Yet another legal scholar pans Kitzmiller v. Dover

I wonder why people are still debating the Kitzmiller v. Dover opinion. The opinion is practically worthless, because: (1) -- it is just a judicially unreviewed decision of a single judge, who also happens to be a crackpot activist judge; (2) it is binding only on the Dover Area School District; and (3) Judge "Jackass" Jones probably showed a lack of restraint because he knew that an appeal was unlikely becaues of the changeover in the membership of the school board.

David Opderbeck, a law professor at Seton Hall University School of Law, says in an analysis of Kitzmiller,

Without some demarcation of what can be taught as "science" in the public schools, aren't we opening the floodgates to the teaching of all sorts of pseudo-science, such as astrology and young earth creationism? I think this is a valid concern. For this and other reasons, I personally don't agree with the "teach the controversy" approach promoted by many ID advocates. If I were to serve on my local school board, I would not vote in favor of introducing ID materials into the science curriculum, primarily because I don't believe the ID program has generated sufficient results to reach the public schools. Like the courts, the public schools lack the time and resources to address views that fall far outside the scientific mainstream . . . .

. . . .I don't believe Judge Jones should have ventured a broad definition of "science" in the Kitzmiller case, as though such an exercise necessarily ends the discussion of constitutionality. Under the applicable standards for establishment clause cases, the proper inquiry is into purposes and effects: was the government's purpose "secular" and was the primary effect of the government's decision to advance or inhibit religion or to produce an excessive entanglement of government and religion? Whether an idea is labeled "religion" or "science," in itself, is irrelevant to the constitutional question.

There can be good secular reasons for teaching "bad" science in science classes: broadening students' education, encouraging critical thinking, increasing student interest, preventing and correcting misconceptions, and helping to ensure that sophisticated scientific (or pseudoscientific) ideas are taught only by qualified science teachers (many Darwinists complain that scientific -- or peudoscientific -- criticisms of evolution are misleading students, yet some of these same Darwinists want these criticisms to be taught by unqualified people). A Darwinist blogger argued that ID should be taught for the purpose of refuting it. There is no constitutional principle of separation of bad science and state.

Opderbeck says,

. . . I don't believe Judge Jones played the role of "activist judge" in Kitzmiller, even though I am critical of the opinion.

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Judge Jones is not an "activist" judge? He is the poster child of activist judges. For example, he said that his Kitzmiller decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions [link]. Judge Jones has complained that the critics of his Kitzmiller opinion lack respect for "judicial independence," "precedent," and "the rule of law." [link].

Ironically, Prof. Opderbeck discusses Kitzmiller in terms of Daubert v. Merrill Dow Pharmaceuticals, even though Judge Jones assumed -- falsely, in my opinion -- that Daubert applies only to jury trials and therefore does not apply to Kitzmiller [link -- BTW, I held Judge Jones solely to blame for ignoring Daubert, but IMO the attorneys -- especially the defense attorneys -- were also to blame for ignoring Daubert].

Wesley "Ding" Elsberry made a feeble attempt to counter Prof. Operbeck's criticisms of Kitzmiller [link] [link] [link]. "Ding" said,

Let me explain what I am taking as connotations for “key” and “central” just so we can make sure that we are on the same page in the discussion. A “key” element of the decision would be one that if not addressed appropriately could result in overturning the decision at an appellate level. There are lots of components of the Kitzmiller decision that can be called “key” in that context. A “central” element, though, would be the one that was the primary finding in the decision. The primary finding, though, was that concerning the “endorsement test”, and it rested on four separate considerations of which the “is ID science?” consideration was just one.[link]

My sense of “key” is any argument that could have caused a higher court to overturn the decision, which means that a great many “key” arguments may exist in a decision. This is quite readily distinguishable from your sense of “central”, of which there can be only one such issue in the decision.[link]

"A 'central' element . . . would be the one that was the primary finding in the decision"? That's ridiculous -- there can be more than one "central" issue, and there can even be more than one "primary" issue. And the words "key" and "central" are close synonyms here -- Elsberry's attempt to distinguish them is silly.

"Ding" Elsberry also says,

In order to argue that the defense failed in its claim to having a secular purpose, Jones had to rely upon existing agreement upon what necessary attributes of science “intelligent design” did not encompass. This neither is an effort to define science himself nor to resolve the demarcation problem in the philosophy of science.[link]

WHAT "existing agreement upon what necessary attributes of science 'intelligent design' did not encompass"? And there is not even an "existing agreement" about what the "necessary attributes of science" are.

