Timothy Sandefur posted Entry 1792 on December 20, 2005 02:38 PM.
Trackback URL: http://www.pandasthumb.org/cgi-bin/mt/mt-tb.fcgi/1787

Strictly speaking, a decision by a federal district court—such as Kitzmiller—is only a decision by the lowest-level court: a trial decision. It only binds the parties to that decision. So Judge Jones’ decision does not forbid a school board in Kansas or Kentucky or California from adopting the exact same ID policy that the Kitzmiller decision finds unconstitutional. However, a decision that is so thorough, and so convincing, and so clear, is likely to be extremely persuasive to other federal district judges.

This is especially true given the fact that it relies strongly on McLean, a decision from another District Court. It, too, is technically not binding outside of Arkansas, but McLean is so clear, and strong, that Kitzmiller and other decisions have relied upon it. So, as a practical matter, Kitzmiller is a major victory for science throughout the nation. Should any other school district adopt a similar policy, a parent could go to court with the Kitzmiller decision, and, I think, very quickly get an injunction against that school district as well.

Can Kitzmiller be appealed? Obviously. But this decision is so tight, and so well-grounded in the facts, that I don’t see an appellate court reversing it. Remember that an appeal focuses on legal errors, not on factual errors. So to appeal, the School Board would have to argue that Judge Jones erred in his application of the law. Perhaps they would argue (as they did before Judge Jones) that the Endorsement Test is not appropriate for analyzing whether the ID policy violated the Establishment Clause. It would be extremely unlikely for the Third Circuit to agree with this, however; as Judge Jones’ opinion demonstrates, the Endorsement Test has been repeatedly used by the Third Circuit itself. The School Board might appeal, arguing that the Lemon Test should be abandoned and that Judge Jones was wrong to use it. This, too, would be a very uphill battle for the Board, since the Supreme Court has continually reiterated the validity of the Lemon Test, and the Third Circuit has no power to overrule the Supreme Court. But in any case, to succeed on appeal, the School Board would have to argue that the law was wrongly applied—challenging Jones’ factual findings would be very, very difficult for them, since the Court of Appeals will defer to him on these. And as a matter of law, Kitzmiller is a pretty easy case: just fit the facts into the Lemon Test and see what comes out. Since Kitzmiller, therefore, was primarily about facts, and not primarily about law, it is unlikely that an appeal—should one be forthcoming—would succeed.

And, of course, as commenter Bayesian Bouffant, FCD, reminds us, the decision is also based in large part on the Pennsylvania State Constitution. Although the Court of Appeals would have jurisdiction to consider this issue also on appeal, it adds even more to the burden against the Board if they were to try to appeal this decision.

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Comment #63574

Posted by Ed Hensley on December 20, 2005 3:01 PM (e)

The old Dover school board that promoted the ID policy was voted out and replaced with an anti-ID school board. Why would this new school board appeal the decision?

Comment #63576

Posted by Michael Hopkins on December 20, 2005 3:05 PM (e)

It might worth mentioning that given the creationist school board is now been replaced with a pro-science people. I doubt that those who sided with the plaintiffs will want to appeal the win.

I would consider the victory in the ballot box to be as important as a victory in court.

Comment #63578

Posted by Colin on December 20, 2005 3:06 PM (e)

Well, it’s not impossible that political pressures would encourage the new board to appeal. I don’t think that’s a realistic possibility, but it’s not flatly impossible.

More importantly, I think Tim is just pointing out that Jones’ ruling is not out of synch with his circuit—it’s well-grounded in the controlling precedent, and likely to be favorably looked upon by higher courts (and parallel courts around the country).

Comment #63579

Posted by Mr Christopher on December 20, 2005 3:07 PM (e)

The TMLC has chimed in now. From a TMLC email alert:

donate to the Thomas More Law Center

Court Issues Troubling Decision In Dover Intelligent Design Case

ANN ARBOR, MI — Today the district court judge issued a lengthy opinion in the Kitzmiller v. Dover Area School District case, holding that the School District violated the Establishment Clause of the United States Constitution by reading to students of a ninth-grade biology class a short, one-minute statement that mentions “intelligent design” twice. Pursuant to this statement, the book Of Pandas and People, which addresses intelligent design arguments, was placed in the school district library for students to voluntarily review, along with other books that are critical of intelligent design. This statement was read in a class in which Darwin’s theory of evolution was taught pursuant to the Pennsylvania academic standards and pursuant to its standing in the scientific community. Moreover, the primary and only required text for this class, Biology by Prentice Hall, fully and! comprehensively covers the theory of evolution, and it was co-authored by one of the experts who testified for the Plaintiffs. According to the judge’s opinion, this “policy” violates the Establishment Clause, which states, “Congress shall make no law respecting an establishment of religion.”

Richard Thompson, President and Chief Counsel for the Law Center, commented, “What is clear from this decision is that our present Establishment Clause jurisprudence, as several Supreme Court justices have noted, is in hopeless disarray and in need of substantial revision. In his opinion the judge bemoaned that the school district ‘deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.’ In this respect, he was correct. This case should have never made it into a federal courthouse. The Founders of this country would be astonished at the thought that this simple curriculum change ‘established religion’ in violation of the Constitution that they drafted.”

