Recently in Legal Issues Category

The headline says it all. See here for the latest article by Adam Liptak in the Times. To put it as briefly as possible, the Court seems to think that a tax expenditure is not an expenditure. My earlier posting on the topic is here.

Thanks to Jim Lippard for lighting a fire under me.

Y’all remember how, years ago, Casey Luskin and the boys were calling Judge Jones a plagiarist because the final decision in Kitzmiller drew a lot of language from the briefs? I pointed out at the time that, well, that’s what briefs are for. Now here’s an article in Political Research Quarterly that uses software to find that even the U.S. Supreme Court draws a lot of language from the briefs filed by the parties in any particular case, thus reaching the unremarkable conclusion that “there is a connection between the language of the parties’ briefs and the language of the opinions, which means that parties have the potential to influence the law.” For most of us, it’s nice to know that court opinions show the judges actually read the briefs. But for Luskin & Co., it’s doubtless evidence of just how huge the Darwinist plagiarist conspiracy really is.

According to an article by Adam Liptak in yesterday’s New York Times, the Supreme Court has just heard arguments relating to an Arizona law that gives a tax credit for contributions to private “tuition organizations.” Mr. Liptak puts it succinctly:

I have not seen this in the New York Times yet, so I guess it is not Real News, but evidently Richard Dawkins (or the Richard Dawkins Foundation) is suing his webmaster for alleged embezzlement. Dawkins alleges that the webmaster, Josh Timonen, embezzled nearly $400,000, which appears to be most of the money earned by an on-line store that Timonen operated on behalf of the foundation. Timonen has posted a reply here. I also noticed a discussion at the James Randi Educational Foundation and a short article on Pharyngula. The question of who owns certain intellectual property promises to have very interesting consequences. All I know. Thanks to Abigail Smith for the tip.

And it’s not Freshwater or Hamilton holding the rod and reel.

The defense in Freshwater v. Mount Vernon Board of Education, the federal suit John Freshwater brought against the Board of Education, several administrators, and several Board members, recently issued a series of subpoenas to people ranging from Nancy Freshwater’s physicians to a couple of private citizens. While the former is arguably relevant to the case, the latter are not. Part of Freshwater’s claim in his suit is the adverse effect on his wife and loss of consortium, so her medical records are potentially pertinent. However, in at least two cases, the defense is clearly on a fishing expedition that among other things has chilling implications for the First Amendment rights of the recipients.

More below the fold

A couple weeks ago, the Skeptic’s Guide to the Universe (the best podcast there is, by the way) covered a horrific story about an Australian couple who tortured a woman after a psychic led them to believe that she was responsible for a theft they had suffered. Their attack on her was really godawful. But then the Rogues got to talking about whether the psychic was herself criminally or civilly liable for her part in the affair, and much of what they said was incorrect. I thought it might serve as an interesting “teaching moment,” but as it has less to do with creationism than with woo in general, you can read more over at Freespace.

Casey Luskin has an article in the Liberty University Law Review which he claims isn’t about Intelligent Design creationism, but is instead meant to show how “zeal for Darwin encourages certain violations of the Establishment Clause.” It will come as no surprise to anyone that Luskin’s argument is flimsy, his evidence illusory, his readings of the case law distorted, and the overall effect essentially a fun-house mirror version of First Amendment law.

Luskin’s thesis is that criticizing Intelligent Design creationism = attacking a religious viewpoint. He combines this with an insistent denial that ID is a religious viewpoint, which is an amusing effort to stick to the Discovery Institute party line, but is not, strictly speaking, illogical. His position is that, if we assume the fact (which is a fact, but he assumes, rather than believing it) that ID creationism is a religious viewpoint, why, then, it violates the First Amendment to disparage it: “Sylvia Mader’s 2007 introductory biology textbook, Essentials of Biology…plainly communicates that ID runs counter to the factual scientific data,” he writes. “If she is correct that ID is a religious viewpoint, is it appropriate for state schools to use her textbooks that unambiguously claim ID is empirically wrong?”

The correct answer is, yes, it’s perfectly constitutional and perfectly appropriate–but of course, to Luskin, the answer is no: “Students who support scientific creationism would thus hear that their ‘set of religious beliefs’ is not only an ‘arbitrary faith,’ but that they are not using their ‘God-given gifts to reason and to understand’ in the way God intended. While many might agree with such arguments, religious neutrality forbids the government from attacking, opposing, and disapproving of such a ‘set of religious beliefs’ in this fashion.”

