Judge "Jackass" Jones should be disqualified

Judge John E. "Jackass" Jones III should be retroactively disqualified from deciding the Kitzmiller v. Dover case. The Kitzmiller decision has little precedential value to begin with, but the whole decision should just be declared to be null and void. It was bad enough when Judge Jones said in a Dickinson College commencement speech that the decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. But now Judge Jones is scheduled to participate in a five-person panel discussion titled, "Overcoming Resistance to the Reality of Evolutionary Change in Nature." What is worse, Jones is scheduled to receive the 2009 President's Medal from one of the two sponsors of the panel discussion, the Geological Society of America (the other sponsor is the Paleontological Society). What stronger indications of bias are possible? Also, Judge Jones has many times broken his pledge to not speak about the Kitzmiller case directly.

The title of the panel discussion, "Overcoming Resistance to the Reality of Evolutionary Change in Nature," is of course very condescending. And the announcement for the discussion again shows that the Darwinists overestimate the importance of religion and underestimate the importance of the scientific evidence as factors that cause many people to question evolution theory:
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. . . . less than 40% of Americans are convinced of the reality of biological evolution. In one study, 31% of respondents said that humans and other living things have existed in their present form since the beginning of time.

These studies show that a majority of Americans accept or deny evidence of evolution, geologic processes and the age of the Earth to the extent that they can be reconciled with their religious or other core beliefs. All too often many people, including scientists, accept what they want to believe about the world.

Jerry Coyne is right -- in twenty-five years, the Darwinist cafeteria Christians and their accommodationists have not made a dent in the size of the Darwin-doubting percentage of the public.

A few definitions:

Darwinist Cafeteria Christians: These Darwinists believe that evolution and religion are compatible. These Darwinists take the gospel literally but expressly reject the bible's more credible creation story (the creation story is fairly straightforward whereas the gospel is full of illogic, inconsistencies, ambiguities, and unintelligibility). Examples are Ken Miller and Francis Collins.

accommodationists: Darwinists who are not Cafeteria Christians but who have a policy of coddling them. Examples are the National Center for Science Education, NCSE director Eugenie Scott, and Chris Mooney.

new atheists: These atheists refuse to accommodate Darwinist Cafeteria Christians. Examples are PZ Myers, Jerry Coyne, Richard Dawkins

Thoughts for the day:

If those who teach Darwinism and evolution, as applied to man, insist that they are neither agnostics nor atheists, but are merely interpreting the Bible differently from orthodox Christians, what right have they to ask that their interpretation be taught at public expense?

-- William Jennings Bryan link

Unfortunately, some theologians with a deistic bent seem to think that they speak for all the faithful. . . . . The reason that many liberal theologians see religion and evolution as harmonious is that they espouse a theology not only alien but unrecognizable as religion to most Americans.

-- Jerry Coyne in the New Republic magazine link
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The breathtaking inanity of Kitzmiller v. Dover

The Kitzmiller v. Dover case is in the news again. Southern Methodist University recently held a series of events concerning the case. The first lectures and a panel discussion are apparently very one-sided, with only supporters of the decision:

The programs begin Sept. 24 with a 10 a.m. reception and 10:30 a.m. lecture at DeGolyer Library, featuring Paula Apsell (right), senior executive producer, and Melanie Wallace, senior series producer of NOVA's documentary, "Judgment Day: Intelligent Design on Trial" . . . . .

A panel discussion on legal, ethical and journalistic issues surrounding the making of the film will follow from 7 p.m.-8:30 p.m. in Caruth Auditorium, Owen Arts Center. Panelists will include Judge Jones, documentary producers Apsell and Wallace, plaintiff's council Eric Rothschild and Lauri Lebo, author of The Devil in Dover.

BTW, Judge Jones, who was scheduled to appear in the above panel, only recently was a featured speaker at Bridgewater College (Sept. 17).

Another SMU panel discussion appears to be more even-handed -- it includes an attorney from Liberty Legal Institute, which looks like it would disagree with the decision:

On Sept. 25, from 10-11:30 a.m., First Amendment issues will get closer scrutiny in a panel discussion at SMU's Dedman School of Law. Jones, Rothschild (now in private practice), Liberty Legal Institute attorney Hiram Sasser and Dedman School of Law Professor Lackland Bloom will trade ideas and opinions in Karcher Auditorium, Storey Hall.

Also, the 3quarksdaily blog has an article that is highly critical of the Kitzmiller opinion.
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The Kitzmiller decision has received far more attention -- and certainly far more praise -- than it deserves. It is, after all, just a decision of a single judge and is binding only upon a small school district. And much worse, it is a decision of a crackpot judge who is the poster child of activist judges. The Kitzmiller opinion is a piece of junk, not the masterpiece that the Darwinists claim it is. Kitzmiller was decided over three years ago and we really need to get the opinions of other judges, but no such opinions are on the horizon. And I have seen cases stalled in the lower courts for three years or more -- examples are Caldwell v. Caldwell and Association of Christian Schools Intl. v. Stearns. The best chance to get other opinions was lost when the Cobb County school district took a dive by settling out of court in Selman v. Cobb County -- the school district was actually in a very strong position because the appeals court panel indicated that it was leaning towards reversal before the panel remanded the case because of missing evidence. New court cases would also give us an opportunity to apply what we have learned from the mistakes that the plaintiffs made in the Kitzmiller case.