Several Supreme Court justices have openly criticized the way in which this body of constitutional law has developed. For example, Justice Thomas stated in his concurring opinion in the pledge of allegiance case, “Our jurisprudential confusion has led to results that can only be described as silly.” In Edwards v. Aguillard, a case relied upon by the district court in which the Supreme Court held that it was unconstitutional to teach creationism alongside evolution, Justice Scalia criticized the Court’s “embarrassing Establishment Clause jurisprudence.” In a school prayer case, then Justice Rehnquist noted, “It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years.” Justice Rehnquist is referring to the metaphor of the wall of separation between church and state.

Thompson continued, “The district court’s decision today continues along this path of applying a fundamentally flawed jurisprudence. Unfortunately, until the Supreme Court adopts a more coherent and historically sound jurisprudence, school districts like Dover will be at risk of costly lawsuits by the ACLU for adopting such modest curriculum changes such as the one at issue.”

No mention of any appeal, perhaps even they know their defense was nonsense and they have zero chance of winning an appeal. You can lead make believe scientists like Behe and the no-show Dempski to court but don’t bet on anyone buying their nonsense.

But the TMLC got what it was really after, public exposure which will translate to a new pool of financial contributors.

Intelligent Design Creationism may lack scientific substance but here is a fact for you - IDC is a cash cow for the charlatans who promote it.

Comment #63583

Posted by Matt Harris on December 20, 2005 3:18 PM (e)

If the TMLC was so concerned about this decision they would pay the judgement against the school district. Remember, the school district has to pay the legal fees of the parents who sued them, and won.

-Matt

Comment #63584

Posted by Miguelito on December 20, 2005 3:19 PM (e)

I don’t understand why these people don’t get it. Follow me step-by-step, as I lay it out.

1. ID = creationism.
2. Creationism is an essential branch of Christian fundamentalism.
3. Teaching that this essential branch of Christian fundamentalism is scientifically real is making a school do a church’s job.
4. If your schools are now churches, then you your government has essentially created a state religion.

I don’t think it can be more simple than that.

Comment #63589

Posted by scott pilutik on December 20, 2005 3:35 PM (e)

There’s a small problem with an appeal, in that the old board might not have standing any longer to raise it, having been voted out. The new board is now in the position of the defendant, and will not want to waste any more legal fees. So the question becomes, what remaining interest does the old board have? Primarily, a dignitary interest in their capacity as possibly future board members. This opinion slammed them as acting outside the interests of the community, and to the extent they can have their name cleared, they must be able to appeal, as they may want to one day be an elected board member. They’d have to do it on their own dime though, or the TMLC’s.

It is also notable that there were two defendants in the caption: DOVER AREA SCHOOL DISTRICT, and DOVER AREA SCHOOL DISTRICT BOARD OF DIRECTORS. The former may refer to the ‘present time’ board, and the latter, the ‘board at the time of the incident’. Since the DASD is only represented by its board of directors, it is otherwise redundant to name the DASDBOD also, unless the ACLU intended to denote the board at the time of the incident.

Comment #63590

Posted by Bayesian Bouffant, FCD on December 20, 2005 3:35 PM (e)

If the TMLC was so concerned about this decision they would pay the judgement against the school district. Remember, the school district has to pay the legal fees of the parents who sued them, and won.

Yes. This could be a win-win-win decision. The TMLC could offer to pay any judgment against the school district - IF they agree to appeal. Then the school district gets off the hook financially, the TMLC gets their appeal, which they have wanted since they started shopping for irresponsible school boards years ago, and we pro-science people would get a broader precedent when they lose.

Comment #63591

Posted by Doyle on December 20, 2005 3:37 PM (e)

I’m sure the establishment clause violation was the straightest road for the plaintiffs, and probably the only issue that attracted the services of the excellent attorneys who handled this case. But, in light of the actual findings by the judge, it is “silly” to suggest that the TMLC lost because of fuzzy Supreme Court jurisprudence. The Board voted in a policy that as a matter of fact misleads students. As the judge noted, what it advocated amounted to lying to science students about science. No school board has that power; and even with the usual deference granted in analogous situations, faced with witnesses that he found to be fundamentally untrustworthy, insisting on undermining their student’s education, any judge would have smacked them down.

Comment #63597

Posted by MIke on December 20, 2005 3:54 PM (e)

Interesting that the TMLC statement doesn’t even make an attempt to refute that creationism is religious doctrine. They’re not in the least bit concerned about Dover being appealed. TMLC, and the DI, have clearly known this was coming, and are preparing for the cases that WILL go to the Supreme Court.

So your task for the next couple of years is this: How to you convince Alito, Thomas, Roberts, and Scalia that only science should be taught in a public school science clase? Whether or not a brief statement is religiously motivated will have little to no impact.