This is false. The neutrality requirement in the First Amendment forbids the government from taking a position on the truth or falsehood of a religious doctrine in religious terms, but it may take a position on any matter on areligious or non-religious terms. That is, the Constitution forbids the government from endorsing or propagating or censoring the doctrinal truth of a religious proposition, but it does not forbid the government from endorsing or propagating the factual truth of a proposition, even if those propositions turn out to be the same in content. It does not forbid the government from reaching a conclusion, and stating or endorsing that conclusion, from secular premises, even if that conclusion happens to clash with someone’s religious view. Government may not take religious positions, but it take secular positions that happen to clash with positions endorsed by a religious viewpoint.

This ought to be plainly obvious. Some people, for example, believe that AIDS is a punishment sent from God to scourge sodomites, or that blacks are inherently inferior to whites, or that ancient Indian tribes descended from Israelites and fought wars in chariots, or that earthquakes express Vulcan’s displeasure at man’s hubris.* The First Amendment forbids the government from taking any official doctrinal positions on these matters–but it does not forbid, and could not possibly forbid the government from teaching that, in fact, AIDS is caused by a virus, that blacks are not inferior to whites, that American Indian tribes have no relationship to the Israelites and lacked chariots, and that earthquakes are caused by geological activity. The First Amendment does not forbid the government from saying that there is no documentary evidence (or no fossil evidence or no eyewitness evidence) for P, even though P falls within a religious doctrine–and the Amendment cannot sensibly read to require this, because it would make all communication and all activities impossible. The most arbitrary claims would be insulated from challenge, and each person would have a heckler’s veto over government’s actions–the more irrational and mystical, the better.

To put it a bit more technically, if proposition P can be supported by religious argument R and also by secular argument S, government is entirely within its constitutional authority to take an official position on P on the basis of S. In fact, it’s even entitled to throw people in jail for P. But it may do nothing whatsoever on the basis of R. It may not support or oppose or endorse it. That’s why the government can make it illegal for people to use intoxicating drugs–even if they do so for religious purposes–but why it may not prosecute faith healing, even though faith healing is obviously fraudulent bunk.

Now, let’s play “name that logical fallacy” (to steal from our friends at the Skeptic’s Guide): “[E]ither ID is a religious viewpoint that is unconstitutionally opposed, inhibited, and disapproved when this textbook is used in public schools,” writes Luskin, “or ID is not a religious viewpoint and is thereby fair game for all forms of government-sponsored attacks, disparagement, hostility, as well as endorsement.” This is all very clever, no doubt–it is, as Lincoln once said, the kind of logic whereby a horse chestnut turns out to be the same thing as a chestnut horse. It’s the fallacy of the false dichotomy. In fact, ID is a religious viewpoint masquerading as a scientific theory–it is a religious position which is layered in factually untrue or arbitrary assertions. Government is entirely free to denounce the factually untrue statements and explode those arbitrary assertions. No, it cannot say that God does not exist, and it cannot say that man was not created by God through some guided process. On that, Luskin is correct. But government violates no law when it says (and rightly) that there is no factual basis for ID’s scientific claims.

It’s amazing that Luskin can get 88 pages out of this silliness–even if it is through Liberty University. But the bottom line is this: government may inhibit (short of censorship or compelled speech), oppose, and disapprove of any factual proposition whatsoever–including factual propositions that religious groups have taken a position on–so long as it does so from a secular background.

*–Update: I feel so bad. Vulcan was not the god of earthquakes; that was Poseidon/Neptune. I did not mean to denegrate, oppose, or disapprove of this non-materialistic explanation of earthquake generation, and I sincerely apologize to all members of the Supreme Council of Ethniokoi Hellenes.

We received the following announcement from the National Center for Science Education and reproduce it with permission:

The New York Times reported a week or so ago that Arizona State University had paid damages to an Indian tribe for misuse of DNA that had been collected by a University researcher (here, with further analysis here). The tribe claimed that the researcher, Therese Markow, had obtained permission to use the DNA for one purpose but then used it for other purposes. That is, she had not obtained informed consent for wider-ranging research than the original research, which was to study diabetes among the members of the tribe. The Times did not give enough information about the consent given by the Indians to allow a judgment as to whether Professor Markow acted unethically, but she insists that she did not, in part because it is impossible to tell in advance the direction of a research project. Indeed, it is easy to conjecture that the University settled the suit because contesting it would damage its image.

