Drunken reunion of Dover winners

Fatheaded Ed Brayton wrote,

I have not had a chance to watch the PBS show on the Dover trial. I DVR'd it last night, but for some reason it was all distorted so I deleted it and set it to record it again when it re-airs. I've heard nothing but good things about it. Jim Babka was just telling me how great it was. I did get a phone call soon after it was over from a sadly sober Burt Humburg, who was at Lauri Lebo's house for a reunion of the whole Dover gang -- the plaintiffs, the lawyers, the expert witnesses, Genie Scott and the NCSE gang. Everyone but me, sadly, who was stuck here at home listening to their merriment over the telephone.

I can assure you that you were not missed, Ed.

If you have heard nothing but good things about the PBS show, then you have not been looking in all the right places.

Considering all the errors and shenanigans concerning the Dover case that have been exposed, I hardly see any cause for "merriment." And some people must have traveled a great distance to attend this little orgy -- for example, the NCSE headquarters are at the other end of the country.

The "whole Dover gang" is right -- like in "gangster."

And exactly who is Lauri Lebo, at whose house the reunion was held? She is a York Daily Record reporter who covered the Dover case! She is also the author of a book titled, "The Devil in Dover." The book's webpage says,
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In The Devil in Dover, Lebo traces the compelling backstory of this pivotal case described by some as a perfect storm of religious intolerance, First Amendment violations, and an assault on American science education. In a community divided across unexpected lines, the so-called activist judge, a George Bush–appointed Republican, eventually condemned the school board’s decision as one of “breathtaking inanity.”

"Described by some as a perfect storm of religious intolerance, First Amendment violations, and an assault on American science education"? That was the description from Kevin Padian.

Lauri Lebo was obviously so biased that she should have disqualified herself from reporting the case.
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Judgment Day is coming on Nov. 13

The Darwinist websites have a lot of ballyhoo about the upcoming PBS NOVA TV special about the Kitmiller v. Dover trial, Judgment Day: Intelligent Design on Trial. For the following and other reasons, I can't understand why the Darwinists don't want to just forget about the Dover trial:
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(1) Judge Jones copied the opinion's ID-as-science section virtually entirely from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs.

(2) Regardless of whether or not intelligent design is religion, Judge Jones showed extreme prejudice against the defendants by saying in a Dickinson College commencement speech that his decision was based on his notion that the Founders believed that organized religions are not "true" religions.

(3) Jones denied the intervention motion of the Foundation for Thought and Ethics, the publisher of the book "Of Pandas and People," then thoroughly trashed the book in his written opinion. FTE was prompt in moving to intervene as soon as subpoenas that it received made it clear that the plaintiffs would seek to make the book a major issue in the case.

(4) Several articles in scholarly law journals are critical of the Dover opinion, particularly Judge Jones' decision to rule on the scientific merits of intelligent design and irreducible complexity.

(5) The opinion has little or no precedential value because it is just the unreviewed opinion of a single federal district court judge.

These and other criticisms of Judge Jones and the Dover decision are discussed in posts here under post labels titled Judge Jones, Kitzmiller v. Dover, Expert opinions about Kitzmiller, and Monkey Girl. My very first post on this blog consists of criticisms of the Dover decision.

The case has gotten far more attention than it deserves.

The show's website also has the Dover science teachers' formal statement of refusal to read the board's ID statement to their classes. By so refusing, these teachers reneged on their prior agreement to use "Of Pandas and People" as a "reference text" (not a "companion text") in exchange for the board's acceptance of a heavily pro-Darwinist biology textbook. The website fails to mention that the teachers had made such an agreement.

I previously reported that the Discovery Institute's staff "stonewalled" requests to be interviewed for the program. The program's producer Paula Apsell said in answer to a question,

Q: Of the three expert witnesses who testified on behalf of Dover—Michael Behe, Scott Minich, and Steve Fuller—only Steve Fuller appears in the program. Why did you not interview the other two, who are among the country's leading proponents of ID?

Apsell: Michael Behe and Scott Minich, as well as other proponents of ID, were invited to participate in the program. . . . However, Michael Behe, Scott Minich, and other ID proponents affiliated with the Discovery Institute declined to be interviewed under the normal journalistic conditions that NOVA uses for all programs.

However, Phillip Johnson, co-founder and program advisor of the Discovery Institute's Center for Science and Culture, was interviewed for the program, and a transcript of the interview is here. The interview was fairly long, but Johnson's only statement that specifically criticized the Dover opinion is the following:

As for the judge and the opinion, the problem is that the judge didn't just decide the local case in front of him. He decided that he wanted to become a national figure by deciding the whole question of evolution and creation for the country in one opinion. So he wrote an opinion as big and broad as a starry sky, saying that the notion of intelligence, that one of these two hypotheses, was not eligible for consideration because it was religion and hence by definition not science. So any attempt in that direction was unconstitutional. He is being rewarded for that opinion with all the accolades that the mandarins of science have at their disposal.

The interview was fairly long, and so I have no idea whether the above statement is going to included in the show. The show is, after all, about the Dover trial and hence should include a lot of discussion about the legal issues in the case, but it is now evident that the show will not.

Go here to request email reminders of show times.
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Question of the Day

Question for Judge Jones and other Darwinists:

Which is worse, teaching kids allegedly pseudoscientific criticisms of Darwinism or teaching them that arbitrary censorship is OK?

IMO it is a good question, if I do say so myself.

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It is wrong to teach kids that censorship is OK

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THE DOVER LEGACY --
THE TEACHER'S TURN TO STAY AFTER SCHOOL

Cartoon is courtesy of Uncommon Descent. This is not a legacy that Judge Jones should be proud of, but he has been criss-crossing the country giving speeches that brag about it. He now claims that his speeches are not about the Dover decision itself but are in support of judicial independence and "the rule of law," but the fact is that he would have no audience were he not well known for having made that decision.

===================================================

It just struck me that one very important factor that has not been considered in monkey trials is the effect of teaching kids that it is OK to arbitrarily censor even the mere mention of ideas that we disagree with. The same impressionability that makes kids susceptible to believing pseudoscience -- or even believing religion -- also makes them susceptible to accepting the idea that such arbitrary censorship is OK, which IMO is by far the worst of these susceptibilities in potential for long-term deleterious consequences -- it would give people tendencies to be intolerant and accept a fascist government. I am really kicking myself for not seeing this angle before. We should oppose arbitrary censorship wherever it raises its ugly head. Also, I am wondering why we have been hearing little or nothing from the people who are most affected by the censorship of criticism of Darwinism in the public schools -- the students themselves.

A Georgetown Law Journal article by Kevin Trowel says,
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The challenge of education in a democracy is to balance individuality and autonomy with the needs of the state. The state requires that students become members of society, and it serves this goal by "encourag[ing] the political virtues so that [children] want to honor the fair terms of social cooperation in relation with the rest of society." To avoid homogenization, the "political virtues" must include "toleration and mutual respect, and a sense of fairness and civility" . . . .

. . . Civic education, therefore, must provide students with the tools to be active, critical, political, but tolerant citizens. This will sometimes put the goals of a system of civic education in conflict with the desires of individual groups or communities. (page 882 of journal, page 28 of pdf file)

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Red State Rabble babble about Discovery Institute

A post titled "Discovery's Disturbing Legacy" on the Red State Rabble blog is a long smear of the Discovery Institute and other critics of Darwinism. That post is so full of lies that I scarcely know where to begin in refuting them.

The post described the following public testimony at a Kansas hearing for the new state science standards:
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"Auschwitz did not come from the Nazi high command,” John James confided to the crowd, "it came from the teachings of the scientific and philosophical worlds, which produced nihilism, and I submit to you that much of that, if not vast proportions of it, came due to the teaching of evolution which, in turn, produces nihilism. So what are we doing? Are we producing little Kansas Nazis?"

IMO it is better to have that point of view than to believe -- as Anti-Defamation League national director Abraham Foxman believes --- that any discussion of a possible link between Darwin and Nazism should be considered taboo. Anyway, my Darwin-to-Hitler posts here show that the connection between Darwin and Hitler is undeniable.

Red State Rabble said,

Jones' ruling was a humiliating defeat for Discovery because it knocked the legs out from under that carefully crafted strategy.

"Humiliating defeat"? LOL. Jones' ruling is one of the most thoroughly discredited court decisions in American history -- even many articles in mainstream law journals have been attacking it.