Comment #63598

Posted by Steviepinhead on December 20, 2005 3:55 PM (e)

The TMLC didn’t ballyhoo that they were out to reverse Supreme Court “Establishment” jurisprudence. They claimed they were out to get ID into classrooms as science, and they apparently thought they had devised a strategy that would accomplish that under the existing precedents.

They were wrong. They just don’t have the integrity to admit it. What a surprise!

Comment #63601

Posted by Peter Sullivan on December 20, 2005 3:58 PM (e)

An appeal would be up to the current - meaning new - school board. I haven’t seen the complaint, but assuming that it doesn’t name any of the former board members in their personal capacities, it is the collective board that is a defendant. And even if the former board members had been separately named, but in their official capacities only, under Fed. Rule of Civil Procedure 25(d), upon their replacement the new office holders are substituted as defendants. So, it’s unlikely either that the original board members either can decide the appeal question or be liable for fees.

The present board would have to think long and hard about appealing. Appeal and loose and the fees and costs the district owes would be even greater. And while an affirmance from the Third Circuit Court of Appeals would be nice, a winning party can’t appeal. So it’s my bet that this is it.

An appeal would be particularly tough because the judge did all he could to bullet-proof it. He ruled for plaintiffs on a number of issues, any one of which would have lead to the same result, so an appellant would have to overcome all of them to prevail. And, as has been noted already, much of the decision is based on the judge’s determinations as the trier of fact, and that’s mighty, mighty, difficult for the appeals court to overturn.

Comment #63603

Posted by Peter Sullivan on December 20, 2005 4:00 PM (e)

An appeal would be up to the current - meaning new - school board. I haven’t seen the complaint, but assuming that it doesn’t name any of the former board members in their personal capacities, it is the collective board that is a defendant. And even if the former board members had been separately named, but in their official capacities only, under Fed. Rule of Civil Procedure 25(d), upon their replacement the new office holders are substituted as defendants. So, it’s unlikely either that the original board members either can decide the appeal question or be liable for fees.

The present board would have to think long and hard about appealing. Appeal and lose and the fees and costs the district owes would be even greater. And while an affirmance from the Third Circuit Court of Appeals would be nice, a winning party can’t appeal. So it’s my bet that this is it.

An appeal would be particularly tough because the judge did all he could to bullet-proof it. He ruled for plaintiffs on a number of issues, any one of which would have lead to the same result, so an appellant would have to overcome all of them to prevail. And, as has been noted already, much of the decision is based on the judge’s determinations as the trier of fact, and that’s mighty, mighty, difficult for the appeals court to overturn.

Comment #63610

Posted by Tom3 on December 20, 2005 4:11 PM (e)

I seriously doubt the Dover board will appeal. They would incur more expense and they’re already over $1 million in the hole.

Those former Dover board members who lied on the stand…they perjured themselves. Are they going to be prosecuted? I hope so.

This is a victory of the Constitution over the Christian Dominionists who want to establish a theocracy in the US.

The Thomas More Center should be ashamed of themselves for saddling the Dover board with this huge bill and walking away.

Comment #63613

Posted by Steviepinhead on December 20, 2005 4:21 PM (e)

As Michael Hopkins noted above, the new board was elected on an anto-ID slate. Consistent with that stance, the Associated Press is now reporting that the new board will, in all likelihood, not appeal the decision:

The ruling will not likely be appealed by the slate of new board members, who in the November election ousted the group that installed intelligent design, the new board president said Tuesday.

Comment #63614

Posted by John Hays on December 20, 2005 4:24 PM (e)

I have been following the Dover case practically from its inception. While the big news organizations have had coverage over the year, one of the best sources I’ve found has been the York Daily Record that has all its stories archived under “Dover Biology.”

I can well remember when we, down here in Louisiana, were the laughingstock of all those northerners when our Legislature tried to put Creationism into the public school curriculum.

That attempt lasted about as long as the Dover school board’s shot at Intelligent Design.

Now most of the efforts toward ID are in states well above the Mason-Dixon Line or being pushed by folks from northern environs.

Us Bible Belters have yet to show any/much interest in ID.

Any explanation for that?
John Hays
Ruston, LA

Comment #63619

Posted by Moses on December 20, 2005 4:43 PM (e)

Us Bible Belters have yet to show any/much interest in ID.

Any explanation for that?

Because the bible belt has already lost enough times with the same crap ID is peddleing they don’t want any part of it… That’s my guess.

Comment #63621

Posted by Timothy Sandefur on December 20, 2005 4:47 PM (e)

Ed Hensley writes, “The old Dover school board that promoted the ID policy was voted out and replaced with an anti-ID school board. Why would this new school board appeal the decision?” I don’t think they would. I was just saying what would happen if they were to appeal, but I think they’ll want to let this thing die. As a legal matter, however, I think scott pilutik is wrong about standing. They would have standing because the ruling is a valid judgment against them, limiting their discretion, which would be enough. Nor is the case moot, under both the “voluntary cessation” and “capable of repetition yet evading review” rules.

