The Questionable Authority

The initial phase of the California Creationist Lawsuit is over, and quality education is the decisive winner. Kevin Vicklund has Judge Otero’s decision, as well as a very nice analysis of the ruling up over at his blog. If you’ve been following the case closely, you can probably jump right over there for the details. If you haven’t been tracking the events closely, or want a quick review of the case, keep reading. I’m going to go over the history first, then I’ll talk a bit about what Friday’s decision means, and what is likely to happen with the case in the future.

The lawsuit (ACSI v. Stearns) was filed in federal court in August of 2005 by the Association of Christian Schools International, Calvary Chapel Christian School, and parents acting on behalf of their children, who were students at Calvary Chapel. They were challenging the University of California’s decision to refuse to accept several of their courses as fulfilling UC’s admissions requirements. The rejected courses covered the academic spectrum, with English, history, and science classes all failing to meet UC’s scrutiny. The common element in the rejected courses was that they did not actually teach the material that UC requires from incoming students. Instead, the rejected courses taught a radically wrong “Christian perspective”.

For most of us, the rejection of the courses was nothing more than the natural consequence of the Christian schools’ decision to reject reality and teach fantasy. From their perspective, it represented an unconstitutional attack on their freedom of religion. The court, obviously, did not agree. To see why, we really need look no farther than the introduction to the biology textbook used in one of the rejected courses:

The people who prepared this book have tried consistently to put the Word of God first and science second…If…at any point God’s Word is not put first, the authors apologize.

That should be enough right there to explain why UC didn’t think that the plaintiffs were teaching a reasonable approximation of a college prep biology class. If it’s not enough, I wrote several posts examining the “textbook” used in some of the rejected biology classes last year. It’s very clear that the schools involved are teaching the worst kind of creationist garbage, and trying to pass it off as biology.

The lawsuit took quite a while to make its way through the courts, but in April a decision was finally issued granting partial summary judgement to the University of California. In that decision, the judge rejected the plaintiff’s claim that academic standards constitute “viewpoint discrimination”, and ruled that the University of California’s policy of examining courses was constitutional.

That did not end the case, because it was still possible that UC was unconstitutionally applying that policy to the courses in question. UC filed a second motion for summary judgement on those claims. That’s the motion that Judge Otero granted on Friday.

If you haven’t already, I’d encourage you to go read Kevin’s analysis of the decision. He went into far more detail than the short version I’m about to give you.

Basically, though, it comes down to this:

The court ruled that the Association for Christian Schools International did not have legal standing to include cases from schools not actively participating in the suit in their claim. He then ruled that even if they did have standing, they had not actually made proper claims for those courses. He also ruled that they could not rely on the expert testimony that they had submitted for those claims, because they submitted the testimony nearly a year after the deadline for such testimony had passed. That disposed of all but four courses.

The judge then went on to examine those four courses. The bar that the plaintiffs had to reach to make their case was high, because courts are normally reluctant to substitute their judgement for that of a responsible agency. The Christian schools needed to demonstrate either that the University of California staff that made the decisions acted unreasonably, or that they acted as they did because they had an animus toward Christians. They failed to make either point.

What’s next?

As Kevin points out, the decision is being appealed, and will probably drag on for some time. Unless ACSI gets tired of the case and the expense and gives up, I expect that this case will stay alive for quite some time. At the moment, though, the Christian schools’ prospects for overturning rational educational standards look relatively slim.

Comments

  1. #1 Leftfield
    August 11, 2008

    Sounds like a good decision.

    The court ruled that the Association for Christian Schools International did not have legal standing to include cases from schools not actively participating in the suit in their claim.

    “cases” should be “courses”?

  2. #2 William
    August 11, 2008

    It sounds more like it got thrown out on technical grounds rather than being a definite decision in favor of UC. Personally, I’d like to see them get the content of the textbooks into the record and have a judge say that ‘No, you can’t force someone to accept your crap as having taught science!’

  3. #3 Torbj�rn Larsson, OM
    August 11, 2008

    They failed to make either point.

