Summer reading 1: Lauri Lebo’s “Devil in Dover”

Many of you probably followed the 2005 “Kitzmiller vs. Dover” trial in Dover, Pennsylvania closely. From its early days, with daily updates at the Panda’s Thumb to the publication of the ruling–“Kitzmas”– in late December, the trial was filled with drama and moments right out of the movies. From the defendants’ remarkable lying on the stand to Behe’s admission that his definition of a scientific theory included astrology, it seemed that each day was better than the last for the pro-science side, culminating in the stinging tongue-lashing doled out by Judge Jones in his decision in favor of the plaintiffs.

However, what was reported was only a small slice of the larger story, and Lauri Lebo’s new book, The Devil in Dover, brings us the rest. A journalist for the York Daily Record, Lebo grew up in the Dover area and has an intimate understanding of the local history and culture–and the personalities involved on both sides of the case, making “Devil in Dover” far more than just another recounting of the trial. (More after the jump…)

The Dover trial was so much more than just a test of the first amendment and a victory against the teaching of intelligent design. It was the first big test of “intelligent design” in schools; it was a flashpoint in the “culture wars;” it divided a community, even while it brought together strangers and turned them into close friends. Lebo artfully weaves these stories into her documentation of the events preceding and taking place during the trial, bringing the events into the larger cultural context and bringing to life the personalities involved in the trial. She describes the fear, and strength, that plaintiff Tammy Kitzmiller, a divorced mother relatively new to the area whose daughter would be taking the 9th grade biology course, felt when she decided to join the lawsuit, and the alienation that she still feels even after the trial is over. She shows the weakness of defendant Bill Buckingham, who, despite having been caught red-handed lying about various portions of his involvement with the decision to move forward with a pro-ID platform, still believed he did the right thing (and that he did nothing wrong, morally or legally).

However, the book is even more personal than just an exposition of the various personalities involved in the trial. Lebo uses the trial to examine her own relationship with her born-again evangelical Christian father, more worried about his daughter’s eternal soul than scientific truth. This relationship is a microcosm of society’s “culture war:” believers versus nonbelievers, science versus religion, however you want to frame it–and it’s something that will likely have a familiar ring to many of us who come from smaller towns and have dealt with these complex relationships all our lives.

And that’s a story Lebo really brings to life, and what makes her book stand out among others written on the Dover trial (or intelligent design more generally). She captures what it’s really like to go against the grain in these small towns; something that’s been dramatically demonstrated in the news recently with the case of creationist Ohio schoolteacher John Freshwater, a science teacher who’s not only taught explicit creationism in the classroom for many years, but has even burned crosses onto students’ arms during class. People around the world have asked how this could have gone on for so long, but for those of us who hail from towns like Dover, we realize that creationist teaching getting swept under the rug (or even outright supported by the community) are more common than many outsiders may realize. Even in the Freshwater case, which is an extreme example because of the physical harm in addition to the illegal teaching, stories from the town show that kids who’ve spoken out against Freshwater have been subject to harrassment from not only classmates but also adults in the town. In my own hometown, the ACLU recently recently chastized the schools for allowing class time and school property to be used for Bible distribution. Back when I was in school–public school–we still had Bible instruction once a week until 6th grade. Technically, we could opt-out, but what child wants to be “that kid who doesn’t stay for Bible class”? As Lebo describes, even most of the biology teachers at Dover were church-going Christians, yet they were ostracized and bad-mouthed by those supporting the school board’s anti-evolution stance–rejected and slandered by Christians who seemingly had no problem attacking fellow believers.

Lebo’s tale of the Dover trial is a story of the trial’s participants and the town, but also the search for common ground, for understanding between the feuding parties. While she wasn’t able to find a good resolution for that, the description of the journey she details in “Devil in Dover” brings the evolution trial out of the “stuff scientists will be interested” realm and deep into the “required reading” list.

Comments

#1 Dior
June 23, 2008

Lori’s story was briefly told in the nova special Judgment Day. You can hear the heartbreak in her voice and I will be buying this book.
#2 RBH
June 23, 2008

… for those of us who hail from towns like Dover, we realize that creationist teaching getting swept under the rug (or even outright supported by the community) are more common than many outsiders may realize. Even in the Freshwater case, which is an extreme example because of the physical harm in addition to the illegal teaching, stories from the town show that kids who’ve spoken out against Freshwater have been subject to harrassment from not only classmates but also adults in the town.

For the most part the adults have been trying not to escalate the verbiage, with the exception of “Coach” Dave Daubenmire and his Minutemen United loons. He and his troops are determined to fight a battle in the culture wars here, but they have pretty much isolated themselves, alienating a substantial proportion of the community. Daubenmire has a history in this part of Ohio and is not well thought of except among the fringe fundamentalists. Even many of the evangelicals don’t want to associate themselves with him.
#3 Lorax
June 23, 2008

I should have been paying attention, just bought a bunch of books from B&N. Looks like they will have to wait in line a bit longer now…
#4 Stephen
June 23, 2008

I read the Jones decision. I followed the Panda. I understand, or at least have encountered, church politics. There’s more?

I have a friend who’s into ID. I haven’t yet done the argument with him that he’s going to hell, on Biblical grounds. I doubt he’ll be swayed. But he’s an engineer who should know better. What’s even more scary is that it’s possible he really believes it. I mean, if an engineer can fall for this kind of thing, what hope do mere mortals have? Perhaps the road to salvation is narrower than i thought.
#5 David Harley
June 23, 2008

I’m not sure that inflating the Intelligent Design struggle into a Satanic crisis is very helpful. The fundamentalists are already excited enough as it is.

Presumably, the title of this book refers to “The Devil in Massachusetts: A Modern Enquiry into the Salem Witch Trials” by Marion L. Starkey, a not very recent study that tried to use hysteria as an explanation for the Salem events, as I recall.

It may be that this is the publisher’s idea of a good way to whip up sales, but it is probably a counter-productive tactic, in the long run. There’s already far too much polarization in US society, and the misleading Religion v. Science dichotomy will always make ordinary Americans choose religion. Pathologizing their doubts about scientific orthodoxy will only anger them, with good reason.
#6 Ktesibios
June 24, 2008

So far The Ghost Map and Vaccine, both of which Tara reviewed, have turned out to be good, educational reads, well worth my time and money.

Based on that track record, I’ll be adding The Devil in Dover to the list for my next bookstore run.
#7 Theron
July 2, 2008

I got this book after seeing the review and all the positive comments on Panda’s Thumb. I thought is was excellent, and like Smith it rang particularly true for me because of my small town, Bible Belt background.
#8 Rev. BigDumbChimp
July 3, 2008

I’d heard about the book and planned on picking it up, but had no idea it was the lady from the PBS special (probably because I wasn’t paying good enough attention). I’ll have to speed up this purchase.
#9 Larry Fafarman
July 4, 2008

Interviews of Lauri Lebo show that she does not believe in unbiased reporting. I heard that she was fired for biased reporting.

According to the level of responses on Amazon.com, none of the books about the Kitzmiller case have done especially well. I think that to most people, the case is just old news.

I think that the real story of the case is not widely known. What happened was that the school board adopted a heavily pro-Darwinist biology text, and as a sop to the fundies, several ID books were placed in the school library. The science teachers initially agreed to the compromise, then reneged by refusing to read a one-minute statement announcing the books in the library. Only Darwinism was actually taught. Judge Jones was biased and incompetent. He showed extreme prejudice against ID and the defendants — regardless of whether or not ID is a religious concept — by saying in a Dickinson College commencement speech that his decision was based on his notion that the Founders believed that organized religions are not “true” religions. And the ID-as-science section of his opinion was virtually entirely copied from the ACLU’s opening post-trial brief. The courts should declare the evolution controversy to be non-justiciable.
#10 Martian Buddy
July 8, 2008

I’m sure it will surprise no-one that Larry Fafarman’s “real story” of the case is at odds with reality. For those who are unfamiliar with the case, the judgment of the court is available here and gives a great summary of the events that led up to the trial and the various lines of evidence that Intelligent Design is a “don’t ask, don’t tell” form of creationism.

Specifically, Larry fails to note that a number of board members were creationists and opposed the teaching of evolution on religious grounds (the final vote to add ID to the curriculum was 6-3.) He fails to mention that these members of the board were pressuring district science teachers to water down their lessons on evolution and supplement them with ID materials such as the video “Icons of Evolution” even before the textbook selection. He also misrepresents the nature of the “compromise” between the students and the board; the creationist members of the board had originally wanted the use of “Pandas” side-by-side in the classroom with the science textbook, but the teachers objected that this would mean teaching creationism in class in violation of the law. He glosses over the fact that the original curriculum change would have had ID taught in the classroom in lecture form, with “Of Pandas and People” as a resource. It was only after the complaint was filed that the 58 copies of “Pandas” were moved to the library.

As for Larry’s accusations against Judge Jones, here’s the part of the speech in question:

Ironically, but perhaps fittingly for my purposes today, we see the Founders’ ideals quite clearly, among many places, in the Establishment Clause within the First Amendment to the United States Constitution. This of course was the clause that I determined the school board had violated in the Kitzmiller v. Dover case. While legal scholars will continue to debate the appropriate application of that clause to particular facts in individual cases, 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.”

In other words, he’s talking about his understanding of what the establishment clause means, and Larry is once again full of it.
#11 Larry Fafarman
July 11, 2008

Martian Buddy said,

Specifically, Larry fails to note that a number of board members were creationists and opposed the teaching of evolution on religious grounds

Your statement is contrary to the judicial “Endorsement Test” established by Justice O’Connor in her concurring opinion in Lynch v. Donnelly — this test says, in part, “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.”

He fails to mention that these members of the board were pressuring district science teachers to water down their lessons on evolution and supplement them with ID materials such as the video “Icons of Evolution” even before the textbook selection.

All that counts here so far as the lawsuit is concerned is the final agreement between the school board and the teachers, and that final agreement only provided for use of the book “Of Pandas and People” as a reference book — it was not required reading. The teachers were only required to read a one-minute evolution disclaimer statement announcing the books, and they reneged on their agreement by refusing to read the statement. In exchange for the teachers’ acceptance of the Pandas book, the board adopted a heavily pro-Darwinist main biology textbook.

He glosses over the fact that the original curriculum change would have had ID taught in the classroom in lecture form, with “Of Pandas and People” as a resource.

As I said, all that counts here is the FINAL agreement — the school board could not be sued for something that it wanted to do but did not succeed in doing. The lawsuit challenged only a one-minute evolution disclaimer statement that announced the books. The lawsuit made NO mention of any plan to teach ID in lecture form.

Here is what the lawsuit said:

INTRODUCTION:
On October 18, 2004, the Defendant Dover Area School Board of Directors passed by a 6-3 vote the following resolution:
Students will be made aware of gaps/problems in Darwin’s theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of Life is not taught.
On November 19, 2004, the Defendant Dover Area School District announced by press release that, commencing in January 2005, teachers would be required to read the following statement to students in the ninth grade biology class at Dover High School:
The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part.
Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.
Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.
With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.
A. Background and Procedural History
On December 14, 2004, Plaintiffs filed the instant suit challenging the constitutional validity of the October 18, 2004 resolution and November 19, 2004 press release (collectively, “the ID Policy”).

==========

It was only after the complaint was filed that the 58 copies of “Pandas” were moved to the library

So what? That only showed that the school board tried to compromise by moving the books to the library! Was it wrong of the school board to try to compromise? Anyway, the books were not required reading, regardless of where they were located. BTW, judicial precedent prohibited removal of the books from the library, so the plaintiffs did not seek removal of the books from the library.

In other words, he’s talking about his understanding of what the establishment clause means, and Larry is once again full of it.

And his understanding of what the establishment clause means is that the Founders based the clause upon a belief that organized religions are not “true” religions! You’re the one who’s full of it.
#12 Martian Buddy
July 11, 2008

Larry, the book is about the history of the trial, remember? You know; all that stuff that led up to the Dover Area School District getting sued. My point was that your “real story” of the case gave a highly disingenuous (some might even say dishonest) version of events.

For example:

All that counts here so far as the lawsuit is concerned is the final agreement between the school board and the teachers, and that final agreement only provided for use of the book “Of Pandas and People” as a reference book — it was not required reading.

Which wasn’t the point; the board’s original intent was to have “Pandas” side-by-side with the biology books on the students’ desks. The only reason they backed off from that plan is because the teachers refused to break the law by doing so.

The teachers were only required to read a one-minute evolution disclaimer statement announcing the books, and they reneged on their agreement by refusing to read the statement. In exchange for the teachers’ acceptance of the Pandas book, the board adopted a heavily pro-Darwinist main biology textbook.

In other words, the board strong-armed the science teachers into a compromise by withholding approval of the new biology books until the creationists got their way and forced adoption of a statement claiming that evolution was a suspect science and pointing students to a creationist textbook. The teachers wisely decided not to break the law.

So what? That only showed that the school board tried to compromise by moving the books to the library! Was it wrong of the school board to try to compromise?

You have a peculiar definition of “compromise” if it includes “trying to cover one’s tracks when caught breaking the law.”

BTW, judicial precedent prohibited removal of the books from the library, so the plaintiffs did not seek removal of the books from the library.

Can’t you even keep the story straight from one sentence to the next? They didn’t seek removal of “Pandas” from the library because the books were in the classrooms when they sued.

And his understanding of what the establishment clause means is that the Founders based the clause upon a belief that organized religions are not “true” religions! You’re the one who’s full of it.

It’s perfectly clear that he’s talking about the founders intending to safeguard free, rational inquiry by prohibiting entanglements of church and state. I don’t know how you can go so wrong reading a perfectly lucid paragraph.
#13 Larry Fafarman
July 11, 2008

Martian Buddy said,

Which wasn’t the point; the board’s original intent was to have “Pandas” side-by-side with the biology books on the students’ desks.

It doesn’t matter what the board’s “original intent” was — the board agreed to COMPROMISE by adopting the “Pandas” books as reference books that were not required reading. Do you understand that people can be sued or held responsible only for what they actually do and not for what they merely desire to do? Albert Alschuler, a law professor emeritus at Northwestern University Law School, wrote of the Kitzmiller v. Dover case,

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. Does that make any mention of intelligent design unconstitutional? It seems odd to characterize the desire to go far as the law allows as an unlawful motive. People who try to stay within the law although they would prefer something else are good citizens. The Dover opinion appears to say that the forbidden preference taints whatever the board may do, and if the public can discern the board’s improper desire, any action it takes also has an unconstitutional effect. If board members would like to teach Genesis as the literal truth, the board may not direct teachers even to mention the anamolies (sic) in the theory of natural selection that the court itself recognizes. 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.”

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

In other words, the board strong-armed the science teachers into a compromise by withholding approval of the new biology books until the creationists got their way and forced adoption of a statement claiming that evolution was a suspect science and pointing students to a creationist textbook.

Looks to me more like the science teachers strong-armed the school board into accepting a heavily pro-Darwinist biology textbook. Here is the way the textbook was described by former school board member Bill Buckingham on the PBS NOVA TV program about the Kitzmiller case:

In looking at the biology book the teachers wanted, I noticed that it was laced with Darwinism. I think I listed somewhere between 12 and 15 instances where it talked about Darwin’s theory of evolution. It wasn’t on every page of the book, but, like, every couple of chapters, there was Darwin, in your face again. And it was to the exclusion of any other theory.

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

The teachers wisely decided not to break the law.

Wrong. There is no law against evolution disclaimers in public schools. And when the Kitzmiller case started, the only conclusive court decision against an evolution disclaimer was Freiler v. Tangipahoa Parish, which was in another federal appeals court circuit.

The two-timing science teachers got their part of the bargain, a heavily pro-Darwinist biology textbook, and then reneged on giving the school board its part of the bargain, an announcement of the “Pandas” books. The only mistake the school board made was in not giving the teachers more of a say in the wording of the ID statement.

You have a peculiar definition of “compromise” if it includes “trying to cover one’s tracks when caught breaking the law.”

As I said, the evolution disclaimer statement was NOT breaking the law. And how were they “caught” breaking the law — was the evolution disclaimer secret? And how was moving the books to the library “trying to cover one’s tracks”? Moving the books to the library seems to me to be a pretty much out-in-the-open act. You are just making up a lot of false accusations of clandestine lawbreaking.