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 Kitzmiller decision was based on his cockamamie notion that the Founders based the Constitution's establishment clause upon a belief that organized religions are not "true" religions -- he said,

. . . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

He ruled that evolution is compatible with religion, a question that is completely inappropriate for judges to answer -- the opinion said,

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.

The question of the compatibility of evolution and religion is non-justiciable. 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).

He arrogantly assumed that he knows the answers to questions that have perplexed generations of scientists and philosophers. He dodged the crucial question of whether ID serves the genuine secular purpose of encouraging critical thinking:

Accepting for the sake of argument its proponents', as well as Defendants' argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum. . . . .The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID.

Judge Jones contradicts himself here -- why would the IDM (intelligent design movement) not have a goal to encourage critical thought if, as Jones accepted for the sake of argument, introducing ID to students will encourage critical thinking? And Jones nowhere states an opinion on whether ID encourages critical thiniking.

Without stating exceptions, he said that critics of the Kitzmiller decision had no respect for "judicial independence" and "the rule of law" (some of the opinion's biggest critics are hardcore Darwinists Jay Wexler and Larry Moran). And the whole Kitzmiller decision is badly tainted because Judge Jones likely showed a lack of restraint because an appeal of the decision was not expected because of the changeover in the school board membership. For example, the opinion's ID-as-science section was copied virtually verbatim from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and both sides' answering post-trial briefs -- it is doubtful that Jones would have done this had he anticipated an appeal, for then the opinion would have gone to the appeals court with no answers to the defendants' points about ID-as-science. The opinion is best described by the words it used to describe the defendants -- "breathtaking inanity."
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I was wrong about previous 9th Circuit rules for citation of published district court opinions

It is generally well-known in legal circles that the 9th Circuit federal court of appeals and 2-3 other federal circuits had local circuit rules generally prohibiting citation of unpublished opinions in any courts of those circuits and that those rules were superseded by a new national rule, Federal Rules of Appellate Procedure Rule 32.1, that allows citation of unpublished opinions in any federal court if the opinions were issued after Jan. 1, 2007 (but Rule 32.1 does not require that unpublished opinions be treated as binding precedent). However, I also vaguely seemed to remember an old local 9th circuit rule prohibiting the citation of federal district court opinions in any court of the 9th circuit, regardless of whether those opinions were published or not (though I now realize I was wrong -- logically, published district court opinions have always been citable in the 9th circuit). I was particularly concerned about such an old rule because of the exaggerated precedential value that Darwinists assumed for Kitzmiller v. Dover, the published district-court decision concerning intelligent design, and I thought it would be a big coup if I could show that there was a time when citation of Kitzmiller was banned in all the courts of the 9th Circuit! I had been unable to check the relevant old 9th circuit local rules because they are no longer posted online. However, I was recently able to make it down to the Los Angeles County Law Library's main branch, which has copies of the old rules. Here are the relevant old rules:
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Circuit Rule 36-2 -- Criteria for Publication (current rule -- not repealed)

A written opinion, reasoned disposition shall be designated as an OPINION only if it:

(a) Establishes, alters, modifies or clarifies a rule of law, or

- - - - - -

(e) -- is a disposition of a case in which there is a published opinion by a lower court or administrative agency, unless the panel determines that publication is unnecessary for clarifying the panel's disposition of the case, or


Repealed Circuit Rule 36-3 -- Other dispositions (superseded by national FRAP Rule 32.1)

Any disposition that is not an opinion or an order designated for publication under Circuit Rule 36-5 shall not be regarded as precedent and shall not be cited to or by this Court or any district court of the Ninth Circuit, either in briefs, oral argument, opinions, memoranda, or orders, except when relevant under the doctrines of the law of the case, res judicata, or collateral estoppel.

Circuit Rule 36-2 (e) applies to Kitzmiller because Kitzmiller is a published opinion by a lower court -- e.g., a district court. The wording of Circuit Rule 36-2 (e) is confusing, but I think it says that a 9th Circuit appeals court panel can adopt a published lower court opinion verbatim as an official 9th Circuit opinion if the panel thinks it is not necessary to add a clarification or modifications. However, in order for the panel to adopt the published lower court opinion, that opinion must first be cited, which couldn't be done if the opinion were not citable (per Circuit Rule 36-3) because it is not yet an official 9th Circuit opinion. So the only reasonable conclusion is that published district court opinions have always been citable in the 9th Circuit, so I was wrong in my previous belief that such opinions were not citable in the 9th circuit.

BTW, in my first 9th Circuit lawsuit against the unconstitutional California "smog impact fee," defendant California attached an entire unpublished district-court opinion to the state's first reply brief, and that was definitely in violation of the old circuit rule prohibiting citation of unpublished opinions!
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Case-law history of monkey trials

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Introduction

The Discovery Institute's Casey Luskin has written an excellent law-journal article about the case-law history of court cases concerning evolution education. The article is described here and the article itself -- in PDF format -- is here. Casey reviews 21 cases -- some are federal court cases and some are state court cases. Luskin's law-journal article shows that the case-law history of "monkey trials" is far more complex than the oversimplified, ignorant and cocky "you've always lost" and "you lost -- get over it" views of the Darwinists. Luakin shows that the legal position of Darwin critics is much stronger than most people realize -- he shows that the judicial opinions in these cases have many important findings that are in favor of Darwin critics even though the overall decisions were against the Darwin critics. One big fault of the paper is that it fails to show how close Freiler v. Tangipahoa Parish and Selman v. Cobb County came to being reversed on appeal. Also, IMO Luskin's paper should have included Comer v. Texas Education Agency, where a federal district-court judge upheld the right of a public education agency to maintain a policy of neutrality regarding evolution-education issues that are subjects of upcoming public hearings. [link].

