because a ruling against UC Berkeley could not result in any tax reduction or refund for the plaintiffs (a favorite argument against taxpayer standing is that any tax reduction or refund that could result from a favorable ruling would be insignificant). Not every establishment clause suit needs to be a taxpayer suit. In lawsuits against a religious symbol on public property, it makes no difference -- or should make no difference -- whether the symbol is privately-funded or taxpayer-funded. Ironically, according to the topsy-turvy Hein ruling, there should be standing to sue when the symbol is privately-funded but not when the symbol is taxpayer-funded!

(3) The lawsuit in Hein challenged government officials' speeches, which the courts have no control over, whereas Caldwell challenges a website's fixed material, which the courts do have control over.

(4) The Caldwell plaintiffs did not assert taxpayer standing -- it was the defendants who raised the issue of taxpayer standing (see page 7 of the district court opinion).

(5) The district-court Caldwell decision was issued in March 2006, whereas the Supreme Court's Hein decision was issued later, in June 2007. Hence, the controlling precedent in the district-court Caldwell decision is Flast and not Hein, and even assuming arguendo that federal taxpayer status is the only basis of standing in Caldwell, Flast as commonly interpreted gave standing to sue in Caldwell (contrary to the arguments in the Caldwell opinion). The district court judge who decided Caldwell is not entitled to any Brownie points for a Supreme Court decision -- Hein -- issued after the Caldwell decision.

(6) Congress and the courts are not consistent about the "injured in fact" requirement -- the "citizen suit" provisions of environmental laws give all citizens standing to sue without any allegation that there is any actual or potential injury to anyone or anything, let alone actual or potential injury to the plaintiff(s) ! The plaintiff only has to allege that a government environmental agency failed to perform a non-discretionary duty.

(7) The Supremacy Clause says that the Constitution is the "supreme law of the land." To follow a "standing" requirement at the expense of the Constitution is like straining at a gnat and swallowing a camel.

(8)Flast v. Cohen is itself badly flawed. The Flast statement cited by Caldwell is " . . . . a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute." (392 U.S. 83, 102 -- emphasis added). However, though the Supreme Court granted standing to the taxpayers in Flast, those taxpayers did not satisfy the preceding requirement. Also, I thought that the ruling in bold was established by Hein and not by Flast. I may comment more about Flast later.

(9) The "injury-in-fact" requirement is a misinterpretation of the "cases and controversies" clause of Article III of the Constitution. Anything can be a "controversy," including moot and hypothetical questions.

The appeals court decision in Caldwell won't be binding if that decision is not published (though FRAP Rule 32.1 says that the decision can be cited even if it is not published), so if that decision unfortunately upholds the district court decision but is not published, then another suit against the UC Berkeley website may be filed by another party.

I am now expecting an inevitable flood of invective from various trolls -- e.g. , Voice in the Urbanness, Kevin Vicklund, various Anonymous's -- saying that I know nothing about the law while they make no challenges to my above arguments.
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Fatheaded Ed misinterprets Epperson v. Arkansas

It would be so much easier if I could just post a comment on Ed's blog saying that I disagree with him, instead of posting a whole new article here.

An article on Fatheaded Ed's blog says,

Back to the Future on Evolution

This time in Maine, where at least one resident wants to party like it's 1967:

The decades-old controversy over the teaching of evolution in public schools is resurfacing in Somerset County.

A director of SAD 59 in the Madison area is urging the board to drop evolution from high school science curriculums on grounds that it's an unprovable theory that shouldn't be taught as fact.

Matthew Linkletter of Athens says neither evolution nor creationism belongs in a science curriculum.

Sorry, Matthew, the courts already ruled on this. Look up Epperson v Arkansas.

In a response to a comment, Ed says,
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a lurker wrote:

What does Epperson v Arkansas have anything to do with this.

In that case involved a law that made it illegal for a teacher to teach evolution and that a teacher could be charged with a crime if he did.

The court in Epperson did not rule that the law was unconstitutional because of the potential punishment, they ruled that it was unconstitutional because it was not religiously neutral. The court recognized that the only reason anyone wanted to prohibit the teaching of evolution was to give favor to their religious anti-evolution views.

For crying out loud, Ed, (his trademark expressions are "for crying out loud" and "batshit wingnuttery") the news article did not say that the SAD 59 director in Maine proposed prohibiting the teaching of evolution -- the article only said that he proposed dropping it from the curriculum.

Also, Ed misrepresented the Epperson decision. Of course the court's ruling was partly based on the potential punishment -- if the statute had been merely an advisory resolution with no potential punishment, then the statute would never have been challenged in the first place. And the court did not "[recognize] that the only reason anyone wanted to prohibit the teaching of evolution was to give favor to their religious anti-evolution views" -- the court only said that there was no "suggestion" of any other reason:

No suggestion has been made that Arkansas' law may be justified by considerations of state policy other than the religious views of some of its citizens. (page 107)

This is another example of Fatheaded Ed either misinterpreting the facts or not checking the facts. Furthermore, he censors comments that try to correct him about the facts or his interpretations of the facts. Yet he acts very offended when people don't consider him to be equal to a professional reporter, if not better. Fatheaded Ed is the poster child of unscrupulous BVD-clad bloggers.

