Another anti-ID scholar condemns Dover decision

Many people believe that the only people who disagree with the anti-intellectual, unscholarly, and totalitarian Kitzmiller v. Dover decision are bible pounding, holy rolling fundy-type creationist crackpots. Judge Jones certainly believes that. He has accused the decision's critics of being opposed to judicial independence and "the rule of law" and said that they call him an "activist judge" only because they are unhappy with the result of the decision and for no other reason. However, I have pointed out that there is an anti-ID scholar -- Jay Wexler -- who has publicly condemned the decision, and now I have found another. In addition to these two, there are several apparently neutral scholars who have also publicly condemned the decision.

On Evolution News & Views, Casey Luskin discusses a recent Christian Century magazine article written by Darwinist J. Scott Turner, a biology professor at SUNY College of Environmental Science and Forestry in Syracuse, New York. Casey says,
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Turner sees the Kitzmiller v. Dover case as the dangerous real-world expression of the intolerance common in the academy: "My blood chills ... when these essentially harmless hypocrisies are joined with the all-American tradition of litigiousness, for it is in the hand of courts and lawyers that real damage to cherished academic ideas is likely to be done." He laments the fact that "courts are where many of my colleagues seem determined to go with the ID issue” and predicts, “I believe we will ultimately come to regret this."

Turner justifies his reasonable foresight by explaining that Kitzmiller only provided a pyrrhic victory for the pro-Darwin lobby:

Although there was general jubilation at the ruling, I think the joy will be short-lived, for we have affirmed the principle that a federal judge, not scientists or teachers, can dictate what is and what is not science, and what may or may not be taught in the classroom. Forgive me if I do not feel more free.

(J. Scott Turner, Signs of Design, The Christian Century, June 12, 2007.)

By way of review, here is what Jay Wexler said about Kitzmiller v. Dover. His announcement of a lecture said,

The opinion's main problem lies in the conclusion that most evolution supporters were particularly pleased with -- namely, the judge's finding that ID is not science. The problem is not that ID is science. Maybe it is science, and maybe it isn't. The question is whether judges should be deciding in their written opinions that ID is or is not science -- a question that sounds in philosophy of science -- as a matter of law. On this question, the answer is "no," particularly when the overall question posed to the Court is whether teaching ID endorses religion, not whether it is or is not science. The part of Kitzmiller that finds ID not to be science is unnecessary, unconvincing, not particularly suited to the judicial role, and even perhaps dangerous to both science and freedom of religion. The judge's determination that ID endorses religion should have been sufficient to rule the policy unconstitutional.

In a law journal article, Wexler added,

. . . if one judge can practice philosophy of science, what is to stop others from doing the same? Perhaps the next judge to hear an ID case will decide that science simply means "the process of searching for the best logical explanations for observed data." In that case, schools might be allowed to teach … ID… Is this really a can of worms that ID opponents want to open?

Actually, the science-as-ID section of the Dover opinion was not even written by the judge -- it was written by the ACLU.

My response to Wexler's above statement was,

In Wexler's above statement, he appears to be concerned only about judges hearing other ID cases. But what about judges hearing cases concerning non-ID criticisms of evolution, such as criticisms concerning co-evolution and the propagation of beneficial mutations in sexual reproduction -- or even the Second Law of Thermodynamics? After all, the SLOT is not a religious concept, and it is a law, not just a theory. Also, the now-defunct Ohio critical analysis of evolution lesson plan contained some very specific non-ID criticisms of evolution. IMO it is noteworthy that the Darwinists kept threatening to sue Ohio but never did. Anyway, without design, there is no designer. No designer, no god. No god, no religion. No religion, no establishment clause violation.

Many Darwinists have the mistaken belief that the ID-as-science ruling of the Dover decision was an inevitable "slam dunk" shoo-in. The Darwinists just got lucky this time. Judge Jones is a churchgoing Bush-appointed Republican conservative and maybe he was just bending over backwards to try to show that he was "impartial." He bent over so far backwards in an attempt to show his impartiality that he said in a Dickinson College commencement speech that organized religions are not "true" religions. Maybe next time the judge will be a godless blasphemous fundy-hating Clinton-appointed Democratic liberal atheist who will also bend over backwards to try to prove his impartiality.

Luskin pointed out that Turner "laments the fact that 'courts are where many of my colleagues seem determined to go with the ID issue.'" There is no constitutional separation of pseudoscience (or bad science) and state, so some people are misusing the so-called "separation of church and state" for the purpose of trying to suppress scientific ideas that they disagree with. One of the worst offenders in this regard is the hypocritical theistic evolutionist Ken Miller. He says that his own belief in evolution is supported by his religion, yet he urges the courts to use the so-called "separation of church and state" principle to suppress the views of ID proponents whose belief in ID is not supported by religion. Ken Miller was the lead expert witness for the Dover plaintiffs and also was an expert witness for the plaintiffs in the Selman v. Cobb County evolution disclaimer textbook sticker case. IMO the plaintiffs in those cases showed real chutzpah by choosing a theistic evolutionist as an expert witness in lawsuits charging that including criticism of evolution in public-school science courses violates the separation of church and state.
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Darwinist law journal article about monkey trials: "Evolution and the Holy Ghost of Scopes: Can science lose the next round?"

A while back, a reader here brought to my attention a Darwinist Rutgers Journal of Law and Religion article about monkey trials: "Evolution and the Holy Ghost of Scopes: Can science lose the next round?" by Stephen A. Newman. I decided instead to review another article in the same journal edition. Looking at the opening sentence of the Newman article gives some idea of why I was not eager to review the article: "The society that allows large numbers of its citizens to remain uneducated, ignorant, or semiliterate squanders its greatest asset, the intelligence of its people." Furthermore, this article has no new information or ideas that I have not already covered in this blog. Also, because the article is of no particular interest to me, I especially feel no obligation to review it because this blog gets little or no credit for being an authority on legal issues concerning evolution education. This blog has about 150 articles specifically about those issues and there are many related articles (see sidebar for post labels). Also, many of this blog's articles are well researched and contain many references, unlike a lot of other blogs, which contain little or nothing more than the blogger's personal opinions. Yet when I asked the Law Blog Metrics blog to announce this blog as an authority on these legal issues, I was rudely ignored -- meanwhile, the Law Blog Metrics blog announced a law blog that contains practically nothing but complete copies of news articles. Also, some people won't cite this blog because of my holocaust revisionism. Ironically, once I decided to review Newman's article, I became more and more deeply involved and this article is one of the longest if not the the longest of over 400 articles that I have posted on this blog.

Newman's pro-Darwinist bias is clear. The article gushes,
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I will not attempt to set forth the arguments for the correctness of Darwin's theory of evolution. That has been done, with painstaking thoroughness, in many books and articles that can only be deemed completely dispositive of the issue. The theory of evolution, with some modern modifications to Darwin's formulation of it ("neo-Darwinism" today), has few peers in science. Darwin's theory ranks with those of Galileo and Newton in the history of scientific thought. One hundred fifty years of research following the 1859 publication of Origin of Species has established the theory as a foundational contribution to our understanding of the natural world. (page 3)

Challenges to the teaching of evolution are challenges to reason itself -- in science, the theory of evolution has unquestioned primacy. One preeminent twentieth century geneticist's statement, quoted in recent literature, succinctly sums up academic sentiment: "Nothing in biology makes sense except in the light of evolution." Evolution, academics say, is not a theory in the commonplace sense of that term; it is so well documented that it is scientific fact. (page 43)

Leonard Susskind, professor of theoretical theoretical physics at Stanford University, notes the "silly spectacle of the Kansas school board ... debating the scienitific merits of one of the greatest products of the human intellect: Darwin's theory of natural selection."
Intelligent design, on the other hand, has been roundly repudiated. Professor Daniel C. Dennett calls intelligent design "one of the most ingenious hoaxes in the history of science." (pages 43-44 of pdf file)

Consciously favoring ignorance over reason might, and should, grate on anyone who values knowledge and uses his brains for a living . . . . Scientific knowledge can be ignored, of course; Justice Scalia proved that in his dissent in Edwards. But other justices may value their (highly evolved) intelligence, and strongly resist the triumph of ignorance over reason that a ruling undermining the teaching of evolution would represent.(page 44)

In his above statements, Newman ignores the fact that there is no constitutional separation of ignorance (or stupidity) and state. Also, many judges do not want to settle scientific questions if they can avoid it -- for example, after being corrected by an attorney in an oral hearing on a lawsuit over regulation of greenhouse gases, Justice Scalia answered, "Troposphere, whatever. I told you before I'm not a scientist. (Laughter) That's why I don't want to have to deal with global warming, to tell you the truth." There are many reasons why judges should try to avoid deciding scientific questions.