Attorney Timothy Sandefur wrote a blog post that was highly critical of Luskin's law-journal article, but I think that Sandefur misses the point that the purpose of Luskin's article is not just advocacy but is also to present an objective overview of the case-law history.

Here I will make some additions and corrections to Luskin's law-review article. Unfortunately, URL links to some of my original references no longer work.
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Overview

The case law on evolution education is getting old. The last Supreme Court decision on evolution education, Edwards v. Aguillard (1987), was over twenty years ago, and the last definitive appeals court decision on evolution education, Freiler v. Tangipahoa Parish (2000), was nearly ten years ago (I am not counting Selman v. Cobb County because that decision was a vacation and remand), and the last federal district court decision, Kitzmiller v. Dover (2005), was 3½ years ago. As for precedential value, Supreme Court decisions of course have the most, federal appeals court decisions have a fair amount, and federal district court decisions have little or none. Why are there no current or very recent cases? Two reasons are: (1) curriculum-setting government bodies have learned how to "lawsuit-proof" criticisms of evolution, and (2) fear of the costs of attorney fee awards to the plaintiffs; because of incredibly tight-fisted taxpayers, this is a problem even where the potential financial burden to the government is negligible. An awful lot has changed since these cases were decided and it is high time to revisit them. It's is really a shame that there are no new cases, because new cases would give an opportunity to apply the many things that have been learned from previous cases.

Kitzmiller v. Dover (2005)

This blog has more posts directly and indirectly related to this case than for any other subject, as is evident from the post label list in the homepage's sidebar (post labels with Kitizmiller and Judge Jones). Luskin is of course highly critical of the Kitzmiller decision. I would like to make here some additions and corrections to what Luskin said about the case.

Casey classified Kitzmiller in the category "cases rejecting the teaching of alternatives evolution," but IMO Kitzmiller belongs in his category "cases rejecting disclaimers regarding the teaching of evolution." The Dover school board's Intelligent Design policy was just a one-minute oral statement -- no alternatives to evolution were actually taught, and the book referred to in the statement, "Of Pandas and People," was not required reading.

IMO the Kitzmiller decision is badly tainted because it is likely that Judge "Jackass" Jones showed a lack of restraint because he knew that his decision was not likely to be appealed because of the changeover in the school board membership. If an appeal had been anticipated, I doubt, for example, that Judge Jones would have copied the opinion's ID-as-science section nearly verbatim from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs. The often-heard claim that the defendants' arguments were so bad that there was no need to address them does not hold water -- if those arguments were really bad, all the more reason to attack them.

Judge "Jackass" Jones has charged that critics of his Dover decision have no respect for "the rule of law" and "judicial independence."[link] Judge Jones dodged the question of whether ID encourages critical thinking, which was a crucial question in determining whether the Dover ID policy satisfies the Lemon test's requirement of a "secular purpose that is not a sham." [link] He called judges' work "workmanlike," trying to give the false impression that any other judge would have written the same opinion that he did [link] [link] . 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:

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Jones said that he got the above "true religion" idea from his undergraduate days at Dickinson College, but the above statement is actually a quote mine that he plagiarized from a book that was published long after he graduated. [link]

Freiler v. Tangipahoa Parish (2000)

This little-known case is especially noteworthy because of how close it came to being overturned by an en banc (full court) appeals court and/or the US Supreme Court. [link]

Luskin wrongly stated that six 5th Circuit federal appeals court judges dissented from the vote to deny an en banc rehearing of Freiler -- the number given in the dissenters'opinion (page 2) is seven. It is hard to tell how many of the judges voted against an en banc rehearing -- the 5th Circuit had 17 authorized seats in 2000 but at least one and maybe tow or three of the seats were vacant [link] when the vote was taken. In any event, the vote was very close.

Luskin failed to note that the Supreme Court's three votes in favor of granting certiorari (Scalia, Thomas, and Chief Justice Rehnquist) was just one vote short of the four votes normally required for a grant of certiorari. Luskin also failed to note that Scalia's long opinion (joined by Thomas and Rehnquist) dissenting from the denial of certiorari was unusual -- denials of certiorrari are usually made without comment (the frequency of dissents from denials of certiorari is discussed below). In his dissent, Scalia minced no words -- in addition to Luskin's quotations of Scalia's dissent, Scalia also said,

I would grant certiorari in this case if only to take the opportunity to inter the Lemon test once for all. Even assuming, however, that the Fifth Circuit correctly chose to apply the Lemon test, I believe the manner of its application so erroneous as independently to merit the granting of certiorari, if not summary reversal. (emphasis added)

BTW, it is widely known that Supreme Court's denials of certiorari are normally made without comment, but the frequency of dissents from certiorari is generally not known -- however, I managed to find some statistics on that frequency, though the statistics are old. There are three possible outcomes for dissents from certiorari: (1) the dissenting opinion is first circulating among the justices and if it succeeds in causing a reversal of the denial, the dissent is of course not published; (2) the dissent fails to cause a reversal, and a decision is made to publish the dissent (Scalia's dissent here is an example of this type), and (3) the dissent fails, and a decision is made to withdraw the dissent. Here are the statistics for the period 1971-1981: total number of dissents, 385; dissent fails and is published, 273 (70.9%); dissent fails and is withdrawn, 29 (7.5%); dissent succeeds, 83 (21.6%). [link -- see page 31] That works out to an average of 27.3 published dissents from cert denial per year for the period 1971-1981, or an average of about three per year per justice. However, some of the dissenting opinions may be trivial -- for example, I have seen just a statement from a justice that he is opposed to the death penalty. Dissents from denials of certiorari are discussed in here, for those that are interested.