RSR said,

The depth of Discovery's crisis was revealed by a series of embarrassingly lame attempts to label Jones, an observant Lutheran and conservative Republican appointed to the bench by George Bush

If judges typically bend over backwards -- as Judge Jones did -- in an effort to show that their backgrounds are no indication of bias, then IMO it would have been better if the Kitzmiller v. Dover case had been decided by a radical godless blasphemous Clinton-appointed Democratic fundy-hating atheistic Darwinist. As for Jones being an "observant Lutheran," he said in his Dickinson College commencement speech that organized religions are not "true" religions.

RSR said,

When the activist judge label failed to stick, Discovery attempted to smear his ruling as plagiarized.

I am not against Jones' "plagiarism" per se -- what I am against is the one-sidedness of his plagiarism. The ID-as-science section of the opinion was virtually entirely copied from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs. If the defendants' arguments were really bad, there was all the more reason for Jones to address them in order to refute them.

The Kitzmiller decision is a dud. For example, "Monkey Girl," a generally highly touted book about the case, has attracted only 19 customer reviews on Amazon.com in the three months since the book's release. A highly touted new book about a popular subject would have attracted hundreds of customer reviews in that time.

RSR said,

Thwarted by the court in their central strategic objectives, increasingly shunted off to the side by the news media, at odds with their creationist allies, and unable to produce any credible science of their own, the Discovery Institute has now adopted a cynical Plan B: If you can't build your own house, you may as well tear your neighbor's down.

"Shunted off to the side by the news media"? Intelligent design is now a bigger topic than ever -- and the publicity over the Kitzmiller trial is a major reason for that.

RSR said,

Discovery’s Plan B has popped up with increasing frequency over a number of months, but got its official launch with speeches in Washington and Philadelphia earlier this week by Discovery fellow John West that quickly cut the Nazi’s six million victims to “hundred of thousands.”

That's ridiculous. I have never seen either of the Discovery Institute's websites -- here and here -- engage in holocaust denial or revisionism.

RSR said,

This week’s events were preceded by the broadcast of “Darwin’s Deadly Legacy,” a production of Coral Ridge Ministries, on Christian television last August. The program, which explicitly links the crimes of Hitler to Charles Darwin featured Discovery fellows Richard Weikart, Jonathan Wells, Phillip Johnson, and Michael Behe.

That is better than just burying our heads in the sand in regard to the Darwin-to-Hitler question, like the ADL's Abraham Foxman wants us to do.

RSR said,

If what Weikart, West, Coulter, and Discovery say is true, one might think that Jewish organizations would welcome their support. However, just the opposite is true.

Some Jews and Jewish organizations did actually support Coral Ridge Ministries, which produced the "Darwin's Deadly Legacy" TV show. One leader of a Jewish organization actually apologized for Foxman's vitriolic attack on Coral Ridge Ministries.

RSR said,

Next week, Discovery is participating in the World Congress of Families in Warsaw. In doing so, they are joining with a motley crew of far-right anti-immigrant zealots who claim Muslims and other immigrants are contributing to the "demographic destruction" of Europe, extreme homophobes, misogynists, and anti-abortion fanatics who, holding life sacred, call openly for the murder of abortion providers.

Unless the above charge can be proven, it borders on libel.

A Panda's Thumb post supporting the RSR post is here.
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Judge Jones' jawboning about jawbones

Judge Jones ruled in Kitzmiller v. Dover that the evolutionary principle of "exaptation" was "well-recognized" and "well-documented." He stated that the evolution of jawbones into mammalian middle-ear bones was an example of exaptation, but it is now evident that the evidence for this evolution was insufficient.

The Kitzmiller opinion says (pages 74-75),

As expert testimony revealed, the qualification on what is meant by "irreducible complexity" renders it meaningless as a criticism of evolution. (3:40 (Miller)). In fact, the theory of evolution proffers exaptation as a well-recognized, well-documented explanation for how systems with multiple parts could have evolved through natural means. Exaptation means that some precursor of the subject system had a different, selectable function before experiencing the change or addition that resulted in the subject system with its present function (16:146-48 (Padian)). For instance, Dr. Padian identified the evolution of the mammalian middle ear bones from what had been jawbones as an example of this process. (17:6-17 (Padian)). By defining irreducible complexity in the way that he has, Professor Behe attempts to exclude the phenomenon of exaptation by definitional fiat, ignoring as he does so abundant evidence which refutes his argument. (emphasis added)

However, a news article reported that a "missing link" in the evolution of jawbones into middle-ear bones has now been discovered:

WASHINGTON (March 13) - Scientists have unearthed a fossil of a mammal the size of a chipmunk that skittered around with the dinosaurs, with a key feature in the evolution of mammals -- the middle ear bones -- fabulously preserved.

Writing in the journal Nature on Wednesday, the scientists said the unusual critter retrieved from a fossil-rich rock formation in northern China provides rare insight into a crucial element of mammalian evolution: ear structure that enabled highly sensitive hearing. . . .

The mammal, named Yanoconodon for the Yan Mountains in China's Hebei Province, lived 125 million years ago during the Cretaceous period, the third and final act of the Mesozoic era, sometimes called the Age of Dinosaurs. . . .

Luo said Yanoconodon is particularly important because it displays an intermediate stage in the evolution of mammalian ear structure. . . .

Scientists long have searched for clues on the origins of mammalian ear structure. . . .

A sophisticated middle ear of three tiny bones called the hammer (malleus), the anvil (incus) and the stirrup (stapes), plus a bony ring for the eardrum (tympanic membrane), give mammals an acute sense of hearing.

Scientists believe these bones evolved from the bones of the jaw hinge in the reptiles from which mammals are thought to have evolved. Luo said the Yanoconodon provided a definitive piece of evidence of this evolution.

The ear bones in Yanoconodon are fully like that of modern mammals, but remain connected to the lower jaw, which is not the case with modern mammals.

In the Kitzmiller trial, Darwinist expert witness Padian presented this evolution of jawbones into middle-ear bones as an example of "exaptation." This evolution was therefore presumably the best or one of the best examples of exaptation. So this fossil discovery shows that at least one important piece of evidence of this evolution of jawbones into middle-ear bones was missing at the time of the trial, and therefore exaptation was not as "well-recognized" and "well-documented" as Jones seemed to think it was.

The Darwinists are now going to crow that this fossil discovery supports Jones' ruling on exaptation. But this after-the-fact discovery is just serendipitous dumb luck for which Jones does not deserve any credit at all.

There are several reasons why judges should try to avoid ruling on scientific questions.

The whole stupid Kitzmiller opinion should be smote with the jawbone of an ass.

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My comment on Reasonable Kansans blog

I posted a long comment on the Reasonable Kansans blog and I think it is worth linking to here. The topics are the establishment clause, the Dover and Cobb County cases, and the "Monkey Girl" book.

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"Dover": the movie

Variety magazine has reported that there is serious consideration of making a movie about the Kitzmiller v. Dover trial:

Paramount Pictures has hired Ron Nyswaner to pen the screenplay for "Dover," based on the landmark 2005 trial that stopped a Pennsylvania school board from teaching "intelligent design" . . . .

Nyswaner, who penned upcoming Naomi Watts starrer "The Painted Veil," said he will rely on trial transcripts, interviews and news coverage in writing the script for "Dover."

Nyswaner's statement that he will rely on trial transcripts, interviews and news coverage could be an indication that he is planning to write a screenplay of verifiable historical accuracy. I think that would be a mistake -- I think that most people would not be interested in just seeing a politically correct rehash of what they saw in the news. The movie "Inherit the Wind" was highly fictionalized, so why shouldn't this new movie also be?

Below are some ideas for this screenplay. All of these ideas except the last one have some connection with verifiable historical fact:

1. Judge Jones actually said that he was considering re-watching the movie "Inherit the Wind" for "historical context" that might help him in his decision. So show Jones watching the movie and making a monkey of himself by guffawing at the caricatured fundies in the movie.

2. Jones is booed and hissed at his "Founders' true religion" speech at Dickinson College. Someone points out to Jones that the college seal that he is standing behind, which was designed by the two Founders who started the college, has a picture of an open bible.

3. There were actual charges that the newly elected board members were in cahoots with the ACLU. This could be played up in the movie.

4. In a collusion scheme with the plaintiffs, Judge Jones is promised a kickback of part of the attorney fee award. The following actions are part of this scheme:

a. Jones accepts an excessive number of plaintiffs' attorneys of record -- 9-10, with at least 5 in the courtroom on every day of a six-week trial.

b.. Jones accepts a huge number of plaintiffs' expert witnesses in order to help create a long trial.

c. The plaintiffs' attorneys wait several months before subpoenaing the Foundation for Ethics, the publisher of the book Of Pandas and People, in the hope of delaying FTE's filing of a motion to intervene. When FTE finally files the motion after receiving the subpoena, Jones rules that the motion was "untimely" (Jones also gave other phony reasons for denying the motion).

d. By saying that the school board election results would have no effect on his decision, Jones gives the newly elected board members another excuse to not repeal the ID policy prior to the release of the decision. Jones privately concedes that he would be obliged to dismiss the case if the new board repealed the ID policy prior to release of the decision.