I actually disagree with Michael Hopkins that “the victory in the ballot box [is] as important as a victory in court.” I often hear this in other contexts as well. But when we’re talking about a matter of constitutional import, then we are talking about something that is, or ought to be, beyond the reach of politics. As Justice Jackson famously put it, “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to…property…may not be submitted to vote; they depend on the outcome of no elections.” Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943). If we have to persuade political majorities to support us on these issues, then we’re conceding that they are not constitutional boundaries. And they are constitutional boundaries. It’s nice that the perpetrators of the ID policy were thrown out of office—but it’s far better that it is made clear that their policy was unconstitutional.

Doyle says that the Dover School Board was “lying to science students about science. No school board has that power.” Unfortunately, this is not correct. School boards do have the constitutional authority to lie to students—to lie brazenly, as often as they want to. The only situation I know of in which they are constitutionally forbidden from lying to students is on issues of lying in such a way as to establish religion, or prohibit the free exercise thereof. But, like it or not, they can lie to students about race, sex, politics, science—anything they want to except religion.

Comment #63623

Posted by Emerson on December 20, 2005 4:53 PM (e)

The corporation was the defendent, so the current Board would, as I think we have clearly established here, be responsible for bringing an appeal.

However, it is obvious that the previous Board members neglected their fiduciary duties (loyalty, care) in execution of their board service, and would be liable if the corporation decides to bring a suit.

It also seems unlikely that Buckingham and Bonsell will be prosecuted for perjury, but the current Board could certainly sue them for lying and negligently (or even maliciously) exposing the corporation to liability.

Comment #63628

Posted by scott pilutik on December 20, 2005 5:31 PM (e)

Timothy Sandefur wrote:

As a legal matter, however, I think scott pilutik is wrong about standing. They would have standing because the ruling is a valid judgment against them, limiting their discretion, which would be enough. Nor is the case moot, under both the “voluntary cessation” and “capable of repetition yet evading review” rules.

I think you misunderstood me but probably because I misunderstood you. I don’t think the new board could justify appealing to the community that elected them explicitly for the purpose of killing this mess. The finer points of judicial precedents would likely be lost on them.

The new board definitely has standing, beyond any doubt. My notion is that the old board probably does not have standing; however, I made the case for why they might (dignitary harm). I don’t believe my reasoning is even on good footing; but if I was an old board member hoping to appeal, I’d argue that the existence of two defendants in the caption was to account for the board members are the of the suit’s filing, and that my reputation *as a board member* (not as an individual) was harmed by this decision.

I understand and sympathize with your point about the precedental value of a circuit court opinion as opposed to a district court. But well reasonsed district court opinions on novel issues can do the trick just as well (especially ones that are dismissed easily by the circuit court, or not even appealed). In any case, it would only bind the 3d circuit anyway - there are twelve other circuits, and the TMLC, or DI will go shopping there before trying the 3d circuit again. While an appeals court smackdown would have been nice, I think the effect will be pretty much the same. Outside circuits won’t hesitate to cite to this opinion because of its novelty and throughness, if they have an ID case before them. And either a trial or appeals court in another circuit is not no more bound by this opinion or the opinion that affirms it. Would a circuit court affirmation be more persuasive? Yes. Necessary? I don’t think so.

Comment #63629

Posted by Doyle on December 20, 2005 5:34 PM (e)

I don’t really want to change the subject, but, in Connecticut, a school board has enumerated powers granted it by statute, and does not have unlimited discretion to lie and lie brazenly as often as they want to. Of course, happily, in Connecticut there is almost no chance of a Dover style board acting like this one did.
Now, will Sean Hannity and Ann Coulter call for the prosecution of these two liars? I seem to recall that all lying under oath requires a swift prosecutorial response.

Comment #63635

Posted by Mr Christopher on December 20, 2005 6:09 PM (e)

Bonsell is quoted today in one of the York online newspapers saying he still believes intelligent design is science and that the new board should appeal the ruling.

What a total nutjob that guy is.

Comment #63637

Posted by improvius on December 20, 2005 6:13 PM (e)

What is clear from this decision is that our present Establishment Clause jurisprudence, as several Supreme Court justices have noted, is in hopeless disarray and in need of substantial revision. In his opinion the judge bemoaned that the school district ‘deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.’ In this respect, he was correct. This case should have never made it into a federal courthouse.

Thompson is scum. The TMLC were the ones who convinced the Dover board to go to trial. If they’d used the school’s regular lawyers, they would have been advised to settle immediately. The blame for this “legal maelstrom” rests squarely on Thompson and the TMLC. They entered into this fight with their own well-known agenda, and no regard whatsoever for the best interests of their clients. They gave TERRIBLE legal advice in order to get the trial that the TMLC wanted. To hear Thompson now complaining that the “case should have never made it into a federal courthouse” is utterly disgusting. This is hypocrisy of the highest order.

Comment #63649

Posted by snaxalotl on December 20, 2005 7:07 PM (e)

“Perhaps they would argue … that the Endorsement Test is not appropriate for analyzing whether the ID policy violated the Establishment Clause.”