BTW, Justice Black said in a concurring opinion in Epperson,

Under this statute, as construed by the Arkansas Supreme Court, a teacher cannot know whether he is forbidden to mention Darwin's theory at all or only free to discuss it as long as he refrains from contending that it is true. It is an established rule that a statute which leaves an ordinary man so doubtful about its meaning that he cannot know when he has violated it denies him the first essential of due process . . . .

The Court, not content to strike down this Arkansas Act on the unchallengeable ground of its plain vagueness, chooses rather to invalidate it as a violation of the Establishment of Religion Clause of the First Amendment . . . .

A second question that arises for me is whether this Court's decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an "anti-religious" doctrine to school children? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible's story of creation; so, too, have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines? Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court's opinion . . . . .

Certainly the Darwinian theory, precisely like the Genesis story of the creation of man, is not above challenge. In fact the Darwinian theory has not merely been criticized by religionists, but by scientists, and perhaps no scientist would be willing to take an oath and swear that everything announced in the Darwinian theory is unquestionably true. The Court, it seems to me, makes a serious mistake in bypassing the plain, unconstitutional vagueness of this statute in order to reach out and decide this troublesome, to me, First Amendment question. However wise this Court may be or may become hereafter, it is doubtful that, sitting in Washington, it can successfully supervise and censor the curriculum of every public school in every hamlet and city in the United States. I doubt that our wisdom is so nearly infallible . . . .

I would either strike down the Arkansas Act as too vague to enforce or remand to the State Supreme Court for clarification of its holding and opinion.

Dissenting and concurring opinions are often ignored because those opinions are not binding precedents, but those opinions often make more sense than the majority opinions.

IMO evolution should be taught because it is something people should know and because it is useful in biology even if it is a hokey idea. The use of evolution in cladistic taxonomy has increased since Justice Black wrote the above words in his concurring opinion published in 1968. However, I also believe that the weaknesses of evolution as well as the strengths should be taught or that there should at least be evolution disclaimer statements to reduce offense to those who for various reasons are opposed to the teaching of evolution. Also, IMO the courts should declare the evolution controversy to be non-justiciable. [1] [2] [3]
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LA Senate passes academic freedom bill unanimously

NCSE has the story here. I didn't think that unanimous approval of such a bill by a state legislative body was possible, even in a fundy state like Louisiana. Two big monkey trials, Edwards v. Aguillard and Freiler v. Tangipahoa Parish, originated in Louisiana.

Time is running out for the stalled Florida academic freedom bills. Academic freedom bills have also been introduced in Alabama and Michigan. It is practically inevitable that a state will enact an academic freedom law one of these days. The wording of many of these bills makes them virtually lawsuit-proof. Legislatures are finally realizing that a lot of the criticism of Darwinism is scientific and not religious in nature.

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Evolution academic freedom bill passes Florida House by wide margin

Details are in various posts on the blog of the Florida Citizens for Science.

The Florida academic freedom bills still have some hurdles to clear:

(1) The House and Senate versions must be reconciled.

(2) The bill must be signed by the governor.

Time is running out -- I think that the current legislative session ends on May 2.

I don't much care whether these bills are good or bad -- I just feel that something is needed to counteract those infamous Kitzmiller v. Dover and Selman v. Cobb County decisions (the Selman decision is now moot because it was settled out of court).

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Evolution Academic Freedom Bill passed by Florida Senate

The Evolution Academic Freedom Bill passed the Florida Senate by a vote of 21-17. The blog of the Florida Citizens for Science has the details. The bill passed despite the dire warnings of costly lawsuits, high-tech businesses avoiding Florida, Florida becoming the laughingstock of the world, etc.. A big problem now is that the House version of the bill is quite a bit different from the Senate version.

Also, the NCSE reported that an academic freedom bill passed in the Louisiana Senate's Education Committee and that a companion bill was introduced in the Louisiana House.

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Florida legislators tell Judge Jones to go to hell

Fortunately, several Florida senators on the judicial committee had the balls to defy Judge "Jackass" Jones' vaunted "Dover Trap" by passing an "Evolution Academic Freedom" bill.[1]2]3]. The vote was a fairly lopsided 6-3 (maybe even 7-3 according to a disputed vote count).