    Due mostly to their insistence to conflate them:

    What they had done, rather, was to argue that the rejections were unreasonable and therefore demonstrated animus, there being no other explanation for the unreasonable rejection. But as the judge noted, animus analysis is only done when the action taken was otherwise reasonable, but was specifically undertaken out of animus. There is no need to determine animus if the rejections were unreasonable.

    And what the ACSI must have felt was their slam dunk point as they had actually made an effort to make a semblance of it, was then removed from the field … eh, court. The last point fell on their general lack of preparation.

    I find it ironical that creationists expects cases to make themselves and miracles to happen. But as we all know they haven’t been observed thus far!

  4. #4 Frank Hagan
    August 11, 2008

    [quote]
    The rejected courses covered the academic spectrum, with English, history, and science classes all failing to meet UC’s scrutiny. The common element in the rejected courses was that they did not actually teach the material that UC requires from incoming students. Instead, the rejected courses taught a radically wrong “Christian perspective”.
    [/quote]

    When I attended a Calvary Chapel just before they implemented a high school, I thought the idea that their school would put Jesus as the central figure in all topics, including math, English and history, was odd. While I understand how they might have a different take on science topics, how can history, English or math have a Christian perspective without going beyond simple “difference of opinion” and into the realm of propaganda? Is “2 + 2 = 4″ true only because Jesus was God in the flesh, died for our sins and rose on the third day? It didn’t make sense to me then.

    Now its much worse than just not making sense from a philosophical point of view. The students, victims of their parent’s poor choices, either must go to a Christian college that will accept the courses they have taken, or they must re-take the courses.

    Very sad for them, but the UC system should not compromise their admission requirements to accommodate them.

  5. #5 Jonathan Vos Post
    August 11, 2008

    I’d comments more extensively, but I have until 21 August 2008 to research, write, print, bind, serve, and file an Appellant’s Reply Brief in an appeal of a summary judgment in a California superior court. IANAL (I am Not a Lawyer); TINLA (This is not legal advice). But I have, as de facto paralegal, written and filed somewhere near 20 Appellate Court and (California) Supreme Court briefs and writs. There’s a good reason why the Law uses Latin — the meanings of the words change very slowly compared to the Evolving society that one seeks to describe and regulate.

    Law has an approach to “truth” and to “proof” quite different from the Axiomatic Truth of Mathematics or the Empirical Truth of Biology. It has a precedent-based and herarchical procediral approach to Truth and Proof, which seem quite weird to Mathematicians and Scientists.

    As I’ve explained on the “A Categorical Manifesto” thread of the n-Category Cafe, what we call The Law (State and Federal courts) is a chaotic attractor in the space of all possible laws. Law, being precedent-based rather than axiom-based, have a sensitivity to initial conditions (i.e. precise language of legislation) and feedback mediated by Stare decisis which [United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996)] is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere = “to stand by and adhere to decisions and not disturb what is settled.” Consider the word “decisis.” The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not “to stand by or keep to what was said.” Nor is the doctrine stare rationibus decidendi = “to keep to the rationes decidendi of past cases.” Rather, under the doctrine of stare decisis a case is important only for what it decides — for the “what,” not for the “why,” and not for the “how.” Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.

    There is also the underlying hierarchical structure and distinction between horizontal and vertical:

    Vertical stare decisis

    Generally, a common law court system has trial courts, intermediate appellate courts and a supreme court. The lower courts conduct almost all trial proceedings. The lower courts are bound to follow precedents established by the appellate court for their jurisdiction, and all supreme court precedent.

    Appellate courts are only bound to follow supreme court decisions. The application of the doctrine of stare decisis from a higher court to a lower court is sometimes called vertical stare decisis.

    Horizontal stare decisis

    The idea that a judge is bound by (or at least should respect) decisions of earlier judges of similar or coordinate level is called horizontal stare decisis.

    In the United States federal court system, the intermediate appellate courts are divided into “circuits.” Each panel of judges on the court of appeals for a circuit is bound to follow the prior appellate decisions of the same circuit. Precedents of a United States court of appeals may be overruled only by the court en banc, that is, a session of all the active appellate judges of the circuit, or by the United States Supreme Court.

    When a court binds itself, this application of the doctrine of precedent is sometimes called horizontal stare decisis. The State of New York has a similar appellate structure as it is divided into four appellate departments supervised by the final New York State Court of Appeals. Decisions of one appellate department are not binding upon another, and in some cases the departments differ considerably on basic points of law.