And David Opderbeck told Elsberry what I have been saying for a long time [link] -- that Judge Jones was not obligated to rule on the ID-as-science question just because both sides asked him to:

You seem to think that a Judge must passively hear and decide everything the parties throw at him or her, but that simply is not the case . . . . .even when a trial court allows evidence at trial on an issue, the court is not compelled to deal with it at length in a written opinion.
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Also, the Panda's Thumb blog has some comments about Opderbeck's and Elsberry's articles.
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Darwinists still gloating over the Dover decision

The Kitzmiller v. Dover decision was handed down over three years ago. Though it was just a decision of a single judge and is not binding precedent outside the Dover Area school district, the Darwinists continue to gloat over it as though it were something important -- the rest of the world has moved on. Never before in American history has so much weight been given to the opinion of a single judge. The latest manifestation of the Darwinists' gloating over the Kitzmiller decision is a Biochemical Journal article about the decision. I previously discussed this article here, and I will now expand upon that discussion.

The courts should declare scientific questions in the evolution controversy to be non-justiciable. It is like the question of how many angels can dance on the head of a pin. Questions are non-justiciable when there is “a lack of judicially discoverable and manageable standards for resolving the question.” Vieth v. Jubelirer, 541 U.S. 267 (2004). Even if a court could reach fair decisions on scientific questions about evolution after several weeks of scientific testimony, appellate courts would not want to rubber-stamp a district court's decisions about those questions, nor would appellate courts want to hear or review several weeks of scientific testimony. In Massachusetts v. EPA, the Supreme Court treated the global warming question as non-justiciable.

The authors of the article, Kevin Padian and Nicholas Matzke, and the sole credited reviewer of the article, Eric Rothschild, are extremely biased because of their direct involvement in the Kitzmiller case. Kevin Padian was an expert plaintiffs' witness in the trial, Nicholas Matzke advised the plaintiffs' team, and Eric Rothschild was one of the plaintiffs' lead attorneys. Though the article is about the law, authors Padian and Matzke probably have no expertise in the law even as amateurs. I will not hold it against them that they are not legal professionals unless someone holds it against me that I write about the law even though I am not a legal professional.
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The bibliography lists four books about the case, including "Monkey Girl" and "The Devil in Dover," but does not list the Discovery Institute's book about the case, "Traipsing into Evolution."

There have been several law journal articles about the case and the Biochemistry Journal article did not cite a single one of them. Several of these law journal articles have been reviewed on this blog under two post-label groups titled "Expert opinions about Kitzmiller" (the reason why there are two post-label groups on the same subject is that my Blogger.com template-mode software limits me to a maximum of 20 articles per post label). Some of these law journal articles are highly critical of the Dover decision.

The article makes no mention of the following criticisms of Judge Jones and the Dover decision:

(1) A Discovery Institute study showed that the Kitzmiller opinion's ID-as-science section was copied nearly verbatim from the plaintiffs' opening post-trial brief while ignoring the defendants' post-trial brief and the plaintiffs' and defendants' answering post-trial briefs. Darwinists falsely claim that it is a common practice for judges to just copy the winning side's arguments while completely ignoring the losing side's arguments, but even if that claim were true, Judge Jones probably would not have ignored the defendants arguments had he believed that an appeal of his decision was likely (an appeal was unlikely because of a changeover in the Dover school board's members).

(2) Judge Jones showed extreme prejudice against intelligent design and the Dover defendants -- regardless of whether or not ID is a religious concept -- by saying in a Dickinson College commencement speech that his Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. IMO that statement alone completely discredits the decision.

Tennessee's law banning evolution, and other such state laws and many local policies, remained on the books for decades. As a result, textbook publishers, who wanted to publish one book and sell it across the country, deleted or minimized the treatment of evolution . . . (page 3 of PDF file, page 31 of original document)

I don't see how publishing two different editions of a biology text for sale in different places is a hardship for publishers. For example, a popular biology text, "Biology" by Ken Miller and Joe Levine, comes in regular, California, and Texas editions.

This remained the status quo until the 1960's. when in the wake of Sputnik and the fear that the communists were ahead of the U.S. in science, the federal government poured money into science education and textbooks.(page 3 of PDF file, page 31 of original document)

As I recall, Sputnik (1957) did not cause any surge of interest in evolution theory. I cannot even recall studying evolution in high-school biology in the early 1960's. Evolution theory was of no use in the US space program.