Selman v. Cobb County(2005/2006)

This blog has a whole post-label group of articles for Selman [link]. Post labels are listed in the sidebar of the homepage.

Casey fails to mention that before vacating and remanding the decision because of missing evidence, the appeals court panel indicated that it was leaning towards reversal even if the missing evidence were found [link] Appeals Judge Ed Carnes said that the three-sentence disclaimer seemed to him to be "literally accurate" and told the attorney representing the opponents of the stickers, "Your difficulty is that you've got to take something that actually is reflective of the content of this textbook you like so much, and say it violates the First Amendment." [link] Judge Frank Hull questioned how the district-court judge could have found the sticker's language misleading to biology students when there was no evidence to support that view.

Luskin's paper says,

Like Hurst [Hurst v. Newman], this case represents a school district being forced to abandon what it believed was a constitutional policy over threats of an ongoing and expensive lawsuit

Casey is just plain wrong here. The Cobb County school district is big and rich, unlike the El Tejon school district of Hurst and the Dover Area school district of Kitzmiller, which are small and poor. Cobb County was getting free legal representation in its appeal and received offers of more free legal assistance. The Cobb County school district's actual and potential legal expenses were much lower than the ~$1 million paid by the Dover Area school district. [link] Furthermore, before vacating and remanding the decision because of missing evidence, the appeals court panel indicated in an oral hearing that it was leaning towards reversal even if the missing evidence were found. The Cobb County school board simply took a dive.

Attorney Edward Sisson's open letter about the Selman decision is also good. The letter's "political insider/outsider" idea appears to be based on Justice O'Connor's "endorsement test" as originally described in her concurring opinion in Lynch v. Donnelly:

The . . . . more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.

Comer v. Texas Education Agency (2008)

As I said in the introduction to this post, IMO Luskin's paper should have included Comer v. Texas Education Agency, where a federal district-court judge upheld the right of a public education agency to maintain a policy of neutrality regarding evolution-education issues that are subjects of upcoming public hearings. [link]. Apparently the decision was not appealed. Unfortunately, this case does not fit into any of the three categories devised by Luskin: (1) Cases upholding the right to teach evolution; (2) Cases rejecting the teaching of alternatives to evolution; and (3) Cases rejecting disclaimers regarding the teaching of evolution. This blog has a post-label group of articles about Chris Comer (post labels are listed in the sidebar of the homepage).

Justiciability of scientific questions concerning evolution

I am not aware of any judicial opinion that has addressed the issue of the justiciability of scientific questions concerning evolution, but I nonetheless consider this to be a very important issue. IMO the courts should declare these questions to be non-justiciable -- many of these questions are 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.” Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004). Also, appellate courts are unsuited for reviewing days or weeks of scientific testimony -- appellate courts are mainly suited for deciding questions about points of law. This blog has several articles about justiciability.
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Kitzmiller and "accommodationism"

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In the conclusion section of his Kitzmiller v. Dover opinion, crackpot activist Judge "Jackass" Jones wrote,

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.(emphasis added)

Fundy creationists of course disagree with the above statement in bold, but it is now apparent that many Darwinists also disagree with that statement because of its "accommodationist" stance. "Accommodationism" means making nice with theistic evolutionists or people who believe that evolution and religion are compatible. The debate over accommodationism has really been heating up lately [1] [2] [3]. Sleazy PZ Myers is quite blunt about his opinion of accommodationism:
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What I really object to is the goofy "if you don't be nice to god belief, the churchy scientists will take their ball home". I metaphorically puke on the shoes of anyone who tries to make that argument.

As for Jones above statement that "the theory of evolution represents good science," there is no constitutional principle of separation of bad science and state (it has also been claimed that there is really no constitutional principle of separation of church and state, but that is another matter).

The above statement that evolution "in no way conflicts with, nor does it deny, the existence of a divine creator" is a personal religious or philosophical belief that has no place in a judicial opinion. The Kitzmiller opinion is arbitrary and subjective but Judge Jones has been trying to give the false impression that it is objective and unavoidable. In an effort to give the false impression that any other judge would have made the same decision and written the same opinion that he did in Kitzmiller, Judge Jones claimed that judges "operate in a very workmanlike way" :

We operate in a very workmanlike way, believe it or not. We find the facts, as we did in this case, by listening to the testimony, and then we apply well-established law to those facts. It's a sequential process that is time-tested. Every judge does it in the United States.

Judge Jones also charged that critics of his Kitzmiller decision have no respect for "the rule of law" and "judicial independence." Also, he has not acknowledged criticism from legal scholars but has only acknowledged criticisms from personalities of the popular media -- e.g., Phyllis Schlafly and Pat Buchanan.

Of course, the Darwinists treat Judge Jones like he can do no wrong. The most irritating thing about Judge Jones is that the general media treats him as a brilliant judge instead of the crackpot activist judge that he is. He is too stupid to be a judge.
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Darwin-doubting often based on science and not just religion; Dover opinion is worthless

Darwinists seem unable to believe -- or pretend to be unable to believe -- that Darwin-doubting could be based on science and not religion. On his Discovery magazine blog named "The Intersection," Chris Mooney writes in his debate with Jerry Coyne,

I believe the central reason we have such massive problems with the teaching of evolution to be precisely this — millions of America believe, incorrectly, that they must give up their faith in order to learn about it or accept it. This misconception is highly prevalent, and is regularly reinforced in a number of ways: Through the media, by church leaders, by the New Atheists, and so on.