As I have said before: For a theory that many Darwinists regard as a stroke of genius, Darwinism is surprisingly mickey mouse. All that Darwinism tells us is that natural selection -- the idea that fitter organisms are more likely to survive than less-fit organisms -- occurs (duh) and that random mutation occurs (duh again). 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 other branches of science don't have, a grand overarching unifying "theory of everything," Darwinism.

The article discusses the Freiler v. Tangipahoa Parish (page 15-16) and Selman v. Cobb County (pages 16-17) decisions that struck down evolution disclaimers, but like every other law journal article I have seen that discussed these cases does not mention how close these decisions came to being reversed. Freiler v. Tangipahoa Parish came within a single vote of getting an en banc (full court) appeals court rehearing and within a single vote of getting Supreme Court review, and the dissenting judges and justices wrote long dissenting opinions attacking the decision. In Selman v. Cobb County, the appeals court judges strongly indicated in an oral hearing that they were leaning towards reversal of the decision but then vacated and remanded it, and the case was finally settled out of court when the school board took a dive in December (the Newman article is not up-to-date because the out-of-court settlement is not mentioned). Judge Frank Hull, one of the three panelists in the Selman appeal, questioned how the federal district court could have found the evolution-disclaimer textbook sticker's language misleading to biology students when there was no evidence to support that view. And Judge Carnes, another panelist, told a plaintiffs' attorney, "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." These facts about Freiler and Selman are an "I'm from Missouri" exclusive. How these important facts can be ignored in these law journal articles is beyond me -- for example, in abortion case decisions, the voting splits of the courts and the dissenting opinions are very closely watched and analyzed. Newman's failure to mention the close votes in Freiler is especially surprising because a large part of his article discusses how the changing composition of the Supreme Court could affect future decisions concerning evolution education. Of the three justices who voted to review Freiler (four votes are normally needed to grant certiorari), two -- Scalia and Thomas -- are still on the court, and two conservative justices, Roberts and Alito, have since been added to the court. Also, the near misses in Freiler and Selman expose the myth that Kitzmiller v. Dover was a "slam-dunk" case. It is widely believed that the Dover Area school board members "knew" in advance that they were going to lose and that the school district therefore "deserved" to be socked with the exorbitant $1 million plaintiffs' attorney fee award. Anyway, a "slam-dunk" case should take maybe an hour to decide, at most.

The article says of the teachers in the Kitzmiller v. Dover case:

The local science teachers rebelled. They refused to read the statement to their classes on the grounds that intelligent design is not true science and that the book Of Pandas and People is not a valid scientific resource. In a letter addressed to the Board they wrote, "[It is] our considered opinion that reading the statement violates our responsibilities as professional educators as set forth in the Code of Professional Practice and Conduct for Educators." Due to the teachers' refusal, administrators at the high school read the statement to the students. (pages 17-18)

. . . they [i.e., the teachers] refused to even stay in the room when the statement was being read by school administrators to ensure that students did not think they endorsed its message. (page 23)

LOL. The teachers left the room to "ensure" that students did not think they endorsed the ID statement, as if their own refusal to read the statement to the class was not proof enough of that!

The article of course fails to mention that the teachers were reneging on a prior agreement with the board that Pandas could be used as a "supplemental" text instead of a "companion" text. The ID statement informed the students that copies of Pandas were available in the school library. Also, apparently there is nothing in the "Code of Professional Practice and Conduct for Educators" requiring teachers to follow school board policies that they disagree with. Also, the Darwinists see no inconsistency between their support of these teachers and their support of John E. Peloza v. Capistrano Unified School District (1994), where the 9th Circuit federal court of appeals ruled that a teacher could be required to teach Darwinism even if it conflicted with his beliefs. However, I think that the Dover teachers should have been given some say in the wording of the ID statement and that the statement unnecessarily disparaged Darwinism.

I was unaware that the books "Darwin's Black Box" and "Darwin on Trial" were banned from a school library. Newman wrote,

Consider the experience of two librarians who received copies of two intelligent design books, Darwin's Black Box by Michael Behe and Darwin on Trial by Philip Johnson, as donations to their high school collections. When the librarians refused to put the books on the library shelves, they were accused of censorship . . .

The donor complained to the School Board, which appointed a committee to investigate the matter. The committee recommended that one book be accepted by the library. It deadlocked on the other book. The Board of Education then heard from a variety of people, including scientists, parents, teachers, and ministers, who explained the difference between censorship and legitimate selection processes. Ultimately, after a three month battle, the Board supported the librarians and voted to reject both books. The librarians wrote about their experience in order to warn others in the field about the conflicts they might face from this sort of book donation tactic by anti-evolutionists. One wonders how often local librarians elsewhere yield to such pressure and quietly add these volumes to their school collections. (pages 21-22)

Newman really went off the deep end here by approving the banning of these two books from a school library. The Discovery Institute's Casey Luskin cited the following ruling of the Supreme Court:

Petitioners [the school board] rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner . . . Our Constitution does not permit the official suppression of ideas . . . If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' [school board's] decision, then petitioners have exercised their discretion in violation of the Constitution. Board of Educ. v. Pico, 457 U.S. 853, 870-71 (1982).

Also, the plaintiffs in Kitzmiller v. Dover did not even attempt to have the ID book "Of Pandas and People" banned from the school library but only sought to have the book and the book's mention -- along with the rest of the ID statement -- banned from the science classrooms. In opposing the Rutherford Institute's application to intervene in the case, the Dover plaintiffs actually bent over backwards by arguing against banning the book from the school library:

. . .Applicants can allege a colorable constitutional claim only by mischaracterizing plaintiffs’ complaint. Applicants claim that plaintiffs “seek to remove supplemental textbooks from the school library.”. . .This misreads the complaint, which seeks only to remove the book Of Pandas and People from the High School’s ninth grade biology class. See Compl. at 22-23. (Prayer for Relief). The mischaracterization is not surprising because the Third Circuit distinguishes removing books from a library and removing books from a classroom: “‘special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students,’ for the library, unlike the school classroom, is a place for voluntary inquiry and study.” See Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1254 (3d Cir. 1992) (Plaintiffs’ Response to Rutherford Institute Motion to Intervene, pp. 10-11. Filed February 4, 2005)

The Darwinists are of course going to again move the goalposts for the definition of "banned book." Before, the Darwinists claimed that Judge Jones did not really ban "Of People and Pandas" because he only removed the book from classrooms but did not remove it from the school library. Now the Darwinists are going to hocus-pocus that "Darwin's Black Box" and "Darwin on Trial" were not really "banned" from a school library but were merely "rejected" by what Newman calls "legitimate selection processes." Or they will hocus-pocus that these two books do not officially qualify as "banned books" because they were not banned by a judge. I am not going to waste my time trying to get those Wikipedia control freaks to add these two books to the Wikipedia list of "banned books."

The Newman article also discussed the judicial independence controversy:

Another part of the anti-evolution strategy is to join in right wing political attacks against the judiciary. These attacks, focusing on judges who do not subscribe to the conservative religious agenda, have been strident, coupling charges of "judicial tyranny" and a judicial "war on faith" with demands for impeachment of judges and threats of reprisals. (page 24)

Judge Jones has tried to discredit criticism of his Kitzmiller decision by accusing the critics of being opposed to judicial independence and "the rule of law." He has been criss-crossing the country giving his critics "civics lessons" about judicial independence and "the rule of law." He has also charged that his critics call him an "activist judge" merely because they disagree with his Kitzmiller decision.

Newman's article said,

An anti-evolution case could be a vehicle for the abandonment of the Lemon test. (page 41)

Yes -- in his dissent against the denial of certiorari to Freiler, Justice Scalia said, "I would grant certiorari in this case if only to take the opportunity to inter the Lemon test once for all."