    [wikipedia lazily used as source of above definitions]

  6. #6 Kalia's little brother
    August 11, 2008

    In that decision, the judge rejected the plaintiff’s claim that academic standards constitute “viewpoint discrimination”

    Of course academic standards constitute “viewpoint discrimination.” They discriminate against, for example, the Flat Earth viewpoint. What I hope the ruling stated is that “viewpoint discrimination” is not unconstitutional.

    Here’s The United States Constitution, complete with all articles and amendments. Go ahead and search them for any mention of “viewpoint discrimination” or the outlawing thereof.

  7. #7 Flint
    August 11, 2008

    According to the review of the decision (I haven’t read the decision itself), the actual religious substances of the courses in question never arose. Instead, the scope of the plaintiff’s complaint was first pared down to a very few courses and a very few specific plaintiffs.

    Then it was established that no legal existence of animus was ever presented and didn’t apply anyway.

    Finally, it was established that the expert witness reports purporting to document that UC’s rejection was unreasonable, were prepared and submitted well past the deadline for such claims, and were thus inadmissable.

    The bottom line seems to be that the plaintiffs simply failed to prepare their case in a properly legal or timely matter, so it got tossed as improper. The central issue here, whether or not A Beka’s Jesus-based biology etc. are sufficiently whacko so as to fail to prepare those who study that material sufficiently to enter UC, must await another case altogether.

    I think it’s important to note that if UC had chosen to reject (entirely arbitrarily) some school teaching in the standard way from the standard texts, this complaint STILL would have failed, for entirely technical reasons. The question of just how far off-base religious doctrine must drive academic materials before they drop off the edge of acceptability, hasn’t been addressed in any way.

    It’s not clear to me whether any appeal of this particular case will address the plaintiff’s core concern, whether their academic approach REALLY DOES disqualify students from admission to a secular university.

  8. #8 Eric
    August 11, 2008

    Flint (#7) said:

    I think it’s important to note that if UC had chosen to reject (entirely arbitrarily) some school teaching in the standard way from the standard texts, this complaint STILL would have failed, for entirely technical reasons. The question of just how far off-base religious doctrine must drive academic materials before they drop off the edge of acceptability, hasn’t been addressed in any way.

    Flint, read pages 12-18 of the ruling. I think you will find this is not the case. Specific course content was considered in the Judge’s decision.

    Remember that the ACSI lawyers could have challenged the rational basis claim without expert reports, but they failed to make such a case. Even with the great burden of proof on them (to prove the UC decision had no rational basis), “failing to disprove rational basis” is quite different from (and a bit stronger than) “missed the deadline.”

    Sure, it would’ve been better for UC if the expert reports had been admitted and *then* ASCI’s claim had been rejected, however, it is not so glum a result as you make it out.

  9. #9 Jonathan Vos Post
    August 11, 2008

    Excerpt from decision, taking English Lit example [I have a B.S. in English Lit from Caltech, as well as my B.S. in Math there, and later degrees in other subjects]:

    Indeed, “restrained judicial review of the substance of academic decisions” enables academic freedom to thrive. Id.;
    see also id. at 226 n.12 (“Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself . . . .”) (internal citations omitted).

    7 Although Plaintiffs identified two other courses in its interrogatory response, their list of as-applied claims does not include these courses and their Opposition does not address them.
    8 Professor Otter has taught American literature for sixteen years at the University of
    California, Berkeley. (Otter Decl. Ex. A, at 3.)
    12
    Plaintiffs challenge Defendants’ decision to reject four Calvary courses and a non-Calvary Biology course.7 To survive summary judgment, Plaintiffs must offer enough facts to create a
    genuine issue of material fact as to whether no rational basis existed to reject a course.
    i. Calvary’s English Course — Christianity and Morality in
    American Literature
    Plaintiffs challenge Defendants’ decision to deny approval for Christianity and Morality in American Literature, an English course submitted by Calvary. (See Pls.’ Ex. 617; Costales Decl. Tab 1.)