Other "academic freedom" bills have been introduced in Louisiana and Missouri (the "Show Me State" and namesake of this blog). These academic freedom bills are needed to counter intimidation by Kitzmiller v. Dover, Selman v. Cobb County, etc.. The threat of exorbitant attorney fee award rip-offs in establishment clause cases ($1 million in Dover, negotiated down from an original bill of over $2 million approved by Judge Jones) discourages government officials from doing things that the courts might find to be constitutional. Because of tightwad taxpayers, public officials are fearful of risking a single dime of tax money for payment of legal expenses.

The "Dover Trap" is looking more and more like the paper tiger that it is.

However, some of the Missouri bills go too far, IMO. The NCSE says,

In 2004, the sponsor of HB 2554, Representative Robert Wayne Cooper (R-District 155), introduced two bills, HB 911 and HB 1722, that called for equal time for "intelligent design" in Missouri's schools. HB 911 moreover would have provided that "Willful neglect of any elementary or secondary school superintendent, principal, or teacher to observe and carry out the requirements of this section shall be cause for termination of his or her contract," a draconian provision that was absent from HB 1722. Both bills failed. In 2006, Cooper introduced a third bill, HB 1266, which would have provided that "If a theory or hypothesis of biological origins is taught, a critical analysis of such theory or hypothesis shall be taught in a substantive amount." Like HB 911 and HB 1722, HB 1266 ultimately failed, although it passed by a 7-6 vote by the House Elementary and Secondary Education Committee.

I am surprised that a bill as unreasonable as HB 1266 passed a legislative committee, even by a small margin.

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ADOLF HITLER'S THOUGHT FOR THE DAY



Alternative statement: evolution is the fundamental concept underlying all of Nazism (taken from wording in the new Florida state science standards).

I never made a big deal before about the Darwin-to-Hitler connection because that connection of course has nothing to do with the scientific merits of Darwinism. My new emphasis on that connection is a retaliation for Darwinists' harping on their false claim that all criticisms of Darwinism are based on religion.
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Another undeserved award for Eugenie Scott

An article on the NCSE website says,

NCSE's executive director Eugenie C. Scott is to receive the UCSF Medal, the highest award of the University of California, San Francisco, on April 23, 2008. In a letter to Scott, the university's chancellor J. Michael Bishop wrote, "The award is offered in recognition of your distinguished advocacy on behalf of science in the public arena. The UCSF Medal is given in lieu of an honorary degree and is the highest honor that the campus confers."

As I have noted here and here, Eugenie Scott has brazenly, hypocritically and cynically urged teachers to use religion in a one-sided way to promote Darwinism in the public schools. Such one-sided use of religion in the public schools is a clear violation of the establishment clause.

Protests may be sent to the following UCSF email addresses:
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courtney.anderson@ucsf.edu -- General comments to Administration

tdong@research.ucsf.edu -- Assistant to Executive Vice-Chancellor

adrian.sooy@ucsf.edu -- Assistant to Senior Vice Chancellor for Admin. and Finance

lderugin@uap.ucsf.edu,emorales@realestate.ucsf.edu, preynolds@uap.ucsf.edu -- Office of Senor Vice-Chancellor for University Advancement and Planning

taylorde@medsch.ucsf.edu -- Assistant to Dean, School of Medicine

abbys@pharmacy.ucsf.edu -- Assistant to Dean, School of Pharmacy

williamsj@dentistry.ucsf.edu -- Assistant to Dean, School of Dentistry

gino.vangundy@nursing.ucsf.edu -- Assistant to Dean, School of Nursing
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ACSI v. Stearns (Fundy schools v. UC) decision

April Fools Day is over -- here is the real decision on the motions for summary judgment in ACSI v. Stearns.

The decision is discussed here, here, here, here, and here. IMO the NCSE exaggerates by calling the decision an interim victory -- IMO the parts of the case that have already been decided are relatively unimportant.

My latest thoughts about the case are posted in this comment. I previously commented extensively on the case here and here.

Also, this blog has several articles about the case.

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Victory in Florida

An "academic freedom" bill was approved 4-1 by an education committee of the Florida state senate.

The priority should be to get rid of that stupid statement in the state science standards that says that evolution is "the fundamental concept underlying all of biology." That simply is not true.

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Hearing held in ACSI v. Stearns (Fundy Schools v. UC)

I have written several articles about the ACSI v. Stearns case. Here is an update I just got from ACSI:

On February 14, 2008, a federal judge in Los Angeles held a hearing on requests by both sides for Summary Judgment in the viewpoint discrimination case that ACSI and Calvary Chapel, of Murrieta, California, filed almost three years ago against the university system . . . The hearing lasted more than two hours as the judged asked each side a series of probing questions. It was clear from the questions that the judge was very familiar with the hundreds of pages of materials. Our attorneys have spent many hours reviewing the approximately 350,000 pages of materials [!] produced by the University of California as they prepared for the hearing. To read the brief our attorneys filed for the summary hearing and the plaintiff’s statement of facts, go to www.acsi.org/~UCcase. There you will also find a brief by five Catholic law school professors supporting our case.