The Newman article said,

Several other Justices have expressed reservations about Lemon over the course of its existence, although the case has not been disavowed by a Supreme Court majority up to this point. Lower courts regard it as binding authority, even though, as one circuit court put it, it has been "widely criticized and occasionally ignored." (page 41)

In 1993, Scalia wrote in a concurring opinion,

. . .no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart...and a sixth has joined an opinion doing so........When we wish to strike down a practice it forbids, we invoke it....when we wish to uphold a practice it forbids, we ignore it entirely . .

So according to Scalia, in 1993 at least 5 and maybe 6 justices -- a majority -- had condemned the Lemon test. And the Supreme Court can hardly complain about lower courts ignoring the Lemon test when the Supreme Court itself has done so on occasion.

The Newman article says,

What Scalia would replace Lemon with is not clear, but it certainly would be a more pliant test permitting considerable latitude to government to recognize, encourage, and even promote religion (pages 41-42)

That's ridiculous -- no establishment clause test "promotes" religion. IMO the Lemon test is inappropriate for evolution education cases because the motivations of public officials can be a deciding factor under this test, and as a result it is impossible to establish any universally applicable rule. Some other establishment clause tests are the endorsement test, the coercion test, and the neutrality test. Sometimes combinations of tests are (mis)used in decisions -- e.g., the Kitzmiller decision used the Lemon test and the endorsement test. Sometimes the endorsement test is considered to be incorporated into the Lemon test. However, one of the problems with having different tests to choose from is that instead of choosing the best test, judges might tend to choose the test that gives the results they want. This tendency was noted by Justice Scalia when he said of the Lemon test, "...When we wish to strike down a practice it forbids, we invoke it....when we wish to uphold a practice it forbids, we ignore it entirely.... " The same Rutgers journal edition has an article titled, "Van Orden, "Inconsistent Guideposts: Van Orden, McCreary County, and the Continuing Need for a Single and Predicable Establishment Clause Test". I may review that article in the future.

IMO evolution disclaimers are constitutional under the endorsement test because they make those opposed to Darwinism feel less like "political outsiders" and also because evolution disclaimers should have a low level of scrutiny under the establishment clause because they don't actually teach criticisms of Darwinism.

The Newman article says,

A final concern with the Scalia dissent concerns a matter he simply ignores: stare decisis. Whatever the fate of the Lemon test, the fact remains that twice the Supreme Court has ruled anti-evolution statutes to be unconstitutional. Both cases were decided by substantial majorities. The history of the campaign against evolution was clearly shown in these cases to be religiously based; it continues to be religiously based today. (page 42)

Often cases on the same subject are substantially different, so a court is not necessarily being inconsistent when it rules in different ways in different cases on the same subject. One of those two Supreme Court decisions, Epperson v. Arkansas, was about a law prohibiting the teaching of evolution; the other, Edwards v. Aguillard, was about balanced treatment of evolution and creation science. Evolution disclaimers, which don't actually teach criticism of evolution, are different again.

If we adhered strictly to stare decisis, then the separate-but-equal segregationist doctrine of Plessy v. Ferguson -- decided by a solid 8-1 majority -- would still be with us. IMO, one of the considerations in whether to overturn precedent is whether such overturning would result in substantial tangible losses (as opposed to psychological losses) to those who have relied on the precedent. Ironically, fundy schools stand to lose a lot financially if the courts allow criticism of Darwinism in the public schools, because presumably one of the reasons for attending a fundy school is to avoid the one-sided teaching of Darwinism in the public schools. I wonder -- if a law were passed requiring that creationism and only creationism be taught in the public schools, would the fundy schools be among the plaintiffs challenging the law? LOL

The Newman article says,

The values of education and academic inquiry are especially likely to be respected by members of the nation's highest court. Few government institutions rely as heavily on personnel who have attended the nation's foremost universities as does the U.S. Supreme Court. Five of the nine justices are Harvard Law School graduates (Roberts, Kennedy, Souter, Breyer, and Scalia), two graduated from Yale Law School (Alito and Thomas), and one each from Columbia (Ginsberg) and Northwestern (Stevens). The colleges they attended are similarly elite: Harvard, Princeton, Standford, Cornell, the University of Chicago, Georgetown, and Holy Cross. Some have served as law school faculty members. Allowing the teaching of evolution to be undermined betrays the academic values -- values widely shared in soclety -- that helped the Justices attain their present status atop the nation's legal pyramid. Again, it is not impossible to ignore those values: Justice Scalia has distanced himself from his own academic roots by his dissent in Edwards and by denigrating his highly educated and professionally trained colleagues as merely part of a ruling professional "elite." (pages 45-46)

Yes, I too have noted the Supreme Court's grotesque overrepresentation of Ivy League law school grads (Stevens is the only grad of a non-Ivy League Law school) and Harvard Law School grads in particular (BTW, Ginsberg also attended Harvard Law School but graduated from Columbia Law School). Also, Harvard and other Ivy League law schools are overrepresented in court citations of law journal articles.

The Newman article says,

The strength of the religious right in the nation's politics, and two new appointments to the Court, raise the possibility that the precedent that last supported the teaching of evolution, Edwards v. Aguillard, will not survive. A new ultraconservative set of justices, including Justices Thomas, Alito, Roberts, and Scalia, forms a block that might adhere to Justice Scalia's dissenting opinion in Edwards. (pages 51-52)

So Newman is admitting here that these monkey trials are not "slam-dunk" cases for the Darwinists. One thing is for sure and that is that the Supreme Court is not going to be hearing a case on public-school evolution education anytime soon -- there are now no such cases on the horizon. Selman v. Cobb County was on the horizon until a few months ago but -- as I said -- the school board took a dive. There is the fundy schools' lawsuit against the Univ. of California but that involves only private schools and not public schools. Also, the wheels of justice (or injustice) turn very slowly nowadays -- for example, after Selman was decided by the district court, it took 16 months for the appeals court to decide just to vacate and remand the decision because of missing evidence. There is a fair chance that Scalia will be replaced before another evolution education case reaches the Supreme Court.
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Peter Irons' ironic rebuttal of the Discovery Institute

Judge Jones shamelessly accepting 2006 Dickinson College honorary degree for his ghostwritten Kitzmiller v. Dover opinion

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Peter Irons' ironic rebuttal of the Discovery Institute said,

The DI authors deny making any ad hominem attacks on Judge Jones. My article cited several examples of such attacks, to which readers may refer. I will note here only one, John West's charge that Judge Jones suffered from "delusions of grandeur." This term, in fact, is not part of the legal lexicon, but refers to a psychiatric disorder. Whether used carelessly or intentionally, this characterization of Judge Jones certainly meets the ad hominem criterion, in my opinion.

I agree that the DI made ad hominem attacks on Jones, but this was not one of them. "Ad hominem" means "to the man" or "to the person," meaning that a criticism just attacks a person's character rather than addressing the issues. However, accusing Judge Jones of having "delusions of grandeur" does address one of the issues: his megalomaniacal hope that his rulings on the ID-as-science question would settle this question for all courts in the USA. Judge Jones wrote in the Dover opinion,
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. . .we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.

I really like the Merriam-Webster online dictionary's definition of megalomania: "a delusional mental disorder that is marked by infantile feelings of personal omnipotence and grandeur." LOL

Irons also wrote,

In their initial responses to the Kitzmiller ruling, the DI authors dismissed Judge Jones's opinion as of "minor significance," predicting that it "will recede as an interesting footnote to the history of the scientific and cultural debate" over evolution and intelligent design. Why, then, have they devoted dozens of blog posts, a book, and a law review article to denigrating that opinion and its author?