I can’t imagine an appeal against the religious intention of the policy (clearly a crushing victory) or more general matters of getting religiously tainted philosophy into science classes (arguable maybe, but nobody seriously thinks this has much hope in a higher court). Surely the narrow case they would try to argue on appeal is that ID was improperly ruled NOT SCIENCE. The bleat now will be that a court which “misunderstood” Behe and didn’t examine the Fig Newton Himself can’t make a general ruling that ID isn’t science, only that ID wasn’t proved to be science within the context of this case. If TMLC could secure a ruling that ID is real science, while jettisoning the direct interests of the old board (viz were their actions proper regarding intent or establishment issues), then the interests of the ID movement are served perfectly. I’m not expecting to see an end to all this until an unbelievably dreary case involving both Behe and Dembski defending their claims in excruciating detail.

Comment #63654

Posted by 'Rev Dr' Lenny Flank on December 20, 2005 7:33 PM (e)

I’m not expecting to see an end to all this until an unbelievably dreary case involving both Behe and Dembski defending their claims in excruciating detail.

Kansas will provide that opportunity.

And the IDers haven’t a snowball’s chance in hell of winning it.

Comment #63661

Posted by Lenny's Pizza Guy on December 20, 2005 8:00 PM (e)

Hey, I know you guys are all excited–deservedly so!–but, please, try to be a little understanding with your faithful pizza-delivery personnel: while we pride ourselves on the swift completion of our appointed rounds, for most of the day, pizza orders have been running roughly four times normal for a typical Tuesday in mid-December.

And there’s a conspicuous spike in the orders of double-cheese!

Ah, the heck with it! Go ahead and run us off our feet! This is too much fun!

Comment #63672

Posted by sir_toejam on December 20, 2005 8:43 PM (e)

Us Bible Belters have yet to show any/much interest in ID

sure about that? perhaps you should take a gander at ALL of the ID clubs and chapters in “bible-belt” states. Just because there aren’t many court cases in bible-belt states, doesn’t mean it’s not coming to your neighborhood soon.

Have you been to your local school board meetings recently?

It might be time for you to check up on them and attend a meeting or two; ask some questions.

Comment #63676

Posted by Flint on December 20, 2005 9:00 PM (e)

Timothy Sandefur wrote:

I actually disagree with Michael Hopkins that “the victory in the ballot box [is] as important as a victory in court.” I often hear this in other contexts as well. But when we’re talking about a matter of constitutional import, then we are talking about something that is, or ought to be, beyond the reach of politics.

Not quite. Nothing is beyond the reach of politics. MIke in #63597 raises a valid concern: Alito, Scalia, and Thomas might not have a whole lot of difficulty rounding up two more Justices who would constitute a 5-4 majority seeing a case like this one entirely differently. I notice that Jones is careful to mention Scalia’s dissents in several cases he cites. Scalia is rather scary to me. He always finds careful legal grounds for his positions, and his positions always back his religious convictions. In the Dover case, does anyone here seriously doubt that if we had replaced Jones with Scalia, we’d have the opposite side winning the case, yet for entirely sound legal reasons?

Back to the politics: Let’s carefully note the party in power at the time Scalia, Roberts, Alito, and Thomas were nominated and approved. Let’s also note how those people GOT into power. Hint: it wasn’t through any apolitical process. In the opinions of a good many political commentators after the last election, what they were concerned about wasn’t the Iraq war or the prospect of a crash dummy at the wheel of state. Instead, they were looking down the road at the number of vacancies Bush would likely need to fill over the following 4 years (two have already happened, two more rational Justices are mighty old) on the Supreme Court. If Bush gets to pack two more Scalias or Alitos in there, we’re looking at twenty years of carefully considered decisions that the Constitution doesn’t actually protect our right to…name it. Non-Christian faith. Equal opportunity to marry. Control our own bodies if the Fundamentalists don’t approve.

Yes, GW Bush appointed John Jones. But he has ALSO appointed a former Alabama Attorney General whose record mirrors Roy Moore’s. I predict it won’t take the TMLC and the DI long to figure out that it’s not the case that matters, it’s the judge. Get a Dover case through Bill Pryor (not too hard), and with a couple more Scalias Bushed onto the Supreme Court, we’re looking at a long, long time before the dawn.

Politics matters.

Comment #63680

Posted by sir_toejam on December 20, 2005 9:13 PM (e)

…we’d have the opposite side winning the case, yet for entirely sound legal reasons?

hmm. I’m not so sure about that. At the very least, it was a very clear anti-establishment case; plus any judge would have had to ignore the obvious and silly lies by the defendants in the case. to do so would make the judge to look less than sound, to be sure.

I doubt someone of Scalia’s background would be so aloof to the obvious.
He probably would NOT however, have gone the extra step in pointing out the vacuity of ID like Jones did. So my conclusion would still be that the plaintiffs would win the case if Scalia was judging it, but only wrt to the establishment clause; all the rest of the issues would be left hanging.

Yes, politics matters, but if you look at the majority of court decisions, especially on the supreme court, politics will usually take a back-seat to clear evidence.

I don’t recall the court being particularly “liberal” when Roe V Wade was tried.