5. The plaintiffs and Judge Jones bribe someone in exchange for a copy of a confidential memo that the school board's original attorney sent to the board. When this memo is introduced in court, a defense attorney leaps to his feet and indignantly shouts "obbbb-JEC-shun!" -- just like in the Perry Mason shows.

6. The plaintiffs and their attorneys renege on their promise to pay a kickback to Jones. Jones can do nothing without risking exposing his own guilt.

Any other ideas for the screenplay -- as well as ideas for the name of the movie -- would be welcome.

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American Library Assoc. advice on "Pandas" book is unauthorized practice of law

Below is a copy of an email that I sent to a list of around 40 addresses -- shown at the bottom -- consisting of the plaintiffs' attorneys of Kitzmiller v. Dover (Pepper-Hamilton, the ACLU, and Americans United for Separation of Church and State), the Dover Area School Board, and the staffs of the American Library Association, the Discovery Institute, and the Dover Area School District administration. This email address list is much longer than the one I gave in Email campaign to have "Of Pandas and People" officially designated as a "banned book"; this new list includes addresses from the old list. I urge supporters to use this longer list to take full advantage of the Internet for widely disseminating their views on this matter.

Reply to email from Deborah Caldwell-Stone, Deputy Director,
Office for Intellectual Freedom of the American Library Association.

In a message dated 10/3/2006 2:47:14 P.M. Pacific Standard Time, dstone@ala.org writes:

>>>>>> The Office for Intellectual Freedom, which implements ALA's policies concerning intellectual freedom, does not believe the court's judgment in the Kitzmiller v. Dover Area School District lawsuit constitutes a ban of the book, Of Pandas and People.

We rely upon the court's published opinion for our conclusion. The opinion plainly states the court's order:

To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment to the United States Constitution, and Art. I, § 3 of the Pennsylvania Constitution, we will enter an order permanently enjoining Defendants from maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID.

In reading the court's order, we cannot identify an order or directive to remove the book Of Pandas and People from the Dover school library, or any specific order which prohibits Dover teachers from using "Of Pandas and People" in the classroom, should they choose to do so for educational purposes that do not violate the Constitution's Establishment Clause. The court's decision to bar the school board from requiring science teachers to refer to Intelligent Design, a religious theory of creation, in classrooms dedicated to the teaching of science, is not an order to remove or ban the book "Of Pandas and People" from Dover's school libraries or classrooms.

<<<<<<

To all:

In the above statement, the American Library Association is officially telling the Dover science teachers that in certain circumstances they are free to use the "Pandas" book for educational purposes in the classroom. The writer of the above statement indicates that she is speaking for the ALA and not just for herself. IMO giving this legal advice to the Dover teachers is an unauthorized practice of law by a government-chartered organization.

One of the demands in the official complaint of the Kitzmiller plaintiffs was for "an injunction .... requiring the removal of Of Pandas and People from the School District’s science classrooms." The Kitzmiller opinion's failure to specifically address this demand does not mean that the book was not in fact banned from science classrooms. In fact, the only reasonable interpretation of the Kitzmiller opinion is that the book was in fact completely banned as educational material in science classrooms, because the opinion ruled that the book is an unscientific book of a religious nature.

Finally, whether or not the book can legally be used by Dover science teachers on their own is irrelevant to the question of whether the book is a "banned book" according to the ALA's definition. The ALA's definition of "banned book" includes books that are banned from school curricula, and the Kitzmiller decision banned even the mere mention of the book from the curriculum of the Dover Area School District. The "ID Policy" that the court completely banned was a school district requirement for reading a statement to the students that included a suggestion that they read the book: "The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves."

Larry Fafarman
Los Angeles

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Emailing list:

dstone@ala.org,
dwood@ala.org,
library@ala.org,
membership@ala.org,
bbw@ala.org,
cluskin@discovery.org,
rob@discovery.org,
alawash@alawash.org,
oitp@alawash.org,
bbecker@ala.org,
lbradley@alawash.org,
ebyrne@ala.org,
bcampbell@ala.org,
lclark@ala.org,
geberhar@ala.org,
kfiels@ala.org,
pgoodes@ala.org,
bmurphy@alawash.org,
aparker@ala.org,
nperez@ala.org,
esheketoff@alawash.org,
rothschilde@pepperlaw.com,
schmidtt@pepperlaw.com,
harveys@pepperlaw.com,
matherm@pepperlaw.com,
vwalczak@aclupgh.org,
pknudsen@aclupa.org,
katskee@au.org,
luchenitser@au.org,
pdapp@dover.k12.pa.us,
temig@dover.k12.pa.us,
hgeese@dover.k12.pa.us,
lgurre@dover.k12.pa.us,
pherma@dover.k12.pa.us,
rmcilv@dover.k12.pa.us,
jmcilv@dover.k12.pa.us,
brehm@dover.k12.pa.us,
breink@dover.k12.pa.us,
rnilse@dover.k12.pa.us,
aaumen@dover.k12.pa.us,
bholtz@dover.k12.pa.us

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Reply to answer to email requesting "banned book" status for "Pandas"

Re: Email campaign to have "Of Pandas and People" officially designated as a "banned book"

I strongly suspect that others who sent emails supporting the above campaign got the same answer that I did from the Office for Intellectual Freedom of the American Library Association.

In a message dated 10/3/2006 2:47:14 P.M. Pacific Standard Time, dstone@ala.org writes:

Dear Mr. Fafarman,
Thank you for your letter. We appreciate hearing from people who are interested in the issue of censorship, book challenges, and the freedom to read.

It is not our policy to issue press releases every time we are made aware of a challenge to a book in a library or school. If we were to do so, we would sadly have very little time for any other endeavors.

To: Deborah Caldwell-Stone, Deputy Director, Office for Intellectual Freedom,
American Library Association

Normally I would agree with you, but here I am not just asking for a press release stating that a book has been challenged or banned -- I am asking for a press release (or at least a prominent announcement posted on the ALA website) of a correction of your erroneous publicly-released claims that Of Pandas and People has not been banned. In addition to your response to me shown here, Mike Dunford, in reporting a conversation with you, said on his blog that you answered "we wouldn't consider it that way" when he asked you if you felt that the Kitzmiller ruling would qualify Of Pandas and People as a "banned" book.

Moreover, there is an additional obstacle preventing us from complying with your request that the ALA designate Of Pandas and People as 'officially banned.' The Office for Intellectual Freedom, which implements ALA's policies concerning intellectual freedom, does not believe the court's judgment in the Kitzmiller v. Dover Area School District lawsuit constitutes a ban of the book, Of Pandas and People.

We rely upon the court's published opinion for our conclusion. The opinion plainly states the court's order:

To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment to the United States Constitution, and Art. I, § 3 of the Pennsylvania Constitution, we will enter an order permanently enjoining Defendants from maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID. (emphasis added)

The website of the American Library Association makes it very clear that the ALA defines the term "ban" as including the removal of books from curricula as well as libraries.

The "ID Policy," which was banned by the above statement, is described as follows on page 2 of the Kitzmiller opinion:

"On December 14, 2004, Plaintiffs filed the instant suit challenging the constitutional validity of the October 18, 2004 resolution and November 19, 2004 press release (collectively, "the ID Policy")."

The "November 19, 2004 press release" was an announcement by the school district that teachers would be required to read to 9th grade biology classes a statement (pages 1-2 of opinion) that included the following sentence:

"The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves."

So Pandas was mentioned in a statement that was an official part of the school district's curriculum. Banning the ID policy banned the statement from the curriculum, and banning the statement not only banned the book itself from the curriculum, but banned the mere mention of the book from the curriculum. Also, the Kitzmiller opinion referred to the ID policy as a "curriculum change" 48 times! "Curriculum Committee" appears 24 times in the opinion and "curriculum controversy" appears 9 times. The name of the book appears 75 times in the opinion, with about half the appearances concerning the book itself and about half concerning the school board's actions in selecting the book.

As if that were not enough, there is also the fact that the plaintiffs' official complaint demanded removal of the book from science classrooms:

b. an injunction pursuant to Fed. R. Civ. P. 65 prohibiting the defendants from implementing their intelligent design policy in any school within the Dover Area School District, and requiring the removal of Of Pandas and People from the School District’s science classrooms; (bold added) -- page 23

If nothing else, that counts as at least a challenge.