The Kitzmiller opinion is of "minor significance" and " 'will recede as an interesting footnote to the history of the scientific and cultural debate' over evolution and intelligent design" precisely because the opponents of the decision have devoted dozens of blog posts, a book, and law review articles to denigrating that opinion and its author! If the opponents of the decision had just rolled over and played dead, the Kitzmiller opinion would have been accepted. Public interest in the case has fizzled. The Amazon.com website for "Monkey Girl," a highly touted book that is principally about the case, has received only 29 customer reviews in over four months -- a really popular book would have received hundreds of customer reviews by now. Judge Jones, who was listed last year in Time magazine's list of the 100 most influential people in the world and was in Wired magazine's list of "the ten sexiest geeks of 2005," has returned to the obscurity from whence he came.
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Montana Law Review on Kitzmiller v. Dover

The Montana Law Review has three new articles on the Kitzmiller v. Dover case:

Intelligent Design will survive Kitzmiller v. Dover, by Discovery Institute fellows and staffers David K. DeWolf, John G. West, and Casey Luskin

Disaster in Dover: The trials (and tribulations) of Intelligent Design, by Peter Irons

Rebuttal to Irons, by the above Discovery Institute fellows and staffers

(I am also expecting a rebuttal from Irons to be posted on Ed Brayton's blog. I will later add to this post a link to that rebuttal)

Here it is:

Irons responds to West, Luskin, and DeWolf

Ed Brayton's blog has an article about these law review articles. Ed's article mainly concerns Peter Irons' charge that the Discovery Institute made ad hominem attacks against Judge Jones. However, some of these "ad hominem attacks" were just responses to issues and claims that were raised by Jones' supporters, e.g., the claim that Jones is not an "activist judge" (a claim that Jones himself made in his written opinion) and the fact that Jones is a Bush-appointed churchgoing Republican conservative. And some of these attacks -- e.g., that Jones had "delusions of grandeur" and was trying to secure "his place in judicial history" -- were not really ad hominem attacks at all because they did not attack Jones for anything that he said or did outside of the Kitzmiller case. Peter Irons' law review article said (as quoted by Ed):
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Judge Jones issued his Kitzmiller opinion on December 20, 2005. The ink was hardly dry before one of the DI authors, John West, responded on the Institute's Web site under the heading "Dover in Review." West fired a barrage of ad hominem volleys at Judge Jones, accusing him of having "delusions of grandeur" and of being "an incredibly sloppy judge who selects the facts to fit the result he wants." Judge Jones viewed the Kitzmiller case, West alleged, as "his chance to play philosopher king" and to secure "his place in judicial history." West disputed the media's portrayal of the judge, who was named to the federal bench in 2002 by President George W. Bush, and who attended Lutheran services, "as a conservative Republican who is devoutly religious."

It is true that the Discovery Institute did make some genuine ad hominem attacks against Jones, but those attacks don't invalidate the DI's legitimate criticisms of Jones.

Of course, I cannot post these comments on Fatheaded Ed's blog because I am banned there. I cannot even use a false name because Ed will censor the comments if they look like they came from me.
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Law journal article focuses on evolution disclaimers

The Spring 2007 issue of the Rutgers Journal of Law and Religion has two articles about evolution education and one 28-page student "note" about judicial establishment clause tests. One of these articles, written by Asma T. Uddin, titled "Evolution Towards Neutrality: Evolution Disclaimers, Establishment Jurisprudence Confusions, and a Proposal of Untainted Fruits of a Poisonous Tree", focuses on official evolution disclaimer statements in public-school science classes. The topic of the article is especially significant because the three most recent important court cases about evolution education in the public schools have been about evolution disclaimers: Kitzmiller v. Dover, Selman v. Cobb County, and Freiler v. Tangipahoa Parish. Also, this may be one of the first articles that recognizes that there are different ways of criticizing evolution in public-school science classes. Darwinists typically have a Procrustean, one-size-fits-all view of this criticism of evolution -- to them, it is all "teaching intelligent design," whether it is a brief disclaimer statement that just says that evolution is just a theory or whether it is a full week of teaching biblical creationism.

The article begins,
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This article deals with the controversy surrounding the teaching of evolutionary theory in public schools with a specific focus on disclaimers read by teachers before they teach evolution.

The article should have said that some evolution disclaimers -- e.g., the disclaimer in Selman v. Cobb County -- are written rather than oral.

The article says (page 1),

. . . this article suggests that striking down the disclaimers without providing alternative responses to the legitimate free exercise concerns involved may violate the Free Exercise Clause. As a way of negotiating free exercise and establishment concerns, this article proposes a generalized single out evolutionary theory for special treatment, but rather addresses scientific inquiry as a whole.

Unfortunately, this article, like so many other articles about criticism of evolution in the public schools, sees this criticism as just a religious issue. Many critics of evolution are not motivated by religion.

The article's labeling of disclaimer statements as "fruits" from a "poisonous tree" shows where the author is coming from.

The following statement in the article is so erroneous that it is virtually a faux pas:

Although the Fifth Circuit has struck down a disclaimer mentioning only the Biblical version of creation as an alternative to the evolutionary theory of origins on establishment grounds, no court has ever held that facially neutral disclaimers (i.e., disclaimers that have no reference to any religious theory) are problematic on the basis of the Establishment Clause.

The Selman v. Cobb County decision, though it is now defunct because it was settled out of court after being vacated and remanded, made such a holding that a facially neutral disclaimer violated the Establishment Clause. The article's above statement is especially surprising because the article later cites (page 7) the disclaimer statement at issue in Selman: "This textbook contains material on evolution. 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."

Other than court decisions striking down "silent prayer" (also called "moment of silence"), Selman may be the only example of an American court using the Establishment Clause to strike down something that does not contain anything of an explicit religious nature. The disclaimer statement that was struck down in Kitzmiller was arguably religious because it mentioned intelligent design, a term which suggests the existence of a supernatural designer.

The preceding quotation from the article is based on a source dated 2000 -- a little out of date. Selman was decided in 2005.

The article discusses the Alabama evolution disclaimer stickers, which I presume are almost unknown outside of Alabama. The article says of these stickers,

It is important to note that this disclaimer, like many others, describes evolution as a theory about the "origin of living things." To describe it as such reflects a fundamental misunderstanding built into the disclaimer specifically and the evolution/creationism battle generally, because evolutionary theory is neither a theory of creation nor a theory about the origins of life.

That's ridiculous. The same charge can be made that a "fundamental misunderstanding is built into" the title of Darwin's book "The Origin of Species." Everyone knows the difference between evolution and the origin of life -- no one is trying to create a "fundamental misunderstanding."

The article also says about the Alabama stickers (page 5),

Aside from its scientific problems, this disclaimer, which is also included in course guidelines for science teachers, has also not yet been challenged on establishment grounds. Considering that Alabama is predominantly Christian, the disclaimer's language is relatively weak, and the residents may be weary of controversy, it is likely this new disclaimer will remain unchallenged.

That is also ridiculous. It takes just one ACLU "mascot" to challenge a "monkey law." In legal jargon, a "mascot" is a front man for the real plaintiff, in this case the ACLU -- the ACLU (or Americans United for Separation of Church and State) is the boss and calls all the shots. Funding for lawsuits can come from outside the area. I am really surprised that this Alabama disclaimer sticker has not been challenged in court.

The article discusses the Freiler v. Tangipahoa Parish evolution disclaimer case, which is poorly known in comparison to the Kitzmller and Selman cases. To me, one of the most important things about the Freiler decision is how close it came to being overturned -- the case came within one vote of being granted an en banc (full court) appeals court rehearing and within one vote of being granted certiorari by the Supreme Court (normally four votes are required for a grant of certiorari). The dissenting judges and justices in both the appeals court and the Supreme Court submitted long dissenting opinions (I don't know about the frequency of dissenting opinions in denials of en banc rehearings in appeals courts, but I do know that the Supreme Court normally makes no comment when denying certiorari). IMO it would have been helpful if the article had cited these dissenting opinions and noted how close the decision came to being reversed.

Starting on page 10, the article goes into long discussions of: (1) different judicial tests used for deciding establishment clause cases: the Lemon test, the endorsement test, the coercion test, and the neutrality test; and (2) the conflict between the establishment clause and the free exercise clause (this conflict is also discussed here and here). IMO many of these discussions are very complex and probably overgeneralized. I just want to say a few words here about the article's comments about my favorite establishment clause test, the endorsement test. The article says (pages 13-14),

Importantly, this last prong [i.e., the 3rd or "excessive entanglement" prong of the Lemon test] was eliminated in the subsequent development of a new establishment test, the endorsement test. As it was articulated in County of Allegeny v. American Civil Liberties Union, the endorsement test is composed of the "primary effect" and "secular legislative purpose" prongs of the Lemon test. The endorsement test precludes the government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. As the test is essentially a disjunction of two Lemon prongs, any statute that violates either of those prongs also violates the endorsement test.