However, the lawsuit was not going to immediately block implementation of the policy, so the teachers of their own accord refused to read the statement. (page 4 of PDF file, page 32 of original document)

It is not mentioned that the teachers reneged on an agreement to accept "Of Pandas and People" as a supplemental text instead of a companion text (on the other hand, IMO the school board should have given the teachers more say in the wording of the ID statement).

The Board decided that district administrators would come into the classrooms and read it, but, unusually for an educational experience, no questions or discussions would be allowed afterwards (page 4 of PDF file, page 32 of original document)

Well, the administrators were probably not experts on the subject, so what would have been the point of questions and discussions? Also, maybe not allowing questions and discussions was for the purpose of avoiding charges that ID was actually being taught.

The NCSE [National Center for Science Education] is the only organization in the country whose full-time mission is the protection of evolution and other scientific concepts from assault in the public schools by sectarian threats; it is also the premier organization in the country that clarifies "the nature of science," i.e., what science is and how it differs as an approach from other modes of human inquiry, to the general public, government agencies, the media and educational administrations. (page 4 of PDF file, page 32 of original document)

That statement is blatant self-advertising -- the two authors, Padian and Matzke, are on the staff of the NCSE.

Because ID proponents are notoriously evasive about some of their views, even many critics are under the impression that ID proponents accept common ancestry and the ancient age of the Earth. But almost all reject common ancestry in favor of the notion that only minor evolution can occur, and only within the specially created "kinds" commanded by God to reproduce "after their kind" in Genesis. (page 5 of PDF file, page 33 of original document)

That is a grossly unfair stereotype. BTW, prominent ID proponents Michael Behe and William Dembski have both accepted common ancestry.

. . . the DI claimed that they did not support putting ID into science curricula, and that they had never suggested such a thing. (page 10 of PDF file, page 38 of original document)

I am not aware that the DI ever claimed that they never supported putting ID into science curricula (i.e., actually teaching ID instead of just mentioning it). The article is full of such unsubstantiated statements.

Judge Jones literally had no choice but to rule on whether or not ID was science. The plaintiffs asked him to rule on exactly this, and so did the defence. (pages 10 of pdf file, page 38 of original document)

I have already discussed this here.

Michael Behe and other DI [Discovery Institute] associates (including Cardinal Christophe Schoenborn of Vienna, whose op-ed pieces and essays have been scripted by the DI), define evolution as "random mutation and natural selection", which is not a definition used by evolutionary biologists (page 11 of PDF file, page 39 of original document)

WHAT? How is Cardinal Schoenborn a "DI associate"? And how has his op-ed pieces and essays "been scripted by the DI"? This is really off the wall (more about "random mutation and natural selection" later).

Critical thinking is one of the greatest skills students can learn . . . .Creationists, however, would like students to hear and learn "criticisms" about evolution . . . But they have no interest in having students learn "critical thinking" about other topics, such as American history, theology or grammar. (page 11 of PDF file, page 39 of original document)

WHAT? There is no basis for such a statement -- and even if there were, how is that an argument against learning critical thinking skills in evolution education?

Whereas Americans, as a whole, are not as scientifically literate as the citizenries of most other developed countries (and many undeveloped ones), this is not a problem of mere ignorance but of worldview. (page 12 of PDF file, page 40 of original document)

There is no substantiation of the statement that "Americans, as a whole, are not as scientifically literate as the citizenries of most other developed countries (and many undeveloped ones)."

We highly recommend Randy Olson's film "Flock of Dodos" . . . . the 'dodos' of his title are not average Americans, nor even the creationist distorters of evolution, but the evolutionists themselves: the scientists who cannot explain the most basic concepts to the man or woman on the street, the experts who convey such elitism and condescension that previously open-minded audience members recoil from them and embrace the smooth-talking, smiling, and apparently equally open-minded creationists. Who would you rather have a beer with? (page 12 of PDF file, page 40 of original document)

Some good points there.