Furthermore, the judge stated that he was quite aware that the plaintiffs were seeking removal of the book from science classrooms (as he should have been aware -- removal of the book was one of the
reliefs demanded by the plaintiffs):

"It is therefore clear to the Court that Plaintiffs only seek to remove the book Of Pandas and People from the Dover Area School District's science classrooms, and not from its school libraries." -- page 10

However, the judge nowhere stated in his published final opinion that he was denying the plaintiffs' demand for removal of the book from science classrooms, so by implication the demand was granted. This conclusion that the demand was granted is consistent with the opinion.

In reading the court's order, we cannot identify an order or directive to remove the book Of Pandas and People from the Dover school library, or any specific order which prohibits Dover teachers from using "Of Pandas and People" in the classroom, should they choose to do so for educational purposes that do not violate the Constitution's Establishment Clause. The court's decision to bar the school board from requiring science teachers to refer to Intelligent Design, a religious theory of creation, in classrooms dedicated to the teaching of science, is not an order to remove or ban the book "Of Pandas and People" from Dover's school libraries or classrooms.

The issue here is whether the book was banned from the curriculum, so it does not matter what the teachers could do on their own outside the curriculum. And according to the Kitzmiller decision, there is no way that science teachers could use the book in science classrooms without violating the Establishment Clause, because the judge ruled the book to be an unscientific book of a religious nature.

The only reasonable conclusion is that the book was banned from science classrooms, even if such a ban was not explicitly stated in the final opinion.

Sincerely,


Larry Fafarman

We will continue to inform the public that Of Pandas and People was challenged for inaccuracy in 1993, but retained following a reconsideration process.

Sincerely yours,


Deborah Caldwell-Stone
Deputy Director
Office for Intellectual Freedom
American Library Association
50 East Huron Chicago, IL 60611

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The ALA's petty rule that a book is not considered to be banned by a court unless the court opinion expressly bans the book reminds me of an anecdote about a football player who was always big for his age when he was growing up. When his dad tried to enroll him in Pop Warner football when he was 11, the coach said, "we've got a rule -- a kid's got to be 13." The dad asked the coach, "have you seen him?" The coach took one look at the kid and said, "we just changed the rule."

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Banning banned ID book from lists of banned books

Not happy that the Foundation for Thought and Ethics, the publisher of the banned ID book Of People and Pandas, got shafted in the Kitzmiller v. Dover case, the Darwinists are now trying to have this banned book banned from lists of banned books.

Some background information is provided in my previous post on this subject: "Unnoticed victory in Dover case: ID book not banned from school library".

There is now an editing war going on over the issue of whether to include the book in Wikipedia's "List of banned books". The book has been removed at least twice from the list.

What I say here should end the argument as to whether the book belongs in Wikipedia's list.

The American Library Association's Banned Books Week list includes "challenged" books as well as books that were actually banned. Challenges and bans against books in curricula as well as books in libraries are included. The books that appear in the ALA's 100 Most Frequently Challenged Books of 1990–2000 list are specially denoted in Wikipedia's"List of banned books."

The ALA says,

BACKGROUND INFORMATION -- 1990-2000

Between 1990 and 2000, of the 6,364 challenges reported to or recorded by the Office for Intellectual Freedom --

- - - - - - - -

419 [were challenges to] material “promoting a religious viewpoint.” (up 22 since 1999)

- - - - - - - -

Seventy-one percent of the challenges were to material in schools or school libraries.(2) Another twenty-four percent were to material in public libraries (down two percent since 1999). Sixty percent of the challenges were brought by parents, fifteen percent by patrons, and nine percent by administrators, both down one percent since 1999).

2. Sometimes works are challenged in a school and school library.

Since 419 is supposed to be the number of challenges of a specific type in the period 1990 to 2000, I don't know what is meant by "up 22 since 1999."

Anyway, it is probable that at least some of those 419 challenges were establishment clause challenges.

So, was Pandas "challenged"? Here is what the official complaint in the Dover lawsuit said --

b. an injunction pursuant to Fed. R. Civ. P. 65 prohibiting the defendants from implementing their intelligent design policy in any school within the Dover Area School District, and requiring the removal of Of Pandas and People from the School District’s science classrooms;(emphasis added)

So there it is from the horse's mouth.

As for the nitpicking argument that the ID policy was never really part of the curriculum because the court outlawed it before it could be implemented, the Kitzmiller v. Dover opinion notes that the ID statement was read to Dover science classes on two occasions. This argument is not worthy of consideration, but I have an answer for it.

As for the nitpicking argument that the book should not be in the list because mentioning the book is not taboo in the Dover science classrooms, that is not worthy of consideration either.

The Pandas book has met all of the ALA's requirements for classification as a banned book, and then some. The book was banned from being an official part of the curriculum (it was not required reading but was recommended or suggested reading).

The book was BANNED. B-A-N-N-E-D. Try as hard as they might, the Darwinists cannot weasel out of this one.

This issue is also discussed here, here, and here.

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If Peter Piper banned a bunch of batches of banned books, how many bunches of batches of banned books did Peter Piper ban?

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Anti-ID legal scholar says Jones should not have ruled on whether ID is science

The Discovery Institute discusses an anti-ID legal scholar's upcoming lecture titled "Judging Intelligent Design: Should the Courts Decide What Counts as Science or Religion?" The abstract for this lecture says of the Kitzmiller v. Dover decision,

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.

As for the last statement above, "The judge's determination that ID endorses religion should have been sufficient to rule the policy unconstitutional," I partly disagree that ID endorses religion. ID makes no reference to any religious sources. I feel that the only apparent endorsement of religion is the term "intelligent design," which implies the existence of a supernatural designer. I think that the choice of the name "intelligent design" was unfortunate -- they should have stuck with names without religious connotations, e.g., irreducible complexity.

Anyway, after Judge Jones decided that ID appears to be an endorsement of religion, presumably one of the purposes of next judging the scientific merits of ID and irreducible complexity was to determine whether these ideas have any scientific merits that could be considered to be a "legitimate secular purpose" that would justify an exception to the general rule that the government may not give the appearance of endorsing religion. But what kind of "legitimate secular purpose"? Must it be an intended purpose of the school board? The Dover school board could not have had an intended secular purpose, because the testimony of some of the board members -- particularly that of William Buckingham, one of the two leading advocates of the ID policy on the board -- showed that they had no idea what intelligent design is. Could it be a perceived secular purpose, that is, a secular purpose that is perceived by the students and the general public? Judge Jones had already decided -- before addressing the question of whether ID is science -- that the students and the general public perceived the school board's ID policy as being a "strong endorsement of religion": the Kitzmiller opinion said, "We have now found that both an objective student and an objective adult member of the Dover community would perceive Defendants' conduct to be a strong endorsement of religion pursuant to the endorsement test. Having so concluded, we find it incumbent upon the Court to further address an additional issue raised by Plaintiffs, which is whether ID is science." Or could the "legitimate secular purpose" be any conceivable secular purpose -- in this case, a finding that ID and/or irreducible complexity have some scientific merits? In the Kitzmiller trial, judging those scientific merits was the purpose of hearing the scientific testimony from experts who had not participated in the enactment of the Dover ID policy, but the Supreme Court indicated in Edwards v. Aguillard that such after-the-fact testimony could be considered to be just a pointless "Monday-morning battle of the experts" because it could not illuminate the school board's intended purposes. Should the intended or perceived purpose be considered at all, since different people have different purposes and what really counts anyway is the "effect"? How can a court decision be universally applicable if it is wholly or partly based on people's purposes or motives? The determination of purpose is part of the judicial "Lemon test", which has fallen into disfavor.

Anyway, I feel that (1) the courts have no general constitutional or legal authority to make decisions on scientific questions and (2) the courts are ill-suited for deciding scientific questions, and I therefore feel that such decisions should be avoided unless absolutely necessary for deciding a case, such as a product-liability case. I feel that judging the scientific merits of ID and irreducible complexity was not necessary in Kitzmiller. Judge Jones ignored an amicus brief submitted by 85 scientists urging him to refrain from ruling on the scientific merits of ID.