The article, quoting a source, also says in footnote #79 on page 13,

"The endorsement test originated from Justice O'Connor's concurring opinion in Lynch v. Donnelly, 465 US 668 (1984). Justice O'Connor extrapolated the 'purpose and effect' prongs of the Lemon test and redefined them."

On the contrary, Justice O'Connor's concurring opinion in Lynch shows no intention of trying to combine the Lemon test's first and second prong or trying to eliminate the third (excessive entanglement) prong. The endorsement test is often considered to be a separate test. The third prong has been disappearing as a separate test because of a reason having nothing to do with the endorsement test -- the Selman opinion says, "Both the Supreme Court and the Eleventh Circuit have acknowledged that the second and third prongs of the Lemon test are interrelated insofar as courts often consider similar factors in analyzing them . . . In fact, the Eleventh Circuit, like several other circuit courts, has combined the second and third prongs of the Lemon analysis into a single 'effect' inquiry." (citations omitted)

What I like about the endorsement test is its concept of whether a particular government action makes people feel like political "insiders" or "outsiders." This endorsement test and its political insider/outsider concept are discussed in this post on my blog.

The article describes the attitude that supporters of evolution disclaimers usually desire more than what the courts would be willing to allow and therefore should be punished for their greed by getting nothing -- this is also sometimes described as a "you can't have it because you want it" attitude:

Parents who support disclaimers usually see them as part of a larger effort to teach religious origins theories. For example, the Selman court pointed out the "[e]vidence in the record suggests that the idea of placing the sticker in the textbooks originated with parents who opposed presentation of only evolution in science classrooms and sought to have other theories, including creation theories, included in the curriculum." (page 23)

The article also discusses the charge that evolution disclaimers "single out" evolution theory for criticism. However, there is not much else to criticize in K-12 science classes because just about the only other theory that is typically taught in K-12 science classes is atomic theory -- most of the rest of the typical science curriculum consists of scientific facts and laws. And atomic theory is far more plausible that the notion that evolution was driven mainly by natural mutations and natural selection.

The article is full of vague, confusing, nitpicking and hairsplitting pettifoggery, e.g., the following statement from page 39:

The differentiating element between government measures falling under the "untainted fruits" category and those falling under other sorts of categories would be a definition of "secular purpose" that is more attuned to the unique free exercise elements of measures that are "fruits of the poisonous tree."

The article's proposal of a generalized non-religious disclaimer for all scientific theories is not going to work so long as the courts hold that a disclaimer's origins are sufficient grounds to declare the disclaimer to be in violation of the establishment clause.

IMO it is noteworthy that all three rulings against disclaimers -- Kitzmiller, Selman, and Freiler -- banned the disclaimers outright rather than prescribe modifications that would have made them constitutional in the view of the court. For example, disclaimers that say that evolution is just a "theory" could include a scientific definition of the word in order to avoid a possible interpretation that evolution is just a wild hunch. Also, I would like to see an evolution disclaimer that includes the following statement: "This disclaimer does not violate the Constitution's establishment clause, because (1) this disclaimer contains nothing of a religious nature and (2) not all criticism of evolution theory is motivated by religion." LOL. However, the courts would probably rule that such a statement protests too much.

Regarding that term "note" for a law journal article written by a law student -- the law profession uses terms in very strange ways. For example, when Dover defendant William Buckingham was called a "hostile witness," I pictured him testifying while wearing a strait-jacket or an electric stun belt. All the term meant was that the other side got to question him first.
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Law journal "note" slams Selman v. Cobb County decision

Again we have an example of a student's law journal article being called a mere "note" because of snobbery and jealousy in the law profession.

History of the Selman v. Cobb County case: A disclaimer sticker which the Cobb County Board of Education inserted in biology texts 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 federal district court judge found the stickers to be unconstitutional, the stickers were consequently removed, and the decision was appealed. The appeals court vacated and remanded the decision because important pieces of evidence -- a public petition and a letter to the board -- were missing. The board of education finally made an out-of-court settlement that included the following provisions: (1) payment of $166,659 for partial reimbursement of the plaintiffs' expenses and (2) a promise that the board would not try to reinstate the stickers in the future. The appeals court panel indicated that it was leaning towards reversing the decision and the lawsuit was no financial hardship for the school district because the school district was quite rich and was receiving or was offered a lot of free legal representation, so it is clear that the board of education took a dive. So far as the courts are concerned, the district court decision is now worthless because it was vacated and the case was then settled out of court.

In an article in Evolution News & Views, Casey Luskin quotes the following from a student "note" in Temple Journal of Science, Technology & Environmental Law:
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Although the sticker categorized evolution as theory, the court improperly found that this categorization would have the effect of endorsing religion and favoring certain religious viewpoints. Under the Establishment Clause, the government is prohibited from taking "sides" regarding questions of religion. … [T]he sticker made no mention of preferring one religion over another or preferring religion to non-religion. The sticker stated that evolution is a theory, which neither undermines its widely-accepted nature nor contradicts any scholarly definition of evolution . . .

. . . . By finding that presenting evolution as theory rather than fact violated the Lemon Test's effects prong, the court fundamentally created a new precedent making it unconstitutional per se for a school to even suggest that evolution is theoretical.

(Kaitlin DeCrescio, “An Education in Evolution: Silencing Scientific Inquiry in Selman v. Cobb County School District,” 25 Temp. J. Sci. Tech. & Envtl. L. 285, 301-303 (some internal citations may have been removed from the above quotation))

In ruling that the sticker passed the first prong -- called the "purpose prong" -- of the "Lemon" test, the district court opinion said,

. . . after considering the additional arguments and evidence presented by the parties and evaluating the evidence in light of the applicable law, the Court remains convinced that the Sticker at issue serves at last two secular purposes. First, the Sticker fosters critical thinking by encouraging students to learn about evolution and to make their own assessment regarding its merit. Second, by presenting evolution in a manner that is not unnecessarily hostile, the sticker reduces offense to students and parents whose beliefs may conflict with the teaching of evolution. For the foregoing reasons, the Court concludes that the Sticker satisfies the first prong of the Lemon analysis.

As the law journal note said, the judge ruled against the sticker in the analysis of the "effect prong" -- i.e., the second prong -- of the Lemon test, saying that an "informed, reasonable observer" would perceive the stickers as being an endorsement of religion because they have the support of Christian fundies and other creationists:

While the School Board may have considered the request of its constituent and adopted the Sticker for sincere, secular purposes, an informed, reasonable observer would understand the School Board to be endorsing the viewpoint of Christian fundamentalists and creationists that evolution is a problematic theory lacking an adequate foundation. Of course, the amicus brief filed by certain biologists and Georgia scientists indicates that there are some scientists who have questions regarding certain aspects of evolutionary theory, and the informed, reasonable observer would be aware of this also. On the whole, however, the Sticker would appear to advance the religious viewpoint of the Christian fundamentalists and creationists who were vocal during the textbook adoption process regarding then (sic) belief that evolution is a theory, not a fact, which student should critically consider.

The critical language in the Sticker that supports the conclusion that the sticker runs afoul of the Establishment Clause is the statement that "[e]volution is a theory, not a fact, concerning the origin of living things" This statement as (sic) not problematic because of its truth or falsity, although testimony from various witnesses at trial and the amicus brief submitted by the Colorado Citizens for Science, et al, suggest that the statement is not entirely accurate. Rather, the first problem with this language is that there has been a lengthy debate between advocates of evolution and proponents of religious theories of origin specifically concerning whether evolution should be taught as a fact or as a theory, and the School Board appears to have sided with the proponents of religious theories of origin in violation of the Establishment Clause. (citation omitted)

To repeat, the district court judge ruled against the sticker on the basis that some people perceived the sticker as an endorsement of religion mainly because the sticker had the support of Christian fundies and other creationists. IMO this finding of "guilt by association" is a grotesque misinterpretation of the establishment clause. Also, in the above quote, the judge appears to side with those who believe that evolution should be taught as a fact rather than a theory, so IMO the student note was correct in saying, "By finding that presenting evolution as theory rather than fact violated the Lemon Test's effects prong, the court fundamentally created a new precedent making it unconstitutional per se for a school to even suggest that evolution is theoretical" (the decision is now not officially a "precedent" in the legal sense because it was vacated and the case was then settled out of court).