You may not patent a “product of nature.” You may not, for example, search high and low in the rainforest, find a valuable plant, and patent it. Why then may you patent a gene?

According to Inside Higher Education, Butler University has sued one of its own undergraduates, junior Jess Zimmerman, for defamation. The incident was also picked up by Stu Kreisman at the Huffington Post.

Details are murky, at least to me, but evidently the university had demoted both Mr. Zimmerman’s father, Michael Zimmerman, founder of Evolution Weekend, and his stepmother, Andrea Gullickson, the chairman of the school of music. When Professor Gullickson was demoted, Jess Zimmerman anonymously wrote a blog in which he accused the university of acting arbitrarily. The suit was dropped yesterday, but there is no guarantee that the university will not reinstate it.

(Photo courtesy LDEO)

September 29^th, 2009 Project UPDATE

Courtesy the University of Oregon, which reports on Sept. 22^nd that

After 30 days at sea and 16 days of successful seismic surveying of deep-sea hydrothermal ecosystems on the Pacific Ocean floor off British Columbia, researchers from two Northwest institutions have returned to dry land. Their mission to study the deep crustal structure of the Endeavour segment of the Juan de Fuca ridge had drawn last-minute opposition by environmental groups, who in court filings had sought to stop the seismic surveying because of potential harm to whales and other mammals. A portion of the ridge includes the Endeavour Marine Protected Area that was established to foster conservation and responsible scientific study. Canadian courts rejected the groups’ cases. Prior to sailing, the project – the Endeavour Seismic Tomography Experiment – underwent a thorough environmental assessment by Canadian and U.S. regulators. The timing of the expedition was chosen to minimize marine mammal encounters. During the survey, certified marine mammal observers monitored the region on a 24-hour per-day basis. “Not a single marine mammal was either visually observed or acoustically detected during the seismic survey,” said Doug Toomey, professor of geological sciences at the University of Oregon and principal investigator of the National Science Foundation-funded project that was done from the research vessel Marcus G. Langseth.

Update continues below the fold…

You will recall that in June John Freshwater filed a federal suit (see PT post here) against the Mt. Vernon City School District, several Board members, several administrators, and a bunch of John and Jane Does. Included among the defendants was David Millstone, attorney for the Board.

Now, according to news reports, Millstone has moved to be dropped as a defendant, arguing that it is improper to sue an attorney in order to pressure the attorney’s client. The news report describes a June 9, 2009, letter from R. Kelly Hamilton to the Board of Education that apparently suggested a settlement, including this sentence: “It will be interesting to observe the developments between Mr. Millstone’s representation and the interests of the Mount Vernon City School System.” According to the news report, Millstone’s filing characterized that sentence as “a ‘veiled threat’ to force Millstone out of representing the school board.”

The news report quotes Millstone’s attorney as saying “The claim against Mr. Millstone appears to be a pressure tactic aimed at the administrative process to terminate Mr. Freshwater’s contract.”

This is of a piece with Freshwater’s basic strategy, which is apparently to attempt to force a settlement one way or another. Freshwater’s pastor, Don Matolyak, has been making noises about settlement for some time now, always, of course, on Freshwater’s terms.

In other legal news, responses to Freshwater’s application to the Ohio Supreme Court for a writ of mandamus to compel testimony from Board members are coming in. They’re linked from here. The administrative hearing was due to resume September 10, but I strongly doubt it’ll happen that soon.

You’ll recall that the Institute for Creation Research—the creationist outfit that purports to award advanced degrees in the sciences—has filed a lawsuit against the Texas Higher Education Coordinating Board, objecting against its decision not to authorize the ICR’s granting of degrees. As I observed earlier, the original complaint in the case was 67 single-spaced pages long, and included 86 footnotes, including one that took up an entire page. It was a masterpiece of how not to write a complaint.

Well, the federal court didn’t take lightly to that, and ordered the ICR to file an amended complaint that complies with the Federal Rules of Civil Procedure, and the ICR has now done so. The new complaint is 20 double-spaced pages…but it is 20 pages of non-stop, thigh-slapping hilarity. It contains language that appears to be randomly cobbled together through some sort of Lawyer Phrase Generator, and which I defy any member of the bar to explain in sensible terms: “There are still 2 state statutes that are potentially dispositive (in a manner favorable to the [ICR]) as to issues of ‘first impression’, so this Court needs to make some Erie v. Thompkins guesses thereon.” What the hell does that even mean?