If this incorrect view could somehow be dislodged, then, we might also have a better chance of defusing tensions over the teaching of evolution, and thereby improving “scientific literacy” . . .

The Darwinists have deluded themselves into thinking that all they have to do is persuade the fundies that evolution is compatible with the bible and then everything will be hunky-dory.

Geocentrism, like creationism, is supported by the bible, but the fundies accept heliocentrisn but not evolution because they find the scientific evidence to be persuasive for heliocentrism but not for evolution. There is a lot of evidence for an old earth and some evidence for common descent, but the net evidence is actually against an evolutionary process that was driven solely by natural genetic variation and natural selection. Teaching that such an evolutionary process is fact is lying to students.
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Another mirage is Darwinists' belief that the fundies reject evolution in order to maintain a belief in the inerrancy of the bible. But that belief in biblical inerrancy has already been undermined by the bible's erroneous teaching of geocentrism.[link]

Yet another Darwinist myth is that all they have to do is persuade the clergy that evolution is compatible with religion and then the faithful will follow the clergy like sheep following a Judas goat. The infamous Clergy Letter Project is an example of this kind of thinking. But, for example, a lot of Catholics don't follow the church's very strict teachings about abortion, so why should Catholics follow the church's teaching about evolution?

Loony Mooney's post also praises the Kitzmilller v. Dover decision, but that decision should not be taken seriously. Judge John "Jackass" Jones is a crackpot activist judge who showed extreme lack of restraint in the Dover opinion because he knew that the opinion was unlikely to be reviewed by higher courts because the school board was unlikely to appeal because of a change in the school board membership as a result of an election. The extreme one-sidedness of the Dover opinion's ID-as-science section, which was copied nearly verbatim from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs, is evidence of this lack of restraint. If Judge Jones had anticipated an appeal, he probably would have -- as a precaution -- addressed the defendants' arguments about ID-as-science even if he thought those arguments were bad. Judge Jones lied when he said that the school board election results would not affect his decision. And after the release of the decision, Judge Jones gave further evidence of what a big crackpot activist he really is. For example, he showed extreme prejudice against intelligent design and the Dover defendants -- regardless of whether or not ID is a religious concept -- by stating 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. [link] Also, he has extolled "judicial independence" and "the rule of law," charging that critics of his Dover opinion have no respect for those things. [link]

Some bloggers' reactions to Mooney's debate with Coyne are discussed here. Mooney has another follow-up post here.
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Kitzmiller failed to follow Daubert standard of review for scientific questions

Every time I think that I have discovered everything that is bad about the Kitzmiller v. Dover decision, I discover something new. A decision that the Darwinists regard as a masterpiece is in reality a piece of junk.

The Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), is considered to be the de facto federal standard of judicial review for scientific questions. Daubert is based on the Federal Rules of Evidence. Daubert has been adopted as a standard of review by many states as well. However, I have been aware for a long time that although the Kitzmiller v. Dover opinion has a ~6000 word section that rules on the scientific merits of evolution and intelligent design, KItzmiller does not cite Daubert, the pertinent rules in the Federal Rules of Evidence, or any other standard of review for scientific questions. I thought that this very serious omission of the Daubert standard might have just been an oversight on Judge "Jackass" Jones' part, but recently I discovered what might be the real reason for the omission. In the Q&A session in Jones' recent talk at Case Western Reserve University, a questioner asked about the Daubert standard. Judge Jones' response showed that he mistakenly believed that Daubert applies only to jury trials, and that belief could be the reason for his failure to cite Daubert in his Kitzmiller opinion. The Daubert opinion discusses jury trials but does not indicate in any way that the decision is restricted to jury trials. Daubert's syllabus does not even mention jury trials at all. The rules of the Federal Rules of Evidence that the Daubert decision is based on are not restricted to jury trials. There is no reason whatsover to believe that Daubert is restricted to jury trials. And I assert that Daubert and the Federal Rules of Evidence are applicable not only to the admissibility and excludability of evidence but also to the analysis and evaluation of evidence.

I assert that Judge Jones' rulings on the scientific merits of evolution and intelligent design are not consistent with the Daubert standard. The Kitzmiller opinion says (pages 88-89),
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After this searching and careful review of ID as espoused by its proponents, as elaborated upon in submissions to the Court, and as scrutinized over a six week trial, we find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community.

Prior to Daubert and the adoption of the Federal Rules of Evidence, the standard of review for scientific questions was the Frye test (from Frye v. United States), which was general acceptance in the scientific community. Daubert ruled that this general acceptance would no longer be the sole criterion. Daubert also ruled that scientific arguments could not be rejected solely on the basis of lack of publication in peer-reviewed journals (incidentally, such publication is evidence -- but not proof -- of general acceptance). However, Daubert also ruled that general acceptance in the scientific community and publication in peer-reviewed journals could be factors in the judicial review of scientific questions -- they could just not be controlling factors.

The opinion of the court says in Daubert,

The District Court granted respondent's motion for summary judgment. The court stated that scientific evidence is admissible only if the principle upon which it is based is " `sufficiently established to have general acceptance in the field to which it belongs.' " . . . .

The United States Court of Appeals for the Ninth Circuit affirmed. 951 F.2d 1128 (1991). Citing Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923), the court stated that expert opinion based on a scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific community . . . . .