It seems that more often than not, law journal articles and other expert opinions about those two recent cases on evolution education, Selman v. Cobb County and Kitzmiller v. Dover, have found a lot of fault with the decisions. Information and discussions about Selman and expert opinions about Kitzmiller may be found by clicking on the labels below.

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Hahvahd Law School snobbery

Ivy League law schools -- particularly the Harvard Law School -- are grossly overrepresented in the Supreme Court and in court opinions' citations of law journal articles.

Appendix A of a report from the staff of the Cardozo Law Review shows the dominance of the Harvard Law Review in frequency of citations in court opinions -- the main law reviews of two other Ivy League schools, Columbia and Yale, are also shown as dominant in comparison to the NYU and the California-Berkeley law reviews (the unidentified diamond symbols are for the Berkeley law reviews). The law reviews selected for this comparison were supposed to be among the law reviews with the highest frequencies of court citations. In the 1970-79 decade, for example, the numbers of court citations for each of the law reviews in Appendix A were as follows: Harvard Law Review, 4410; Yale Law Review, 1800; Columbia Law Review, 1062 (increased to 1497 in 1980-89); NYU Law Review, 506; and Cal.-Berkeley Law Review, 497. These are just the figures for the main law journals of these law schools -- each of these law schools also has specialized law journals, e.g., the Harvard Civil Rights-Civil Liberties Law Review (this blog reviewed an article in that journal). This list has thirteen different Harvard law journals, including the one and only Harvard Law Review. The court citation counts for the specialized journals are shown in Appendix B of the Cardova study.

Also, on the current Supreme Court, five of the justices are Harvard law school grads, two are Yale law school grads, and one attended Harvard law school and graduated from Columbia law school; only one is a graduate of a non-Ivy League law school, Northwestern. Most of their undergraduate degrees are from Ivy League schools and Stanford. The previous CJ, William Rehnquist, got his undergrad degree from Stanford, a masters degree from Harvard, and a law degree from Stanford. Recently retired Justice Sandra O'Connor got both her undergrad degree and her law degree from Stanford.

This kind of concentration of influence of particular schools is unheard of in other disciplines, e.g., science, medicine, engineering, and liberal arts. IMO this concentration of influence promotes elitism, good-ol'-boyism, sectionalism, and intellectual inbreeding. I am amazed that the charge of a lack of balance in law school representation has not been made whenever an Ivy League law school grad -- particularly a Harvard law school grad -- or a Stanford law school grad is nominated for the Supreme Court. Maybe what the Supreme Court needs is an affirmative action program for candidates who are not graduates of the Ivy League or Stanford law schools.

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Georgetown Law Journal "note" on Kitzmiller case

This 40-page Georgetown Law Journal (Vol. 95:855) "note," "Divided by Design: Kitzmiller v. Dover Area School District, Intelligent Design, and Civic Education", by Kevin Trowel, assumes (1) that intelligent design is just a religious concept and (2) that there are only two possibilities, evolution and ID (this concept of only two possibilities was given the name "contrived dualism" by the opinion in McLean v. Arkansas Board of Education ), and therfore all scientific (or pseudoscientific) criticisms of evolution theory are parts of ID (as I have frequently pointed out, there are also non-ID criticisms of evolution, e.g., criticisms concerning co-evolution and the propagation of beneficial mutations in sexual reproduction).

This "note" says (the first page number is that of the pdf file and the second page number is that of the journal),
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. . . . "the framers of the Constitution . . . cherished the Enlightenment ideal that science could illuminate everything from chemical reactions to political theory. But the framers were also descendants of people who had come to America in large part seeking religious freedom." This delicate balance between science and religion is part of what underlies the Establishment Clause. (page 14, page 868)

Here we go again with another example of stereotyping of the "true" religion of the founding fathers. The founding fathers have been called virtually everything from a bunch of godless bible-burning atheists to a bunch of bible-pounding holy rollers. Even if the founders were uniform in their religious beliefs and we could discern those beliefs today, we would still have no good reason for blindly following those beliefs. I am just sick and tired of hearing about the religious beliefs of the founding fathers.

The "note" says,

Intelligent design theory . . . . rejects the idea that science and religion can coexist.(page 16, page 870)

Wrong -- intelligent design says no such thing.

The "note" says,

Instead, intelligent design offers only a "negative argument against evolution." (page 16, page 870)

So what is wrong with that? When someone accused Thomas Edison of not making progress in his efforts to create a practical electric light, he answered, "I've made lots of progress -- I now know lots of things that don't work."

And why isn't evolution viewed as a "negative argument against intelligent design"? LOL

The "note" says,

The possibility that teaching creationist theories may limit students' educational opportunities reappeared recently when the University of California admissions department instituted a system-wide policy to reject all applicants taught from the Bob Jones University science text, which includes lessons in Biblical creationism. ( page 18, page 872 )

The Bob Jones University biology text also includes about 15 pages on evolution. Also, representatives of the University of California admitted that they had no evidence that freshmen who are graduates of fundy high schools are deficient in knowledge of science. See this and this.

The "note" says,

. . . standard "culture war" battle lines of ideology and religion alone are insufficient to explain the conflicts -- within the affected communities, both adherents and opponents of intelligent design tend to be conservative and religious. ( page 22, page 876 )

That is stereotyping.

The "note" says,

For the purposes of analyzing intelligent design controversies, this note will adopt the model of civic education described by Professor Sherry, who argues that students should learn "three major things: moral character, critical thinking, and cultural literacy." When intelligent design is examined against this standard, its failure to contribute to the creation of civic-minded citizens becomes clear. First, given the importance of science in American culture, students educated in antievolution classrooms will be deprived of true cultural literacy. They "will learn only a distorted version of the common culture." Second, critical thinking is necessary to provide children with the tools to "understand and to evaluate competing conceptions of the good life and the good society." Intelligent design, directly and as a proxy for Biblical literalism and the rejection of "secular standards of reasoning that make evolution clearly superior as a theory to creationism," is often explicit in its intent to undermine (emphasis in original) critical thinking . . . . . . Finally, "the most basic moral requirement of republican citizens, of course, is an inclination to participate in the republic, to engage in rational deliberation. " This Note has thus far attempted to demonstrate how intelligent design proponents may actively invite divisiveness and welcome their own social exclusion. Such exclusionary behavior undermines the republican idea. ( page 29, page 883 )

First, since questioning and disbelief of Darwinism are important parts of our common culture, the students who are not learning about the criticisms of Darwinism are the ones who are learning "only a distorted version of the common culture." Second, dogmatically teaching Darwinism to students by means of spoonfeeding and brainwashing them does not help them develop "critical thinking" skills. And finally, since public opinion polls show that the majority of the public questions or rejects Darwinism, it is the Darwinists who invite divisiveness and their own social exclusion by demanding that public schools dogmatically teach Darwinism while excluding criticisms of Darwinism.

The "note" says of the "endorsement test,"

As Judge Jones explained in Kitzmiller, the endorsement test as currently formulated "consists of the reviewing court determining what message a challenged governmental policy or enactment conveys to a reasonable, objective observer who knows the policy's language, origins, and legislative history, as well as the history of the community and the broader social and historical context in which the policy arose." Justice O'Connor's opinion in Lynch [i.e., Lynch v. Donnelly] makes clear that divisiveness could be considered evidence of an observer's perception of endorsement; as the endorsement test has developed, it has become clear, in turn, that an observer's perception of endorsement is sufficient to render a policy unconstitutional. Therefore, it appears that a sufficient showing of divisiveness may play a significant role in considering the constitutionality of a government action under the endorsement test. (pages 36-37, pages 890-891 )

If "an observer's perception of endorsement is sufficient to render a policy unconstitutional," then any policy can arbitrarily be "rendered" unconstitutional, including policies that are not religious at all. Judge Jones in fact banned all official criticism -- whether religious or not -- of Darwinism in public schools: " . . we will enter an order permanently enjoining Defendants . . . from requiring teachers to denigrate or disparage the scientific theory of evolution . . ." So Judge Jones also banned, for example, criticisms of co-evolution theory. However, intelligent design is not necessarily part of the criticisms of co-evolution theory. And without intelligent design, there is no supernatural designer. Without a supernatural designer, there is no god. Without a god, there is no religion. Without religion, there is no establishment clause violation.