Can’t you even keep the story straight from one sentence to the next? They didn’t seek removal of “Pandas” from the library because the books were in the classrooms when they sued.

Later, after the books were moved to the library, the plaintiffs decided not to seek removal of the books from the library because judicial precedents indicated that the books could not be removed from the library.

It’s perfectly clear that he’s talking about the founders intending to safeguard free, rational inquiry by prohibiting entanglements of church and state. I don’t know how you can go so wrong reading a perfectly lucid paragraph.

One of the problems that you Darwinists have is that you don’t understand plain English. It is perfectly clear that he said — as you quoted him in your comment of July 8, 2008 3:58 PM — that his Dover decision was based on his notion that the Founders based the Establishment Clause upon a belief that organized religions are not “true” religions. Here is part of what 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.
#14 Martian Buddy
July 12, 2008

It doesn’t matter what the board’s “original intent” was…

Nonsense. Whether you like it or not, courts can and do take context into consideration when dealing with establishment clause cases. Board Solicitor Stephen S. Russell is even cited in the ruling as having given this warning to the board:

“I guess my main concern at the moment, is that even if use of the text is purely voluntary, this may still make it very difficult to win a case. I say this because one of the common themes in some of the US Supreme Court decisions, especially dealing with silent meditation, is that even though something is voluntary, it still causes a problem because the practice, whatever it may be, was initiated for religious reasons. One of the best examples comes out of the silent meditation cases in Alabama which the court struck down because the record showed that the statute in question was enacted for religious reasons. My concern for Dover is that in the last several years there has been a lot of discussion, news print, etc. for putting religion back in the schools. In my mind this would add weight to a lawsuit seeking to enjoin whatever the practice might be.”

Too bad the board didn’t listen.

…the board agreed to COMPROMISE by adopting the “Pandas” books as reference books that were not required reading.

Don’t forget the part about requiring a teacher to read a statement disparaging evolution and referring the students to a creationist textbook that was kept handy in the classroom area (at least up until the day after the complaint was filed.) That part’s kind of important.

Do you understand that people can be sued or held responsible only for what they actually do and not for what they merely desire to do?

They were held responsible for what they actually did; undermining the teaching of evolution and referring the students to a creationist textbook.

Looks to me more like the science teachers strong-armed the school board into accepting a heavily pro-Darwinist biology textbook. Here is the way the textbook was described by former school board member Bill Buckingham on the PBS NOVA TV program about the Kitzmiller case:

Bill Buckingham is an ardent creationist, so it’s no surprise that he objected to a biology textbook that gives an honest presentation of evolution and pushed for the adoption of a creationist textbook to “balance” it. He also lied on the witness stand about where the funds for the creationist textbooks came from.

Wrong. There is no law against evolution disclaimers in public schools.

It’s called the establishment clause, Larry. The same one that forbids school districts from banning evolution, requiring “equal time” for creationism, teaching creationism tarted up as an “alternative theory,” and all the other permutations that creationists have tried over the years. You and I both know that the purpose of the disclaimer was to advance a sectarian religious belief at the expense of proper science education. It’s not a big mystery.

And when the Kitzmiller case started, the only conclusive court decision against an evolution disclaimer was Freiler v. Tangipahoa Parish, which was in another federal appeals court circuit.

You’ve never heard of persuasive precedent? See the quote I posted above from the board solicitor. The board knew they were walking straight into a minefield by adopting the ID policy.

The two-timing science teachers got their part of the bargain, a heavily pro-Darwinist biology textbook, and then reneged on giving the school board its part of the bargain, an announcement of the “Pandas” books. The only mistake the school board made was in not giving the teachers more of a say in the wording of the ID statement.

Oh brother. The teachers and the administrators made it clear that they were opposed to the curriculum change all along. They consistently voiced their opinion that what the board was doing was unconstitutional. Characterizing the curriculum change as a “bargain” is bad comedy, unless you forgot to include the word “Faustian.”

And how were they “caught” breaking the law — was the evolution disclaimer secret?

Is nitpicking my choice of words really the best you can do? You don’t have to break the law in secret to be caught breaking the law. See: speeding on a busy interstate.

And how was moving the books to the library “trying to cover one’s tracks”?

By the defense team making the false claim that the plaintiffs were trying to have the books removed from the library (something the plaintiffs never requested,) that’s how. Your first comment here indulged in the same sort of revisionist history.

Later, after the books were moved to the library, the plaintiffs decided not to seek removal of the books from the library because judicial precedents indicated that the books could not be removed from the library.

No shit; the legal team for the plaintiffs was well aware of what the law is in that matter, and that’s why the complaint challenged the ID policy and the presence of the creationist textbooks in the science classrooms.

One of the problems that you Darwinists have is that you don’t understand plain English. It is perfectly clear that he said — as you quoted him in your comment of July 8, 2008 3:58 PM — that his Dover decision was based on his notion that the Founders based the Establishment Clause upon a belief that organized religions are not “true” religions. Here is part of what he said,

You keep making these sweeping accusations of bias; can you cite some specific examples from the ruling?
#15 Larry Fafarman
July 12, 2008

It doesn’t matter what the board’s “original intent” was…
Nonsense. Whether you like it or not, courts can and do take context into consideration when dealing with establishment clause cases.

When you spoke of “original intent,” you were not speaking about religious motivation — you only spoke of the board’s intent to “have ‘Pandas’ side-by-side with the biology books on the students’ desks.”

Religious motivation is unfortunately a factor under the disfavored Lemon Test, but is not a factor under the popular Endorsement Test, which prohibits consideration of religious motivation and prohibits government disapproval of religion (considering religious motivation as a negative factor in court decisions expresses disapproval of religion). The Endorsement Test says,

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions . . . . The second and 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. — Justice O’Connor’s concurring opinion in Lynch v. Donnelly (1984)

The federal courts are no longer required to use the Lemon Test. Justice Scalia said of the Lemon Test way back in 1993,

“Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again …..no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart…and a sixth has joined an opinion doing so……..When we wish to strike down a practice it forbids, we invoke it….when we wish to uphold a practice it forbids, we ignore it entirely…….I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced.” Citations omitted. — from Concurrence in Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993).

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Too bad the board didn’t listen.

The solicitor didn’t know what in the hell he was talking about. He didn’t know that because the Lemon Test was no longer required, the federal courts did not have to consider religious motivations.

They were held responsible for what they actually did; undermining the teaching of evolution and referring the students to a creationist textbook.

The school board actually strengthened the teaching of evolution by adopting a strongly pro-Darwinist biology textbook. And Intelligent Design is not creationism — ID uses scientific facts and scientific reasoning and makes no reference to religious sources.

Don’t forget the part about requiring a teacher to read a statement disparaging evolution and referring the students to a creationist textbook that was kept handy in the classroom area (at least up until the day after the complaint was filed.)

The filing of a lawsuit does not make it too late for a defendant to change his behavior. Rule 12 of the Federal Rules of Civil Procedure says that anytime during the trial the defendants can make the defense that the plaintiffs complaint fails to “state a claim upon which relief can be granted.” If the plaintiffs originally demanded removal of the books from the classroom, that demand failed to “state a claim upon which relief can be granted” when the books were removed from the classroom.

Bill Buckingham is an ardent creationist, so it’s no surprise that he objected to a biology textbook that gives an honest presentation of evolution and pushed for the adoption of a creationist textbook to “balance” it.

The textbook gave more than just an “honest presentation of evolution” — Bill Buckingham said that the book was “laced with Darwinism,” which he said appeared in about 12-15 different places in the book. One chapter on Darwinism is enough.

He also lied on the witness stand about where the funds for the creationist textbooks came from.

He “lied” (most of his “lies” were just half-truths) in response to questions that he should not have been asked — according to the Endorsement Test (quoted above), religious motivations of those who donated the money for the books should not have been a factor.

Wrong. There is no law against evolution disclaimers in public schools.

It’s called the establishment clause, Larry.

I repeat — there is no law or national judicial precedent prohibiting evolution disclaimers or the teaching or mention of Intelligent Design in the public schools.

You’ve never heard of persuasive precedent?

You’ve never heard of unpersuasive precedent? Or inapplicable precedent?

The teachers and the administrators made it clear that they were opposed to the curriculum change all along.

Of course they were opposed to the curriculum change — otherwise the change that was finally adopted would not have been a “compromise”! A compromise by definition is an agreement between opposing parties. And while the teachers got their side of the bargain, a strongly pro-Darwinist textbook, they reneged on giving the school board its side of the bargain, an announcement of the ID books, which were not required reading.

And how was moving the books to the library “trying to cover one’s tracks”?
By the defense team making the false claim that the plaintiffs were trying to have the books removed from the library (something the plaintiffs never requested,) that’s how.

What false claim? How could anyone make a false claim about something like that? Either the plaintiffs were trying to have the books removed from the library, or they were not. The plaintiffs filed a brief stating that they were not trying to have the books removed from the library.

the legal team for the plaintiffs was well aware of what the law is in that matter, and that’s why the complaint challenged the ID policy and the presence of the creationist textbooks in the science classrooms.

And as I pointed out above, that particular challenge — the presence of the books in the classrooms — was voided by the removal of the books from the classrooms.

You keep making these sweeping accusations of bias; can you cite some specific examples from the ruling?

When a judge makes out-of-court statements that show bias, there is no need to show bias in his rulings. But there were definite signs of bias in his rulings — for example, his personal attacks on the defendants, e.g., accusing them of “breathtaking inanity.” Another sign is that the ID-as-science section of the opinion was virtually entirely copied from the ACLU’s opening post-trial brief.
#16 Larry Fafarman
July 12, 2008

One more thing — you said,

Board Solicitor Stephen S. Russell is even cited in the ruling as having given this warning to the board:
“I guess my main concern at the moment, is that . . . .”
Too bad the board didn’t listen.

That message was a privileged confidential attorney-client communication and should not have been in the case record or the opinion. I still don’t know exactly how the plaintiffs and the judge got a hold of it.
#17 Martian Buddy
July 12, 2008

When you spoke of “original intent,” you were not speaking about religious motivation — you only spoke of the board’s intent to “have ‘Pandas’ side-by-side with the biology books on the students’ desks.”

Do I have to handhold you all the way through this? The original policy and the final ID policy were both the result of pressure from the creationists on the board to add some form of creationism to the curriculum. When the teachers objected to the original plan to have “Pandas” side-by-side with real biology textbooks during the lessons, the board cooked up their alternative plan. The purpose of that plan was still to push creationism in the classroom.

The federal courts are no longer required to use the Lemon Test. Justice Scalia said of the Lemon Test way back in 1993,

And yet the Supreme Court applied your “disfavored” test as recently as 2000, in Santa Fe Independent School Dist. v. Doe.

Religious motivation is unfortunately a factor under the disfavored Lemon Test, but is not a factor under the popular Endorsement Test, which prohibits consideration of religious motivation and prohibits government disapproval of religion (considering religious motivation as a negative factor in court decisions expresses disapproval of religion). The Endorsement Test says,

You know, if you’d actually try reading the ruling for once, you’d see that Judge Jones did an analysis under both the Lemon Test and the Endorsement Test. In fact, both parties in the case agreed that the Lemon Test was applicable; the defense objected to the use of the Endorsement Test on the grounds that it was supposedly only used to decide overtly religious cases.

As far as your claim about consideration of religious motivation being “prohibited,” here’s what O’Connor wrote:

“The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition…[by] 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.

The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.”

(Bolded emphasis mine)

Hence the solicitor’s point, Larry: the ID policy was intended by the board as an endorsement of creationism and was understood by the community as such.

The solicitor didn’t know what in the hell he was talking about. He didn’t know that because the Lemon Test was no longer required, the federal courts did not have to consider religious motivations.

See above.

The school board actually strengthened the teaching of evolution by adopting a strongly pro-Darwinist biology textbook.

A textbook that they told students to consider unreliable any time it delved into evolution.

And Intelligent Design is not creationism — ID uses scientific facts and scientific reasoning and makes no reference to religious sources.

There’s ample evidence to the contrary in the trial records, starting with the fact that terms like “creationists” in the earlier drafts of “Of Pandas and People” were replaced with “design proponents” while leaving the meaning of the text unaltered. In one hilarious case, this resulted in the phrase “Cdesign proponentsists.”

The textbook gave more than just an “honest presentation of evolution” — Bill Buckingham said that the book was “laced with Darwinism,” which he said appeared in about 12-15 different places in the book.

It’s a frackin’ biology book, Larry! Whether you like it or not, they’re supposed to mention evolution.

He “lied” (most of his “lies” were just half-truths) in response to questions that he should not have been asked — according to the Endorsement Test (quoted above), religious motivations of those who donated the money for the books should not have been a factor.

Answered above; whether you like it or not, his religious motives were relevant to the case.

I repeat — there is no law or national judicial precedent prohibiting evolution disclaimers or the teaching or mention of Intelligent Design in the public schools.

Sayin’ so don’t make it so.

You’ve never heard of unpersuasive precedent? Or inapplicable precedent?

By your own admission, Freiler v. Tangipahoa Parish dealt with a very similar disclaimer to the one in question in Kitzmiller v. Dover and was allowed to stand by the Supreme Court 6-3. Hardly what I was call “unpersuasive” or “inapplicable.”

Of course they were opposed to the curriculum change — otherwise the change that was finally adopted would not have been a “compromise”! A compromise by definition is an agreement between opposing parties. And while the teachers got their side of the bargain, a strongly pro-Darwinist textbook, they reneged on giving the school board its side of the bargain, an announcement of the ID books, which were not required reading.

Forcing people to agree to something they know to be unconstitutional isn’t a “compromise.”

What false claim? How could anyone make a false claim about something like that? Either the plaintiffs were trying to have the books removed from the library, or they were not. The plaintiffs filed a brief stating that they were not trying to have the books removed from the library

This false claim, Larry. The defense did indeed try to claim that the plaintiffs were attempting to have the books removed from the library. You even echoed it in your first post, when you tried to make it sound like the complaint was over books in the library.

When a judge makes out-of-court statements that show bias, there is no need to show bias in his rulings.

“If I accuse someone of bias, there’s no need to actually demonstrate that bias in their rulings.” How very convenient for you.

But there were definite signs of bias in his rulings — for example, his personal attacks on the defendants, e.g., accusing them of “breathtaking inanity.”

Interesting that you quote those two words, while omitting the context:

“Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.”

Another sign is that the ID-as-science section of the opinion was virtually entirely copied

Another vague insinuation with no evidence. Weak.
#18 Martian Buddy
July 12, 2008

And as I pointed out above, that particular challenge — the presence of the books in the classrooms — was voided by the removal of the books from the classrooms.

O RLY? C’mon, Larry – you should know better than that.

That message was a privileged confidential attorney-client communication and should not have been in the case record or the opinion. I still don’t know exactly how the plaintiffs and the judge got a hold of it.

There’s a lot about the case that you don’t seem to know. Lurk moar.
#19 Larry Fafarman
July 12, 2008

Do I have to handhold you all the way through this?

Do I have to read your mind? You described the board’s “original intent” as a non-religious intent and that’s how I interpreted it.

And yet the Supreme Court applied your “disfavored” test as recently as 2000, in Santa Fe Independent School Dist. v. Doe.

2000 is a long time ago in the history of establishment clause cases. Scalia said way back in 1993 that the Supreme Court itself sometimes did not use the Lemon Test. The SC could hardly expect lower courts to always use the test when the SC itself sometimes does not use it. I suspect that the only reason why the SC has not officially killed the test is that the SC wants the test to be available in case the SC itself wants to use it in the future.

You know, if you’d actually try reading the ruling for once, you’d see that Judge Jones did an analysis under both the Lemon Test and the Endorsement Test.

And if you’d actually try reading my comments for once, you’d see that I never said otherwise. And I knew that he used both the Lemon Test and the Endorsement Test.

In fact, both parties in the case agreed that the Lemon Test was applicable

It was applicable but was the kiss of death for the defendants because the test made religious motivation a deciding factor. Use of the Lemon Test was not required and if the defense attorneys supported using the test, then they were stupid. Anyway, it was the judge’s decision on whether or not to use the test.

the defense objected to the use of the Endorsement Test on the grounds that it was supposedly only used to decide overtly religious cases.

This is the first time I’ve heard that. The same thing might be said of the Lemon Test.

As far as your claim about consideration of religious motivation being “prohibited,” here’s what O’Connor wrote:

. . . .The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.”