The court emphasized that other Courts of Appeals considering the risks of Bendectin had refused to admit reanalyses of epidemiological studies that had been neither published nor subjected to peer review. 951 F. 2d, at 1130-1131. Those courts had found unpublished reanalyses "particularly problematic in light of the massive weight of the original published studies supporting [respondent's] position, all of which had undergone full scrutiny from the scientific community."

The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion. Petitioners' primary attack, however, is not on the content but on the continuing authority of the rule. They contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence. We agree. (emphasis added) . . . .

Here there is a specific Rule that speaks to the contested issue. Rule 702, governing expert testimony,provides:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." (note: Rule 702 has since been amended)

Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a "general acceptance" standard . . . .

Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61-76 (1990), and in some instances well grounded but innovative theories will not have been published, see Horrobin, The Philosophical Basis of Peer Review and the Suppression of Innovation, 263 J. Am. Med. Assn. 1438 (1990). Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of "good science," in part because it increases the likelihood that substantive flaws in methodology will be detected. See J. Ziman, Reliable Knowledge: An Exploration of the Grounds for Belief in Science 130-133 (1978); Relman and Angell, How Good Is Peer Review?, 321 New Eng. J. Med. 827 (1989). The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised . . .

Finally, "general acceptance" can yet have a bearing on the inquiry. A "reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community." United States v. Downing, 753 F. 2d, at 1238 . . . . .

Respondent expresses apprehension that abandonment of "general acceptance" as the exclusive requirement for admission will result in a "free for all" in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions (note: this is one of the places where juries are mentioned, but there is no indication that the decision was intended to apply only to jury trials) . . . . . .

Petitioners and, to a greater extent, their amici exhibit a different concern. They suggest that recognition of a screening role for the judge that allows for the exclusion of "invalid" evidence will sanction a stifling and repressive scientific orthodoxy and will be inimical to the search for truth.

Excellent point! The message that Judge Jones is giving to scientists and the publishers of peer-reviewed scientific journals is this: "If you want intelligent design to be rejected by the courts, don't show any support for it -- even when deserved -- and don't publish it in peer-reviewed scientific journals."

Unfortunately, Daubert does not mention that censorship and pressure to conform could prevent a good scientific idea from getting peer-reviewed publication or general acceptance.

The Daubert opinion of the court concludes,

The inquiries of the District Court and the Court of Appeals focused almost exclusively on "general acceptance," as gauged by publication and the decisions of other courts. Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion.

I assert that the Kitzmiller opinion gave more weight to general acceptance and peer-reviewed publication than is warranted by the Daubert standard. In any event, the Kitzmiller opinion's failure to cite Daubert and the pertinent rules of the Federal Rules of Evidence is a very serious omission.

Anyway, my main position is -- as I have frequently stated -- that scientific questions in the evolution controversy should be declared by the courts to be non-justiciable. These questions are 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.
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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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Judge Jones' "true religion" speech contradicted again

As I have pointed out many times, Judge "Jackass" Jones said in a Dickinson College commencement speech that his Kitzmiller v. 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 -- he said,

. . . .this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Ironically, Judge Jones gave the speech while standing behind the Dickinson College seal, designed by USA Founders John Dickinson and Benjamin Rush, which contains a picture of a open bible and the college motto, "Religion and learning, the bulwark of liberty," in Latin.

A Wall Street Journal article about James Madison, widely regarded as the father of the Constitution, said,
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He believed that the main reason to have separation of church and state was to help religion. He came to this view in part because of an unusual but crucial alliance he built with evangelical Christians of his day. That's right. At that time, the evangelical Christians were the leading supporters of separation of church and state, and Madison was one of their greatest champions. They believed that not only was government repression bad but so was government help. Madison agreed and worked hand in hand with the evangelicals to press this point. In a crucial document called the Memorial and Remonstrance, Madison integrated the arguments of the Enlightenment intellectuals with the arguments of the evangelicals to create something much greater. Separating church and state would be better for both state and church.

This may be a concept that's a bit jarring to modern culture warriors. We've come to think that if you're pro religion you must surely want government to play a greater role in promoting religion. And if you're in favor of separation of church and state that you must want to reduce religion's role.

Madison and his evangelical allies had a completely different concept. They wanted to promote religion. They just believed that the best way to promote religion was for government to leave it alone.

Nothing there about "true religion." In fact, the WSJ article directly contradicts Jones' "true religion" speech by saying that "evangelical Christians were the leading supporters of separation of church and state."

Judge Jones "true religion" statement is not just another opinion -- the statement shows (1) great hostility towards organized religion and (2) a predisposition to rule against anything that Judge Jones sees connected in any way with organized religion -- e.g., intelligent design. Even Fatheaded Ed Brayton found fault with the "true religion" statement. [1] The "true religion" statement completely discredits the Kitzmiller v. Dover decision and I am surprised that the statement is not cited more often by those seeking to discredit that decision. Ever since the Kitzmiller decision was issued over three years ago, it has been used to intimidate legislatures, school districts, schools, and teachers who want to include criticisms of evolution theory in the curriculum.

The biographical information about the WSJ article's author, Steven Waldman, says,

Steven Waldman is the Editor-in-Chief, President & Co-Founder of Beliefnet.com , the largest faith and spirituality website. Beliefnet won the National Magazine Award for General Excellence online in 2007. Waldman is also author of the bestselling book, FOUNDING FAITH: Providence, Politics, and the Birth of Religious Freedom in America.