    This course proposed a primary text published by A Beka titled Classics for Christians. Jeanne Hargrove, a UC course reviewer, found this text inappropriate as a primary text in English because its “selection of works and pedagogical apparatus were inconsistent with . . . expectations regarding critical thinking and broad exposure to writers’ key works.” (Hargrove Decl. — 5.)
    Defendants’ English expert, Professor Samuel Otter,8 concurs, finding the text inadequate for a college-preparatory English class because it “fails to provide substantial readings and because it insists on specific interpretations [of those readings]” (Otter Decl. Ex. A, at 4.) “Such a combination contradicts the emphasis on analytical and critical thinking required [by the A-G
    Guidelines].” (Otter Decl. Ex. A, at 7.) These deficiencies rendered the text inadequate to provide “analytical and critical skills.” (Otter Decl. Ex. A, at 4.) Further, Professor Otter specifically notes that the text’s failures are “not because it offers a ‘Christian and civic’ perspective on its materials . . . .” (Otter Decl. Ex. A, at 4.)

    In addition, the primary text is an “anthology of excerpts,” which UC does not approve, no matter the content of the excerpts. “College-preparatory courses are expected to require students to read full-length works.” (Lynch Decl. No. 1 Ex. 2, at 5.) Plaintiffs’ English expert,
    Case 2:05-cv-06242-SJO-MAN Document 226 Filed 08/08/2008 Page 12 of 20

    9 Dr. Stotsky is an independent researcher and consultant in education. She received her doctorate in reading research and reading education from the Harvard Graduate School of Education and serves on the National Mathematics Advisory Panel. (Stotsky Decl. Ex. 1.)
    10 Plaintiffs argue that this course proposed “a secular text as well as the [BJU] textbook, and those secular texts ensured that standard content and required skills were taught.” (Opp’n 17 (internal citations omitted).) The only other text listed on the course description is Pilgrims in Their Own Land: 500 Years of Religion in America. Plaintiffs offer no admissible evidence for their
    contention that this “secular text ensured that standard content and required skills were taught.”
    13
    Dr. Sandra Stotsky,9 agreed in her deposition that a general rule against anthologies of excerpts is reasonable. (Lynch Decl. No. 2 Ex. 104.)
    Plaintiffs offer little admissible evidence to the contrary. Dr. Stotsky submitted a declaration
    comparing the viewpoints of several English texts, including the A Beka anthology. (Watters Decl.
    Ex. W.) However, she does not refute Professor Otter’s conclusions that the text is inappropriate for college-preparatory work and insists on specific interpretations of its content. Dr. Stotsky also does not opine that Defendants unreasonably rejected this course.
    Accordingly, there is no genuine issue of material fact as to this issue. Defendants had a rational basis for rejecting Calvary’s proposed English course.

  10. #10 Flint
    August 11, 2008

    I have another question hopefully someone can clarify. IS there, as a matter of empirical observation, any significant academic handicap (or significantly poorer academic performance) among students whose preparatory education was highly focused by religious doctrine? To put it a bit differently, I had some truly terrible secondary school teachers, but somehow managed to negotiate the college curriculum without too much difficulty. Do these kids tend to do poorly?

    Alternatively, do such students require some sort of remedial work or other deprogramming overhead to succeed, that represents a burden to the college?

    Is there any subtext here that UC faces either space or money problems that this sort of exclusion might ameliorate, though nobody mentions this?

    (Yes, I’ve read some of the material UC produced, from their evaluation committee, specifying the various ways the Christian materials failed to meet published requirements. But if those students perform generally satisfactorily in college, then the plaintiffs would seem to have a valid point – that UC is imposing an ideology (of factual accuracy, exposure to whole literary works, etc.) of academia, not necessarily in opposition to religion itself, but to ANY viewpoint contrary to the Ideal Liberal Education.)

  11. #11 Peter Vesuwalla
    August 11, 2008

    Do you think the parents of students deemed inadmissible by the U of C have a case against ASCI?

    From a consumer protection standpoint, is it really up to a parent to actively investigate whether a private school’s curriculum meet University acceptance standards, or should the school be required to disclose such information to the parents before the child is enrolled?

    Along a similar line, can the students themselves take any legal recourse against the schools or their parents for a process of indoctrination over which they themselves took no part but in the end suffer all the consequences?