Comment #63686

Posted by 'Rev Dr' Lenny Flank on December 20, 2005 9:35 PM (e)

My pizza delivery guy wrote:

Hey, I know you guys are all excited—deservedly so!—but, please, try to be a little understanding with your faithful pizza-delivery personnel: while we pride ourselves on the swift completion of our appointed rounds, for most of the day, pizza orders have been running roughly four times normal for a typical Tuesday in mid-December.

Let the Viking Piss flow freely. Hey, I’m in such a good mood tonight, I might actually even *TIP* you. :>

Comment #63687

Posted by Flint on December 20, 2005 9:36 PM (e)

sir_toejam,

While I hope you’re right, I sinceriously doubt it. I think Scalia would carefully read the disclaimer the TMLC wrote for the district administrators to read, and find nothing in it establishing an official state religion. He’d note that keeping an open mind is a good idea, that theories are indeed NOT facts, that the obvious religious motivations of those pushing the disclaimer are irrelevant to the effect, that ID is in fact not being taught, that discussing such matters at home with parents is a sound idea, that no evidence was presented at trial indicating that a single student’s faith was altered, and so on and on and on.

In short, that the establishment clause was NOT violated in any way. I’m sure he could find plenty of precedents in support, and phrase things as judges do. The case, like any complex case, is an ocean of facts, all subject to interpretation. If you seriously think someone of Scalia’s horsepower could not select and justify and interpret to fit his faith and his politics, I think you are very seriously underestimating him. And let’s face it: Thomas is to Scalia as Geesey was to Bonsell.

Comment #63688

Posted by 'Rev Dr' Lenny Flank on December 20, 2005 9:38 PM (e)

Politics matters.

Indeed it does. However, ID is so crushingly religious in nature that the ONLY way it could ever pass court muster is if the Supreme Court simply abandons the notion of “separation of church and state”, and in effect makes the US, legally and constitutionally, a “Christian Nation”.

And if THAT happens, then “evolution” and “science education” will be the LEAST of our problems.

Comment #63697

Posted by Lenny's Pizza Guy on December 20, 2005 10:03 PM (e)

Lenny, jokingly:

Hey, I’m in such a good mood tonight, I might actually even *TIP* you. :>

That’s okay, Lenny. Judge Jones already made my day!

Comment #63699

Posted by PaulC on December 20, 2005 10:04 PM (e)

Did anyone else catch the PBS News Hour this afternoon? KQED broadcasts the audio, and I happened to hear it while driving. Lawyers on both sides were interviewed. But I did a double-take listening to Richard Thompson (defense side, from TMLC). As far as I can tell, he used “creationism” interchangeably with ID while trying to argue that they are different. I thought this was about to go into the memory hole, but fortunely, NewsHour posts online transcripts. Here’s Thompson (emphasis added):

http://www.pbs.org/newshour/bb/law/july-dec05/design_12-20.html

In fact, the plaintiffs’ own witness said that it would be unfair to attribute to the school board various drafts of “Of Pandas and People,” which the school board never even saw.

Secondly, this idea that “creationism” is an old concept that the courts have already decided on flies in the face of the testimony of two credible scientists who basically testified, subject to rigorous cross-examination, that what they were basing their theory of intelligent design was scientific data, empirical data, that they saw in their labs, the complex biological structures that they viewed they concluded could not have been caused by Darwin’s theory of natural selection acting on random mutation; that these complex biological systems were there because they served a purpose. And that’s the reason that they said it is an intelligent design.

This transcript matches what I heard (I guess the cleanup crew only makes it to White House transcripts). Thompson’s point fits the defense position only if you substitute “intelligent design theory” for “creationism.” If you take what he said at face value it is hard to escape the conclusion that he has trouble distinguishing the two in his own mind.

Comment #63708

Posted by PaulC on December 20, 2005 10:36 PM (e)

BTW, I’m not sure how the transcript writer decided to put Thompson’s use of creationism in quotes. He simply said the word creationism. I was bracing to hear what he had to say after denying that creationism is an “old concept” and then he segued into a comment about intelligent design. Anyway, it seemed mighty strange to me, and a funny mistake unless I really missed something.

Comment #63709

Posted by Michael Hopkins on December 20, 2005 10:46 PM (e)

Timothy Sandefur wrote:

I actually disagree with Michael Hopkins that “the victory in the ballot box [is] as important as a victory in court.” I often hear this in other contexts as well. But when we’re talking about a matter of constitutional import, then we are talking about something that is, or ought to be, beyond the reach of politics.[…]

I think you misunderstand me.

I do not want to in any way, shape, or form suggest that the voters in a school board election can rewrite constitutional principles. The ID policy would still be unconstitutional if the pro-ID board members won with 100% of the vote. The election irrelevant to the constitutionality of the policy. Likewise the popularity of the policy is also quite irrelevant to the constitutional issues.

But the simple reality is that if elected official think it is in their political interests to push creationism or attack evolution in the schools, they will do so. This is why this comes up again and again. This is why they try to repackage the issue in ways in so-far vain attempts to fool the courts but generate support from fundamentalist voters. They are likely to continue to do so. And even after winning case after case, it still is crystal clear to the teachers that they will face hostility if they dare teach evolution. I don’t think that courts can fix that: for that we must create some new facts on the ground via electoral politics.