The word “herein” is sprinkled randomly throughout, rather like the way Miss Teen South Carolina sprinkles “such as.” It occurs four times on page 2 alone–including “venue herein,” whatever the heck that means. There are italics, boldface, ALLCAPS, and all sorts of different combinations herein, of course. There are delightful spelling errors (“advertizes”), rhetorical flourishes (“as if with a ‘scarlet letter’”), and neologisms (I can’t decide if “favoritistically” or “applicational bounds” is my favorite). Of course it quotes the Bible. It even has rhetorical questions! In a complaint!

Now, judges get crap like this complaint all the time, and sadly for them, the liberal pleading rules generally require judges to allow the case to proceed if they can find somewhere in the complaint anything that would entitle the plaintiff to relief. That sometimes means doing the work of the plaintiff’s lawyers. If the court does anything like that here, it’ll face heavy work. But here is really the core of the ICR’s complaint: “[ICR] seeks declaratory relief that it may, as a matter of academic freedom…institutionally opine (as a matter of institutional academic speech),–that a given graduate student is worthy to be recognized as having earned [ICR]’s ‘Master of Science’ in ‘Science Education’ degree.…”

As I blogged before, I think there actually is something to this objection: the relationship of the state to educational institutions (however bogus) is not a simple one: an organization has a First Amendment right to grant titles to whomever it pleases–to declare John Smith to be a “deacon” or a “scholar” or what have you. And for the state to confiscate the use of certain terms (like “degree”) does implicate the constitutional rights of those organizations and the individuals who comprise them. The Texas Supreme Court held as much in HEB Ministries, Inc. v. Texas Higher Education Board, 235 S.W.3d 627 (Tex. 2007).

That’s a straightforward constitutional argument, and one worthy of being addressed by a court. But something tells me it won’t be addressed in this case, in which the ICR’s counsel alleges all sorts of virtually random causes of action. It seems to allege that the Texas Higher Education Coordinating Board violates the monopolies clause of the state Constitution, the Fourth Amendment’s searches and seizures clause, the due process clause, the equal protection clause, the freedom of speech clause, the freedom of the press clause, the freedom of association, the Texas Government Code, laws against defamation, the public emoluments clause, the Texas Religious Freedom Restoration Act, anti-discrimination laws, the Texas Education Code, and even the “no titles of nobility” clause of the U.S. Constitution! The complaint even argues that for the state of Texas to regulate higher education “interferes with interstate commerce” (emphasis original, natch).

Writing a complaint is not a hard task for a lawyer. The rules are clear. There are plenty of examples to copy. It doesn’t require rhetorical skill or eloquence–indeed, you are supposed to avoid these things. You don’t have to write footnotes (in fact, you shouldn’t). It’s something that any competent attorney can do. But the ICR’s complaint is just wackiness through and through. Creationists appear to be no better at law than they are at science.

(By the way, here’s an interesting civil procedure tidbit: the complaint seeks to allege causes of action under the Texas Constitution, but the defendants are being sued pursuant to Ex Parte Young. Under Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1980), a federal court has no supplemental jurisdiction to hear state constitutional claims in such an action.)

I just received an e-mail from the Center for Inquiry, which begins thus:

Matthew LaClair … has alerted us that his former history teacher, David Paszkiewicz, is at it again. You may recall Mr. Paskiewicz–he’s the one who was recorded by LaClair telling students that dinosaurs were on Noah’s Ark and if “you reject the Lord’s salvation, you belong in hell” (New York Times, 12/18/06). This time, he is acting as the advisor of a Christian club at Kearny High School (located 10 miles outside of Manhattan in New Jersey), called the Alpha and Omega Club, which has scheduled [a field trip to the Creation Museum in Petersburg, Kentucky, June 5-7].

LaClair, who is no longer a student at the school, learned about the trip from the student newspaper. He evidently alerted the school district’s lawyer and also contacted Americans United for the Separation of Church and State. He convinced the school board to postpone the trip till school was out today, June 5, so that the trip would take place entirely out of hours (I infer, therefore, that the trip is no longer an official school field trip). In addition, he got the school board to remove the listing of the Christian club under history and social science.

The Center for Inquiry notes that there are still some troubling problems. School officials initially approved the trip, which suggests to CFI that they were “asleep at the wheel.” CFI adds that

a public school teacher with strong religious convictions and a record of proselytizing is being allowed to serve as the advisor of a religious club and use his position to have a public school approve a patently religious-based fieldtrip.