Also, I asked why there was the possibility of a jury trial in the case, considering that the Constitution guarantees a jury trial only when the plaintiff seeks relief of monetary value. An ACSI attorney gave this response:
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While there is no request for a monetary relief and the issues involve constitutional matters, I believe that a jury will be used to decide issues of fact. This may include special interrogatories (questions) presented by the court to the jury to decide. In addition, I would anticipate the jury would likely apply some of those facts to the jury instructions and reach other conclusions, ultimately the court will decide the questions of law.

The lawsuit was filed in August 2005, to be precise. The case should have been through the federal appeals court and maybe even the Supreme Court by now. The courts are just getting slower and slower -- for example, in Selman v. Cobb County, an appeals court took 16 months just to vacate and remand the district court decision because of missing evidence (Cobb County eventually took a dive by settling out of court). As the saying goes, justice delayed is justice denied.

The ACSI lawsuit concerns textbooks and course outlines in several subjects, including non-science subjects -- I will concentrate here on the biology course. UC originally objected to the physics textbook because this textbook contains quotations from the bible, but UC may have dropped its objection to this textbook.

Because UC does not accept the fundy schools' textbooks, the fundy school students are expected to apply under the special admission program requiring them to be in the top 2-4% of high school grads instead of applying under the general admission program requiring them to be in the top 12.5-15%. That's ridiculous.

Here is how I think the court should rule, at least so far as the biology course is concerned:

(1) Because the fundy biology textbooks' approach -- based on an assumption that the bible is infallible -- is unorthodox, UC applicants claiming credit for the fundy biology course should be required to either (1) get a satisfactory score on the SAT AP Biology Test or (2) take a general biology course in college.

(2) The judge should rule that the evolution controversy is nonjusticiable.[1][2].

(3) The judge should reject a "Monday-morning battle of experts" who advised neither UC nor the plaintiffs. See Edwards v. Aguillard, 482 U.S. 578, 595-596. Judge Jones made the mistake of having a "Monday-morning battle of the experts" in Kitzmiller v. Dover, and now that mistake is being repeated in ACSI v. Stearns, which has a whole big bunch of expert witnesses.

Because the courts waste so much time on high-profile cases, low-profile cases are given short shrift. In my federal-court lawsuit against California and the US EPA over the grossly unconstitutional California "smog impact fee" (eventually thrown out by the state courts), California claimed federal-court immunity under the 11th amendment and the Tax Injunction Act. I argued that the state lost its immunity by "leaving the sphere that was exclusively its own" (Parden v. Terminal Railway of the Alabama State Docks Dept.) when the state based the smog impact fee entirely upon the state's special status under federal auto-emissions laws and regulations. California did not even attempt to rebut that argument but that dunghill Judge TJ "Mad" Hatter dismissed my suit without an oral hearing and without an opinion! I was later vindicated when a former top California air-quality official testified in state court that the fee required the approval of the US EPA.
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More dirt on Eugenie Scott

In a section titled "Defuse the Religion Issue" in an article titled "Dealing with Antievolutionism", Eugenie Scott brazenly, hypocritically and cynically urged teachers to use religion in a one-sided way to promote Darwinism in the public schools, in violation of the establishment clause. She wrote,

Teachers have told me they have had good results when they begin the year by asking students to brainstorm what they think the words "evolution" and "creationism" mean. As expected, some of the information will be accurate and some will be erroneous. Under "evolution," expect to hear "Man evolved from monkeys" or something similar. Don't be surprised to find some variant of, "You can't believe in God" or some similar statement of supposed incompatibility between religion and evolution. Under "creationism" expect to find more consistency: "God"; "Adam and Eve," "Genesis," etc. The next step in constructing student understanding of concepts is to guide them towards a more accurate view. One goal of this exercise is to help them see the diversity of religious attitudes towards evolution.

After one such initial brainstorming session, one teacher presented students with a short quiz wherein they were asked, "Which statement was made by the Pope?" or "which statement was made by an Episcopal Bishop?" and given an "a, b, c" multiple choice selection. All the statements from theologians, of course, stressed the compatibility of theology with the science of evolution. This generated discussion about what evolution was versus what students thought it was. By making the students aware of the diversity of opinion towards evolution extant in Christian theology, the teacher helped them understand that they didn't have to make a choice between evolution and religious faith.