I think that attorney Edward Sisson has the right idea that the way to deal with these evolution-disclaimer cases is the "political insider-outsider" principle of the judicial "endorsement test". Under this principle, the government should be allowed to make statements of a possibly religious nature if doing so is necessary to prevent particular religious groups from feeling like political "outsiders." Right now, the atheists and those who believe that Darwinism is compatible with religion are definitely the ones who feel like the political "insiders." Not only is Darwinism the only explanation of life origins that is actually being taught, but any mention of criticism of Darwinism -- whether the criticism is religious or not -- has been banned by some court decisions. Since teaching evolution promotes atheism and/or the belief that evolution is compatible with religion, those who believe that evolution is incompatible with religion are entitled to an evolution disclaimer statement as a concession to their religious beliefs. Indeed, in the Selman v. Cobb County textbook sticker case, the judge ruled,

. . . . 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 (sic) 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.(emphasis added)

However, the judge ruled against the textbook stickers for other reasons.

Under this "political insider-outsider" principle, an evolution disclaimer could be upheld as constitutional without a ruling that any criticism of evolution has any scientific merit.

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"Philadelphia lawyers" of Dover ID case

Some trolls here say that they hang around this blog just for the entertainment, so I decided to give them some.

Fittingly, the private law firm that helped represent the plaintiffs in the Kitzmiller v. Dover case, Pepper-Hamilton LLP, is headquartered in Philadelphia. "Philadelphia lawyer" is a pejorative term meaning "shyster" or "pettifogger." A Woody Guthrie song titled "Philadelphia Lawyer" has the following lyrics:

Lyrics as recorded by ROSE MADDOX & THE MADDOX BROTHERS, 1940s;
transcribed by Manfred Helfert.
© 1949 Michael H. Goldsen, Inc.

Way out in Reno, Nevada,
Where romance blooms and fades,
A great Philadelphia lawyer
Was in love with a Hollywood maid.
"Come, love, and we will wander
Down where the lights are bright.
I'll win you a divorce from your husband,
And we can get married tonight."

Wild Bill was a gun-totin' cowboy,
Ten notches were carved in his gun.
And all the boys around Reno
Left Wild Bill's maiden alone.
One night when he was returning
From ridin' the range in the cold,
He dreamed of his Hollywood sweetheart,
Her love was as lasting as gold.

As he drew near her window,
A shadow he saw on the shade;
'Twas the great Philadelphia lawyer
Makin' love to Bill's Hollywood maid.
The night was as still as the desert,
The moon hangin' high overhead.
Bill listened awhile to the lawyer,
He could hear ev'ry word that he said:

"Your hands are so pretty and lovely,
Your form's so rare and divine.
Come go with me to the city
And leave this wild cowboy behind."
Now back in old Pennsylvania,
Among those beautiful pines,
There's one less Philadelphia lawyer
In old Philadelphia tonight.

LOL

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Using FRCP Rule 12 to moot Dover lawsuit

Discussions on the following webpages have already shown conclusively that the Dover school board's failure to repeal the ID policy in December is inexcusable --

(1) "Two-timing new members of Dover school board" on this blog

(2) The thread under the post Dover C.A.R.E.S. -- a wolf in sheep's clothing" on this blog

(3) "Did Dover Care About Taxpayer Money? A Response to Critics" on Evolution News & Views

(4) "Ed Brayton wrong again on Dover mootness issue" on this blog

(5) "Good Ol' Ed Brayton, Part 2" on this blog

Defenders of the Dover school board have been reduced to arguing that the claim for nominal damages -- $1 per plaintiff -- would have prevented Judge Jones from declaring the lawsuit to be moot! What a joke!

To gild the lily, I am now going to show how the school board could have applied Federal Rules of Civil Procedure (FRCP) Rule 12 in an action seeking dismissal of the Dover lawsuit on grounds of mootness.

FRCP Rule 12(b) says --

.....the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2)...., (3)...., (4)....., (5)...., (6) failure to state a claim upon which relief can be granted, (7) ......

......If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, ....

In the context of the Dover lawsuit, the "pleading" in the above rule was the original complaint of the plaintiffs. The new Dover school board could have repealed the ID policy prior to judgment and presented this repeal as a matter "outside" the complaint ("pleading") and then asked for a summary judgment dismissing the complaint on the grounds that as a result of the repeal the complaint failed to "state a claim upon which relief can be granted." One of the problems here is that under the above FRCP Rule 12(b) the court may exclude "matters outside the pleading," but it could be argued that the question of whether repeal of the ID policy moots the lawsuit is a matter that should be decided in the summary-judgment phase rather than by arbitrary exclusion of the repeal from consideration. There is one other problem, and that is that motions for defenses under FRCP Rule 12 are normally restricted to the first few weeks of a case, but FRCP Rule 12(h)(2) says that the preceding motion asserting defense (6) may be made "at the trial on the merits": "A defense of failure to state a claim upon which relief can be granted......may be made......at the trial on the merits", and under the legal definition of "trial," the trial period extends until the final judgment or verdict. Also, Rule 56, concerning summary judgments, allows defendants to immediately move for summary judgment with or without supporting affidavits.

There is nothing in the FRCP that says that a complaint that initially "state[s] a claim on which relief can be granted" cannot later, as the result of some event or discovery in the course of the trial, fail to state such a claim. In fact, it is obvious that FRCP Rule 12(h)(2) above, which extends until final judgment the time available for raising the defense that the complaint fails to state such a claim, was written for the express purpose of dealing with an event or discovery that could justify dismissal of a case at any time during a trial. In fact, it is surprising that FRCP Rule 12(h)(2) is not invoked more often both by defendants and sua sponte by judges.

The nice things about Rules 12(b) and 12(h)(2) are that they provide a formal means of mooting the case and a step-by-step procedure that Judge Jones would have been required to follow in dealing with the board's motion to dismiss the suit. Judge Jones could not have just dismissed the board's motion out of hand on the grounds that such a motion was irregular. He would have had to justify, for example, a decision to "exclude" repeal of the ID policy from consideration as a possible basis for dismissing the suit by summary judgment. And if he could not find reasonable grounds for excluding the repeal of the ID policy, then he would have been required to make the summary judgment. This judgment could either be a dismissal of the suit or -- pursuant to FRCP Rule 56 (d) (Case Not Fully Adjudicated on Motion) -- a decision to proceed to a judgment on the merits of the suit.

Sound farfetched? Not at all -- my proposal follows FRCP Rule 12 to the letter. Certainly my proposal is a lot less farfetched than, say, the actual attempt to use anti-racketeering laws against abortion clinic demonstrators (LOL). The Supreme Court has ruled that litigants may take advantage of a law or rule that was not intended to benefit them. However, it is obvious that the above provisions of Rule 12 were intended to benefit defendants seeking to moot a lawsuit on the basis of an event or discovery occurring at any time during the course of a trial.

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Ed Brayton wrong again on Dover mootness issue

Ed Brayton, in an article titled "A New Case on Mootness" on his blog "Dispatches from the Culture Wars," is now arguing that a new federal district-court decision, Alpha Iota Omega Christian Fraternity v. Hamm, does not support the idea that the Dover school board could possibly have mooted the Dover lawsuit and thereby avoided attorney fees by repealing the ID policy prior to judgment. He got it wrong again.

In that new decision, the judge ruled that the case was moot as a result of a change in policy by the University of North Carolina while the case was pending. Ed vainly tried to distinguish this case from the Dover case.

Ed made the following arguments:

A. There was no request for nominal damages in the UNC case. Indeed, the judge's ruling specifically notes that fact because, if it had been otherwise, it would have demanded a ruling on the merits.

Wrong. The plaintiffs amended the complaint by adding a claim for nominal damages and other new claims (page 23 of opinion). The opinion said, "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar." (page 29 of opinion)

B. No trial had taken place in the case. The judge had issued a preliminary injunction against the university, but the actual trial had not taken place on the merits of the case yet. In Dover, the trial was over and a ruling was a mere few days away.

As for no trial having taken place in the case, the courts have never ruled that the stage of the litigation should be a consideration in deciding whether a case should be declared to be moot. After great expenditures of time and money by the parties involved, the Supreme Court dismissed the Marco DeFunis reverse-discrimination case as moot because he was about to graduate from the law school whose admission policies he challenged. The Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001) case was declared to be moot after the plaintiff had incurred considerable legal expenses, and the Supreme Court ruled that the "catalyst theory" (the notion that when a case is dismissed as moot because of the defendant's voluntary cessation of the challenged action, the plaintiff is entitled to a statutory award of attorney fees on the grounds that the lawsuit allegedly caused the voluntary cessation) did not entitle the plaintiff to an award of attorney fees.

C. There was far less chance of the new policy being reversed, for several reasons. First, because university administrations do not change every year (or two years) the way school boards do. Second, because the judge's injunction clearly told the university that if they reversed themselves, they'd get hauled into court and almost certainly lose.