There is no standard definition of evolution, possibly because evolution is so complex, works at so many levels, and can be studied in so many ways. A definition of evolution as "random mutation and natural selection" is popular among ID advocates and other creationists, but as far as we know is not used by biologists, most of whom prefer Darwin's formulation "descent with modification." The ID definition refers to two processes of evolution and does not acknowledge that all life is interrelated. (pages 10 of pdf file, page 38 of original document)

What? The term "descent with modification" is too vague and general to be a definition of evolution. Also, the above statement is contradicted elsewhere in the article:

Dembski never takes seriously the crucial point that biological change is the result of chance and necessity -- that is, mutations create variety, and natural selection non-randomly preserves the variations that work. (page 6 of PDF file, page 34 of original document)

Darwin turned the design argument in biology on its head with his law of natural selection . . . (page 5 of PDF file, page 33 of original document)

Evolution News & Views has a post by Casey Luskin about the Biochemical Journal article. The post has an anonymous letter which says,

In their guideline to authors the journal editors state:

The Biochemical Journal publishes papers in English in all fields of biochemistry and cellular and molecular biology, provided that they make a sufficient contribution to knowledge in these fields.... All work presented should have as its aim the development of biochemical concepts rather than the mere recording of facts.

. . . . . The “review article” in question contains nothing of scientific merit. There are no interpretations of experimental results, no theories advanced, no biochemical concepts developed. There is no review of the current state of a particular scientific field, either. Instead, the review by Padian and Matzke is a one-sided retelling of a legal trial with some simplistic historical analysis and ersatz theology thrown in. The article conflates creationism and intelligent design, misrepresents the views of intelligent design scientists and the Discovery Institute, and engages in vicious character assassination. It is a blatant attempt to scare people away from intelligent design by proclaiming that “no one with scientific or philosophical integrity is going to take [ID] seriously in future.”

The simple reality is that this article is a polemical hit piece. It’s not a scholarly work of history or theology, let alone science. It is biased and prejudicial in its retelling of events, imputing motives to people without first-hand knowledge of events. It makes sweeping statements and broad generalizations with no independent verifiability. It puffs the credentials of one of its authors while snidely referring to the “allegedly peer-reviewed books” of a scientist it attacks and calling him “chicken”.

It is very hypocritical of the Darwinists to applaud this grossly inappropriate article in the Biochemical Journal while condemning Richard Sternberg's approval of Stephen Meyer's paper for publication in the Proceedings of the Biological Society of Washington.

Also, the Questionable Authority blog has a post about Padian's and Matzke's article and the post has a comment from me.
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Dover trial revealed "intellectually unhealthy situation," says paper

Here is another journal article to add to my already-long list of journal articles that are critical of the Kitzmiller v. Dover decision. The article, titled "Public Education and Intelligent Design," by Thomas Nagel, Philosophy and Public Affairs 36, no. 2 by Wiley Periodicals Inc. (2008), begins,

The 2005 decision by Judge John E. Jones in Kitzmiller v. Dover Area School District was celebrated by all red-blooded American liberals as a victory over the forces of darkness. The result was probably inevitable, in view of the reckless expression by some members of the Dover School Board of their desire to put religion into the classroom, and the clumsiness of their prescribed statement in trying to dissumulate that claim. But the conflicts aired in this trial -- over the status of evolutionary theory, the arguments for intelligent design, and the nature of science -- reveal an intellectually unhealthy situation. The political urge to defend science education against the threats of religious orthodoxy, understandable though it is, has resulted in a counterorthodoxy, supported by bad arguments, and a tendency to overstate the legitimate scientific claims of evolution theory. Skeptics about the theory are seen as so dangerous, and so disreputably motivated, that they must be denied any shred of legitimate interest.(pages 1-2 of pdf file)

I mostly agree. However, as for the "reckless expression by some members of the Dover School Board of their desire to put religion into the classroom, and the clumsiness of their prescribed statement in trying to dissumulate that claim," Albert Alschuler, a law professor emeritus at Northwestern University Law School, wrote,
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The court offers convincing evidence that some members the Dover school board would have been delighted to promote their old time religion in the classroom. These board members apparently accepted intelligent design as a compromise, the nearest they could come to their objective within the law . . . . The court seems to declare, "Because we find that you would like something you can't have, we hold that you can't have anything."

That's not to say that the Dover school board did not make some big mistakes. The book "Of Pandas and People" was a very poor choice -- it was badly out of date and the words "intelligent design" and "intelligent design proponent" were substituted for "creationism" and "creationist" throughout the book in the publication of a new edition (of course, the Dover school board was unaware of this substitution of terms). Also, the "prescribed statement" that was read to the Dover science classes could have been worded better, and it was a bad idea to use the term "intelligent design" because the term implies the existence of a supernatural designer.