She was talking about the Lemon Test. I said that the Lemon Test should not have been used.

The school board actually strengthened the teaching of evolution by adopting a strongly pro-Darwinist biology textbook.
A textbook that they told students to consider unreliable any time it delved into evolution.

Well, evolution theory is unreliable to the extent that there are big gaps in it. That is all the evolution disclaimer said about evolution — that there are big gaps in it.

And Intelligent Design is not creationism — ID uses scientific facts and scientific reasoning and makes no reference to religious sources.
There’s ample evidence to the contrary in the trial records, starting with the fact that terms like “creationists” in the earlier drafts of “Of Pandas and People” were replaced with “design proponents” while leaving the meaning of the text unaltered.

The case was supposed to be about ID, not about a particular book about ID. There are lots of books and articles about ID. And IMO the ID controversy should be declared to be non-justiciable. 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).

It’s a frackin’ biology book, Larry! Whether you like it or not, they’re supposed to mention evolution.

Yes, but evolution could have been put in one chapter instead of being discussed in 12-15 places in the book. Evolution is not just a scientific theory — it is also a worldview, a philosophy of life, and even a religious concept. Some people think that evolution is proof that there is no god.

whether you like it or not, his religious motives were relevant to the case.

Only under the Lemon Test, which as I said should not have been used.

Sayin’ so don’t make it so.

Name one law or judicial ruling against evolution disclaimers that applied to the Dover school district.

By your own admission, Freiler v. Tangipahoa Parish dealt with a very similar disclaimer to the one in question in Kitzmiller v. Dover and was allowed to stand by the Supreme Court 6-3.

Only 4 votes are needed to grant certiorari, so Freiler came within a single vote of being granted certiorari. Denials of certiorari are normally made without comment, but Justice Scalia — joined by Justice Thomas — wrote a long dissenting opinion against denial of certiorari to Freiler. Also, Freiler also came within a single vote of getting an en banc (full court) appeals court rehearing — the appeals court was evenly split and the dissenters wrote a long opinion against denial of an en banc rehearing. Also, in another decision against an evolution disclaimer, Selman v. Cobb County, the appeals court judges indicated in an oral hearing that they were leaning towards reversal but they vacated and remanded the case because of missing evidence and the case was finally settled out of court. The bottom line is that a lot of judges — unlike Judge Jones — do not consider evolution disclaimers to be “breathtaking inanity.”

Forcing people to agree to something they know to be unconstitutional isn’t a “compromise.”

If it was so unconstitutional, then why did it take a judge a six-week trial and a 139-page opinion to decide that it was unconstitutional?

This false claim, Larry. The defense did indeed try to claim that the plaintiffs were attempting to have the books removed from the library.

WHAT? You linked to the court documents for the Rutherford Institute’s motion to intervene!

You even echoed it in your first post, when you tried to make it sound like the complaint was over books in the library.

Wrong! I never claimed that the complaint complained about the books being in the library! Will you stop putting words in my mouth?

Also, I didn’t know that the books were initially placed in the classroom before being moved to the library — a minor point.

“If I accuse someone of bias, there’s no need to actually demonstrate that bias in their rulings.” How very convenient for you.

And if you deny my accusation of bias, then I have to actually demonstrate bias in the rulings. How very convenient for you.

But there were definite signs of bias in his rulings — for example, his personal attacks on the defendants, e.g., accusing them of “breathtaking inanity.”

Interesting that you quote those two words, while omitting the context:

The context exacerbates rather than mitigates the appearance of bias in the words “breathtaking inanity.” By disparaging the defendants, Judge Jones violated the “Code of Conduct for United States Judges” which says,

A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity

The duty under Canon 2 to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary applies to all the judge’s activities, including the discharge of the judge’s adjudicative and administrative responsibilities. For example, the duty to be respectful of others includes the responsibility to avoid comment or behavior that can reasonably be interpreted as manifesting prejudice or bias towards another on the basis of personal characteristics like race, sex, religion, or national origin.

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge.

– from http://www.uscourts.gov/guide/vol2/ch1.html

Another sign is that the ID-as-science section of the opinion was virtually entirely copied
Another vague insinuation with no evidence. Weak.

Wrong — the Discovery Institute wrote a big report about that, including a side-by-side comparison of the two texts. Dyed-in-the-wool Darwinist Larry Moran said,

Any junior clerk could have copied the material in a single afternoon, making some minor changes of wording. This is not a case of picking and choosing from both sides and writing a summary that incorporates a few phrases here and there. It’s wholesale copying, the order is the same and entire paragraphs are copied for 34 pages.

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

O RLY? C’mon, Larry – you should know better than that.

Yes, I do know better than that. I know that in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), the courts both (1) dismissed the case as moot because of voluntary cessation by the government and (2) denied an award of attorney fees to the plaintiff. And I know that after great expenditures of time and money by the parties involved, the Supreme Court dismissed the Marco DeFunis reverse-discrimination case as moot because he was about to graduate from the law school whose admission policies he challenged (he had been admitted to the law school by a lower court ruling — the admission policies of the law school had not changed).

There’s a lot about the case that you don’t seem to know.

If you don’t know the answer to the question of how a privileged attorney-client communication got into the case record and opinion, then don’t criticize me for not knowing, bozo.

Lurk moar.

What does “lurk moar” mean?

You Darwinists are in a constant state of denial of the truth. Throwing more and more facts at you Darwinists seems like an exercise in futility. You Darwinists don’t just need to be spoonfed — you need to be tube-fed while you are tied down to prevent you from pulling out the tube.
#20 Martian Buddy
July 13, 2008

Do I have to read your mind? You described the board’s “original intent” as a non-religious intent and that’s how I interpreted it.

There’s nothing “non-religious” about teaching creationism side-by-side with science in a classroom. Hence the comment about “Do I have to handhold you all the way through this?”

2000 is a long time ago in the history of establishment clause cases. Scalia said way back in 1993 that the Supreme Court itself sometimes did not use the Lemon Test. The SC could hardly expect lower courts to always use the test when the SC itself sometimes does not use it. I suspect that the only reason why the SC has not officially killed the test is that the SC wants the test to be available in case the SC itself wants to use it in the future.

It’s a source of continual amusement to me how you can take “sometimes isn’t used” and turn it into “It should never have been used!”

And if you’d actually try reading my comments for once, you’d see that I never said otherwise. And I knew that he used both the Lemon Test and the Endorsement Test.

So what’s your point in continually bringing it up as if it means something, Larry? If you know he applied both, then you know the ID policy failed under both.

It was applicable but was the kiss of death for the defendants because the test made religious motivation a deciding factor. Use of the Lemon Test was not required and if the defense attorneys supported using the test, then they were stupid.

Oh, that’s hysterical. You parrot Casey Luskin’s talking points, but you don’t know why they might have favored the Lemon Test and objected to the Endorsement Test. Look it up; I’m not holding your hand on this one.

Anyway, it was the judge’s decision on whether or not to use the test.

Yes, the plaintiffs asked for both and he used both. So?

She was talking about the Lemon Test. I said that the Lemon Test should not have been used.

Jesus, Larry, that is the Endorsement Test! Here’s the full text of her concurring opinion where it came from.

Are you seriously telling me that you’ve been nattering away all this time about the “disfavored” Lemon Test and the “popular” Endorsement Test without even knowing what the hell the Endorsement Test was?!

(Since this has two links, I’ll post the second part shortly so it doesn’t get hung up in moderation.)
#21 Martian Buddy
July 13, 2008

Well, evolution theory is unreliable to the extent that there are big gaps in it. That is all the evolution disclaimer said about evolution — that there are big gaps in it.

Cite specific examples, please. I do hope they’re not the usual creationist canards.

The case was supposed to be about ID, not about a particular book about ID. There are lots of books and articles about ID.

The ruling deals with the general concepts of ID, too, and you know it.

And IMO the ID controversy should be declared to be non-justiciable. 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).

Decades of precedent would indicate that there’s nothing non-justiciable about pushing sectarian religious beliefs in public schools in violation of the establishment clause.

Yes, but evolution could have been put in one chapter instead of being discussed in 12-15 places in the book.

You’re an expert on textbook writing now, too?

Evolution is not just a scientific theory — it is also a worldview, a philosophy of life, and even a religious concept.

This argument has been repeatedly rejected by the courts for a simple reason; it isn’t true.

Some people think that evolution is proof that there is no god.

Some people say the same about physics; I don’t see you denouncing “Einsteinism” because of it.

Only under the Lemon Test, which as I said should not have been used.

You’ve already been shown that both parties accepted application of the Lemon Test and that it’s still in use in the courts. I grow weary of correcting you on this point.

Name one law or judicial ruling against evolution disclaimers that applied to the Dover school district.

The establishment clause. Again, Larry, it’s not a big mystery why the board adopted the disclaimer. They did it because the creationists on the board wanted to push their sectarian religious beliefs in public school. That’s not legal.

Only 4 votes are needed to grant certiorari, so Freiler came within a single vote of being granted certiorari. Denials of certiorari are normally made without comment, but Justice Scalia — joined by Justice Thomas — wrote a long dissenting opinion against denial of certiorari to Freiler. Also, Freiler also came within a single vote of getting an en banc (full court) appeals court rehearing — the appeals court was evenly split and the dissenters wrote a long opinion against denial of an en banc rehearing. Also, in another decision against an evolution disclaimer, Selman v. Cobb County, the appeals court judges indicated in an oral hearing that they were leaning towards reversal but they vacated and remanded the case because of missing evidence and the case was finally settled out of court.

So the final result was, as I said, that Freiler stood. Concession accepted.

The bottom line is that a lot of judges — unlike Judge Jones — do not consider evolution disclaimers to be “breathtaking inanity.”

Not enough to have a majority of the court, apparently.

If it was so unconstitutional, then why did it take a judge a six-week trial and a 139-page opinion to decide that it was unconstitutional?

It’s called “thoroughness,” Larry – that thing where you check all the facts before shooting off your mouth and making mistakes like not recognizing the Endorsement Test when someone posts it.

The context exacerbates rather than mitigates the appearance of bias in the words “breathtaking inanity.” By disparaging the defendants, Judge Jones violated the “Code of Conduct for United States Judges” which says,

“This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.”

Why’d you leave that bit out of your quote, Larry?

Wrong — the Discovery Institute wrote a big report about that, including a side-by-side comparison of the two texts.

Which has been debunked numerous times. Example.

Dyed-in-the-wool Darwinist Larry Moran said,

Look, kids – an argument from authority!

Yes, I do know better than that. I know that in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), the courts both (1) dismissed the case as moot because of voluntary cessation by the government and (2) denied an award of attorney fees to the plaintiff. And I know that after great expenditures of time and money by the parties involved, the Supreme Court dismissed the Marco DeFunis reverse-discrimination case as moot because he was about to graduate from the law school whose admission policies he challenged (he had been admitted to the law school by a lower court ruling — the admission policies of the law school had not changed).

Did the ID policy change, Larry?

If you don’t know the answer to the question of how a privileged attorney-client communication got into the case record and opinion, then don’t criticize me for not knowing, bozo.

If you don’t know, then don’t you think it’s a bit irresponsible to insinuate wrongdoing?

What does “lurk moar” mean?

It means you should shut the hell up and actually learn something about the case, because it’s painfully evident that you don’t know what you’re talking about.

You Darwinists are in a constant state of denial of the truth. Throwing more and more facts at you Darwinists seems like an exercise in futility. You Darwinists don’t just need to be spoonfed — you need to be tube-fed while you are tied down to prevent you from pulling out the tube.

The term for this in psychology is “projection.”
#22 Larry Fafarman
July 13, 2008

Do I have to read your mind? You described the board’s “original intent” as a non-religious intent and that’s how I interpreted it.
There’s nothing “non-religious” about teaching creationism side-by-side with science in a classroom.

How many times do I have to go over this? Your statement about the board’s “original intent” said nothing about religion, and there is nothing expressly religious in the “Pandas” books. The school board conceivably could have had a non-religious motive for wanting to have the two texts side-by-side in the classroom.

It’s a source of continual amusement to me how you can take “sometimes isn’t used” and turn it into “It should never have been used!”

I did not try to do that. “Sometimes isn’t used” is a fact — “should never have been used” (or “should not be used in the future”) is just my own opinion.

And if you’d actually try reading my comments for once, you’d see that I never said otherwise. And I knew that he used both the Lemon Test and the Endorsement Test.
So what’s your point in continually bringing it up as if it means something, Larry? If you know he applied both, then you know the ID policy failed under both.

If Judge Jones had not used the Lemon Test, then the ID policy could not possibly have failed the Lemon Test. And it is just Judge Jones’ opinion that the policy failed the Endorsement Test. As I said, other decisions against evolution disclaimers, Freiler v. Tangipahoa Parish and Selman v. Cobb County, came fairly close to being reversed, so the Kitzmiller v. Dover decision was not an inevitable slam-dunk shoo-in as so many people falsely believe.

You parrot Casey Luskin’s talking points, but you don’t know why they might have favored the Lemon Test and objected to the Endorsement Test.

I don’t “parrot” Casey Luskin’s talking points — a lot of my ideas are my own or come from other sources, and I have disagreed with Casey. I doubt that Casey favored the Lemon Test because this test was the kiss of death for the defendants because religious motivation is a decisive issue under this test. Also, Casey Luskin’s Discovery Institute did not represent the defendants — the Thomas More Law Center did.

Look it up; I’m not holding your hand on this one.

It’s your argument, so it’s your responsibility to back it up. I’m not holding your hand on this one.

Yes, the plaintiffs asked for both and he used both. So?

Previously you said that both the plaintiffs and the defendants asked for the Lemon Test — now you are talking only about the plaintiffs asking for the test. Make up your mind. Anyway, Judge Jones was not obligated to use the Lemon Test even if both sides asked him to use it.

She was talking about the Lemon Test. I said that the Lemon Test should not have been used.
Jesus, Larry, that is the Endorsement Test! Here’s the full text of her concurring opinion where it came from.

Jesus, I thought that Darwinism had nothing to do with religion.

The Endorsement Test is not necessarily part of the Lemon Test — the Endorsement Test can be a separate test. And here is your previous quote from Justice O’Connor about the Lemon Test: “The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.” She was only commenting about the Lemon Test — her statement does not obligate any court to use the Lemon Test when the Endorsement Test is used. Actually, the correct interpretation is that the Lemon Test and the Endorsement Test are incompatible: Religious motivation is a deciding factor under the purpose prong of the Lemon Test but the Endorsement Test says that religious motivation is not allowed to be a factor — the Endorsement Test says, “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.”

It is very frustrating trying to debate someone who can’t think straight.
#23 Martian Buddy
July 13, 2008

How many times do I have to go over this? Your statement about the board’s “original intent” said nothing about religion, and there is nothing expressly religious in the “Pandas” books.

Nonsense. The early drafts of “Pandas” explicitly referred to creationism. Later drafts changed those references to “Intelligent Design” and “design proponents” without altering the meaning of the passages at all; clear evidence that creationism and intelligent design were one and the same.

It’s all in the ruling, Larry – why do you keep wasting my time denying it?

The school board conceivably could have had a non-religious motive for wanting to have the two texts side-by-side in the classroom.

They didn’t have a non-religious motive. The motive was to disparage evolution and teach some form of creationism. There was even a tape of Buckingham saying that evolution should be “balanced” with creationism. Religion was always the board’s motive.

I did not try to do that. “Sometimes isn’t used” is a fact — “should never have been used” (or “should not be used in the future”) is just my own opinion.

Oh, I see; your previous comments about the Endorsement Test being “popular” and the Lemon Test being “disfavored” were just statements of your own opinion. Would you mind qualifying them as such in the future?

If Judge Jones had not used the Lemon Test, then the ID policy could not possibly have failed the Lemon Test.

Oh, look, a tautology. Would you also mind avoiding the meaningless digressions? These replies are long enough as is.

And it is just Judge Jones’ opinion that the policy failed the Endorsement Test.

Yes, the opinion of the court.

As I said, other decisions against evolution disclaimers, Freiler v. Tangipahoa Parish and Selman v. Cobb County, came fairly close to being reversed, so the Kitzmiller v. Dover decision was not an inevitable slam-dunk shoo-in as so many people falsely believe.

So neither one was reversed. Concession accepted.