As for the statement "There was far less chance of the new policy being reversed," judgment of the likelihood of repetition is subjective and speculative. In the Dover case, there were the following major disincentives for re-instatement of the ID policy or something similar: (1) the ID policy and the lawsuit had deeply divided the community and brought notoriety to the community; and (2) there was the possibility of more legal expenses. As for the statement that the judge told the defendants in Alpha Iota Omega that they would "almost certainly lose" another lawsuit, Ed Brayton's quote of the opinion said nothing of the kind. All this quote said was that the judge was satisfied that the possibility of re-instatement of the challenged policy was "unlikely" and that the defendants could be "trusted" to not re-instate it. Also, a judge telling defendants that they would "almost certainly lose" another lawsuit would have been improperly giving legal advice to the defendants. Also, the purpose of a preliminary injunction is not to send a message to a defendant of likely loss of a lawsuit -- the purpose of a preliminary injunction is to provide temporary relief or prevent irreparable harm pending further rulings by the court. To grant a preliminary injunction, a judge does not even necessarily need to be convinced that the suit has merit.

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I would like to post these rebuttals on "Dispatches from the Culture Wars," but I cannot. I have been banned there. Ed Brayton has just posted an article there -- "Good Ol' Larry Fafarman" -- that brazenly brags about banning me and that ridicules me for thinking that he might have the decency to change his mind by considering at least some of my comments for posting. However, he didn't carry out his threat to post a link to this blog -- apparently he is afraid to do that. The bloggers and their handpicked commenters on Panda's Thumb and Dispatches from the Culture Wars congratulate each other when they easily win debates after opposing arguments have been censored.

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Dover C.A.R.E.S. -- a wolf in sheep's clothing

Dover C.A.R.E.S. ( Citizens Actively Reviewing Educational/Economic Strategies ) was apparently established for the purpose of opposing the Dover school board's ID policy. Dover C.A.R.E.S. ran a slate of anti-ID school board candidates who won most of the seats on the board.

After strenuously denying during the school-board election campaign that they were in cahoots with the ACLU, once in office the newly elected school board members did exactly what the ACLU wanted them to do -- reject a former board member's proposal to try to end the Dover lawsuit and avoid attorney fees by repealing the ID policy prior to the decision (see my post titled, "Two-timing new members of the Dover school board"). Everyone knew that early December was the last chance to try the proposal, so the new board's apparently unanimous decision to schedule the January meeting for discussion of the proposal was for all practical purposes a decision to kill the proposal. The proposal was not new -- it had been presented at the mid-November board meeting, the last meeting of the old school board. Some of the new members said at that time that they did not want the judge to dismiss the suit!

Though the website of Dover C.A.R.E.S. mentions nothing about the evolution controversy, two of only four non-governmental URL links on the website (most of the links connect to government bodies or politicians) connect to virulently pro-Darwinist organizations, the National Center for Science Education and Pennsylvania Citizens for Science (both of which are exclusively dedicated to promoting Darwinism and suppressing criticism of Darwinism, despite the seeming generality and innocuousness of their titles).

Also, ironically, Dover C.A.R.E.S. holds its regular meetings at a church. If a pro-ID group held its regular meetings at a church, all hell would break loose. Also, purchasing the Of Pandas and People ID books with funds raised at a church seriously hurt the Dover defendants in the lawsuit (and not just because they lied about it). I think that there is an obvious double standard here.

The new board members who represent Dover C.A.R.E.S. were in a precarious position to start with, since they all won their seats by relatively small margins. Their popularity will decline further as more Dover residents realize that the new school board muffed a lucky opportunity to try to avoid the attorney fees by repealing the ID policy in early December. Ironically, it is believed that a lot of the votes for the new members came from people who were primarily concerned about the attorney fees. There is a good chance that the Dover school board -- a future school board if not the present one -- will seek ways to circumvent the Kitzmiller v. Dover decision, as by adopting the Cobb County evolution-disclaimer textbook stickers if the Selman v. Cobb County decision is reversed, which is a strong possibility.

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Two-timing new members of Dover school board

IMPORTANT UPDATE --

This controversy has been revived on the following webpages --

http://www.evolutionnews.org/2006/05/did_dover_care_about_taxpayer_1.html

http://scienceblogs.com/dispatches/2006/05/francisco_and_dover_take_2.php

http://www.pandasthumb.org/archives/2006/05/a_little_knowle.html

One thing for sure is that the defenders of the board are starting to waffle. They are no longer speaking of the "voluntary cessation" doctrine in terms of absolute certainty, but are speaking of "maybes," "possibles," and "exceptions." In any case, the voluntary cessation doctrine was never a valid argument for not repealing the ID policy in December.

Colin, you have been adding insult to injury by attacking me by name where I have been banned, Panda's Thumb. I don't think that is very ethical.

Also, it is of course very unfair that regular commenters at Panda's Thumb are free to come over here and leave comments while I cannot leave comments over there (at least not under my real name).

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A recent American Enterprise Online article condemned the new members of the Dover school board -- who had campaigned on an anti-ID platform -- for missing an opportunity to possibly save legal fees for the school district. At the new school board's first meeting on Dec. 5, the board ignored a former board member's proposal to try to save legal fees by repealing the ID policy before the release of the Kitzmiller v. Dover decision, which was due in late December or early January (the decision was released on Dec. 20). Defenders of the board's inaction have argued that the school district would have been liable for the plaintiffs' attorney fees even if the judge had declared the case to be moot as a result of a repeal of the ID policy. However, this argument is contradicted by the following ruling of the US Supreme Court --

Numerous federal statutes allow courts to award attorney’s fees and costs to the "prevailing party." The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. We hold that it does not. (emphasis added)
From Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001)

Hence, if Judge Jones had declared the Dover case to be moot, then according to the above ruling the plaintiffs would not have been eligible for an award of attorney fees. I possibly would have found this precedent sooner had I been able to get down to the Los Angeles County Law Library to do research.

Defenders of the board's inaction have also cited the "voluntary cessation" principle, which holds that a lawsuit is not mooted by voluntary cessation of a challenged action which could later be resumed (the "voluntary cessation" principle is also discussed in the Wikipedia article on "mootness" ). However, the syllabus of the above case, Buckhannon Board & Care Home, noted that this case was declared moot as a result of the state legislature's voluntary cessation of the challenged statute: "The state legislature then eliminated the 'self-preservation' requirement, and the District Court granted respondents’ motion to dismiss the case as moot." The state legislature did not agree to a consent decree promising to not re-instate the challenged statute, and I don't see how the legislature would have the authority to agree to such a consent decree. So obviously the voluntary cessation principle is not airtight, either in regard to the issue of mootness or the eligibility of the plaintiffs for an award of attorney fees. Maybe the courts tend to treat governmental and private defendants differently in regard to the "voluntary cessation" principle.

Here are some more thoughts about this matter --

(1) The new board would have had nothing to lose by following the former board member's proposal to try to save court costs by repealing the ID policy immediately, unless the board wanted to appeal (they did not). To me, this is the most important thing, and what makes the board`s inaction inexcusable.
(2) The new board scheduled Jan. 3 for discussion of the issue, which everyone knew would be too late to try the proposal because the decision was due in late December or early January. There were several ways that the board could have legally handled the matter before then. Pennsylvania law does not require advance notice of items that are discussed and voted on by public bodies, and the board could have scheduled a "special meeting" with short notice.
(3) Several newly elected board members indicated in mid-November that they did not want an out-of-court settlement even if they could get one -- they wanted to hear what the judge had to say in the case. See http://www.ydr.com/doverbiology/ci_3223198 This article, which is about the last meeting of the old board in November, was also my source for points #4 and #10 below.
(4) The proposal had already been presented at the mid-November meeting (the last meeting of the old board), so there had already been plenty of time to review the proposal.
(5) The fact that almost all of the board members were new and bore no responsibility for the actions of their predecessors might have been considered to be a mitigating factor by the courts.
(6) The board`s inaction assured that the mootness question could never be considered by any court.
(7) Courts are completely unpredictable. For example, who would have imagined that the Supreme Court would approve display of the 10 Commandments on public property in one case and at the same time disapprove it in another ?
(8) The new board members had already been accused -- during the election campaigning -- of being in cahoots with the ACLU, which they strenuously denied. Yet once elected, they acted just like stooges of the ACLU.
(9) The old board could have done just as good a job of doing nothing as the new board. And even if the old board had been re-elected and decided to appeal, potential legal expenses would not have increased very much because an appeal would have been much cheaper than the district-court action.
(10) Also, as I already pointed out, Judge Jones improperly gave legal advice to the new school board when he said that the results of the board elections would not affect his decision.