A teacher in Minnesota told me that he had good luck sending his students out at the beginning of the semester to interview their pastors and priests about evolution. They came back somewhat astonished, "Hey! Evolution is OK!" Even when there was diversity in opinion, with some religious leaders accepting evolution as compatible with their theology and others rejecting it, it was educational for the students to find out for themselves that there was no single Christian perspective on evolution. The survey-of-ministers approach may not work if the community is religiously homogeneous, especially if that homogeneity is conservative Christian, but it is something that some teachers might consider as a way of getting students' fingers out of their ears. (emphasis added)

Again, I urge readers to protest the decision of the University of New Mexico's Board of Regents to award an honorary degree to Eugenie Scott. Protests may be sent to:

ewenzel@unm.edu
Board of Regents

unmpres@unm.edu
University president

jgeiss@unm.edu
Prof. John W. Geissman, led campaign to award degree
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Greedy Darwinists want biology courses to be laced throughout with Darwinism

Teaching Darwinism dogmatically in the public schools is not enough to satisfy the Darwinists -- the Darwinists want Darwinism to be taught with everything in biology, even though Darwinism is clearly irrelevant in a lot of subjects in biology. The Darwinists just want the students to be constantly browbeaten with Darwinism. For example, the new Florida science standards say that evolution is "the fundamental concept underlying all of biology." And Bill Buckingham, a former Dover school board member, said in the PBS NOVA TV program about the Kitzmiller v. Dover case,
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In looking at the biology book the teachers wanted, I noticed that it was laced with Darwinism. I think I listed somewhere between 12 and 15 instances where it talked about Darwin's theory of evolution. It wasn't on every page of the book, but, like, every couple of chapters, there was Darwin, in your face again. And it was to the exclusion of any other theory.

Greg Laden, a ScienceBlogs blogger, says,

These days, evolution tends to be compressed into a single textbook unit, and not discussed very much elsewhere in that text (this depends on the book). My suspicion is that by placing all of the discussion of evolutionary biology into one unit, it makes it easier for teachers to skip that chapter, or gloss it, or at least, deal with it as a very bad thing that is happening to them, work out some strategies to minimize the pain, and then move on.

In other words, when it comes to teaching evolutionary biology in the public school classroom, the creationists have won the battle: They've forced evolution into a corner, surrounded it, eviscerated, driven it into the swamp.

Since evolutionary biology actually relates to every other element of the life sciences, this is a terrible shame. Bowdlerizing every other part of the curriculum of any mention of evolution takes the life out of the life sciences. Details are taught without reference to ultimate explanation. The thread that would tie together a pedagogy to make it truly comprehensible and, in fact, awesome, is yanked out of the fabric of biology. Opportunities to skillfully explain, truly understand, fully appreciate the details of how life works are hidden from the students because evolution is forced into the closet of some specific chapter in the textbook, some specific week during the semester, some specific set of readings and maybe, but probably not even, a single experiment on the lab bench.

This would be like forcing the laws of motion into a single, oft skipped and always shortchanged lesson in an intro physics class, and otherwise never mentioning them.

The textbook that Buckingham described certainly doesn't have evolution "forced into the closet of some specific chapter in the textbook." And that textbook is co-authored by Ken Miller, who testified at the Kitzmiller v. Dover trial that his biology textbooks are used by an estimated 35 percent of high school students in the USA.

As for Laden's analogy of "forcing the laws of motion into a single, oft skipped and always shortchanged lesson in an intro physics class," isn't that the way Newton's laws of motion are taught in intro physics classes? Should, say, the effects of the Newton's laws of motion on the parts of heat engines and electrical machines be discussed in the lessons on thermodynamics and electricity & magnetism, respectively?
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New Florida Science Standards and Selman v. Cobb County

The Florida Board of Education narrowly decided by a 4-3 vote to make just one change in the proposed science standards: calling evolution a "scientific theory" and adding "scientific theory" or "law" to other theories or laws in the standards in order to avoid giving the appearance of "singling out" evolution. A proposal for other changes was rejected. According to one report, board members Roberto Martinez and Akshay Desai voted no because they did not want any changes at all, and another board member, Donna Callaway, voted no because she wanted more changes. I don't know the exact views of the four board members who voted yes -- maybe they really wanted only the change that they were voting on or maybe they just wanted the board to make a decision. Anyway, this was a modest victory for those opposed to the dogmatic teaching of evolution, and just getting this small concession was like trying to pull teeth.

Unfortunately, that annoying statement about evolution being the "fundamental concept underlying all of biology" remains in the standards. I am an engineer. Most of the different engineering, science, and math subjects that I studied each had their own fundamental underlying principle(s), and most of these subjects did not have a single underlying principle. But biology is supposed to have this one fundamental underlying principle, evolution, yet I don't even remember studying this principle at all in high school biology. How can that be? Regardless of whether or not evolution is wholly or partly true, telling students that it is the fundamental unifying principle of all of biology is brainwashing them with a big lie.

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 the other branches don't have, a single grand central fundamental underlying principle, evolution.

The constitutionality of calling evolution a "theory" was a big issue in the Selman v. Cobb County evolution disclaimer textbook sticker case. The sticker said,

“Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.”