I don’t “parrot” Casey Luskin’s talking points — a lot of my ideas are my own or come from other sources, and I have disagreed with Casey.

Right, it’s pure coincidence that you sound like his echo in a lot of this debate.

I doubt that Casey favored the Lemon Test because this test was the kiss of death for the defendants because religious motivation is a decisive issue under this test.

Didn’t look it up, eh?

Also, Casey Luskin’s Discovery Institute did not represent the defendants — the Thomas More Law Center did.

The DI was giving them legal advice before the trial, and filed two amicus briefs, hairsplitter.

It’s your argument, so it’s your responsibility to back it up. I’m not holding your hand on this one.

I already did back up my side of the argument when I pointed out that both parties agreed that the Lemon Test was applicable, remember? I simply find it amusing that you are so ignorant of the reasons why both the TMLC and the DI objected to the Endorsement Test.

Previously you said that both the plaintiffs and the defendants asked for the Lemon Test — now you are talking only about the plaintiffs asking for the test. Make up your mind.

I’ll try this again. Both parties (that’s the people suing and the people being sued) agreed that the Lemon Test (that’s the one you don’t like) was applicable (that means it should be used.) The defense (that’s the people being sued) objected to the use of the Endorsement Test (that’s the one you like.) Judge Jones (that’s the guy you slander) used both tests.

Do you get it this time, or do I need to draw a diagram in MS Paint?

Anyway, Judge Jones was not obligated to use the Lemon Test even if both sides asked him to use it.

There wasn’t any prohibition and both sides agreed it was applicable, so why shouldn’t he use it?

Jesus, I thought that Darwinism had nothing to do with religion.

Non Sequitir.

The Endorsement Test is not necessarily part of the Lemon Test — the Endorsement Test can be a separate test.

The article I linked you to indicates that much. Sometimes they’re treated separately and sometimes they aren’t. Judge Jones applied them as two separate tests.

And here is your previous quote from Justice O’Connor about the Lemon Test: “The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.” She was only commenting about the Lemon Test — her statement does not obligate any court to use the Lemon Test when the Endorsement Test is used.

Larry, what I posted is the Endorsement Test. The quote you questioned comes directly from the concurring opinion where she formulated it. Why are you having so much difficulty grasping such a simple concept?

Actually, the correct interpretation is that the Lemon Test and the Endorsement Test are incompatible: Religious motivation is a deciding factor under the purpose prong of the Lemon Test but the Endorsement Test says that religious motivation is not allowed to be a factor — the Endorsement Test says, “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.”

This is just nonsense. Her formulation of the Endorsement Test in the quote I previously posted makes it quite clear that the government’s intent to unlawfully promote religion matters.

It is very frustrating trying to debate someone who can’t think straight.

On that point, we’re in complete agreement.
#24 Larry Fafarman
July 13, 2008

Martian Buddy (July 13, 2008 12:28 PM) —

That is all the evolution disclaimer said about evolution — that there are big gaps in it.
Cite specific examples, please.

I refer you to the numerous books and articles on the subject. Also, I suggest the articles in the “Non-ID criticisms of evolution” post-label group in my blog “I’m from Mssouri,” particularly my articles about co-evolution. For example, in the co-evolution of obligate mutualism (total co-dependence of two different kinds of organisms), unlike in evolutionary adaptation to widespread fixed physical features of the environment, e.g., air, land in its different forms, and water in its different forms, there may be nothing to adapt to, and the reason why there may nothing to adapt to is that the corresponding co-dependent trait in the other organism is likely to be locally absent.

The ruling deals with the general concepts of ID, too, and you know it.

The opinion focused on the “Of Pandas and People” book — the name of the book appears 75 times in the opinion. As I remember, only one other ID book — Michael Behe’s “Darwin’s Black Box” — was mentioned, and that book was mentioned just once in passing. Also, Jones’ opinion attacked all criticisms of evolution, not just ID — he said, “we will enter an order permanently enjoining Defendants from . . . . from requiring teachers to denigrate or disparage the scientific theory of evolution . . . ”

Decades of precedent would indicate that there’s nothing non-justiciable about pushing sectarian religious beliefs in public schools in violation of the establishment clause.

Prior to the Kitzmiller case, there were no court precedents about intelligent design. Also, as I said, prior to Kitzmiller, there was only one conclusive decision about evolution disclaimers, Freiler, and that was in another appeals court circuit.

You’re an expert on textbook writing now, too?

Evolution is considered by some to be anti-religious, so unnecessarily discussing evolution in 12-15 places in the book could be viewed as an attack on religious beliefs. Evolution should have been confined to one chapter. Anyway, the school board did adopt the pro-Darwinist textbook, so the teachers got their side of the bargain.

The establishment clause.

You can keep repeating “establishment clause” over and over again until you are blue in the face, but that won’t change the fact that there was no law and no applicable precedent against ID or evolution disclaimers in the Dover case.

So the final result was, as I said, that Freiler stood.

Barely.

Not enough to have a majority of the court, apparently.

You missed my point entirely. I used the Freiler and Selman cases to show that there is a fair chance that a majority of the Supreme Court might be persuaded to rule that evolution disclaimers are constitutional. The Freiler case came within single votes of getting en banc appeals court review and Supreme Court review and in Selman the appeals court judges showed at an oral hearing that they were leaning towards reversal but they vacated and remanded the decision because of missing evidence.

If it was so unconstitutional, then why did it take a judge a six-week trial and a 139-page opinion to decide that it was unconstitutional?
It’s called “thoroughness,”

If the ID policy was clearly unconstitutional, even a “thorough” review should not have taken a six-week trial and a 139-page opinion.

Look, kids – an argument from authority!

I thought that the charge that the opinion’s ID-as-science section was ghostwritten by the ACLU might be more persuasive when coming from a hardline Darwinist. Larry Moran has proposed that students who doubt evolution be kicked out of colleges.

Did the ID policy change, Larry?

That is not the issue — the issue is that Judge Jones’ statement that the election results would not affect his decision could have been the deciding factor in the new school board’s decision to not repeal the ID policy prior to judgment. Duh

If you don’t know, then don’t you think it’s a bit irresponsible to insinuate wrongdoing?

There is reason to suspect wrongdoing because privileged confidential attorney-client communications are not supposed to appear in case records or judge’s opinions. Do you know what “privileged” means? Do you know what “confidential” means? Why must the obvious be spelled out for you in excruciating detail?

It means you should shut the hell up and actually learn something about the case, because it’s painfully evident that you don’t know what you’re talking about.

You are the one who should shut the hell up, idiot. You have tied me up here responding to your stupid comments even though I won the debate a long time ago.
#25 Martian Buddy
July 13, 2008

I refer you to the numerous books and articles on the subject. Also, I suggest the articles in the “Non-ID criticisms of evolution” post-label group in my blog “I’m from Mssouri,” particularly my articles about co-evolution. For example, in the co-evolution of obligate mutualism (total co-dependence of two different kinds of organisms), unlike in evolutionary adaptation to widespread fixed physical features of the environment, e.g., air, land in its different forms, and water in its different forms, there may be nothing to adapt to, and the reason why there may nothing to adapt to is that the corresponding co-dependent trait in the other organism is likely to be locally absent.

That’s it? A vague reference to “numerous books and articles” and your blog, and a debunked “evolution can’t do this” creationist talking point?

The opinion focused on the “Of Pandas and People” book — the name of the book appears 75 times in the opinion. As I remember, only one other ID book — Michael Behe’s “Darwin’s Black Box” — was mentioned, and that book was mentioned just once in passing.

Don’t forget the Wedge Document and its statement that “Design theory promises to reverse the stifling dominance of the materialist worldview, and to replace it with a science consonant with Christian and theistic convictions.”

Also, Jones’ opinion attacked all criticisms of evolution, not just ID — he said, “we will enter an order permanently enjoining Defendants from . . . . from requiring teachers to denigrate or disparage the scientific theory of evolution . . . ”

Yes, because those criticisms of evolution invariably have religious motives. “Creation Science” claimed that it wasn’t religious either; creationists are known to lie about this.

Prior to the Kitzmiller case, there were no court precedents about intelligent design.

No shit. ID was invented to evade the adverse precedent against “Creation Science,” which in turn was invented as a way to evade the adverse precedent against creationism. Since Kitzmiller was the first case, it’s trivially obvious that there was no precedent. There is, however, ample precedent forbidding the teaching of creationism in public schools, and ample evidence to indicate that ID is a “don’t ask, don’t tell” form of creationism.

Also, as I said, prior to Kitzmiller, there was only one conclusive decision about evolution disclaimers, Freiler, and that was in another appeals court circuit.

Which dealt with a very similar issue. Concession accepted.

Evolution is considered by some to be anti-religious, so unnecessarily discussing evolution in 12-15 places in the book could be viewed as an attack on religious beliefs.

How do you know the discussion was “unnecessary,” Larry? Have you ever tried reading the textbook in question?

Evolution should have been confined to one chapter.

Which would have been easy to razor-blade out of the textbook. Yes, I can see why you’d prefer that.

You missed my point entirely. I used the Freiler and Selman cases to show that there is a fair chance that a majority of the Supreme Court might be persuaded to rule that evolution disclaimers are constitutional. The Freiler case came within single votes of getting en banc appeals court review and Supreme Court review and in Selman the appeals court judges showed at an oral hearing that they were leaning towards reversal but they vacated and remanded the decision because of missing evidence.

Did either court rule in favor of the disclaimers? No. Concession accepted.

I thought that the charge that the opinion’s ID-as-science section was ghostwritten by the ACLU might be more persuasive when coming from a hardline Darwinist.

That’s what makes it an appeal to authority.

That is not the issue — the issue is that Judge Jones’ statement that the election results would not affect his decision could have been the deciding factor in the new school board’s decision to not repeal the ID policy prior to judgment.

So the policy was still in place. Concession accepted.

There is reason to suspect wrongdoing because privileged confidential attorney-client communications are not supposed to appear in case records or judge’s opinions. Do you know what “privileged” means? Do you know what “confidential” means? Why must the obvious be spelled out for you in excruciating detail?

Do you realize that the science teachers were present at that meeting?
#26 Larry Fafarman
July 13, 2008

Martian Buddy ( July 13, 2008 2:30 PM ) –

The early drafts of “Pandas” explicitly referred to creationism. Later drafts changed those references to “Intelligent Design” and “design proponents” without altering the meaning of the passages at all; clear evidence that creationism and intelligent design were one and the same.

Wrong. The case was supposed to be about ID, not about a particular book about ID. There are many books and articles about ID. ID cannot be defined on the basis of a single book. If Judge Jones and the plaintiffs didn’t like “Of Pandas and People,” they could have asked the school board to get another book — or other books — about ID.

Also, removing the word “creationism” removed the religious content of the book. If a Christmas display has religious symbols and the religious symbols are removed, is the remaining display unconstitutional? Duh.

It’s all in the ruling, Larry – why do you keep wasting my time denying it?

Because the ruling is stupid.

They didn’t have a non-religious motive.

Sigh. Your description of their “original intent” — to have the two books side-by-side — was in itself a non-religious intent and therefore the court could not have held that intent against them, not even under the Lemon Test. Duh.

Oh, I see; your previous comments about the Endorsement Test being “popular” and the Lemon Test being “disfavored” were just statements of your own opinion. Would you mind qualifying them as such in the future?

It was always obvious that it was my own opinion — I didn’t quote anybody or anything.

If Judge Jones had not used the Lemon Test, then the ID policy could not possibly have failed the Lemon Test.
Oh, look, a tautology.

You said that the Dover defendants lost under both the Lemon Test and the Endorsement Test. I was merely pointing out that the loss under the Lemon Test could have been fixed by not using that test at all — federal courts are not required to use the Lemon Test in establishment clause cases.

Yes, the opinion of the court.

An opinion of a single federal judge that is not generally binding even in his own Middle Pennsylvania federal court district — the decision is binding only upon the Dover Area school district and nothing else.

So neither one was reversed.

Repeat — the point was that Freiler and Selman show that a ruling that evolution disclaimers are constitutional is a strong possibility.

Concession accepted.

I conceded nothing, jerko — stop putting words in my mouth.

Right, it’s pure coincidence that you sound like his echo in a lot of this debate.

You sound like an echo of Sleazy PZ Myers, Fatheaded Ed Brayton, Wesley “Ding” Elsberry, etc..

Didn’t look it up, eh?

As I said — it’s your argument, so it’s your job to back it up.

Also, Casey Luskin’s Discovery Institute did not represent the defendants — the Thomas More Law Center did.
The DI was giving them legal advice before the trial, and filed two amicus briefs, hairsplitter.

It was not a hairsplitter — when you talk about Judge Jones doing something that both the defense and the plaintiffs’ counsel want, “defense” can refer only to the Thomas More Law Center.

It’s your argument, so it’s your responsibility to back it up. I’m not holding your hand on this one.
I already did back up my side of the argument when I pointed out that both parties agreed that the Lemon Test was applicable, remember?

No, you did not back it up — you provided no reference. I checked the Dover opinion and verified on my own that the defense opposed use of the Endorsement Test (page 10).

I simply find it amusing that you are so ignorant of the reasons why both the TMLC and the DI objected to the Endorsement Test.

No one knows everything about the case, bozo. I must know a lot of things about the case that you don’t know. And you have shown no evidence that the Discovery Institute objected to the Endorsement Test.

Both parties (that’s the people suing and the people being sued) agreed that the Lemon Test (that’s the one you don’t like) was applicable (that means it should be used.)

You lousy hypocrite, you said “Would you also mind avoiding the meaningless digressions? These replies are long enough as is.” Yet look at what you’re doing — “defense (that’s the people being sued)” and “Endorsement Test (that’s the one you like.)”

As I said, it was the judge’s decision — he didn’t have to use the Lemon Test just because both sides asked him to.

IMO the defense should have opposed the Lemon Test instead of opposing the Endorsement Test — as I said, the Lemon Test was the kiss of death for the defendants because religious motivation is a deciding factor in that test.

There wasn’t any prohibition and both sides agreed it was applicable, so why shouldn’t he use it?

IMO the defense was to blame for not objecting to it.

“Jesus, I thought that Darwinism had nothing to do with religion.”
Non Sequitir.

You were the one who introduced “Jesus” into the discussion.

And here is your previous quote from Justice O’Connor about the Lemon Test: “The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.” She was only commenting about the Lemon Test — her statement does not obligate any court to use the Lemon Test when the Endorsement Test is used.
Larry, what I posted is the Endorsement Test. The quote you questioned comes directly from the concurring opinion where she formulated it.

My point was that the above quote from O’Connor is not an endorsement of the Lemon Test and does not obligate any court to use the Lemon Test whenever the Endorsement Test is used.

the Lemon Test and the Endorsement Test are incompatible: Religious motivation is a deciding factor under the purpose prong of the Lemon Test but the Endorsement Test says that religious motivation is not allowed to be a factor — the Endorsement Test says, “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.”

This is just nonsense. Her formulation of the Endorsement Test in the quote I previously posted makes it quite clear that the government’s intent to unlawfully promote religion matters.

It’s not nonsense! The Endorsement Test says that religious motivation cannot be a consideration in establishment clause cases (O’Connor said, “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community”), and that goes for religious motivations of government officials as well as those of members of the general public.

It is very frustrating trying to debate someone who can’t think straight.
On that point, we’re in complete agreement.

So you agree that you can’t think straight. Concession accepted.
#27 Martian Buddy
July 13, 2008

Wrong. The case was supposed to be about ID, not about a particular book about ID. There are many books and articles about ID. ID cannot be defined on the basis of a single book. If Judge Jones and the plaintiffs didn’t like “Of Pandas and People,” they could have asked the school board to get another book — or other books — about ID.

You’re completely ignoring days worth of testimony from three DI fellows over ID concepts that established the connection to creationism.

Also, removing the word “creationism” removed the religious content of the book.

Nonsense. They substituted the words “intelligent design” for “creationism” without altering the wording of passages it appeared in. It was clearly evident that the two terms were considered interchangeable.

Sigh. Your description of their “original intent” — to have the two books side-by-side — was in itself a non-religious intent and therefore the court could not have held that intent against them, not even under the Lemon Test.

The whole point of having the two textbooks used side-by-side was to disparage evolution and push sectarian creationist beliefs. It’s a creationist textbook and was adopted due to pressure from the creationists on the board. There’s nothing non-religious about that.