Also, this "note" focuses on the "divisiveness" aspect of the endorsement test. However, teaching Darwinism in the public schools is itself divisive, so divisiveness cannot be avoided just by dogmatically teaching Darwinism in the public schools while suppressing all criticism of Darwinism there. I feel that attorney Edward Sisson correctly focused on the "political insider/outsider" aspect of the endorsement test instead of the "divisiveness" aspect. An open letter he wrote about the Selman v. Cobb County evolution disclaimer textbook sticker case says,

The fact that all available textbooks teach evolution, and that the Cobb County school board chose the most hard-line pro-evolution text, and chose to include that evolution material in the curriculum, clearly communicates to those who endorse evolution that they have become the dominant political insiders, and the Sticker merely shows that they do not have absolute monopoly control -- yet.

It is deeply disturbing that the trial court felt that failure to give the pro-evolution side absolute monopoly control was equal to sending a message to the pro-evolution side that they are "political outsiders." Nonsense. Denying someone monopoly control of an issue is not the same as declaring that person a political outsider on that issue. That the trial court could judge such a record to have such an effect bespeaks an extreme bias.

This post has a longer discussion of the "endorsement test."

The "note" says,

. . . proponents of creationism have in recent months attempted to answer courts' concerns about the lack of peer review of intelligent design. But peer review alone cannot and should not be sufficient to render legal a policy that is otherwise violative of the Establishment Clause. Although factors like the absence of peer review may be relevant to courts' Establishment Clause analysis, such factors have become false targets in a cat-and-mouse game between the courts and the theory's proponents. (pages 39-40, pages 893-894 )

"A cat-and-mouse game between the courts and the theory's proponents"? So now there is an adversarial relationship between the courts and proponents of ID? Should the Dover case have been titled "Jones v. Dover" instead of "Kitzmiller v. Dover"?

And I thought that "peer review" was the gold standard of the Darwinists. Saying now that peer review doesn't matter is not just moving the goalposts -- it is removing the goalposts altogether.

Regarding why this 40-page paper is called just a "note" rather than an "article" (the author himself calls it a "note" ) -- I have been informed that the only law journal papers that are called "articles" are those written by law school graduates -- the papers of others are just called "notes." The author of this paper was not yet a law school graduate when he wrote the paper (his bio at the bottom of the first page says that he expects to receive his J.D. degree this year). To me, this distinction between an "article" and a "note" is very elitist and snobbish. I cannot think of any other field where there is such a distinction based on the educational credentials of the author. Ironically, law is one field where someone with little or no formal professional education can write a good paper -- I cannot say that the same is generally true of my field, engineering.
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Harvard article about Dover decision

No, this article is not in the vaunted Harvard Law Review, but it is in a Harvard law review -- the Harvard Civil Rights-Civil Liberties Law Review. This article, which supports the notion that intelligent design is just repackaged or disguised creationism, is full of factual errors.

The article says (pages 4-5 of the pdf file, pages 584-585 of the law journal),

Although the opinion was excellently written and reasoned, its broad conclusions will not have a great impact on the public debate about teaching evolution and thus will fail to fulfill its hope of preventing judicial waste. Given the vast divide in American society over the role of religion in public life, the influence of high profile individuals who favor creationist teaching, and the limited precedential value of a district court's opinion, lawsuits will continue to serve as the primary check on new and improved methods of including creationism in the classroom. ID is representative of a huge cultural divide in America that a court, despite ambitious goals, cannot mend prophylactically. In fact, the opinion's decisiveness in finding that ID was not science, based on the overwhelming evidence of the Board's religious motivations, may encourage critics of evolution to repackage their next attack to avoid any mention of religion and thereby escape negative Establishment Clause analysis.

Well, there are some words of wisdom here, e.g., the Dover opinion "will not have a great impact on the public debate about teaching evolution and thus will fail to fulfill its hope of preventing judicial waste." However, unlike many other law journal articles about the Dover decision (other law journal articles about the Dover decision are discussed in the posts in this list), this article stopped short of saying that Judge Jones should not have ruled on the scientific merits of ID. In fact, the article says the opposite: "Finding that ID is theological rather than scientific in nature was necessary to the overall holding that the Board's policy violated the Establishment Clause." (page 4 of pdf file). The defendants' religious motivations were alone sufficient grounds for ruling against them under the Lemon test which Judge Jones used.

I of course disagree with the statement that "the opinion was excellently written and reasoned." And to the extent that the opinion's ID-as-science section was "excellently written and reasoned," the true authors of that section, the plaintiffs' attorneys, deserve whatever credit is due (not much) for that. Also, I disagree with the statement that the finding that ID was not science was "based on the overwhelming evidence of the Board's religious motivations" -- that finding was based on the testimony of expert scientific witnesses. As for encouraging "critics of evolution to repackage their next attack to avoid any mention of religion and thereby escape negative Establishment Clause analysis," I think that the only thing that is openly religious about ID is the name, which suggests the existence of a supernatural designer.

The article has several statements elsewhere that I disagree with, including statements that I think are factually inaccurate -- e.g.,

The Board members who voted for the ID statement and the defense expert witnesses were without exception religiously motivated.(page 6 of pdf file)

IMO defense scientific expert witness Michael Behe was not religiously motivated. And the article fails to mention that the plaintiffs' lead scientific expert witness, theistic evolutionist Kenneth Miller, was religiously motivated.

The article also said,

The Thomas More Law Center, which provided legal counsel for the defendants in Kitzmiller, framed the case as part of a culture war, in which it is necessary to defend the religious freedom of Christians.(page 6)

I disagree that the TMLC was trying to "defend the religious freedom of Christians" -- I think that the TMLC tried to present ID as a secular scientific concept.

Pope Benedict XVI, his predecessor Pope John Paul II, and the Dalai Lama find "offensive" what is termed "neo-Darwinism," the belief that the "engine of evolution is random mutation."(page 7)

The belief that the "engine of evolution is random mutation" is part of classical Darwinism as well as neo-Darwinism (neo-Darwinism has added other means of natural genetic variation: genetic drift and gene flow). And natural selection is also of course a basic part of both neo- and classical Darwinism.

The Vatican, however, has indicated that ID is unscientific and should not be taught as an alternative to evolution (pages 7-8)

Cardinal Christoph Schoenborn, who is close to Pope Benedict XVI , recently said that he wants to correct what he calls a widespread misconception that the Catholic Church has given a blanket endorsement to Darwin's theories.

The harsh reaction to Judge Jones is noteworthy because he is a lifelong Republican who was appointed to the federal bench by President George W. Bush in 2002, having garnered support from both Pennsylvania senators.(page 9)

There we go again with that shopworn argument that the Dover decision should not be criticized because Judge Jones is a "lifelong Republican," a "conservative," a "churchgoer," etc..

The Discovery Institute has circulated an anti-evolution petition since 2001; despite its claim that the signatures of scientists and engineers are proof that doubt about evolution exists within the scientific community, most signers are evangelical Christians motivated by religious beliefs. Kenneth Chang, "Few Biologists but Many Evangelicals Sign Anti-Evolution Petition," N.Y. TIMES, Feb. 21, 2006, at F2. (Footnote 53, page 7)

This footnote's misinterpretation of Chang's N.Y. Times article is evident just from the title of the article; the title only says that "many" evangelicals signed the petition -- the title does not say that "most signers are evangelical Christians motivated by religious beliefs." Also, Chang's conclusions are subject to the following sources of error: (1) the small sample size of his interviews and (2) the subjectivity of his interpretations of the responses to his interview questions. Chang's article is attacked here, here, and here, and is defended hereand here.

This is a fairly old law journal article that escaped my notice. After discovering data showing the huge numbers of citations of law journal articles in court opinions, I decided to do a diligent search for law journal articles about the Dover decision -- before now I only found them accidentally while surfing the Internet.

This list has thirteen different Harvard law journals, including the one and only Harvard Law Review.