  12. #12 W. Kevin Vicklund
    August 11, 2008

    Flint:

    First, I apologize for not mentioning that UC presented evidence and expert reports that the rejections were reasonable, and that the plaintiffs expert reports contained some arguments that could be construed as arguing against reasonability. I was trying to wrap up an overly long post (gee, surprise) and neglected to include it.

    Your post at 5:27 asks some good questions. Yes, there is objective evidence that, as an analysis of one survey put it, “self-described conservative Christian schools, the fastest-growing sector of private schools, fared poorest, with their students falling as much as one year behind their counterparts in public schools, once socioeconomic factors like income, ethnicity and access to books and computers at home were considered.” As always, I urge caution when relying on the results of any one survey, and the survey in question does not address your primary concern. However, one of UC’s expert witnesses prepared a report concluding that ACSI students are, in general, less well prepared for college when compared to their socio-economic counterparts. (starting at page 10, as I recall) He also references numerous reports supporting UCs contention that their requirements do a better job at predicting success than simple test scores. Like most expert witness reports, its a long read, but worthwhile if you wish to inform yourself further on the topic.

    As far as space requirements, UC is mandated by state law to accept only the top 12.5% in-state graduating high school seniors. This has been mentioned numerous times in the previous discussions on this blog, so I think it a bit unfair to claim that no one mentions this. The spots in the system, but not the campuses, are also guaranteed by law, so UC is obligated to develop a set of requirements to determine who is eleigible for these guaranteed spots. Too lenient or too stringent, and UC ends up violating state law.

    I hope that is helpful. I am willing to answer additional questions here or on my blog, if you have anything you want clarified. Remember: there’s a reason they call it “complex litigation.”

  13. #13 W. Kevin Vicklund
    August 11, 2008

    Flint, I answered your questions, but my post had one too many links and is in the moderation queue. I won’t repeat myself, so look for it to appear when Mike gets around to checking the queue, but for now, check out the expert witness report of Michael Kirst, particularly the section starting at page 11. It answers most of your questions in exacting detail.

  14. #14 W. Kevin Vicklund
    August 11, 2008

    That’s an interesting question, Peter, but it assumes some facts that aren’t true. Calvary Chapel Christian School, the only ACSI school to participate in the lawsuit, had a full complement of approved courses. In particular, there were multiple approved courses in each of the categories represented by the four courses named in the Complaint. The students had available to them the means by which to become admissible, and taking the proposed and rejected courses would not have automatically disqualified them, so long as they made up for the deficiency by a myriad of acceptable alternatives (such as taking an approved course in addition, taking a course at a community college, scoring well on an appropriate standardized test, etc.).

    In other words, the students sued because they wanted to take an unapproved course, when an approved course was available to them. It is unlikely that they would have a basis upon which to sue ACSI or their parents (also, note that one of the students was not a minor), barring the existence of some sort of contract that the school had drafted guaranteeing that the proposed course would be approved for admission in the UC system.

    (question and answer cross-posted with Missing the Point)

  15. #15 shonny
    August 11, 2008

    It seems that the religious bias is preferred by these schools because that is, like religious dogma, something that can learnt by heart through endless repetition, not involving any critical thinking or making deductions.

    The “Lord’s” flock are indeed sheep, and trained to remain sheep!

  16. #16 Paul Murray
    August 11, 2008

    “It sounds more like it got thrown out on technical grounds”

    Courts will do this whenever possible. Every actual decision on the facts creates a precedent, and you don’t want to go creating those willy-nilly because it effectively multiplies the number of laws.

    The down side of this is that only a lawyer can navigate the technical problems well enough to get a judge to actually make a judgment – and not alwys.

  17. #17 kiri
    August 11, 2008

    This is a good enough decision. Not nearly as thrilling as Judge Jones’ in the Dover case, but it effectively tells the Christian homeschoolers where to go.

    To expect the 9th Circuit to reverse on appeal is, indeed, to look for miracles. I always imagine that if the zealots are busy praying, then they have less time for other mischief.

    In reading Judge Otero’s decision, I was struck by how often he rejects ‘biblical authority’ as not being evidence. Judge Jones did the same. I find it interesting that the courts, at least, have accepted a de-throning of the Bible.