You said that the Dover defendants lost under both the Lemon Test and the Endorsement Test. I was merely pointing out that the loss under the Lemon Test could have been fixed by not using that test at all — federal courts are not required to use the Lemon Test in establishment clause cases.

If the board hadn’t adopted a policy that favored sectarian religious beliefs, they wouldn’t have lost.

An opinion of a single federal judge that is not generally binding even in his own Middle Pennsylvania federal court district — the decision is binding only upon the Dover Area school district and nothing else.

McLean v. Arkansas was “only” a district court ruling, too, and yet it is frequently cited in other cases. You have a seriously flawed grasp of how precedent actually works.

My point was that the above quote from O’Connor is not an endorsement of the Lemon Test and does not obligate any court to use the Lemon Test whenever the Endorsement Test is used.

Your point is incoherent. The text I quoted you IS the Endorsement Test. I even linked to the damned concurrent opinion in Lynch v. Donnelly where Justice O’Connor formulated it. It’s very telling that you don’t recognize the thing and yet you’re still rambling on about it.

It’s not nonsense! The Endorsement Test says that religious motivation cannot be a consideration in establishment clause cases (O’Connor said, “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community”), and that goes for religious motivations of government officials as well as those of members of the general public.

Read the whole thing, in context: “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition…[by] 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.

The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.”

Determining whether the government intended to endorse religion is part and parcel of the test.
#28 Tara C. Smith
July 13, 2008

Larry, I’m aware that you’ve already been banned from Panda’s Thumb and other science blogs. I’ve given you a chance here but the name-calling and your debate tactics show pretty clearly why others have banned you. Anything else along those lines will be disemvoweled.
#29 Larry Fafarman
July 13, 2008

Larry, I’m aware that you’ve already been banned from Panda’s Thumb and other science blogs.

Well, that sounds good — it shows that I am well known. You might visit my blog sometime.

I’ve given you a chance here but the name-calling and your debate tactics show pretty clearly why others have banned you.

What about the debate tactics of Martian Buddy? Like putting words in my mouth with that “concession accepted” stuff? And I will now refrain from name-calling, though I have done little of it and it was mild.
#30 Larry Fafarman
July 13, 2008

Martian Buddy (July 13, 2008 5:57 PM) —

That’s it? A vague reference to “numerous books and articles” and your blog, and a debunked “evolution can’t do this” creationist talking point?

What do you mean, “that’s it?”? Isn’t there enough stuff there to keep you busy for a long time? OK, here are some books to consider: The Edge of Evolution, The Design of Life, No Free Lunch, Politically Incorrect Guide to Darwinism and Intelligent Design, Darwin’s Black Box, Icons of Evolution, By Design or by Chance? And how can you knock my blog’s articles about co-evolution if you haven’t read them?

Don’t forget the Wedge Document and its statement that “Design theory promises to reverse the stifling dominance of the materialist worldview, and to replace it with a science consonant with Christian and theistic convictions.”

Why shouldn’t I forget the “Wedge Document”? It is very forgettable. All the talk about the Wedge Document is just a conspiracy theory and a charge of guilt by association.

Yes, because those criticisms of evolution invariably have religious motives.

That’s like saying that supporters of evolution are all motivated by atheism.

ID was invented to evade the adverse precedent against “Creation Science,” which in turn was invented as a way to evade the adverse precedent against creationism.

Wrong. ID preceded the Edwards v. Aguillard decision which prohibited the teaching of “creation science.”

Since Kitzmiller was the first case, it’s trivially obvious that there was no precedent. There is, however, ample precedent forbidding the teaching of creationism in public schools, and ample evidence to indicate that ID is a “don’t ask, don’t tell” form of creationism.

But since there are no laws and no judicial precedents other than a trivial one — Kitzmiller v. Dover — against teaching ID in the public schools, then teaching ID in the public schools is constitutional and legal in almost the entire USA, and prior to the Kitzmiller decision was constitutional in the Dover Area school district.

Which dealt with a very similar issue.

And — for the umpteenth time — Freiler came close to being overturned.

How do you know the discussion was “unnecessary,” Larry? Have you ever tried reading the textbook in question?

I do know enough about biology and evolution to know that evolution is irrelevant or unimportant in most areas of biology. Evolution theory is important in cladistic taxonomy and maybe paleontology and that’s about it. It is not necessary to discuss it in 12-15 places in the textbook.

Did either court rule in favor of the disclaimers?

For the zillionth time, my point was that Freiler and Selman showed that a ruling in favor of evolution disclaimers is a good possibility. Also, if it had not been for the missing evidence, the appeals court probably would have reversed Selman. You Darwinists just got lucky this time.

That’s what makes it an appeal to authority.

So since you regard Larry Moran as an authority, then you should accept his opinion that the ID-as-science section of the Dover opinion was ghostwritten by the ACLU.

That is not the issue — the issue is that Judge Jones’ statement that the election results would not affect his decision could have been the deciding factor in the new school board’s decision to not repeal the ID policy prior to judgment.
So the policy was still in place.

So are you saying that Judge Jones’ unethical legal advice to the school board was the deciding factor in the board’s decision to not repeal the ID policy prior to judgment?

Do you realize that the science teachers were present at that meeting?

As school district employees, the science teachers were obligated to protect the confidentiality of the solicitor’s memo.
#31 Martian Buddy
July 14, 2008

What do you mean, “that’s it?”? Isn’t there enough stuff there to keep you busy for a long time? OK, here are some books to consider: The Edge of Evolution, The Design of Life, No Free Lunch, Politically Incorrect Guide to Darwinism and Intelligent Design, Darwin’s Black Box, Icons of Evolution, By Design or by Chance? And how can you knock my blog’s articles about co-evolution if you haven’t read them?

I asked for specific examples of the “big gaps” you were claiming existed in evolutionary theory. You cited “numerous books and articles on the subject” and “the articles in the ‘Non-ID criticisms of evolution’ post-label group in my blog,” and gave one specific example that boils down to a bog-standard creationist argument from improbability. Tellingly, you did not refer me to any peer-reviewed scientific papers published in mainstream journals.

Can you not see why I’m a bit unimpressed?

Why shouldn’t I forget the “Wedge Document”? It is very forgettable. All the talk about the Wedge Document is just a conspiracy theory and a charge of guilt by association.

That’s like saying that supporters of evolution are all motivated by atheism.

Not only is tu quoque a logical fallacy, it doesn’t even make sense in this case given the large number of theistic evolutionists.

Wrong. ID preceded the Edwards v. Aguillard decision which prohibited the teaching of “creation science.”

ID came after the ruling on “Creation Science” in McLean v. Arkansas in 1981, and the changes from “creationism” to “intelligent design” in the text of “Pandas” followed the ruling in Edwards.

But since there are no laws and no judicial precedents other than a trivial one — Kitzmiller v. Dover — against teaching ID in the public schools, then teaching ID in the public schools is constitutional and legal in almost the entire USA, and prior to the Kitzmiller decision was constitutional in the Dover Area school district.

Again, you have a truly bizarre idea of what constitutes precedent. Rather than pursue yet another fruitless attempt to point out the numerous precedents against teaching creationism and the evidence that ID was derived from it, I’ll point out that the so-called “academic freedom” bill in Louisiana took great pains to claim that it did not authorize the teaching of creationism or intelligent design.

And — for the umpteenth time — Freiler came close to being overturned.

I refuse to be drawn off on another hypothetical tangent, Larry. The Supreme Court declined the appeal and allowed the case to stand.

I do know enough about biology and evolution to know that evolution is irrelevant or unimportant in most areas of biology. Evolution theory is important in cladistic taxonomy and maybe paleontology and that’s about it. It is not necessary to discuss it in 12-15 places in the textbook.

For the zillionth time, my point was that Freiler and Selman showed that a ruling in favor of evolution disclaimers is a good possibility. Also, if it had not been for the missing evidence, the appeals court probably would have reversed Selman. You Darwinists just got lucky this time.

Again, I’m not going to play “what-if?” scenarios with you.

So since you regard Larry Moran as an authority, then you should accept his opinion that the ID-as-science section of the Dover opinion was ghostwritten by the ACLU.

Larry, the appeal to authority is a logical fallacy. You are saying “You should believe Larry Moran because he’s a ‘Darwinist’” rather than “You should believe Larry Moran because he has relevant expertise in textual analysis.” You even admit as such.

So are you saying that Judge Jones’ unethical legal advice to the school board was the deciding factor in the board’s decision to not repeal the ID policy prior to judgment?

He didn’t give any “legal advice” to the new board and they couldn’t have changed the policy anyway, seeing as how the old board wasn’t leaving office until December and the new board would have had to publish a change a month in advance.

Finally, about this memo nonsense: go here and scroll down near the bottom of the page. The email was provided to the plaintiffs.
#32 Larry Fafarman
July 14, 2008

Martian Buddy (July 13, 2008 7:45 PM) –

You’re completely ignoring days worth of testimony from three DI fellows over ID concepts that established the connection to creationism.

None of the expert witnesses in the Dover trial testified at the Dover school board meetings or otherwise participated in the enactment of the ID policy, so their testimony at the Kitzmiller trial was just a “Monday morning battle of the experts,” the kind of battle that the courts refused to hear in Edwards v. Aguillard.

The courts should declare the evolution controversy to be non-justiciable. 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). A court decision on the scientific merits of evolution or criticisms of evolution would be like a court decision on the question of how many angels can dance on the head of a pin.

They substituted the words “intelligent design” for “creationism” without altering the wording of passages it appeared in.

Was the wording of the passages religious in nature? If the answer is no, then please answer my question: “If a Christmas display has religious symbols and the religious symbols are removed, is the remaining display unconstitutional?” Anyway, there are many books and articles about ID — as I said, ID cannot be defined on the basis of a single book.

The whole point of having the two textbooks used side-by-side was to disparage evolution and push sectarian creationist beliefs.

You still don’t get it. A school board — maybe not the Dover school board — could have non-religious reasons for wanting to have a pro-Darwinist text and an anti-Darwinist text side-by-side in a classroom. And that was not the final arrangement in Dover anyway. Also, as I said, the Endorsement Test prohibits consideration of any religious motive a school board might have: “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.” — from O’Connor’s concurring opinion in Lynch v. Donnelly

McLean v. Arkansas was “only” a district court ruling, too, and yet it is frequently cited in other cases.

But it’s non-binding precedent — it is precedent only to the extent that other judges are persuaded by it. And there are good reasons why judges should not be persuaded by the Dover opinion, e.g., (1) the ID-as-science section was ghostwritten by the ACLU and (2) the judge showed extreme prejudice against ID and the defendants — regardless of whether or not ID is a religious concept — by saying in his Dickinson College commencement speech that his Dover decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not “true” religions.

I don’t accept your quotation of the endorsement test statement in Justice O’Connor’s concurring opinion in Lynch v. Donnelly, so I am giving my own:

“The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive [p688] entanglement with religious institutions . . . . The second and 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.” (pages 687-688)
“The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.” (page 691)(emphasis added)
Determining whether the government iintended to endorse religion is part and parcel of the test.

– from http://www.law.cornell.edu/supct/html/historics/USSC_CR_0465_0668_ZC.html

I assert that the highlighted sentence — which you claim is “part and parcel of the test” — is not part of the Endorsement Test (despite what Wikipedia says). For one thing, this sentence is nowhere near the rest of the Test — this sentence is on page 691 while the rest of the test is on pages 687-688. Furthermore, this last sentence is just a comment about the Lemon Test rather than part of an independent test — you yourself agreed that the Endorsement Test is sometimes treated as an independent test. Hence, your reliance on this last sentence in interpreting the Endorsement Test is invalid. However, even assuming that your interpretation is correct, the first sentence of the test — “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community ” — prohibits courts from considering the religious motivations of public officials. And because the Lemon Test — in contrast to the Endorsement Test — requires consideration of the religious motivations of public officials, I assert that the Lemon Test and the Endorsement Test are incompatible.

So, under the real Endorsement Test , the religious motives of the Dover school board members did not count, and the question was then whether the Dover ID policy gave an appearance of government endorsement or disapproval of religion so as to result in making people feel like political insiders or outsiders. The Dover evolution disclaimer did not make any overt religious statement (except for the possible implication that the intelligent designer is supernatural) and only Darwinism was actually taught, so the statement should not have made anyone feel like a political outsider on the basis of an appearance of endorsement of religion. On the other hand, censoring the disclaimer statement on the basis of an assumption that the statement’s message is religious shows disapproval of religion, which would make some people feel like political outsiders, and hence censoring the disclaimer statement is unconstitutional under the Endorsement Test.
#33 Martian Buddy
July 14, 2008

The courts should declare the evolution controversy to be non-justiciable.

This statement is not becoming any more convincing with repetition. There are decades worth of court rulings on the matter already.

Was the wording of the passages religious in nature?

Yes.

Anyway, there are many books and articles about ID — as I said, ID cannot be defined on the basis of a single book.

“Pandas” contained all of the major arguments for ID: irreducible complexity, complex specified information, etc., all in their current forms. ID has come up with nothing new since.

You still don’t get it. A school board — maybe not the Dover school board — could have non-religious reasons for wanting to have a pro-Darwinist text and an anti-Darwinist text side-by-side in a classroom.

We’re not discussing your hypothetical school board, we’re discussing the Dover board with at least three very non-hypothetical creationists on it.

But it’s non-binding precedent — it is precedent only to the extent that other judges are persuaded by it.

I never said it was binding; I’m the one who brought up persuasive precedent, remember?

And there are good reasons why judges should not be persuaded by the Dover opinion….

Those aren’t “good reasons;” they’re two conspiracy theories.

I assert that the highlighted sentence — which you claim is “part and parcel of the test” — is not part of the Endorsement Test (despite what Wikipedia says). For one thing, this sentence is nowhere near the rest of the Test — this sentence is on page 691 while the rest of the test is on pages 687-688. Furthermore, this last sentence is just a comment about the Lemon Test rather than part of an independent test — you yourself agreed that the Endorsement Test is sometimes treated as an independent test. Hence, your reliance on this last sentence in interpreting the Endorsement Test is invalid.

First, let’s look at the beginning of the concurrence:

“I concur in the opinion of the Court. I write separately to suggest a clarification of our Establishment Clause doctrine.”

Justice O’Connor is clarifying the Lemon Test. Thus, your objection that the quoted sentence refers to the Lemon Test is irrelevant. You mention that “even I agree” that the Endorsement test is sometimes treated as a separate test, ignoring the important qualifier “sometimes” in the sentence. Finally, there’s this business about the sentence you object to. I refer you to the last part of part I:

“Focusing on institutional entanglement and on endorsement or disapproval of religion clarifies the Lemon test as an analytical device.”

Now, if you proceed to part II, you’ll see that the first sentence in the paragraph is:

“In this case, as even the District Court found, there is no institutional entanglement.”

Part II, in other words, is an explanation of how the entanglement prong of the Lemon Test is supposed to work.

Part III begins:

“The central issue in this case is whether Pawtucket has endorsed Christianity by its display of the creche.”

Note sections A and B dealing with the Purpose and Effect prongs. Her explanation of how the “purpose” and “effect” prongs are supposed to work became the “Endorsement Test.” Since there’s a “purpose” prong built into it, your notion that the test somehow prohibits consideration of religious motives is, frankly, absurd.
#34 Larry Fafarman
July 14, 2008

Martian Buddy ( July 14, 2008 1:22 AM ) –

gave one specific example that boils down to a bog-standard creationist argument from improbability.

How can you knock my ideas about co-evolution if you haven’t even read them? I have several articles about co-evolution under the “non-ID criticisms of evolution” post-label group in the sidebar of my blog, “I’m from Missouri.” (my name at the bottom links to my blog)

Tellingly, you did not refer me to any peer-reviewed scientific papers published in mainstream journals.

You Darwinists have really made a fetish of peer-review — you think that something is not worth anything if it is not peer-reviewed. Did you know that most law journals — including some of the most prestigious law journals — are not peer-reviewed? That’s right — and they are not even faculty-reviewed — they’re student-reviewed! And yet you Darwinists trust the law profession to make decisions on scientific questions.

That’s like saying that supporters of evolution are all motivated by atheism.
Not only is tu quoque a logical fallacy, it doesn’t even make sense in this case given the large number of theistic evolutionists.