Also, an article titled "The Discovery Institute really needs better Lawyers", written by an attorney, completely misrepresents the decision in Buckhannon (cited above), stating, "the court specifically upheld the palitff's entitlement to attorneys' fees for settlements and any other court orders that awarded plaintiffs relief." The exact opposite is true. Also, the American Enterprise Online article's false insinuation -- later retracted -- that one of the new board members, Bryan Rehm, was guilty of conflict-of-interest was blown way out of proportion.

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There is an important update at the top of this post.

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Kenneth Miller the hypocrite

Kenneth Miller, who was an expert witness for the plaintiffs in both the Kitzmiller v. Dover and the Selman v. Cobb County (evolution-disclaimer textbook sticker) cases, doesn't really care about the constitutional principle of the separation of church and state, because his own belief in Darwinism is based on religion. If Darwinism were purely scientific, Miller would not have to invoke his belief in god to support it -- no scientist would write a book with a title like "Finding Copernicus's God -- A Scientist's Search for Common Ground Between God and Heliocentrism" (a spoof on the title of one of Miller's books, with "Darwin" replaced by "Copernicus" and "Evolution" by "Heliocentrism"). Heliocentrism, just like evolution theory, is contrary to the bible; the bible says that the earth was created first and that the heavenly bodies were created afterward, implying that the earth is supposed to be the center of the universe. Miller just wants the courts to abuse the church-state separation principle to suppress scientific ideas that he disagrees with. The following review of the Discovery Institute's new book "Traipsing into Evolution" exposes the truth about this hypocrite (the reviewer says that the Dover decision is "one of the most irresponsible I have ever read") --

"Traipsing Into Evolution: Intelligent Design and the Kitzmiller V. Dover Decision" is a response to Judge Jone's decision. Having read most of the trial transcript, I must conclude that this book is on target. My only complaint is the book is far too brief; many more problems exist with the decision that could have been included. It is very clear in his opinion that the Judge does not like Darwinism Skeptics as people. The judge in his decision largely accepted everything the ACLU said as true, and most everything the other side said as false (or he ignored it). This decision is one of the most irresponsible I have ever read (and I have read many court decisions). The Judge used numerous labels that he never clearly defined, or defined accordingly to his narrow purpose. An example is "creationist" and "evolutionist," and then concluded the creationists were the bad guys and evolutionists were the good guys. Reality is far more complex. For example, Dr Michael Behe, who the judge labeled a "creationist" testified that he was an evolutionist (he accepted common ancestry). It was the existence of the cell that Behe concluded Darwinism has difficulty explaining. Behe believes life beyond the cell could have evolved by mutations and natural selection. Conversely, Kenneth Miller testified that he was a creationist "in the ordinary meaning of the word" yet the judge labeled him an evolutionist. The difference between these scientists (both Roman Catholics and both labeled creationists) is in the degree of creating they have concluded that naturalism can achieve. It is obviously difficult to draw a clear line between the two theistic evolutionists, Behe and Miller, yet the judge did just that. This is important because the judge ruled that ideas given the creationist label cannot be taught in the public schools, and those given the evolutionist label can. The fact is, Kenneth Miller's ideas are clearly creationist as he explained in detail in the second half of his book "Finding Darwin's God." The judge thus ruled that Miller's theistic evolution creationism can be taught in the schools but Behe's theistic evolutionism creationism cannot. The court, contrary to the constitution, has ruled which religious ideas are orthodox, and thus OK to teach, and which religious ideas are forbidden. It is exactly because of rulings such as this why separation of church and state is a very good idea. Now we have state sectioned religion!
-- review written by "The Professor." From
http://www.amazon.com/gp/product/customer-reviews/0963865498/104-7079811-9172749

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Barbara Forrest and the Dover Decision

There is a theory going around now that the expert-witness testimony of conspiracy-theorist Barbara Forrest was a major factor in the Dover decision, but there is no guarantee that she will testify in any future trial or that another judge will accept her arguments. See Panda's Thumb and Uncommon Descent.

If the Dover decision was in fact based to a great extent on Forrest's conspiracy theory about a fundy "wedge strategy," then that decision is on very shaky ground indeed. It is like a conspiracy theory that Santa Claus, Christmas trees, and even Darwinist Kenneth Miller's book "Finding Darwin's God -- A Scientist's Search for Common Ground Between God and Evolution" are part of a "wedge strategy" to turn the US into a theocracy.

Supporters of the Dover decision have a grossly overoptimistic view of its future precedential value. It is just an unreviewed decision of a single federal district-court judge. A few years ago the 9th circuit federal court of appeals, the largest federal circuit except for the Federal circuit based in Washington DC, had a rule that no district-court opinion could be cited in any court of the 9th circuit, but I don't know if this rule is still in effect. And those of us who oppose the decision will be trying our best to so discredit it that no one will want to cite it -- for example, see "Traipsing into breathtaking inanity -- absurd rulings in Dover Intelligent Design case" on this blog.

The two recent court decisions concerning criticism of Darwinism in the public schools, Kitzmiller v. Dover and Selman v. Cobb County (the evolution-disclaimer textbook sticker case), are apparently breaking new legal ground -- and it looks like very shaky ground. So far as I can see, these are the first two cases where things that mention nothing or almost nothing that is religious and that contain no religious symbols were nonetheless held to be government endorsements of religion. The Cobb County textbook stickers said nothing of a religious nature and the only thing in the Dover case that had any religious connotation was the word "design," because this word implies the existence of a supernatural "designer." It appears that an appeals court is leaning towards reversing the Selman v. Cobb County decision (see here and here), wedge strategy or no wedge strategy. The Dover decision relies heavily on Selman (Selman is cited 15 times in the Dover opinion), so a reversal of Selman would put a serious dent in Dover.

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Traipsing into breathtaking inanity -- absurd rulings in Dover Intelligent Design case