An important part of defending science is getting school boards, etc. not to create anti-evolution policies in the first place. If officials who engage in anti-evolutionary activities get consistently voted out of office, it will provide an an important non-constitutional protection of science education. (People please note I said “non” not “un”.) Indeed, that the good guys have done so well in the courts – as they should have – has caused in the years after Edwards too many pro-science people to become complacent. Court decision are a very imporant tool, they are not the entire toolbox.

Of course in Dover will get it both: great broad decision and causing the problem makings to lose elections.

Comment #63710

Posted by k.e. on December 20, 2005 10:50 PM (e)

[Removed]

Comment #63711

Posted by David Harmon on December 20, 2005 10:55 PM (e)

Certainly the new board won’t want to *appeal* – but might they be able to sue the old board, and/or the TMLC, to recover those legal costs? As I’m reading this, they first incurred the costs as plaintiffs, but simultaneously to having them imposed on the defendants (the Dover School Board), at least some of them became the Dover School Board, thus inheriting the loser’s penalty for the case they won! Not the weirdest thing I’ve heard come out of a courtroom, but it doesn’t seem fair….

Comment #63715

Posted by k.e. on December 20, 2005 11:11 PM (e)

David Harmon
That process […but it doesn’t seem fair] was started as soon as corportions had the same rights as a “person”.
To paraphrase Chairman Mao political power is projected through the barrel of pork.

Comment #63725

Posted by Gerry L on December 21, 2005 12:14 AM (e)

I rushed home this evening in time to see the segment on the PBS News Hour. I have to admit I didn’t pick up on Thompson’s use of “creationism” when he wanted to say “intelligent design.”

I noted, however, that he looked really stressed … and pitiable. You could almost feel sorry for him. ALmost. His initial comments pretty much mirrored the press release someone posted above, but even as he was racing to get his points made, he managed to get in a “Big Bang” and at least one “flagellum.”

Comment #63776

Posted by k keating on December 21, 2005 5:54 AM (e)

A majority of the new Dover School Board announced after the election that the winning slate of candidates had already decided that whatever Judge Jones decided they would let stand – there would be no appeal.

The were also honest enough to note that they did not win a stunning victory and if you look at the votes counts you clearly see it was a close election. Only a few hundred votes separated the winners from the losers. The community itself is quite divided. But then most of the community like most of the school board who voted for the ID statement are probably clueless as to what ID said. But given the turn-about in Kansas don’t be too shocked if we see a ID board get elected in Dover next election and the fight resumed.

Personally I’m hoping that the Board is presented with a whopping bill — sadly losing money is frequently better persuader than logic, especially given the financial problem school district is currently is having.

Regarding the school’s attorney he warned them prior to “changing the curriculum” that 1) it probably wouldn’t hold up in court and 2) TMLC would only be providing their services for free but would not cover the attorney’s costs should the Board lose and that odds were good they would given the ongoing documented discussion of creationism etc.

Judge Jones quotes part of the attorney’s “warning” letter in his decision and notes sharply how the Board decided to ignore their own attorney’s advice, but then that was fitting as they saw fit to ignore the science teachers.

Point of Information: Can the Judge Jones charge the Board members with perjury or must the local DA or U.S. PA do that? He certainly was clear in the fact that they lied both in their depositions and in court.

Comment #63794

Posted by Lurker on December 21, 2005 9:00 AM (e)

I think this ruling will draw a deeper division between the two factions making up the Big Tent: the Elites of the Right and the Theocrats. The Elites know better than to do something so impulsive as teach substance-less, evidence-less ID, so they try the underhanded approach, which means having to hide Christ behind the jargons of Information Theory, and telling their more impetuous brothers to be patient, for their own good. Of course, the Theocrats will have none of it. For the Theocrats, if God is not mentioned directly, there is a genuine Fear that the masses will soon lose Faith, as God becomes diluted in the meaningless euphemisms attributed to Him. Quite simply, you can’t evangelize Information Theory. Not only that, to the simple-minded, any elitist ‘tudes is a big red warning sign. How dare anyone profess to know better than God’s direct revelations? Shame on the Elites of the Right for hindering the progress of Theocrats, all in the name of Their Own Good.

With respect to the ruling, the Theocrats will blame the Elites for abandoning them. It was Judas-like betrayal. In the final hours of battle, the likes of Dembski and Meyer ran away. Not only that, the Judge, being an elitist Bush nominee, will be seen as Pilate, having washed his hands of this whole dirty matter by doing what was easy: sticking to the law. The Elites will be suspicious of the political fickleness and stupidity of the Masses of Theocrats. They want to try again, as Elitists are loathe to admit failure. But they know they really need a new scheme. Just how many different labels can they devise for “God Did It?” And can they convince the Masses that _this time_ it will be all different? And when Satan has finally been defeated, will the Elites dutifully step down as Prophets of the Lord, to the let the Theocrats take over and divine God’s Will?

I don’t think so. It is an uneasy relationship these two have, and I think we will see more of it develop in the coming days.