Before founding Beliefnet, Waldman was National Correspondent for Newsweek and National Editor of U.S. News & World Report. His writings have appeared in the National Review, The Atlantic, Slate, The New York Times and more.

So it looks like Waldman has good credentials and he should know what he is talking about.
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A Dover mystery -- why sixty library copies of same book -- solved

I always wondered why the Dover school board purchased sixty copies of the same book, "Of Pandas and People," which was not required reading, just to stick them all in the library where they would mostly all just sit there. Since the books were just being deposited in the library and were not required reading, it would have made much more sense to purchase a variety of books to present a variety of viewpoints, maybe even pro-Darwinist viewpoints. And with all sixty volumes being of the same book, the plaintiffs could focus on attacking just that one book, which was especially unfortunate because the book was very vulnerable to attack because of its creationist roots (in fact, the current edition of the book was created by replacing "creationism" and "creationist" by "intelligent design" and "intelligent design proponents," respectively, in a previous edition). And the biased, gullible judge, Judge "Jackass" Jones, went along with the plaintiffs' strategy of making Pandas a big issue in the case, despite the fact that Pandas is only one of many books about Intelligent Design. So -- why did the board purchase sixty copies of the same book?
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The answer is that the board originally wanted to use the book as a "companion text," so probably wanted each student to have a copy. The Kitzmiller v. Dover opinion says,

. . . .at the August 2, 2004 meeting, Buckingham opposed the purchase of "Biology," which was recommended by the faculty and administration, unless the Board also approved the purchase of "Pandas" as a companion text. Only eight members of the Board were present on August 2, 2004 and the initial vote to approve the purchase of "Pandas" failed on a four to four vote with Buckingham, Harkins, Geesey, and Yingling voting for it. . . . .. After Buckingham stated that he had five votes in favor of purchasing "Pandas" and if the Board approved the purchase of "Pandas," he would release his votes to also approve the purchase of "Biology," Yingling changed her vote and the motion to approve the purchase of "Biology" passed. . . . . At trial, Buckingham testified that at the meeting he specifically said "if he didn't get his book, the district would not get the biology book." (citations to testimony omitted)

Later, a compromise with the teachers changed Pandas from a "companion" text to a classroom "reference" text, and the copies of Pandas were eventually placed in the library:

Despite the fact that the teachers strongly opposed using "Pandas" as a companion text, they agreed that "Pandas" could be placed in the classroom as a reference text as a compromise with the Board.

The teachers reneged on the compromise by refusing to read the official statement announcing the presence of the Pandas books in the library. Maybe the teachers might have agreed to read the statement if the school board had accepted the teachers' recommendations for the wording of the statement -- nonetheless, to me it is pretty clear that the teachers acted in bad faith.

Later, the official statement referred to other, unnamed books about Intelligent Design:

Administrators were thus compelled to read the statement to ninth graders at Dover High School in January 2005 because of the refusal by the teachers to do so. (citation of testimony omitted) The administrators read the statement again in June 2005. By that time, Defendants had modified the statement to refer to other, unnamed books in the library that relate to ID; however "Pandas" remains the only book identified by name in the statement. Defendants offered no evidence concerning whether the other books can be found in the library, including whether they are placed near Pandas.

One of the problems was that the school board members were too clueless to know that Intelligent Design is only one of many criticisms of evolution theory.

Anyway, that is the story of why there were sixty copies of the same book in the library.

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The phony "they made me do it" defense of ID-as-science ruling

A Biochem. Journal article by Kevin Padian and Nicholas Matzke says (pages 10-11 of pdf file, pages 38-39 of original document),

Should judges decide what science is?

DI [Discovery Institute] spokesmen and other political supporters of ID criticized the judge for overstepping his intellectual and legal bounds by ruling on whether or not ID was science. But 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. The TMLC's chief counsel for the defence, Richard Thompson, acknowledged that, like the attorneys for the plaintiffs, the defence had asked the judge to rule on the question of whether ID was science. They staked their whole case on the notion that ID was legitimate science, and that therefore teaching it had a legitimate secular purpose and secular effect, and this outweighed any religious goals that individual board members might have had. The judge did exactly what both sides asked him to do. It is unfortunate for ID supporters that they did not take that brief more seriously. And it is important to understand that the judge did not decide what is science and what is not. Nobody inside or outside the legal profession wants judges to do that. What the judge did was to rule on what the scientific community considers science, which is quite a different thing. His path was easy in that respect, because the DI and other ID proponents had no support whatsoever from the scientific community, whereas evolution received nothing but the strongest support.

The criticism has been made by more than just "DI [Discovery Institute] spokesmen and other political supporters of ID" -- neutral people and even anti-ID people have also made the criticism [1] [2]. No one has ever cited any legal authority (a constitutional provision, law, court rule, or court opinion) in support of this cockamamie idea that judges are obligated to rule on questions whenever both sides ask them to -- and the reason for that is that the very notion is absurd. Should a judge rule on the question of how many angels can dance on the head of a pin just because both sides ask him to do it? The Kitzmiller v. Dover opinion itself does not give this as one of the reasons for the judge's decision to rule on the ID-as-science question -- here are the reasons given by the opinion (pages 63-64) --
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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. To be sure, our answer to this question can likely be predicted based upon the foregoing analysis. While answering this question compels us to revisit evidence that is entirely complex, if not obtuse, after a six week trial that spanned twenty-one days and included countless hours of detailed expert witness presentations, the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.