A district court judge ruled that the sticker was unconstitutional. In an oral hearing on the appeal, appeals court judge Edward Carnes told an attorney representing the plaintiffs/appellees,

"I don't think y'all can contest any of the sentences. It is a theory, not a fact; the book supports that."

-- and --

"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."

Another judge on the panel, Frank Hull, questioned how the federal district court could have found the sticker's language misleading to biology students when there was no evidence to support that view.

The appeals court vacated and remanded the lower court's decision because of missing evidence. A new trial was granted. The Cobb County school board finally took a dive, settling out of court.
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Best place for up-to-the-minute info about Florida

Things are happening so fast in Florida that I have a hard time keeping up. The best place to get up-to-the-minute info is the blog of the Florida Citizens for Science. However, keep in mind that what you read on the FCS blog is likely to be very biased.

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Still more Florida news

(1) Orangeman video

Short enough for my dial-up connection but took a few minutes to load.

(2) The proposed science standards may be viewed here.

(3)Volusia County school board members were interviewed about the proposed standards. Their statements have been interpreted as supporting the proposed state standards but they mostly did not expressly state support for the wording of the proposed state standards -- the board members mostly just said things like, "religion should be taught at home," "evolution should be taught in school," and "I'll support whatever decision the state board of education makes." The Florida Citizens for Science knows of only one Florida County school board, Monroe County's, that has actually passed a resolution supporting the proposed standards as written; about a dozen county school boards have passed resolutions opposing the proposed standards as written. Another county school board, Bay County's, passed a resolution opposing the proposed standards as written. The Bay County resolution was different from many or all of the others -- it recommends that the state science standards be reworded to “allow for balanced, objective and intellectually open instruction in regard to evolution, teaching the scientific strengths and weaknesses of the theory, rather than teaching evolution as dogmatic fact.” Many or all of the other county school board resolutions said something like "evolution should not be presented in a manner that excludes other theories of the origin of life." I prefer Bay County's resolution. The Putnam County school board is scheduled to discuss on Feb. 19 -- the day of the state board's decision -- a resolution regarding the state science standards; the school board's agenda does not say whether the resolution supports or opposes the proposed standards and does not say whether any action will be taken on the resolution, and any action will almost certainly be too late to affect the state board's decision.

(4) Feb. 11 was supposed to be the date of the last public oral hearing, but the state board of education decided to hear one more hour of public testimony at the meeting on Feb. 19, when the decision on the proposed state science standards is scheduled to be made. Info is here.

Hearing public testimony on Feb. 19 is unfair to those who have already testified at previous oral hearings. Many of those who have already testified at oral hearings went to a lot of time and trouble to testify. Some traveled hundreds of miles and some took time off from work. Their testimony is now going to be drowned out by new public testimony at the Feb. 19 meeting of the state board of education. Of course, these people who have already testified can go to the time and trouble of appearing at the Feb. 19 meeting but they might not get a chance to testify — the maximum number of public speakers is 20. Maybe what the board of education should do instead is just make a tentative decision on the proposed state standards and then have a public comment period for that decision. I think that in general, administrative agencies and the courts -- especially the Supreme Court -- should initially issue tentative decisions and then have public comment periods for them.

(5) The state board of education is considering adding the term "theory" or "scientific theory" to the evolution education standards. This Darwinist article moans that this might be too big a concession to the fundies. The state legislature is breathing down the neck of the state board of education, threatening to add "theory" if the board does not.

(6) A Florida newspaper took a poll of public opinion about evolution and evolution education. I don't understand why the circle graph for the question "which of these do you think should be taught in public schools?" shows results only for respondents with school-age children. Also, the margin of error for this circle graph is likely to be large because of a small sample size. Anyway, it looks like the Darwinist tail is trying to wag the dog.

(7) A graph on this webpage grossly exaggerates the differences by using 270 as the base of the graph. Also, the number of green counties -- only two (should be only one because only Monroe County actually passed a resolution supporting the proposed state science standards as written) -- is much too small to yield a statistically significant result.
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More news from Florida

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Holding up two oranges -- evidence of evolution's contributions to Florida's economy -- at the hearing. Picture is courtesy of the Orlando Sentinel

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The Florida Citizens for Science blog says that "support is starting to roll in" for the proposed evolution education standards, but this support is a little late, considering that the Florida board of education is scheduled to make its decision only about a week from now, on Feb. 19.

We opponents of the proposed standards have two big advantages: (1) there are a hell of a lot of us and (2) right now our views are not represented at all in the standards. The proposed evolution education standards do not even have the word "theory." The proposed standards stink. In the words of Darwinist professor Paul Mirecki of Kansas University, the proposed standards were written as "a nice slap in the big fat face of the fundies." Darwinism is so bankrupt that the Darwinists must resort to censorship to help defend it.

The FCS blog says,
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I am proud to announce that organizations are now coming forward in support of the new draft of the state science standards.

The first is a complete surprise. Our very first county school board has approved a resolution in support of the standards. Thank you, Monroe County!