What about atheistic (Anthony Flew) and agnostic (David Berlinski) proponents of Intelligent Design? Yet you said, “criticisms of evolution invariably have religious motives.” (your comment of July 13, 2008 5:57 PM)

ID came after the ruling on “Creation Science” in McLean v. Arkansas in 1981, and the changes from “creationism” to “intelligent design” in the text of “Pandas” followed the ruling in Edwards.

Edwards was in 1987, so if McLean ruled out “creation science” in 1981, then why did “Pandas” still have the word “creationism” in 1981? I think the reason was that McLean was only locally applicable because it was just a district court decision.

Again, you have a truly bizarre idea of what constitutes precedent. Rather than pursue yet another fruitless attempt to point out the numerous precedents against teaching creationism and the evidence that ID was derived from it

There are only two precedents against evolution disclaimers — Freiler v. Tangipahoa Parish and Kitzmiller v. Dover — and Freiler is just an appeals court decision and Kitzmiller is just a district court decision. Selman v. Cobb County was vacated by an appeals court and was then settled out of court and so is not a precedent. There is only one ID precedent, Kitzmiller, and again it is just a district court decision.

I’ll point out that the so-called “academic freedom” bill in Louisiana took great pains to claim that it did not authorize the teaching of creationism or intelligent design.

This bill mentions neither creationism nor intelligent design.

I refuse to be drawn off on another hypothetical tangent, Larry. The Supreme Court declined the appeal and allowed the case to stand . . .. .

Again, I’m not going to play “what-if?” scenarios with you.

As a result of the luck of getting a biased and incompetent judge in the Kitzmiller case, a lot of Darwinists have the mistaken belief that defeating evolution disclaimers in court is as easy as taking candy from a baby. They even have a name for this mistaken belief — they call it the “Dover trap.” I am using the Freiler and Selman cases to show them that they are sadly mistaken — court approval of an evolution disclaimer is a strong possibility.

You are saying “You should believe Larry Moran because he’s a ‘Darwinist’” rather than “You should believe Larry Moran because he has relevant expertise in textual analysis.”

You don’t need to be an expert in textual analysis to see that the ID-as-science section of the Dover opinion was virtually entirely copied from the ACLU’s opening post-trial brief.

He didn’t give any “legal advice” to the new board

He did give legal advice to the new board — his statement that the board election results would not affect his decision was a hint to the board that repeal of the ID policy would not affect his decision. This hint could obviously discourage the board from repealing the ID policy prior to judgment. If you cannot see such an obvious hint then you are completely clueless.

old board wasn’t leaving office until December and the new board would have had to publish a change a month in advance.

Wrong — I checked Pennsylvania law and surprisingly government agencies are not required to give advance notice of action items at meetings! Also, the school board could have scheduled a special emergency meeting for early December — and being faced with a huge attorney fee award (originally over $2 million, negotiated down to $1 million) was an emergency!

Finally, about this memo nonsense: go here and scroll down near the bottom of the page. The email was provided to the plaintiffs.

There is still no explanation as to why the defendants gave the email (memo) to the plaintiffs. The email was a privileged confidential attorney-client communication. The email should have contained a warning to not release it to anyone who was not an employee of the school district. The Dover opinion used the email against the defendants.
#35 Larry Fafarman
July 14, 2008

Martian Buddy ( July 14, 2008 3:48 AM ) –

The courts should declare the evolution controversy to be non-justiciable.
This statement is not becoming any more convincing with repetition. There are decades worth of court rulings on the matter already.

Wrong — only two court decisions — Kitzmiller v. Dover (2005) and McLean v. Arkansas Board of Education (1982) — ruled on scientific questions of the evolution controversy. Both decisions are unreviewed decisions of single federal district court judges. And the fact that there have been rulings on the scientific questions is no reason to not declare the scientific questions to be non-justiciable. As a said, a court ruling on scientific questions of the evolution controversy is like a court ruling on the question of how many angels can dance on the head of a pin. Scientific questions about the evolution controversy are simply no business of the courts.

“Pandas” contained all of the major arguments for ID: irreducible complexity, complex specified information, etc., all in their current forms. ID has come up with nothing new since.

Wrong — there have been lots of new ideas about ID since “Of Pandas and People” was first published. And even if there had been no new ideas since the first publication of “Pandas,” my statement that ID cannot be defined by a single book still holds. BTW, have you looked at my articles about co-evolution on my blog? Just click on the post label “non-ID criticisms of evolution” in the sidebar of my blog “I’m from Missouri.”

We’re not discussing your hypothetical school board, we’re discussing the Dover board with at least three very non-hypothetical creationists on it.

But if there is to be a court ruling that would be applicable to all school boards, then all kinds of school boards must be taken into consideration.

I never said it was binding; I’m the one who brought up persuasive precedent, remember?

There is also unpersuasive precedent, like Kitzmiller v. Dover.

And there are good reasons why judges should not be persuaded by the Dover opinion….
Those aren’t “good reasons;” they’re two conspiracy theories.

Wrong — those reasons are proven. There are (1) the Discovery Institute report with side-by-side comparisons of the ID-as-science sections of the Dover opinion and the ACLU’s opening post-trial brief and (2) the exact words of Judge Jones’ Dickinson College commencement speech.

First, let’s look at the beginning of the concurrence:

“I concur in the opinion of the Court. I write separately to suggest a clarification of our Establishment Clause doctrine.”

Justice O’Connor is clarifying the Lemon Test.

Wrong. In your quotation above, she says that she is writing separately to suggest a clarification of “Establishment Clause doctrine,” not the Lemon Test.

The paragraph that is normally considered to be the definition of the Endorsement Test (see my comment of July 14, 2008 2:02 AM ) makes no mention of the Lemon Test, and as I noted, the Endorsement Test is sometimes regarded as an independent test. How can it be an independent test if it includes a clarification of the Lemon Test? Your inclusion of the Lemon Test in the Endorsement Test is completely arbitrary. And as I pointed out, the two tests are really incompatible — the Lemon Test requires consideration of the religious motivations of public officials and the Endorsement Test prohibits such consideration (“The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community”).

You mention that “even I agree” that the Endorsement test is sometimes treated as a separate test, ignoring the important qualifier “sometimes” in the sentence.

This “sometimes” argument can also be used against the Lemon Test — the courts “sometimes” use it.

Finally, there’s this business about the sentence you object to. I refer you to the last part of part I:

“Focusing on institutional entanglement and on endorsement or disapproval of religion clarifies the Lemon test as an analytical device.”

I am in favor — along with a lot of judges and legal scholars — of doing away with the Lemon Test completely, so your discussions of the Lemon Test are irrelevant to me.

Her explanation of how the “purpose” and “effect” prongs are supposed to work became the “Endorsement Test.”

As I said, how can the Endorsement Test be an independent test if it involves the Lemon Test?

Since there’s a “purpose” prong built into it, your notion that the test somehow prohibits consideration of religious motives is, frankly, absurd.

My “notion that the test somehow prohibits consideration of religious motives” is based on the first sentence of the paragraph that defines the test:

“The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.”

How can the above sentence be interpreted as anything but a prohibition against consideration of a person’s religious motivation?

Here’s an idea — maybe school board members enacting an evolution disclaimer statement could stomp on a bible to show that the statement is not motivated by religion. If people are offended, tell them that stomping on the bible is necessary to get court approval of the statement.
#36 Martian Buddy
July 14, 2008

How can you knock my ideas about co-evolution if you haven’t even read them? I have several articles about co-evolution under the “non-ID criticisms of evolution” post-label group in the sidebar of my blog, “I’m from Missouri.” (my name at the bottom links to my blog)

The comment you quoted was in response to the text you actually posted, Larry. That should be painfully evident if you read it in context.

You Darwinists have really made a fetish of peer-review….

So that’s a “no,” then?

What about atheistic (Anthony Flew)…

Flew renounced his atheism. Don’t lie to me, Larry.

…and agnostic (David Berlinski) proponents of Intelligent Design? Yet you said, “criticisms of evolution invariably have religious motives.”

“How can we identify events due to intelligent causes and distinguish them from events due to undirected natural causes? If we lack a causal theory, how can we determine whether an intelligent cause acted? This book presents a reliable method for detecting intelligent causes: the design inference. The design inference uncovers intelligent causes by isolating the key trademark of intelligent causes: specified events of small probability.”

-David Berlinski, from the inside dust jacket of Dembski’s “The Design Inference.”

This bill mentions neither creationism nor intelligent design.

I’m glad we agree. Don’t you think it’s a bit odd that the Louisiana legislature should take such great pains to disassociate themselves from the teaching of creationism and ID if, as you assert, there’s no applicable precedent?

Maybe you should consider the possibility that legislators know a bit more about how the law works than you do.

I am using the Freiler and Selman cases to show them that they are sadly mistaken — court approval of an evolution disclaimer is a strong possibility.

“6-3 to decline to hear an appeal” and “vacated and sent back to the court because of an incomplete trial record” isn’t a “strong possibility.”

You don’t need to be an expert in textual analysis to see that the ID-as-science section of the Dover opinion was virtually entirely copied from the ACLU’s opening post-trial brief.

Wrong.

He did give legal advice to the new board….

Larry, these odd notions of yours about mootness are wrong

There is still no explanation as to why the defendants gave the email (memo) to the plaintiffs.

But they did hand it over, so your allegations of there being some impropriety to it appearing in the record are silly.

And the fact that there have been rulings on the scientific questions is no reason to not declare the scientific questions to be non-justiciable. As a said, a court ruling on scientific questions of the evolution controversy is like a court ruling on the question of how many angels can dance on the head of a pin. Scientific questions about the evolution controversy are simply no business of the courts.

Part of the job that the courts have under either the Lemon Test or the Endorsement Test is to determine whether the government’s purpose in enacting a challenged policy is legitimate, or whether it’s a sham. Thus, the question of whether something is science or creationism in a cheap tuxedo is quite relevant to their deliberations, your protests to the contrary notwithstanding.

Wrong — there have been lots of new ideas about ID since “Of Pandas and People” was first published.

Cite a few, please.

And even if there had been no new ideas since the first publication of “Pandas,” my statement that ID cannot be defined by a single book still holds.

It wasn’t; remember that three DI fellows testified?

BTW, have you looked at my articles about co-evolution on my blog?

Final count: 7 arguments from improbability, 1 article sneering at a Panda’s Thumb article (but making no counter-argument,) 1 meaningless bit of word games with “theory” and “theorum,” 1 hysteria-laden accusation of censorship on another site, 1 unsupported claim, 1 book review, 1 whine about your articles being ignored, 1 SLoT article where you take no position at all, 1 claim that evolution can’t create new information, and 1 “Haldane’s Dilemma” argument.

The “information” argument is classic Dembski, the improbability argument has been used by creationists for ages, and the “Haldane’s Dilemma” argument is a favorite of ReMine.

In your quotation above, she says that she is writing separately to suggest a clarification of “Establishment Clause doctrine….”

And then she discusses the Lemon Test at length. The “Establishment Clause doctrine” she’s talking about clarifying is the Lemon Test. It’s not difficult to grasp, Larry.

The paragraph that is normally considered to be the definition of the Endorsement Test (see my comment of July 14, 2008 2:02 AM ) makes no mention of the Lemon Test, and as I noted, the Endorsement Test is sometimes regarded as an independent test. How can it be an independent test if it includes a clarification of the Lemon Test?

Is it that difficult to grasp what the “sometimes” means, Larry? Justice O’Connor wrote the concurrent opinion as a way of explaining the action of the Lemon Test. Some courts have applied the endorsement section as a separate Endorsement Test. That’s why it’s “sometimes” considered a separate test.

And as I pointed out, the two tests are really incompatible

Nonsense – all you have to do is look up a few rulings involving the Endorsement Test to see that the courts look at intent in deciding Endorsement Test cases.

My “notion that the test somehow prohibits consideration of religious motives” is based on the first sentence of the paragraph that defines the test:

In other words, it’s based on a quote mine.
#37 Greg
July 14, 2008

Larry, Larry, Larry… give up on the Dover case already. You’re obsessing. Here’s a comment from the link posted by Martian Buddy regarding mootness — one that was given to you before (it’s from Colin). Note that it involves the Thomas More Law Center — the attorneys for the defendants in Kitzmiller:

In O’Connor v. Washburn University, 416 F.3d 1216 (10th Cir. 2005), the Thomas More Law Center, which defended the board in Kitzmiller, argued that a sculpture displayed on the university grounds was “an unconstitutional endorsement of an anti-Catholic message.” (The sculpture is essentially an unflattering image of a fat bishop.) That’s right – the TMLC, ardent foe of the Establishment Clause (“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.”) argued that it should be used to censor an art display that they found offensive. Hypocritical enough, as far as I’m concerned.

But it is particularly relevant here, because the TMLC’s only successful argument was that their case could not be mooted in light of their claim for nominal damages. The statue was removed before the case finished, so their claims for declaratory and injunctive relief were mooted. But because the Thomas More center had a cause of action for nominal damages, the court proceeded to address the case on its merits. As the court held, “The complaint, however, also includes a claim for nominal damages. An award of nominal damages is an appropriate remedy for a violation of the Establishment Clause. Unlike the claims for injunctive and declaratory relief, this claim is not mooted by the removal of the statue from campus. This court therefore has jurisdiction to consider the nominal damages claim.” (citations omitted)

Larry wrote: You Darwinists have really made a fetish of peer-review

Do you even know what a fetish is? A fetish is when an object or possession of an object is a substitute for the real thing, ie., panties, nylons, shoes, bras, etc. instead of a real woman (or man, of course). How is holding the standard of peer-review fetishistic? The publication itself is what stands. Its arguments stand — even when mistaken — and follow the rules of its discipline. What a peer reviewed publication means is that it holds to the standards of the scientific method and all signs indicate that the method has been followed. What does a peer reviewed publication have that one that was not peer reviewed? Validation of its methodology. That is not a fetish, sorry to say (well, not really).

Larry also wrote, “Wrong — only two court decisions — Kitzmiller v. Dover (2005) and McLean v. Arkansas Board of Education (1982) — ruled on scientific questions of the evolution controversy. Both decisions are unreviewed decisions of single federal district court judges.”

McLean v. Arksansas was not directly reviewed, but it was an important precedent that helped SCOTUS overturn Louisiana’s law requiring equal time for creationism, thus banning the teaching of creationism. Kitzmiller will play that role should the teaching of ID ever make it to SCOTUS.
#38 Larry Fafarman
July 14, 2008

Martian Buddy ( July 14, 2008 3:31 PM ) –

How can you knock my ideas about co-evolution if you haven’t even read them? I have several articles about co-evolution under the “non-ID criticisms of evolution” post-label group in the sidebar of my blog, “I’m from Missouri.” (my name at the bottom links to my blog)
The comment you quoted was in response to the text you actually posted, Larry. That should be painfully evident if you read it in context.

?????? What is painfully evident is that your statement “one specific example that boils down to a bog-standard creationist argument from improbability” appeared to be a reference to co-evolution.

Flew renounced his atheism. Don’t lie to me, Larry.

I saw Flew say that he did not renounce his atheism, so you are lying to me. Anyway, the question is moot because there are lots of critics of Darwinism who are not motivated by religion.

This bill mentions neither creationism nor intelligent design.
I’m glad we agree. Don’t you think it’s a bit odd that the Louisiana legislature should take such great pains to disassociate themselves from the teaching of creationism and ID if, as you assert, there’s no applicable precedent?

Here you contradict yourself in the same statement! First you agree that the bill mentions neither creationism nor intelligent design, then you say that the Louisiana legislature took “great pains to disassociate themselves from the teaching of creationism and ID”! I would like to call you a troll, but that would offend the strait-laced sensibilities of the biased blogger here who would like nothing better than to have an excuse to censor my comments, so I won’t call you a troll even though you are one.

Anyway, you have completely destroyed your credibility with your preceding self-contradictory statement, so I should not even bother wasting my time responding to any more of your nonsense, but there are some things here that I want to clear up.

“6-3 to decline to hear an appeal” and “vacated and sent back to the court because of an incomplete trial record” isn’t a “strong possibility.”

Wrong. The composition of the Supreme Court has changed and is expected to change again soon (there are now four conservative justices and more may be added in the future) and a different evolution disclaimer case might be stronger with a different disclaimer, different defendants, different defense arguments, etc.. Also, as I said, the appeals court probably would have reversed Selman if the decision had not been vacated and remanded because of missing evidence.