It was only after release of the opinion that Judge Jones started claiming that one of his reasons for ruling on the ID as science question was that both sides asked him to do it [3].
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Also, Judge Jones noted above that the plaintiffs raised the "additional issue" of whether "ID is science" but made no statement about the defendants raising the issue.

Also, regarding the following statement from the above quote from the Biochem Jounral:

They [the defendants] staked their whole case on the notion that ID was legitimate science, and that therefore teaching it had a legitimate secular purpose and secular effect . . . .

No, the defendants also claimed that ID encouraged critical thinking, but Judge Jones dodged that question.[4].

And the following statement:

. . . it is important to understand that the judge did not decide what is science and what is not. Nobody inside or outside the legal profession wants judges to do that.

In some lawsuits -- e.g., in product liability lawsuits -- it is necessary for judges to decide what is science in order to decide the case. Kitzmiller v. Dover was not such a lawsuit.

And the following:

What the judge did was to rule on what the scientific community considers science, which is quite a different thing.

Wrong -- Judge Jones ruled on more than that. And what the scientific community considers science is only one of the factors judges are supposed to consider in judging scientific questions -- see Daubert v. Merrell Dow Pharmaceuticals.
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Complex, contentious scientific questions should be declared non-justiciable

There is a big blog debate between Casey Luskin [1] and Ken Miller [2] now going on over the question of the irreducible complexity of the blood-clotting cascade, one of the questions in the Kitzmiller v. Dover Intelligent Design case. This scientific question is obviously so complex and contentious that it should be declared to be non-justiciable. It is like the proverbial question of how many angels can dance on the head of a pin. And this is only one of several complex and contentious scientific questions that Judge Jones had to deal with in the Dover case. And because of the large amounts of court time wasted on high-profile cases, the courts give short shrift or no shrift to low-profile cases. In courts' allocations of time to different cases, the losses of the many fund the payoffs for the lucky few, just like at any honest racetrack.

There is no constitutional principle of separation of bad science and state.

Ken Miller wrote,

But there is something very strange, and even distressing, about Luskin’s contention that the obvious failings of the arguments in Pandas ["Of Pandas and People," the ID book purchased by the Dover Area school board] are somehow less important than the ones in DBB ["Darwin's Black Box" by Michael Behe]. Why is it OK to give high school readers an argument about the irreducible complexity of the entire cascade that you know to be false (as Luskin admits), just as long as you modify that argument in another book? Luskin seems to have forgotten that the Dover trial was about an issue much more important than the fate of ID…. It was about what should be taught to high school science students.

So what Miller is really saying here is that the Dover school board purchased the wrong ID book -- the board should have purchased "Darwin's Black Box" instead.

And Miller tries to use a 2008 scientific paper to defend a 2005 court decision:

[Russell Doolittle's] 2008 paper [Doolittle et al, 2008] reports on a careful search through the lamprey genome. The lamprey, as luck would have it, has a perfectly functional clotting system, and it lacks not only the three factors missing in jawed fish, but also Factors IX and V.

Panda's Thumb also has an article about the debate.
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Darwinists are obsessed with Kitzmiller v. Dover

There is no better illustration of Darwinists' obsession with the Ktizmiller v. Dover case than Fatheaded Ed Brayton's article titled "Rick Warren's Bill Buckingham Moment." With so many other liars to choose from, why did Fatheaded Ed choose Bill Buckingham?

BTW, Bill Buckingham is a hero to me -- here is part of his testimony in the Dover trial. The Dover defendants should never have been asked for the source of the funds to purchase the copies of the book "Of Pandas and People" -- the donors were entitled to anonymity. [1]

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Darwinists still crowing about Pyrrhic Dover victory

It may be hard to believe, but the Darwinists are today -- December 20 -- exultantly celebrating the 3rd anniversary of their Pyrrhic victory in the Kitzmiller v. Dover case. [1] [2] . The Darwinists have even given the anniversary a name -- "Kitzmas" (I call it Kitschmas). The Discovery Institute's Evolution News & Views website has also marked the anniversary [3]. The Dover decision is not binding precedent outside of the Dover Area school district and the decision has aroused tremendous opposition to the dogmatic teaching of evolution. And the decision doesn't even have much value as non-binding precedent because it is just an unappealed decision of a single judge, and a bad decision at that. Several legal scholars -- including anti-ID and neutral legal scholars -- have severely criticized the decision. For example, anti-ID legal scholar Jay Wexler said that if one judge can practice philosophy of science, then what is to prevent other judges from doing the same? A judge could come along who says that Intelligent Design is a better explanation than evolution theory. IMO the main reason why there have been no new monkey trials in the three years since the Dover decision is that the opponents of the dogmatic teaching of evolution have learned how to "lawsuit-proof" criticisms of evolution.

The Dover decision was the result of factors that are not likely to be repeated: (1) the school board's selection of an obsolete ID book in which the terms "intelligent design" and "intelligent design proponent" were substituted for "creationism" and "creationist" respectively, and (2) a biased activist judge who copied the opinion's ID-as-science section nearly verbatim from the ACLU's opening post-trial brief and who showed extreme prejudice against ID 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 -- he said,
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. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

That Dickinson College speech alone was enough to completely discredit the Dover decision.

This blog has scores of articles about the Kitzmiller case and related subjects -- see the post-label list in the sidebar of the home page. Each post label represents up to 20 articles. The reason for the multiple listings of post labels for some subjects is that the Blogger.com template mode software that I am using is limited to 20 articles per post label. At first I didn't like this limit but I now like it because it keeps the post label groups at a manageable size.
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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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