Yes, your very first county school board. Congratulations. But according to your own count, 11 county school boards came out against the standards, many or even all of them unanimously.

Americans United for Separation of Church and State also released a letter in support of the standards.

The AUSCS letter claims that evolution is a "fact" and not just a "theory":

Evolution is both a scientific theory and a scientific fact. A scientific "theory" is "a comprehensive explanation of some aspect of nature that is supported by a vast body of evidence." This contrasts the colloquial meaning of "theory," which is just a guess or a hunch. When a scientific theory "has been tested and confirmed so many times that there is no longer a compelling reason to keep testing it or looking for additional examples," scientists also use the term "fact" to describe it. This is the case with evolution: "scientists no longer question whether biological evolution has occurred and is continuing to occur." Thus, arguments that students should learn about "fundamental weaknesses in the science of evolution are unwarranted based on the overwhelming evidence that supports the theory" and will only harm students' education.

This controversy over the term "theory" recalls the following statements that federal appeals court judge Edward Carnes made to a plaintiffs'/appellees' attorney in an oral hearing in the defunct Selman v. Cobb County textbook sticker case:

"I don't think y'all can contest any of the sentences. It is a theory, not a fact; the book supports that."

"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."

Videos of the Feb. 11 hearing are here. I wish that audio recordings or transcripts were available -- my dial-up connection is too slow for videos longer than a few minutes.

One of Wesley Elsberry's summaries of the public comments said that one commenter mentioned my favorite criticism of Darwinism, co-evolution, but I don't know how effectively this criticism was presented:

34-19-1.

Do not confuse science and faith. Most of the evidence for Darwinism has been refuted or disputed. Blood clotting! Flower and bee co-evolution! Following the Pied Piper, is that science? Science said the world was flat. Scientists are indoctrinated by our educational system! I was! Faith in Evolution!

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Feb. 11 Florida board of education hearing

The Florida board of education's final public hearing on the proposed state science standards is reported here, here, and here. The results look pretty good -- estimates of the number of public speakers range from over 70 to over 80 and it is estimated that one-half to two-thirds of them opposed the proposed evolution education standards as written. The proposed Florida state science standards are unfair because they have nothing representing the views of the many people -- probably a majority -- who oppose dogmatic teaching of Darwinism. At the very least, the board of education should add the word "theory" to the proposed standards. Another good factor is that the legislature is breathing down the board's neck, threatening to insert the word "theory" if the board fails to do so.

An article on tampabay.com (St. Petersburg Times) says:
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One man linked Charles Darwin to Adolf Hitler, Josef Stalin and Mao Tse-tung. Another said evolution sanctioned murder. Still another held up an orange and said that because of evolution, he now had irrefutable evidence that an orange was "the first cousin to somebody's pet cat" and "related to human beings."

Other opponents spoke in more measured tones, saying they did not want the inclusion of creationism or intelligent design in science classrooms -- just a treatment of evolution that included its holes, gaps and flaws.

"Science is not infallible," said Tampa doctor Elizabeth McVeigh.

"I'm frightened," countered Robert Hankinson of Orlando. "Let the experts in science decide what my kids are taught in science."

In related developments, a coalition of conservative religious groups asked the Board of Education for 15 minutes to make their case at next week's meeting. The board said last week it would not take public input Feb. 19, so board members would have more time to deliberate among themselves . . . .

. . . Also Monday, 40 members of the committee that drafted the science standards issued a statement affirming their work and declaring, "There is no longer any valid scientific criticism of the theory of evolution."

Buckling to "special interest groups," it continued, "would not only seriously impede the education of our children but also create the image of a backward state, raising the risk of Florida's being snubbed by biotechnology companies and other science-based businesses."

The speakers at these public hearings will probably have the greatest influence because the board of education must have received thousands of written comments but does not have the time to read all of them. Here are the things I would have liked to discuss if I had the opportunity to speak at one of these public hearings:

(1) Kitzmiller v. Dover: Judge Jones showed extreme prejudice against the Dover defendants -- regardless of whether or not intelligent design is a religious idea -- by saying in a Dickinson College commencement speech that his decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. He also allowed the ACLU to virtually ghost-write the entire ID-as-science section of the opinion.

(2) Fordham Institute (no connection to Fordham U.): The Fordham Institute's reports on state science standards lack credibility. For example, though evolution education counts for only 3 points out of 69 in the Fordham rating system, Fordham threatened to drop Ohio's overall science standards grade from a B to an F just because the Ohio evolution lesson plan included weaknesses of Darwinism.