You don’t need to be an expert in textual analysis to see that the ID-as-science section of the Dover opinion was virtually entirely copied from the ACLU’s opening post-trial brief.
Wrong.

Those results that you linked to are based on just a computerized text comparison, which is not an effective way of comparing the ideas in two different texts because words can be substituted, superfluous words can be added or deleted, ideas can be paraphrased, sentences and paragraphs can be moved around, etc.. The only proper way to compare the two texts for similarity of ideas is by a side-by-side comparison of the two texts, and a Discovery Institute report has such a side-by-side comparison. Fanatic extremist Darwinist Larry Moran, who certainly has no ax to grind here, said of the side-by-side comparison,

Any junior clerk could have copied the material in a single afternoon, making some minor changes of wording. This is not a case of picking and choosing from both sides and writing a summary that incorporates a few phrases here and there. It’s wholesale copying, the order is the same and entire paragraphs are copied for 34 pages.

Also, the results that you linked to were for the whole opinion, whereas DI’s comparison was just for the ~6000 word ID-as-science section. Furthermore, Wickedpedia censored a link to the DI’s rebuttal of criticism of the DI text comparison.

He did give legal advice to the new board….
Larry, these odd notions of yours about mootness are wrong

No, your ideas are wrong — Timothy Sandefur on Panda’s Thumb ignored almost all of the cases cited by Michael Francisco on Evolution News & Views. In particular, Sandefur ignored Buckhannon Board and Care Home v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001), where the courts both dismissed the case because of voluntary cessation by the government and denied the plaintiffs an attorney fee award. Also, even Timothy Sandefur on Panda’s Thumb conceded that it might have been possible for the school board to moot the case by repealing the ID policy prior to judgment:

Now, Francisco (like every dutiful student) has a copy of Erwin Chemerinsky’s fine textbook on federal jurisdiction, and of course it correctly states that a legislative change is usually enough to render a case moot—that is, if the legislative change is not likely to be reversed later. The question all comes down to whether the legislature is likely to go back to doing the wrong thing again. As Chemerinsky says, “cases will not be dismissed as moot if the Court believes that there is a likelihood of reenactment of a substantially similar law if the lawsuit is dismissed.” Id. at 139. And this is a judgment call. Of course, I’m sure that Mr. Francisco knows that whenever something is a “judgment call,” that means it’s pretty much up to the district court judge to decide—which is as it should be, since the district court judge is in the best position to make such judgments. He knows the facts and the parties best.

And it doesn’t matter whether Judge Jones gave the defendants good legal advice, because judges are not supposed to give any legal advice at all to litigants, whether good or bad. It’s like the “best butter” that the March Hare put in a watch (from the Mad Hatter’s Tea Party in Alice in Wonderland).

But they did hand it over, so your allegations of there being some impropriety to it appearing in the record are silly.

Wrong. Until I find out why and how the defendants gave a privileged attorney-client communication to the plaintiffs, I have good reason to be suspicious.

And the fact that there have been rulings on the scientific questions is no reason to not declare the scientific questions to be non-justiciable. As a said, a court ruling on scientific questions of the evolution controversy is like a court ruling on the question of how many angels can dance on the head of a pin. Scientific questions about the evolution controversy are simply no business of the courts.
Part of the job that the courts have under either the Lemon Test or the Endorsement Test is to determine whether the government’s purpose in enacting a challenged policy is legitimate, or whether it’s a sham.

Courts sometimes consider contentious scientific questions to be non-justiciable, even when answering the question would be of tremendous help in deciding a case. For example, in Mass. v. EPA, the courts avoided answering questions about global warming theory, even though answering those questions would have been of tremendous help in deciding the case.

Wrong — there have been lots of new ideas about ID since “Of Pandas and People” was first published.
Cite a few, please.

Don’t act stupid. There have been lots of ID books published since “Pandas” — e.g., Darwin’s Black Box, No Free Lunch, and The Edge of Evolution — and these books contain new ideas that are often based on scientific facts that were not known when “Pandas” was first published.

And even if there had been no new ideas since the first publication of “Pandas,” my statement that ID cannot be defined by a single book still holds.
It wasn’t; remember that three DI fellows testified?

That doesn’t change the fact that “Pandas” was overemphasized. The name of “Pandas” appeared 75 times in the opinion and no other book was discussed (as I remember, “Darwin’s Black Box” was mentioned once in passing).

The “information” argument is classic Dembski, the improbability argument has been used by creationists for ages,

Darwinists make improbability arguments all the time — the improbability of the existence of god, the improbability of the supernatural, the improbability that the critics of Darwinism may be right or partly right, etc..

In your quotation above, she says that she is writing separately to suggest a clarification of “Establishment Clause doctrine….”
And then she discusses the Lemon Test at length. The “Establishment Clause doctrine” she’s talking about clarifying is the Lemon Test.

But that is not what she literally said, and she might not have intended to make the Endorsement Test part of the Lemon Test. You are putting words in her mouth. And it was just a concurring opinion — she had no idea that the endorsement test stated in the opinion would later become a widely used judicial test.

Nonsense – all you have to do is look up a few rulings involving the Endorsement Test to see that the courts look at intent in deciding Endorsement Test (Establishment Clause?) cases.

First, I think it is necessary to distinguish between “intent” and “belief.” For example, a public official can have an “intent” to endorse religion without having any religious belief — the official could just be responding to the wishes of constituents.

When both the Lemon Test and the Endorsement Test are used, of course the court is going to look at intent or belief because the Lemon Test requires it. But if the Endorsement Test is used alone, it is not necessary to consider intent or religious belief — the court could just decide whether the appearance of endorsement or disapproval of religion has the result of making people feel like political “insiders” or political “outsiders,” without considering the actual intent or beliefs of the public officials.

My “notion that the test somehow prohibits consideration of religious motives” is based on the first sentence of the paragraph that defines the test:
In other words, it’s based on a quote mine.

Wrong — when quoted alone, the sentence is not inconsistent with the rest if the paragraph, so it’s not a quote mine.

Anyway, Martian Buddy (I certainly don’t consider you to be my buddy), I think that your self-contradictory statement about the Louisiana academic freedom law has so destroyed your credibility that I don’t need to respond to you anymore.
#39 Martian Buddy
July 14, 2008

Alright then, if those are your closing arguments, here are mine.

I saw Flew say that he did not renounce his atheism, so you are lying to me.

I have to admit that you’re half-right about this. He didn’t renounce his atheism; he was quote-mined

Here you contradict yourself in the same statement!

There’s no contradiction. When the bill was being debated, the Discovery Institute, the Louisiana Family Forum, and Sen. Nevers all claimed that it would not allow the teaching of ID. That’s a curious qualifier if, as you assert, the Kitzmiller ruling is inapplicable in Louisiana.

The composition of the Supreme Court has changed and is expected to change again soon….

We were talking about the legality of evolution disclaimers now, not at some indefinite point in the future where the composition of the court is more favorable to the anti-evolution movement.

Those results that you linked to….

You neglected to deal with the second point raised by the article, which is that there’s nothing untoward about adopting the proposed findings of fact even if your claims about “copying” were correct.

No, your ideas are wrong….

You missed an important part of Sandefur’s essay:

“So in the end, here’s what we have: Mr. Francisco wishes the School Board had withdrawn its policy because he thinks it would have saved the taxpayers money. But it wouldn’t have because the case sought nominal damages for past injuries, plus attorneys fees, and there was no way to moot that, even if the School Board promised never to do it again. Further, it’s all hypothetical anyway because the school board was entirely within its rights to decide not to moot its own case, and of course until a case is possibly moot, it is not up to the judge to inquire into the question.”

See also Greg’s comment above, which you ignored, that involved the TMLC keeping a case from being mooted because they requested punitive damages.

Courts sometimes consider contentious scientific questions to be non-justiciable, even when answering the question would be of tremendous help in deciding a case.

It’s not a “contentious” scientific question; there’s a strong scientific consensus for evolution. The controversy over evolution is a religiously-motivated political one.

There have been lots of ID books published since “Pandas” — e.g., Darwin’s Black Box, No Free Lunch, and The Edge of Evolution — and these books contain new ideas that are often based on scientific facts that were not known when “Pandas” was first published.

So there’s something new besides “irreducible complexity,” “complex specified information,” and “fine tuning?” Cite it, please.

That doesn’t change the fact that “Pandas” was overemphasized. The name of “Pandas” appeared 75 times in the opinion and no other book was discussed (as I remember, “Darwin’s Black Box” was mentioned once in passing).

Weren’t you the one complaining about the amount of time the trial took and the length of the ruling? Just how many books did you want him to discuss at length?

Darwinists make improbability arguments all the time — the improbability of the existence of god…

Good luck finding anything in the scientific literature on this.

…the improbability of the supernatural…

You might be able to find some papers debunking some specific supernatural claims, but that’s it.

…the improbability that the critics of Darwinism may be right or partly right, etc.

Scientists (those people you keep labeling “Darwinists”) expect evidence to support one’s claims. On that count, “Creation Science” and “Intelligent Design” have both been miserable failures.

But that is not what she literally said….

From O’Connor vs. Washburn University:

“In Lemon, the Supreme Court set forth a three-part test for determining whether a government action violates the Establishment Clause. Lemon, 403 U.S. at 612-13. Under this test, “government action does not violate the Establishment Clause so long as it (1) has a secular purpose, (2) does not have the principal or primary effect of advancing or inhibiting religion, and (3) does not foster an excessive entanglement.” Bauchman, 132 F.3d at 551. Justice O’Connor offered a refined version of the Lemon test in her concurring opinion to Lynch v. Donnelly. 465 U.S. at 687-94 (O’Connor, J., concurring). Under Justice O’Connor’s modified “endorsement test,” “the government impermissibly endorses religion if its conduct has either (1) the purpose or (2) the effect of conveying a message that religion or a particular religious belief is favored or preferred.” Bauchman, 132 F.3d at 551 (quotation omitted). In examining challenges to government action under the Establishment Clause, this circuit has interpreted the purpose and effect prongs of Lemon in light of Justice O’Connor’s endorsement test. Id. at 552. A government action is examined under this standard regardless of whether it is alleged to endorse or disparage religion. Roberts v. Madigan, 921 F.2d 1047, 1053-54 (10th Cir. 1990). Appellants claim Washburn’s placement of Holier Than Thou on campus had both the purpose and effect of conveying government disapproval of the Roman Catholic religion.”

(bolded emphasis added.)

I can find a lot more examples just like that if you’d like.

First, I think it is necessary to distinguish between “intent” and “belief.” For example, a public official can have an “intent” to endorse religion without having any religious belief — the official could just be responding to the wishes of constituents.

That would still be illegal. The endorsement is the problem, Larry.

But if the Endorsement Test is used alone, it is not necessary to consider intent or religious belief — the court could just decide whether the appearance of endorsement or disapproval of religion has the result of making people feel like political “insiders” or political “outsiders,” without considering the actual intent or beliefs of the public officials.

See quote from O’Connor vs. Washburn University above.

Wrong — when quoted alone, the sentence is not inconsistent with the rest if the paragraph, so it’s not a quote mine.

Your interpretation of it is inconsistent with the rest of the concurring opinion and the manner in which the Endorsement test is interpreted and applied. It’s a quote mine.
#40 Larry Fafarman
July 14, 2008

Greg said,

Larry, Larry, Larry… give up on the Dover case already. You’re obsessing.

Greg, Greg, Greg, give up on the Dover case already. You’re obsessing.

In O’Connor v. Washburn University, 416 F.3d 1216 (10th Cir. 2005), . . . .the TMLC’s only successful argument was that their case could not be mooted in light of their claim for nominal damages. The statue was removed before the case finished, so their claims for declaratory and injunctive relief were mooted. But because the Thomas More center had a cause of action for nominal damages, the court proceeded to address the case on its merits.

And here is a case where the court refused to proceed when the only remaining claim was nominal damages — in Alpha Iota Omega Christian Fraternity v. Hamm, US District Court for the Middle District of North Carolina, the judgment said,

“…… the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar.” (page 29 of opinion)

Also, in O’Connor v. Washburn University, Judge McConnell wrote in an opinion that concurred in part and dissented in part –www.kscourts.org/ca10/cases/2004/06/02-4174.htm

“The panel was constrained to take jurisdiction in this case because of Tenth Circuit precedent holding that a claim for nominal damages precludes dismissal of the case on mootness grounds (citations omitted). I believe those decisions were incorrect and that either an en banc court or the Supreme Court should hold that a case that is otherwise nonjusticiable on account of mootness is not saved by the mere presence of a prayer for nominal damages.” (emphasis added)

“Nominal damage awards serve essentially the same function as declaratory judgments; indeed, scholars tell us that nominal damages were originally sought as a means of obtaining declaratory relief before passage of declaratory judgment statutes…….For justiciability purposes, I see no reason to treat nominal and declaratory relief differently.”

“Indeed, if appending a claim for nominal damages were sufficient to create standing or to avoid mootness, litigants could manufacture Article III jurisdiction by the mere expedient of pleading. It is hard to conceive of a case in which a plaintiff would be unable to append a claim for nominal damages, and thus insulate the case from the possibility of mootness. Article III justiciability should not be so manipulable.”

“Outside of this Circuit, the cases are mixed. The Sixth and Ninth Circuits, like ours, squarely hold that a claim for nominal damages is sufficient to render a case justiciable…… Second Circuit panels appear to have taken inconsistent positions on the issue. Compare Hernandez v. European Auto Collision, Inc., 487 F.2d 378, 387 (2d Cir. 1973) (holding that a claim for nominal damages does not avoid mootness), with Davis v. Village Part II Realty Co., 578 F.2d 461, 463-64 (2d Cir. 1978) (holding that in a civil rights action, the availability of either nominal or substantial damages was sufficient to avoid mootness). The Seventh Circuit has suggested, but not held, that a claim for nominal damages is insufficient to avoid mootness……. Other circuits have held that cases are not moot where there are claims for both nominal and compensatory or punitive damages.” (some citations omitted)

“I therefore conclude that although the issue is resolved in this Circuit, it has not been resolved by the Supreme Court or by the weight of authority nationwide.”

“….the prospect of attorneys fees does not affect whether the underlying claim is justiciable. As the Supreme Court has stated, the “interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.”

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

What a peer reviewed publication means is that it holds to the standards of the scientific method and all signs indicate that the method has been followed. What does a peer reviewed publication have that one that was not peer reviewed? Validation of its methodology.

I pointed out that most law journals — including some of the most prestigious law journals — are not peer-reviewed but are only student-reviewed! So why do Darwinists go running to the courts for answers to scientific questions when the law profession has shown such low standards of professional integrity?

McLean v. Arksansas was not directly reviewed, but it was an important precedent that helped SCOTUS overturn Louisiana’s law requiring equal time for creationism, thus banning the teaching of creationism.

WRONG! Here is all the Supreme Court majority opinion in Edwards v. Aguillard said about McLean — just one sentence and one brief footnote that said nothing about scientific issues:

There is a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution.[9]
9. See McLean v. Arkansas Bd. of Ed., 529 F.Supp. 1255, 1258-1264 (ED Ark.1982) (reviewing historical and contemporary antagonisms between the theory of evolution and religious movements).

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

Kitzmiller will play that role should the teaching of ID ever make it to SCOTUS.

Kitzmiller has been so badly discredited that its precedential value is virtually nil. For example:

(1) The Discovery Institute has shown that the ID-as-science section was virtually entirely copied from the ACLU’s opening post-trial brief.

(2) Judge Jones 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 Kitzmiller decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not “true” religions.
#41 Greg
July 15, 2008

The argument presented by Larry is incomplete. A footnote on the same page (29) says (in part): “Here, Plaintiffs have not proven a constitutional violation and the case is dismissed as moot, so that possibility is foreclosed.”

That’s why damages were not possible in that case — there was no constitutional violation. In Dover, there was.

I was speaking of scientific journals. You are talking about law journals. I wasn’t aware that lawsuits were decided through publication of articles. Silly me!

The Dover decision has not been discredited by the smear campaign of the Discovery (sic) Institute. Their analysis will have no bearing on the actions of a court — nor will Jones’s statements (made well after the decision of the case!).
#42 Larry Fafarman
July 15, 2008

Greg said,

The argument presented by Larry is incomplete. A footnote on the same page (29) says (in part): “Here, Plaintiffs have not proven a constitutional violation and the case is dismissed as moot, so that possibility is foreclosed.”