I think that it is fair to ask whether an authoritative legal citation of a blog that has arbitrary commentary censorship is any worse than an authoritative legal citation of a law journal article (by "authoritative legal citation," I mean a citation in a court opinion or a law journal article). After all, the opportunities for publication of responses to law journal articles are very limited, and the courts have made thousands of citations of law journal articles over the years. However, the limitations on the responses to the law journal articles are unavoidable whereas bloggers who arbitrarily censor have shown a willful intent to suppress dissenting points of view. And many of the court citations of blogs have been citations of the comment sections rather than the opening posts.
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Law journal articles and the Dover decision

This post discusses the possible effects of law journal articles on future court interpretations and evaluations of the Kitzmiller v. Dover intelligent design decision. As I said, even if the Dover decision were a good one, which it is not, it would have little precedential value because it is just an unappealed federal district court decision of a single judge. I would bet my last dollar that the Dover decision is not binding precedent even in Judge Jones' own Middle District of Pennsylvania federal district court, and I am confident that I remember correctly that the 9th Circuit federal court of appeals once had a rule that no district court opinion could be cited in any court of the 9th Circuit. Furthermore, there are almost no other precedents dealing with the Dover decision's main subject areas, i.e., evolution disclaimer statements and the teaching of intelligent design (or other scientific or pseudoscientific criticisms of Darwinism) in the public schools. The only other precedent in one of these areas is Freiler v. Tangipahoa Parish, which was only a federal appeals court decision, not a Supreme Court decision, and which dealt with an evolution disclaimer statement but not the teaching of ID. The Selman v. Cobb County district court decision does not count because this case was finally settled out of court after beng vacated and remanded. Because of this lack of court precedents and because the citation of law journal articles by court opinions has been very common (see below), IMO law journal articles would likely play a strong role in possible future court interpretations and evaluations of the Dover opinion.

In recent years, court opinions' citations of law review articles have greatly declined in frequency but the frequency still appears to be quite significant. The Volokh Conspiracy blog reported,

In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937.

Patterns at other leading law reviews are similar. And the drop in the number of citations understates the phenomenon, as the courts’ caseload has exploded in the meantime. . . .

The statistics for five different law journals are shown in a graph in Appendix A of the report of the staff of the Cardozo Law Review. One of the symbols on the graph -- a black diamond -- is not identified, so this must be the symbol for the California Law Review (Berkeley). Anyway, these statistics give no idea of the likelihood of particular law review articles being cited in particular decisions.

I think that citation of law journal articles (and -- more recently -- blogs) is most useful in new areas of the law where there are no or few case precedents to rely on. I think that as the number of case precedents has grown, the number of areas of the law where there are no or few case precedents has declined (though new areas like the Internet keep cropping up), and so the need to cite law journal articles may be declining. In court opinions today it is common to see long strings of several case precedents following points of law. I think that judges are reluctant to cite law journal articles when they don't have to, because these articles are not legal precedents and because these articles usually contain just the unrebutted opinions of just one or a few people. I think that a declining need for citing law journal articles helps explain the decline in the frequency of court citations of law journal articles.

Anyway, as I said, IMO there is a particular need to cite law journal articles in analyzing the Dover decision because (1) the decision was never reviewed by a higher court and (2) there are almost no case precedents that directly apply to the Dover case. And as I noted before, of the law journal articles I have seen that analyze the Dover case, most are critical, particularly of Judge Jones' decision to rule on the scientific merits of intelligent design. Besides law journals, there are other important published sources of criticism of the Dover decision, e.g., (1) the Discovery Institute's report that reveals that the opinion's ID-as-science section was virtually entirely ghostwritten by the ACLU and (2) the DI's book "Traipsing Into Evolution." Jones' statement at Dickinson College that organized religions are not "true" religions doesn't help either. Overall, it does not look very good for the so-called "Dover trap". And the passage of a bill to ban or cap attorney fee awards in establishment clause cases will be the coup de grace to the "Dover trap." Like I said, the Dover decision is a dud. The Darwinists have been grossly overoptimistic about the precedential value of the Dover decision.

For other blog posts here concerning law journal articles and other expert opinions about the Dover case, click on the "Expert opinions about Kitzmiller" label on the bottom of this post.

BTW, some other explanations have been given for the decline in the frequency of law journal citations in court opinions, but IMO these explanations have little or no validity. One offered explanation is that law journals have become more interdisciplinary, but they are interdisciplinary because the law itself is interdisciplinary -- for example, to understand environmental law, it is often necessary to understand environmental science and technology. Another offered explanation is that law journal articles have become more theoretical rather than dealing with actual cases, but I can see no reason why actual relevant cases would not be discussed in a law journal article. Another reason given is that the Internet has made it easy for judges and their clerks to do their own research and so they are less dependent on law journal articles to do research for them, but a lot of the research is done by the litigants themselves, and before there was an Internet it was easy to do research in large law libraries by means of annotated law books that gave key case citations for different subjects.

In contrast to widespread court citations of law journal articles over many decades, direct court citations of blogs are still fairly rare, despite some claims to the contrary. However, citations of blogs by law journal articles have become common, and thus a blog has a fair chance of influencing a court decision indirectly through a decision's citation of a law journal article. For example, a law journal article by Jay Wexler cited the Panda's Thumb blog, and Wexler's article might be cited by a future court decision. This potential indirect influence of blogs on court decisions is another good reason why blogs whose bloggers practice arbitrary censorship should not be cited in any authoritative reference.
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Legal scholar says that there is no constitutional separation of bad science and state

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Click here.

I never even heard of the cited case, Smith v. Board of School Commissioners of Mobile County (1987). My legal research is handicapped by (1) my inability to get down to the Los Angeles County Law Library and (2) my lack of a subscription to a powerful online legal search engine such as Westlaw. In the law library, annotated volumes on the Constitution and statutes contain key quotes from many different court opinions on many different subjects. For example, in the section under "establishment clause," one could perhaps look under the hypothetical topic "public education in general" and get a bunch of key quotes, or maybe one could look under the hypothetical topic "evolution education in public schools" and get another bunch of key quotes. The only evolution education cases that I have heard of are those posted on the website of the Darwinist National Center for Science Education -- maybe one reason why the NCSE did not list this case is that this case does not specifically concern evolution education (another reason may be that the final decision in this case is not completely supportive of the NCSE's position). A major key point in a court case can be just a single sentence in thousands or millions of pages of related legal authorities. I found that out during my research on California's unconstitutional Smog Impact Fee -- I got some important quotes from obscure Congressional reports that the law library staff retrieved from back rooms.

It is noteworthy that the quote from the anti-fundy appeals court decision in Smith v. Board of School Commissioners of Mobile County is supportive of the pro-fundy position in Kitzmiller v. Dover. This application of broad legal principles to dissimilar cases is discussed by Casey Luskin in his "Response to Ed Brayton" on pages 5-6 of this paper.

Casey Luskin also discusses Loewy's paper here and my comments on that discussion are here.

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Law journal paper by Wexler cites censorial Panda's Thumb blog

A law journal published a paper by legal scholar Jay Wexler that cites Panda's Thumb, a blog that has a bad reputation for arbitrary censorship of comments and commenters. A Panda's Thumb article says:

In an article forthcoming in the Washington University Law Quarterly, Prof. Jay Wexler responds to the arguments of Prof. Francis Beckwith on the constitutional issues involved in the teaching of Intelligent Design. It’s a good article that will help the efforts of evolution’s defenders—and, as an added bonus, Wexler cites posts from the Thumb and allied blogs in his footnotes! (bold added, exclamation sign in original)

Panda's Thumb's arbitrary censorship is described here.

Needless to say, blogs that do not allow open debate should not be cited in any scholarly journal.

Popular blogs that get many thousands of visitors daily -- e.g., Panda's Thumb, Uncommon Descent, Pharyngula, and Dispatches From the Culture Wars -- are major public forums like newspapers and as such have a particular obligation to allow open debate, but none of the aforementioned blogs do.

Furthermore, blogs that practice arbitrary censorship should be ineligible to receive blogging awards. However, Pharyngula received a 2006 award for best science blog and Panda's Thumb received a 2005 Scientific American magazine blogging award and an award for being a finalist in a 2006 best science blog contest.

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