Comment #63799

Posted by Rieux on December 21, 2005 9:56 AM (e)

Slate‘s William Saletan has submitted an editorial ( http://www.slate.com/id/2132807/ ) that appears to me to be half well-founded and half ludicrous. The latter half is the portion in which he (I think) claims that Judge Jones’ decision means that ID is banned once and for all from all public-school study, including social studies and comparative religion classes:

But if unscientific theories are religious, and religion can’t be taught, it’s unclear how notions related to ID could be debated in schools, or how their truth or merit could be entertained. And that’s bad news for science, because it offers people with creationist sympathies—roughly half the American public—no outlet in the public education system outside of the science classroom.

Why it’s necessary for the “truth or merit” of ID to be “entertained” in public schools escapes me, but that aside, it seems to me (an attorney with nominal experience with Establishment Clause cases) that Saletan has brutally misinterpreted the Dover decision. Both before and after the opinion, public schools can obviously address ID in comparative religion or (as Saletan suggests, apparently thinking he’s had a novel idea) social studies classes, so long as they don’t endorse religion or otherwise violate the Lemon test in the process. Saletan, you moron.

Thousands of public schools in the U.S. deal with explicitly religious material (e.g., Paradise Lost, various Martin Luther King speeches, or the freakin’ BIBLE) all the time without violating the Establishment Clause. The Dover decision blatantly concentrates on the presentation of ID as science and the connected assaults on evolution. Schools can’t legally do that, but there’s no indication of a problem with, er, “teaching the controversy” in a social studies class as long as the class doesn’t misrepresent the status of ID or real evolutionary theory in the process. (Such misrepresentations, of course, are what the Discovery Institute means by “teaching the controversy”–but never mind.)

Er, several of you regular PT posters can, clearly, run rings around me when it comes to EC jurisprudence and the Dover case. Any of you interested in responding to Saletan? I think it’d be edifying.

Comment #63803

Posted by jim on December 21, 2005 10:19 AM (e)

Diane Rehm discusses Dover, On right now! (10:22 am EST).

I’ll be able to listen but not call in. The better speakers in this group might want to be prepared to counter some of the BS flung onto the show Just In Case.

Comment #63816

Posted by k.e. on December 21, 2005 11:51 AM (e)

Rieux
You point to an interesting phenomenon.
The lack of Intelligence behind the Designers, and their political allies.
Some even have PhD’s.
William Saletan has a public platform where opinion is passed off as fact.

Even though the extreme right may claim Orwell as their poster boy, great Art has the nasty habit of revealing more truth than is desirable when you are trying to hide reality.

George Orwell wrote: “Circus dogs jump when the trainer cracks the whip. But the really well-trained dog is the one that turns somersaults when there is no whip.”

They were not able to to fool the Intelligence of Judge Jones.
They were not able to to fool the Intelligence of the majority of scientists/Theologians and children of the enlightenment.

Where does that leave them ?
The more this goes on their Intelligence will look increasingly ….well stupid.

Comment #63820

Posted by AC on December 21, 2005 12:30 PM (e)

a prominent Dick wrote:

The Founders of this country would be astonished at the thought that this simple curriculum change ‘established religion’ in violation of the Constitution that they drafted.

Well, I guess since religious people have been reading God’s mind for millennia, it’s only fair for Thompson to engage in a bit of necromantic telepathy.

I think the founders would be astonished by quite a lot of things that have occured in the last 200 years, including the scientific findings that led to and support evolution, but I’m pretty sure they wouldn’t argue with the simple logic of this matter: government school, government rule.

Rieux, I believe Saletan is mistaken if he wrote that ID is banned. Judge Jones is very specific in his judgement that the offending “ID Policy” consisted of the actions taken by Dover regarding the 9th grade biology class, and that “our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom.” I would add that religion in general is not banned in public schools. To me, the distinction seems to be one of informing versus preaching, plain observational fact versus religious assertion, and so forth.

Comment #63823

Posted by Mike on December 21, 2005 12:38 PM (e)

Re: Comment #63688
Posted by ‘Rev Dr’ Lenny Flank on December 20, 2005

It seems to me that folks here have a hard time accepting that Scalia, et al., look at establishment clause cases differently. For them, what is of primary importance is that it is firmly established that the state uses references to God all the time (got money in your pocket?) and this doesn’t violate separation of church and state. So long as there is balance with other references, so the argument goes, it can’t be concluded that the state is establishing a religion. The DI has understood this, and known it was coming, for years. Why do you think that they never issue a comment without including their support for good evolution education? Because they’re being nice? Look at the questioning in the Cobb County case appeals court. They’re establishing that the county has great evolution education and that the sticker is a mere trifle that doesn’t establish religion. So yes, they can easily get a Supreme Court decision upholding the teaching of creationism in public school science classes and still claim that they’re following the constitution. What’s needed is a good argument for why teaching science is different from putting up a nativity scene. Just because creationists lie doesn’t mean that a determined right wing ideolog on the Supreme Court has to apply the Lemon test. The Lemon test is not the same thing as the establishment clause.