New Item Added on 4-27-06: Item #20

Many Darwinists have praised Judge Jones` written opinion and procedural rulings in the Kitzmiller v. Dover case as flawless and brilliant. Nothing could be further from the truth. Many flaws can be found without even considering Jones` reasoning on the issues of whether ID is science and whether ID appears to be an endorsement of religion. Flaws in Jones` rulings on those issues are presumably covered in a new book titled "Traipsing into Evolution," prepared by the Discovery Institute. My criticisms below concentrate mainly on the other flaws in Jones` rulings. The page numbers shown refer to the Dover opinion. The Dover opinion is on http://www2.ncseweb.org/kvd/all_legal/2005-12-20_kitzmiller_decision.pdf and other documents in the case may be found on http://www2.ncseweb.org/kvd/ .
While lavishly praising Judge Jones' rulings, the Darwinists have been very intolerant of criticism of those rulings, acting as if the losers do not have the right to criticize.
Here are my criticisms of Judge Jones` rulings in the Dover case --
(1) For perhaps only the second time in American history (the Selman v. Cobb County evolution-disclaimer textbook sticker case was possibly the first), a judge ruled that something — irreducible complexity in this case — that makes no mention of anything related to religion and that contains no religious symbols constitutes a government endorsement of religion. Whether or not irreducible complexity is bogus science is irrelevant, because there is no constitutional separation of bogus science and state.
(2) It was not necessary to rule on the scientific merits of ID at all. Jones had the following other options: (i) ruling against the defendants solely on the basis of their religious motivations, or (ii) ruling that irreducible complexity is not religious because it does not mention anything related to religion. An additional reason for ruling on narrow grounds was that the original defendants could not appeal because they were voted off the school board. If the new school board -- consisting mostly of anti-ID members who had replaced former pro-ID members -- had rescinded the ID policy and offered a complete out-of-court settlement before the release of the decision, Jones would arguably have had grounds for declaring the case to be moot.
(3) Jones arrogantly assumed that his opinions are conclusive and that other judges should not bother to independently judge the same issues. The Dover opinion said, “[W]e 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.“(pages 63-64) Presumably one of the reasons for this ballyhoo of the Dover opinion was that Judge Jones knew that the case was not likely to be appealed and hence the opinion would likely have little intrinsic precedential value as just an unreviewed district-court opinion.
(4) Jones‘ blanket prohibition of any scientific criticism of Darwinism in Dover public-school science classes directly contradicts the Supreme Court‘s following statement in Edwards v. Aguillard: “We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught.“ In the conclusion section of the Dover opinion, Jones said that one of the three prohibitions that he intended to include in the official order was a prohibition against “requiring teachers to denigrate or disparage the theory of evolution“ (Page 138. This specific prohibition was not actually included in the official order, but that is beside the point).
(5) Though the case was supposed to be about intelligent design in general and not about a particular book about intelligent design, Jones treated the book selected by the Dover school board, Of Pandas and People, as central to the case. There are several books about ID, but I believe that only one other book about ID was discussed in the case, Darwin`s Black Box by defense expert witness Michael Behe. The name of the Pandas book appears 74 times in the 139-page opinion, about half the appearances concerning the book`s contents and about half concerning the school board`s selection of the book. A large part of the Dover opinion is essentially a highly unfavorable book review of Pandas.
(6) Jones denied the Pandas book publisher‘s motion to enter the case as an intervenor and then he thoroughly panned the book in his written opinion. Jones called the motion untimely, even though the motion was filed only a month after the plaintiffs subpoenaed the publisher, Foundation for Thought and Ethics, and a whopping four months before the start of the trial. The publisher should have been admitted as an intervenor to give it the right to file an independent appeal, if for no other reason. Considering that the book was thoroughly trashed in the written opinion and that the publisher had no opportunity to file an independent appeal, the claim that the publisher‘s interests were adequately protected is especially hollow. Court documents on the publisher's motion to intervene are here. In a comment thread titled "Jon Buell and the Dover ruling" , I demolished Judge Jones' reasons for denying the publisher's motion to intervene, particularly in my last comment in the thread ( I commented under the name LarryFarma ).
(7) Jones rejected an amicus brief from the Discovery Institute on the grounds that this brief was a “back door“ way of introducing the "unrebutted" ideas of Dembski and Meyer — who had withdrawn as expert witnesses for the defense — into the case file. A revision of DI`s amicus brief was later admitted to the record. Jones accepted a brief that replied to DI`s amicus brief ( briefs replying to amicus briefs are expressly prohibited only at the Supreme Court level ) and amicus briefs carry far less weight than oral trial testimony, so there was no advantage to using this “back door“ approach. References -- http://www2.ncseweb.org/kvd/index.php?path=all_legal%2Famicus/
(8) The Dover opinion gauged public opinion about the school board‘s ID rule by counting editorials and letters to the editor in local newspapers (pages 58-63). Jones` counts of the editorials and letters were made on the basis of whether or not they mentioned religion, so an editorial or letter asserting that ID is not an endorsement of religion counted the same as one asserting that ID is an endorsement of religion. A less meaningful way of gauging public opinion on this issue could scarcely be imagined. The Dover opinion presented very little precedent for this public-opinion polling method of counting editorials and letters to the editor (page 62).
(9) Showing blatant prejudice, the Dover opinion said that the answer to the question of “whether ID is science … can likely be predicted“ by the opinion‘s determination that “both an objective student and an objective adult member of the Dover community would perceive Defendants‘ conduct to be a strong endorsement of religion pursuant to the endorsement test “ (page 63). The two analyses -- on whether ID is science and whether an objective observer would perceive ID as an endorsement of religion -- are supposed to be completely independent, and the results of one are not supposed to "likely predict" the results of the other. For example, astrology and alchemy are not science but an objective observer would probably not perceive them to be endorsements of religion.
(10) The Dover opinion quoted a normally-privileged attorney-client message that was received by the defendants and used this message to bash them, and gave no explanation as to how this message lost its privilege (pages 111-112). It was revealed in the trial testimony that the defendants gave the message to the plaintiffs ( I have no idea why -- the message was very damaging to the defendants )
(11) Jones created confusion by stating in the conclusion section that three specifically-worded prohibitions were going to be included in the official order and then including only one of them in the official order (pages 138-139). The two omitted prohibitions were not covered by the one prohibition that was included.
(12) Jones appeared to take unfair advantage of the fact that the ousted original school board members and their legal representatives had no chance to have the decision reviewed by a higher court. Jones might have shown more restraint in his written opinion had there been a reasonable chance of appeal.
(13) Jones said that the school board election results -- where pro-ID members were replaced by anti-ID members -- would have no effect on his decision. This statement constituted giving unnecessary legal advice to the new school board members and possibly helped discourage them from considering a former board member`s proposal -- presented at the first meeting of the new board on Dec. 5 -- to seek an out-of-court settlement with the plaintiffs.
(14) Jones pandered to both the ID policy`s opponents and concerned taxpayers by accusing the defendants of "activism" (while denying that he himself was an activist), "breathtaking inanity," and dragging the students, parents, and teachers of the Dover Area School District "into this legal maelstrom, with its resulting utter waste of monetary and personal resources." (pages 137-138). He should not have put his negative personal opinions of the defendants into the opinion. He wrote the opinion to be -- in the words of Kansas University Prof. Paul "Evil Dr. P." Mirecki -- a "nice slap in the big fat face of the fundies."
(15) The Dover opinion contains dogmatic statements of opinion on questions that are really philosophical rather than legal or constitutional. For example, the Dover opinion says --
"Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs' scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator. " (page 136)
(16) Jones apparently signed the plaintiffs‘ original calculated $2 million+ attorney fee award request, even though there was no need for him to do so because the parties had reached an out-of-court settlement of $1 million. One of the plaintiffs‘ attorneys admitted that the purpose of having the judge sign the request for the larger amount was to help blackmail other school boards in the future.
(17) Only "reasonable" attorney fee awards are allowed under the law, but Jones never said that he was going to reduce the plaintiffs` calculated fee award on the grounds that they had a grossly excessive number of attorneys of record, 9-10, with at least five of those attorneys being in the courtroom on every day of the 6-week trial ( see ttp://www.philly.com/mld/inquirer/13928874.htm ). In contrast, the defendants had just 4 attorneys of record -- three from the Thomas More Law Center and one local attorney ( who might not have played an important role in the case ).
(18) There ought to be a general principle that judges should not rule on the scientific merits of ideas unless doing so is absolutely essential to reach a decision in the case. Such rulings are essential in, say, product liability cases, but -- as shown above -- such a ruling was not essential in the Dover ID case. Courts have no general legal or constitutional authority to settle disputes on scientific issues, and the courts are ill-suited to settle such disputes, e.g., the Supreme Court said in Daubert v. Merrell Dow Pharmaceuticals, "....there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly." Eighty-five scientists filed an amicus brief in the Dover case urging the judge to refrain from ruling on the scientific merits of ID.
(19) If Judge Jones had followed the precedent of the Edwards v. Aguillard creation-science case, he would have refused to hear expert witness testimony on the grounds that none of the expert witnesses had participated in or contributed to the enactment of the Dover school board's ID policy. The syllabus of Edwards v. Aguillard said, "The District Court, in its discretion, properly concluded that the postenactment testimony of these experts concerning the possible technical meanings of the Act's terms would not illuminate the contemporaneous purpose of the state legislature when it passed the Act. None of the persons making the affidavits produced by appellants participated in or contributed to the enactment of the law. Pp. 594-596." (the "appellants" were government officials of Louisiana). The Dover school board members showed that they were motivated by religion and furthermore that they could not possibly have intended a legitimate secular purpose because their testimony showed that they did not understand what ID really is. There is no such thing as an "unintentional" purpose -- purposes are by definition intentional. So there was no purpose in judging the scientific merits of ID to see if ID had some "unintended" secular purpose.
(20) New Item (added 4-27-06) -- Ironically, the Dover decision, itself just an unreviewed district-court decision, relies very heavily on other unreviewed district-court decisions. Two other unreviewed district-court decisions, McLean v. Arkansas Board of Education and Selman v. Cobb County (now under appeal), were named in the Dover opinion 28 times and 15 times, respectively ( I say "named" rather than "cited" because the name may sometimes appear more than once in a single citation). In comparison, two Supreme Court decisions, Edwards v. Aguillard (incorrectly named Edwards v. Arkansas in the first citation) and Epperson v. Arkansas, were named in the Dover opinion just 35 times and 18 times, respectively. An unreviewed opinion of a single district-court judge will reflect that judge's unrestrained prejudices, whims, and eccentricities. Furthermore, when a district-court decision is unreviewed, there is of course no review of criticism of that decision, and some of a judge's reasoning in the opinion may have been a complete surprise. District-court opinions' value as precedent is so questionable that the huge 9th circuit federal court of appeals had a rule -- I don't know if this rule is still in effect -- prohibiting citation of a district-court opinion in any court of the 9th circuit. Hence, the Dover opinion's numerous citations of McLean and Selman would not have even been allowed under this 9th circuit rule, which still might be in effect.

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"The world must construe according to its wits. This court must construe according to the law." -- Sir Thomas More, in the play "A Man for All Seasons."

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