Thomas Nagel continues,

ID (as I shall call it, in conformity to current usage) is best interpreted not as an argument for the existence of God, but as a claim about what is reasonable to believe about biological evolution if one independently holds a belief in God that is consistent both with the empirical facts about nature that have been established by observation, and with the acceptance of general standards of scientific evidence. For legal reasons it is not presented that way by its defenders, but I think that is a mistake.(page 2 of pdf file)

I completely disagree with that interpretation -- it says that in the evolution controversy, ID is the only scientifically "reasonable" belief for those who believe in god. Also, though it is OK to consider the religious implications of ID, it should also be OK to ignore the religious implications of ID. I am a little interested in the religious implications of evolution and ID, but I am more interested in whether evolution and ID make sense from purely scientific standpoints. On the other hand, it seems that the Darwinists are only interested in the religious implications of ID -- they just keep asking questions like "who is the intelligent designer," "what does the intelligent designer look like," "who designed the intelligent designer," etc..

The contention seems to be that, although science can demonstrate the falsehood of the design hypothesis, no evidence against that demonstration can be regarded as scientific support for the hypothesis. Only the falsehood, and not the truth, of ID can count as a scientific claim. Something about the nature of the conclusion, that it involves the purposes of a supernatural being, rules it out as science. (page 3 of pdf file)

I suspect that the assumption that science can never provide evidence for the occurrence of something that cannot be scientifically explained is the principal reason for the belief that ID cannot be science; but so far as I can see, that assumption is without merit. (page 4 of pdf file).

One of the disturbing things about the public debate is that scientists engaged in it sometimes write as if the idea of fundamental problems with the theory [i.e., evolution theory] (as opposed to problems of detail in its application) were unthinkable, and that to entertain such doubts is like wondering whether the earth is flat. This seems to me, as an outsider, a vast underestimation of how much we do not know, and how much about the evolutionary process remains speculative and sketchy. (pages 4-5 of pdf file)

. . . both the inclusion of some mention of ID in a biology class and its exclusion would seem to depend on religious assumptions. Either divine intervention is ruled out in advance or it is not. If it is, ID can be disregarded. If it is not, evidence for ID can be considered. Yet both are clearly assumptions of a religious nature. Public schools in the United States may not teach atheism or deism any more than they may teach Christianity, so how can it be all right to teach scientific theories whose empirical confirmation depends on the assumption of one range of these views while it is impermissible to discuss the implications of alternative views on the same question?(page 14 of pdf file)

IMO, ideally the scientific teaching of evolution and its weaknesses should be done without regard to their religious implications, but it is practically inevitable that religious questions will be raised in science classes. At least the textbooks can avoid religious issues.

Even if evolution theory were an adequate explanation for the diversity of life, Intelligent Design would still be a possibility. Saying that ID is impossible says that the existence of a designer is impossible. Saying that the existence of a designer is impossible says that god is impossible. Saying that god is impossible violates the separation of church and state. Kitzmiller v. Dover says that ID is impossible, hence that god is impossible. Kitzmiller v. Dover therefore violates the separation of church and state. QED.

In order to teach about the history of the universe, the solar system, and life on earth it is indispensable to presuppose the falsity of fundamentalist epistemology. But the development of the theory of evolution did not depend on the assumption that design was impossible. On the contrary, it developed as an alternative to design, offering a surprising but illuminating account of how the appearance of design might have arisen without a designer. The conceivability of the design alternative is part of the background for understanding evolutionary theory. To make the assumption of its falsehood a condition of scientific rationality seems almost incoherent.(pages 14-15 of pdf file)

Good point. Intelligent Design makes a positive contribution to science by identifying biological systems that have the appearance of being designed, forcing scientists to try to explain how these systems that appear to be the products of design are actually the products of random mutations and natural selection. Another example: a lot of people have scoffed at my ideas about co-evolution (I have mostly called these ideas a "non-ID" criticism of evolution, though some of these ideas include ID), but my studies of co-evolution have definitely improved my knowledge and understanding of interspecies relationships (I have several articles about co-evolution in the two "Non-ID criticisms of evolution" post-label groups listed in the sidebar of this blog). Suppressing scientific and -- yes -- even pseudoscientific criticisms of evolution is anti-science and anti-intellectual.

Judge Jones cited as a decisive reason for denying ID the status of science that Michael Behe, the chief scientific witness for the defense, acknowledged that the theory would be more plausible to someone who believed in God than to someone who did not. This is just common sense, however, and the opposite is just as true: evolutionary theory as a complete explanation for the development of life is more plausible to someone who does not believe in God than to someone who does.(page 15 of pdf file)

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