Religious clubs are permitted in schools, but the adviser is supposed to be “neutral.” CFI questions the teacher’s neutrality since he

has overtly and repeatedly discussed and promoted religious beliefs with his students in the past, and his proposed fieldtrip to the Creation Museum demonstrates that he continues to do so today, dangerously blurring the line between his own personal faith commitments and his obligations as a teacher in a government-funded public school system.

A court in California has ruled that the Establishment Clause was violated by comments a schoolteacher made against certain religious propositions. Ed Brayton has details here. Personally, I’m troubled by the ruling for reasons that First Amendment expert Eugene Volokh explains here.

This news story has been raising some eyebrows lately: it appears that a North Carolina judge has ordered three children of a divorcing couple to be sent to public school in part because of the father’s concern that the children are being taught creationism at home. Prof. Eugene Volokh, a First Amendment expert, has some comments here. Personally, I’m very skeptical about the news report. Legal reporting is often extremely misleading, and it’s always best to be skeptical. In this case, the story only quotes the mother (who, of course, lost the case and is the one complaining) and not the judge. The mother claims that the judge based his ruling in part on this issue, but we don’t have the judge’s own words before us.

Putting that aside, this is not an easy question to call. Of course, the prospect of a judge basing a custody decision solely on this issue is very troubling–there are far more relevant factors in a custody case than whether a child is receiving adequate science instruction. And a parent has a right to direct the religious upbringing of a child, including the right to teach a child ludicrous religious dogma instead of science. That’s a sad thing, but people often think other people’s exercise of freedom is a waste. Certainly history includes many atrocious cases in which atheist parents have lost their children because judges thought it was “better for the child” to be taught religion.

Still, the father also has a right to educate his children, and if he thinks the children are not being instructed adequately, he has a legitimate complaint. There are good reasons to be concerned about the quality of education in home schooling environments (although there are certainly many very high quality home schoolers). In a case like this, it is probably best to ensure that although the mother is free to teach her children her religious beliefs, the father is also free to teach real science to kids if he chooses. But, again, we don’t know all the facts, or even the other side of the story.

I think everyone can at least agree that child custody cases are extremely complicated matters–which cannot be accurately described in a brief news story, and obviously should not be decided on the basis of evolution or creationism education alone–and that except in cases of actual abuse, minor children should not be taken from parents because of the religious instruction that parents are giving their kids. The problem is, when does religious instruction become abuse? That line can often be blurry–but if it’s just a dispute over evolution and creationism, it’s clearly not abuse.

By Hector Avalos, Ames, Iowa

Count this as another loss for the Discovery Institute in Iowa—right behind its failed efforts to portray intelligent design as legitimate research in Iowa universities. The “Evolution Academic Freedom Act,” based on the model language promoted by the Discovery Institute, never even made it out of the relevant subcommittee in the Iowa legislature. March 13 was the deadline for any further action.

The bill was introduced by Rod Roberts, a Republican legislator, in early February. By mid-February, the faculty at Iowa institutions of higher learning launched a petition that eventually gathered some 240 signatories from about 20 colleges, universities, and research institutions in Iowa.

I am so incredibly tardy with this information that Arizonian John Lynch and the lovely folks at Uncommon Descent have already blogged this, but recently an “academic freedom” bill was introduced in Iowa. For those who may be unfamiliar, in addition to “teach the controversy,” these “academic freedom” bills are one of the new tactics for creationists who want to introduce creationism into science classrooms via the back door by claiming that teachers need the protection to teach “the full range of scientific views” when it comes to evolution (in other words, to teach creationism/ID). The bill states that:

Our friend Law-Suit Larry has filed a petition for certiorari in the U.S. Supreme Court, asking that Court to review the Ninth Circuit’s decision in his lawsuit against the U.C. Berkeley Understanding Evolution website. (We’ve blogged about this case in the past.) He was assisted in this work by the Pacific Justice Institute, an organization that focuses largely on cases relating to religion issues. Caldwell is representing his wife as the petitioner, but the respondent coincidentally is also named Caldwell, meaning that the case is Caldwell v. Caldwell, with Caldwell as one of the lawyers, and they’re all different people.

I’ve read the petition (which is not online), and it’s an interesting piece of work. It urges the court to take the case on the grounds that the theory of “standing” needs to be clarified in the context of web pages. (Non-lawyers for whom these terms are confusing should start by reading this)