That’s why damages were not possible in that case — there was no constitutional violation. In Dover, there was.

You missed the point entirely. It was claimed that the Dover plaintiffs’ claim for nominal damages ($1 per plaintiff or $11 total) made it impossible to moot the Kitzmiiller case by repeal of the ID policy because supposedly the case would continue on the basis of the nominal-damages claim alone even if all the constitutional claims were dismissed. That was the question in O’Connor vs. Washburn University: whether a nominal-damage claim alone — with all other claims dismissed — was sufficient to prevent the case from being declared moot. You yourself said of O’Connor,

. . . .the TMLC’s only successful argument was that their case could not be mooted in light of their claim for nominal damages. The statue was removed before the case finished, so their claims for declaratory and injunctive relief were mooted. But because the Thomas More center had a cause of action for nominal damages, the court proceeded to address the case on its merits.

But the judge in Alpha Iota Omega Christian Fraternity v. Hamm ruled differently:

“…… the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar.” (page 29 of opinion)

Also, a dissenting judge in O’Connor disagreed with the idea that a nominal-damage claim alone is sufficient to prevent mootness:

“The panel was constrained to take jurisdiction in this case because of Tenth Circuit precedent holding that a claim for nominal damages precludes dismissal of the case on mootness grounds (citations omitted). I believe those decisions were incorrect and that either an en banc court or the Supreme Court should hold that a case that is otherwise nonjusticiable on account of mootness is not saved by the mere presence of a prayer for nominal damages.”

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

I was speaking of scientific journals. You are talking about law journals. I wasn’t aware that lawsuits were decided through publication of articles.

As a matter of fact, lawsuits are sometimes decided through the publication of articles. A dissenting judge in one case said,

Rather than address the facts and law cited by the panel’s opinion, the majority fails to cite one case dealing with electronic communications in the privacy context, instead relying on a single professor’s law review article.

But my main purpose was to point out that the law profession has low professional standards because most law journals are edited by law students without peer-review of the articles! So why should scientists go running to the courts for answers to scientific questions?

The Dover decision has not been discredited by the smear campaign of the Discovery (sic) Institute. Their analysis will have no bearing on the actions of a court

Wrong — the DI’s analysis will be available to any attorney who wants to use it to discredit the Dover decision if that decision is cited in another court case.

— nor will Jones’s statements (made well after the decision of the case!).

Wrong again — his Dickinson College speech will also be available to discredit the Dover decision.
#43 Greg
July 15, 2008

Larry wrote,

That was the question in O’Connor vs. Washburn University: whether a nominal-damage claim alone — with all other claims dismissed — was sufficient to prevent the case from being declared moot. You yourself said of O’Connor,

Larry, the reason why nominal damages were not enough for the lawsuit to continue here was because — as I quoted before — there was no constitutional violation: “Here, Plaintiffs have not proven a constitutional violation and the case is dismissed as moot, so that possibility is foreclosed,” as the footnote (#26 I believe) on page 29 reads. In Dover, there was a constitutional violation. According to this note, that keeps the claim alive even if the petition for nominal damages is waived. That would also be why the case would not be mootable via voluntary cessation or any other doctrine: there was a constitutional violation and as such there were damages.

Larry questioned, “So why should scientists go running to the courts for answers to scientific questions?”

They don’t go to court seeking the answer to scientific questions. They go to court seeking the answer to constitutional questions.

Larry wrote, “Wrong — the DI’s analysis will be available to any attorney who wants to use it to discredit the Dover decision if that decision is cited in another court case. [...] Wrong again — his Dickinson College speech will also be available to discredit the Dover decision.”

I didn’t say they wouldn’t be available. I said they wouldn’t matter. If I thought I could tolerate a few minutes of your presence, I would bet a beer on it, but since I never ever want to meet you in person, I won’t
#44 Larry Fafarman
July 15, 2008

Larry wrote,
That was the question in O’Connor vs. Washburn University: whether a nominal-damage claim alone — with all other claims dismissed — was sufficient to prevent the case from being declared moot. You yourself said of O’Connor,

Larry, the reason why nominal damages were not enough for the lawsuit to continue here was because — as I quoted before — there was no constitutional violation: “Here, Plaintiffs have not proven a constitutional violation and the case is dismissed as moot, so that possibility is foreclosed,” as the footnote (#26 I believe) on page 29 reads.

Which case are you talking about here, O’Connor v. Washburn University or Alpha Iota Omega Christian Fraternity v. Hamm? It is obvious that you have the two cases mixed up.

In Dover, there was a constitutional violation. According to this note, that keeps the claim alive even if the petition for nominal damages is waived.

You still don’t get. People were saying that the nominal damages claim alone would have been sufficient to prevent the Dover case from being dismissed as moot. They said that even if all the constitutional claims were dismissed because of repeal of the ID policy by the school board, the case could still not be mooted because of the nominal damages claim. This is really getting exasperating. I am dealing with people here who cannot understand plain English and very simple ideas.

They don’t go to court seeking the answer to scientific questions. They go to court seeking the answer to constitutional questions.

Wrong — the scientific merits of Intelligent Design are a scientific question, not a constitutional question. And there is no constitutional separation of bad science and state.

I didn’t say they wouldn’t be available. I said they wouldn’t matter.

They would matter. The Dover opinion has little precedential value to begin with because it is just the unreviewed opinion of a single judge. Showing that the judge was biased would destroy what little precedential value there was.
#45 W. Kevin Vicklund
July 15, 2008

Larry’s false claims are legion. Let us look first at some of his claims ( or claims he is parroting) involving mootness and nominal damages.

First, in the AIO case, he claims that nominal damages was the remaining claim. This is false. The plaintiffs only tried to include that claim after the mooting event occurred – they were not, in fact, remaining. Allowing amendments is discretionary for the judge. Since the claim appeared to be added solely to extend the litigation, and not to grant the relief that the Supreme Court has ruled is the appropriate relief offered by an award for nominal damages, he determined that the claim for nominal damages was a dilatory move. Dilatory motions are frowned upon by the courts, and can lead to sanctions. Even the Supreme Court has indicated in dicta that it frowns upon the dilatory practice of adding claims for nominal damages after the mooting event occurs. This does not have any impact on whether a timely motion for nominal damages can prevent a case from being mooted.

The dissenting judge in Washburn (who also wrote the opinion he dissents from!) claims that the Second Circuit is inconsistent, citing cases from 1974 and 1978. This raises a question: Did the Second Circuit have a historical precedent that was overturned at some time between 1974 and 1978, or is it merely inconsistent in the application? If the former, then the judge is mistaken in his claim of inconsistency. So let’s check some history.

The 1974 ruling is available here. There is no claim for nominal damages; however, a consenting opinion notes the following:

There remains to be considered appellant’s claim for damages. That claim consists of a request for (1) $66 per week for each week he was deprived of the use of his automobile; (2) $1000 for mental and emotional distress allegedly caused by appellees; and (3) $1000 punitive damages from two of the appellees. If I understand this claim correctly, the amount of damages attributed to the detention, as opposed to the sale, of appellant’s car may fairly be characterized as nominal. Unlike such cases as Powell v. McCormack, 395 U.S. 486, 498 (1969), this is not a cause of action for which the remaining claim for damages remains “hotly contested”. Rather, as in Kerrigan, the detention claim is one by which appellant essentially is seeking an adjudication of the unconstitutionality of Sec. 184. “Not having found a justiciable controversy permitting a declaration, the claim for nominal damages, which is clearly incidental to the relief sought, cannot properly be the basis upon which a court should find a case or controversy where none in fact exists.” Kerrigan v. Boucher, supra, 450 F.2d at 489-90.

There is a link at the top left of the page leading to the Kerrigan decision. It is instructive to read it. The relevant excerpt:

The basic proposition which plaintiff is seeking to establish is the unconstitutionality of the Connecticut statute. Not having found a justiciable controversy permitting a declaration, the claim for nominal damages, which is clearly incidental to the relief sought, cannot properly be the basis upon which a court should find a case or controversy where none in fact exists.

In a comparable setting, a physically handicapped teacher, who was denied a teaching license, commenced an action against the Board of Education under 42 U.S.C. Sec. 1983 alleging violations of due process and equal protection guarantees, seeking declaratory and injunctive relief as well as damages. The case was mooted by a subsequent reversal by the Board of its initial determination. A contention was made that her claim for damages persisted. Judge Mansfield, then sitting on the District Court, held that the essential mootness of plaintiff’s claim was not affected by the claim for damages and further held that a claim for damages alone would not support a civil rights action under Sec. 1983 and Sec. 1343(3). Heumann et al. v. Board of Educ. of City of New York, 320 F.Supp. 623, 625 (S.D.N.Y.1970).

The basic argument of the Second Circuit in 1971 and 1974 was that declaratory and injunctive relief was the proper basis of relief for claims of unconstitutional behavior, not damages (whether nominal or compensatory). What happened to change their mind?

Well, in 1976, Congress enacted the Civil Rights Attorneys Fees Act, which expanded the ability of attorneys in civil rights cases to collect fees from the opposing party under section 1983. Previously, it was restricted to racial discrimination, but now it applied to things like due process and religious rights. The importance Congress placed on being able to have these rights vindicated may have played a role in the Second Courts reversal.

More importantly, in 1978, the Supreme Court ruled in Carey v. Piphus that:

Common-law courts traditionally have vindicated deprivations of certain “absolute” rights that are not shown to have caused actual injury through the award of a nominal sum of money. 23 By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights.

Because the right to procedural due process is “absolute” in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, see Boddie v. Connecticut, 401 U.S. 371, 375 (1971); Anti-Fascist Committee v. McGrath, 341 U.S., at 171 -172 (Frankfurter, J., concurring), we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury.

Although it did not specifically address the situation described in the earlier Second Circuit cases (availability of prospective relief), the 8-0 decision made it abundantly clear that the Court regarded nominal damages as the proper relief for a deprivation of due process (and other “absolute” rights). Furthermore, it made explicit that an award of nominal damages does not require an award of other types of damages.

So, did Carey play a role in the 1978 decision? It was the same year, so it’s possible that the Supreme Court decision was reached later, destroying my hypothesis. Fortunately for me, the Second Circuit decision cites Carey (again, linked at the top left of the page). The claims for prospective relief had been abandoned, and the question before the court was whether the damage claims could prevent mootness. Here’s the relevant excerpt, with most citations ommitted:

The defendants argue … that neither the alleged wrong nor the alleged injury is sufficiently serious to support an award of damages. Although this may influence the size of the award, it does not preclude recovery. If the wrong complained of is a mere technical violation of the plaintiff’s constitutional rights and she is unable to prove actual damage, she would nevertheless be entitled to a recovery of nominal damages. In the recent case of Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1054, 55 L.Ed.2d 252 (1978), the Supreme Court explained, in connection with a violation of the right to procedural due process, that, “(b)y making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed.” Certainly, the rights to freedom of expression and association are no less important to organized society than the right to procedural due process. The Carey decision also makes it clear that the plaintiff may recover for the mental and emotional distress actually caused by a violation of the plaintiff’s civil rights. … The availability of either nominal or substantial damages is sufficient to prevent this case from becoming moot. …

Finally, we note that the defendants’ allegedly wrongful conduct required the plaintiff to hire counsel to bring this action to prevent her eviction, and only after suit was brought did the defendants agree not to pursue the eviction proceedings. In these circumstances, the defendants’ potential liability for attorney’s fees under 42 U.S.C. § 1988 is an additional factor which prevents this case from becoming moot.

The judge in Washburn was mistaken. The Second Circuit had historically held that nominal damages did not preclude mootness not because they were nominal, but because they felt that any kind of damages was not the proper relief for civil rights violations in the absence of prospective relief. When the Supreme Court said that damages were proper relief, the Second Circuit reversed itself as required by precedent. Other Second Circuit decisions since 1978 follow the new precedent set by Davis.

But was the Davis court correct in interpreting Carey to mean that prospective relief was not required? In 1992 (if not earlier), the Supreme Court gave a resounding “Yes!” in the form of Farrar v. Hobby. The claims for injunctive relief were dropped early on, yet the case was still permitted to proceed, and nominal damages were awarded for the deprivation of civil rights. Carey established that nominal damages do not require other forms of damages, whereas Farrar established that nominal damages do not require prospective relief.

Farrar is also important in that it establishes that nominal damages do in fact count as damages, especially when it comes to attorney fees.

No material alteration of the legal relationship between the parties occurs until the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant. A plaintiff may demand payment for nominal damages no less than he may demand payment for millions of dollars in compensatory damages. A judgment for damages in any amount, whether compensatory or nominal, modifies the defendant’s behavior for the plaintiff’s benefit by forcing the defendant to pay an amount of money he otherwise would not pay.

Larry cites to Buckhannon in support of his contention that the case could have been mooted. This reliance is misplaced.

And petitioners’ fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant’s change in conduct will not moot the case.

As I showed above and in other discussions I have had with Larry, the only times that a case has been dismissed as moot when nominal damages were timely filed was when there was no cause of action for damages in general. I have pointed out numerous cases where mootness has been precluded by the timely presence of nominal damages. He has never, not once, provided an example of when a case was mooted despite the presence of a cause of action for nominal damages.
#46 Larry Fafarman
July 17, 2008

One of my worst nightmares — pettifogger Kevin Vicklund has joined the discussion.

Kevin, compare the simplicity of my legal arguments and your convoluted ones. The more complicated a legal argument is, the less likely it is that a court would reach the same conclusions.

First, in the AIO case, he claims that nominal damages was the remaining claim. This is false. The plaintiffs only tried to include that claim after the mooting event occurred – they were not, in fact, remaining.

The judge never said, implied, or even suggested that he would have continued the case on the basis of the nominal damages claim if that claim had been in the original complaint instead of in the amended complaint, or if the claim had been made before the mooting event instead of after. Here again for the umpteenth time is what the judge said:

“…… the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar.”

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

Although it did not specifically address the situation described in the earlier Second Circuit cases (availability of prospective relief), the 8-0 decision made it abundantly clear that the Court regarded nominal damages as the proper relief for a deprivation of due process (and other “absolute” rights). Furthermore, it made explicit that an award of nominal damages does not require an award of other types of damages.>/b>

Of course a nominal damages award does not require an award of other types of damages — but a nominal damages award does require an award of some other kind of relief, e.g., injunctive relief and declaratory relief. Injunctive relief and declaratory relief are not “damages.”

If the wrong complained of is a mere technical violation of the plaintiff’s constitutional rights and she is unable to prove actual damage, she would nevertheless be entitled to a recovery of nominal damages.

The complaint of “a mere technical violation of the plaintiff’s constitutional rights” is a claim for declaratory relief! To award the nominal damages, the court would have to grant declaratory relief! But if the claim for declaratory relief is dismissed prior to judgment, then — assuming that the nominal damages claim is the only remaining claim — nominal damages cannot be granted and hence the claim for nominal damages should be dismissed too!

“In these circumstances, the defendants’ potential liability for attorney’s fees under 42 U.S.C. § 1988 is an additional factor which prevents this case from becoming moot.”

In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), the Supreme Court ruled that attorney fees could be denied when a lawsuit is dismissed as moot, even when the lawsuit caused the desired change in the defendant’s conduct. Also, an award of attorney fees under USC § 1988 is discretionary — a court does not have to grant an award.

He has never, not once, provided an example of when a case was mooted despite the presence of a cause of action for nominal damages.

Wrong — I gave the example of Alpha Iota Omega Christian Fraternity v. Hamm, US District Court for the Middle District of North Carolina, where the judgment said,

“…… the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar.” (page 29 of opinion)

As I said, the judge never said that the timing of the nominal damages claim made any difference to him.

Also, the dissenting opinion of Judge McConnell in O’Connor v. Washburn Univ. shows that he would very much like to provide another example of such a case!

This whole idea of continuing a case just because of a nominal damages claim is absurd. It’s a waste of judicial resources. Wasting judicial resources is of particular concern because courts make time for high-profile cases by giving short shrift or no shrift to low-profile cases. Also, judges are obviously not in consensus about this absurd idea.
#47 muhabbet
March 26, 2009

thanks..