(3) Co-evolution: In the co-evolution of total co-dependence between two kinds of organisms, e.g., bees and flowering plants, unlike in evolutionary adaptation to widespread fixed physical features of the environment, e.g., water, land, and air, there may be nothing to adapt to because the corresponding co-dependent traits are likely to be initially absent locally in the other organism. Mutations producing traits that are potentially beneficial in co-evolution of total co-dependence are likely to be fatal or harmful in the absence of corresponding traits in the other organisms. The difficulties of co-evolution are an example of a weakness of Darwinism.
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Choices for Florida Board of Education

The Florida Board of Education is scheduled to make a decision about the proposed evolution education standards at a meeting on Feb. 19. Here are some possible choices for the board:
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(1) -- reject all of the proposed evolution education standards. This is unlikely, as it would waste all of the effort made in creating and evaluating those standards.

(2) -- approve the standards as is. Questionable because the standards are so controversial.

(3) -- delete the most controversial part(s) of the evolution education standards, particularly the introduction: "Evolution and Diversity: A. Evolution is the fundamental concept underlying all of biology and is supported by multiple forms of scientific evidence. B. Organisms are classified based on their evolutionary history. C. Natural selection is the primary mechanism leading to evolutionary change." This is a strong possibility.

(4) -- add wording stating or suggesting that there are "other theories," as suggested by resolutions passed by some Florida county school boards. Unlikely because there is no good alternative scientific "theory, " though Darwinism itself is arguably a bad scientific theory. It is especially unlikely that the school board will add hot-button terms like "intelligent design."

(5) -- add mention of "weaknesses" of Darwinism. A strong possibility.

(6) -- call evolution a "theory." A strong possibility -- the legislature is threatening to do this if the board of education fails to do so.

(7) -- postpone action. A possibility, even though the board has already postponed action once, as I remember.
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Darwinists object to word "theory"

Darwinian dogmatism has gotten out of hand -- the Darwinists are now objecting to use of the word "theory" to describe evolution. An article in the Miami Herald says,

TALLAHASSEE -- Top state legislators say they're ready to join the fight over putting the word ''evolution'' in Florida's public school science standards to ensure that it's taught as just a theory and not as fact.

Rep. Marti Coley, future House Speaker Dean Cannon and state Sen. Stephen Wise, all Republicans, say they're considering filing legislation this spring that would specifically call evolution a ''theory'' if the state Board of Education approves the proposed science standards Feb. 19 as currently written.

For the first time in state history, the standards would clearly call on all science teachers to instruct middle- and high-schoolers about evolution and natural selection.

The proposed standards just say "evolution," not "theory of evolution."

Though Wise says biblical creationism should be taught alongside evolution, Coley said she doesn't want to go that far with evolution.

"It's technically a theory. Let's present it for what it is" Coley told The Miami Herald on Tuesday.

Coley's proposal concerns backers of mainstream science because they fear the word "theory" could be easily manipulated to cast doubt on evolution, a pillar of biology . . .

In common usage, a theory is just a guess. In scientific terms, a theory -- like gravity or quantum mechanics -- is a testable explanation of a phenomenon based on facts.

"If you use the word theory to imply that scientists think evolution is just a hypothesis and is not real, that gives an incorrect impression," said Prof. Joseph Travis, the dean of Florida State University's Arts and Sciences College, who reviewed the state's science standards.

"If you use the word theory to say it's the best idea to explain how it works, then that's good," he said.

State Senator Wise's position that biblical creationism should be taught alongside evolution is unusual among legislators.

Not putting the word "theory" in the evolution education standards just because some ignorant people might interpret it as meaning "guess" rather than its scientific meaning is just playing word games. Would there be any objection to calling the "Big Bang" a "theory"? This reminds me of the time when some ignorant people found the word "niggardly" to be racially offensive (remember that one?). And in a discussion over whether a sportscaster's remark about Tiger Woods' golf-pro rivals "lynch(ing) him in a back alley" was racially offensive, a commenter on Fatheaded Ed Brayton's blog observed that saying that "other golfers need to find the chink in Tiger's armor" (Woods has some Chinese and Thai ancestry) also might unintentionally offend some people on racial grounds. I nearly died laughing after reading that one. Fatheaded Ed, who kicked me off his blog permanently because he thought that my literal interpretation of a federal court rule was stupid, apparently had no problem with that comment.

I predict that the current language in the proposed Florida evolution education standards is not going to survive. If the state board of education accepts this language as is, IMO the board is likely to be overruled by the legislature. I believe that legislators tend to be skeptical about Darwinism -- for example, the original Santorum Amendment to the No Child Left Behind Act passed the US Senate by 91-8 and a modified version of the amendment was put in the Congressional report accompanying the joint Senate-House version of the bill. Also, resolutions opposing the proposed standards were passed by about a dozen Florida county school boards, in many or even all cases unanimously.

Also, it is noteworthy that alleged "creationist" Cheri Yecke came close to being selected for the position of Florida Commissioner of Education. She was one of three finalists out of 24 applicants considered to be eligible and the Darwinists tried very hard to derail her candidacy.
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