    60 years ago this was not so easy. I think the Abington decision in 1963 became seminal, not merely for stopping Bible-reading in the public schools, but for removing the Bible as a reliable, ultimate authority in legal proceedings.

    From small seeds, many branches grow.

  18. #18 richCares
    August 12, 2008

    “… if the zealots are busy praying,”
    sorry, they are too busy praying for rain to occur during Obama’s acceptance speech, so they won’t be available for this!

  19. #19 AnswersInGenitals
    August 12, 2008

    The bottom line of this litigation is that the ACSI got their case – and their asses – thrown out of court. And the reason is quite obvious: grossly incompetent legal representation. One has to wonder if the same Thomas Mann Law Institute that instigated the fiasco in Dover had a hand in this buffoonery. Another theory of the case is that the ASCI knew all along that they didn’t have a legal leg to stand on and opted for the lowest cost legal representation they could get – the plain pine box coffin, so to speak; the purpose being that once they lost they could claim another incident of godless, liberal courts and justices forwarding an anti-christian agenda. That the facts refute this is not relevant to their intended audience. They only need a new holy cause for fund raising. It will be interesting to see if their next step is to set up a legal defense fund (even if they are the plaintiffs). These people have had 2000 years to hone their feigned martyrdom skills.

    Another interesting question (and ultimate irony) is whether witnesses testifying in this case were required to swear on a bible as to their truthfulness.

  20. #20 Ginger Yellow
    August 12, 2008

    Regardless of the Christian content/propaganda, it’s pretty stunning for a college prep English lit course to use an anthology of excerpts. It would be literally impossible in the UK, where A-level exams require you to read from among a list of (full) texts, and you need an A-level to get into an English course at university.

  21. #21 Eric
    August 12, 2008

    Flint (#10) said:

    IS there, as a matter of empirical observation, any significant academic handicap (or significantly poorer academic performance) among students whose preparatory education was highly focused by religious doctrine?

    That’s a hard question to answer in a general sense, but UC reports that – as a group – ACSI students do not do as well at UC schools as your “average” student. Read Michael Kirst’s expert report, starting on page 11, section D for details. You can find it at http://www.universityofcalifornia.edu/news/acsi-stearns/).

    Peter (#11) said:

    Do you think the parents of students deemed inadmissible by the U of C have a case against ASCI?

    If the schools are private and made no previous claim that their courses were accredited by UC, then I would venture the answer to your question is “no.” But anyone can sue for anything, so who knows for sure :)

    As other people mentioned, just to be clear this case does not make anyone “inadmissible.” Students taking unaccredited courses can’t use them to count towards UC’s “top 12.5% of all California students get automatically accepted” policy. But they can still apply normally.

  22. #22 Flint
    August 12, 2008

    I see that part of UC’s defense is that they accept most courses with religious overtones, including some where the religion is slathered on in great heaping gobs, *provided* that the published guidelines are followed. The argument is that UC isn’t objecting to religious (or even creationist) doctrine in any way, they’re only objecting to courses that fail to meet published requirements for any reason.

    So where the “religious persecution” comes in, boils down to the ACSI (and similar) trying so hard not to expose children to anything not expressly promoting their doctrine, that they eliminate exposure to even a minimal basic education. It’s not the religious doctrine at all, it’s that too much reality has been censored out.

  23. #23 Eric
    August 12, 2008

    Flint,
    I think your #22 post is spot on about eliminating exposure. Most of the UC reviews of ACSI courses said they had insufficient critical analysis, and I think limiting critical analysis is really what its all about. Some groups don’t *want* their kids to learn how to reason on their own from evidence to conclusions, they want to tell the kids what the conclusions are.

    In a very wierd way the whole fundamentalist movement can be viewed as a group of protestants turning their back on the Reformation. Luther and Gutenberg put the bible in the hands of the commoners and told them to read it for themselves (instead of listening to the priests). Modern protestant fundamentalists want to strictly control what their children are allowed to read. Irony :)

  24. #24 Flint
    August 12, 2008

    Eric,
    I wonder how much of this reflects a genuine desire by creationist parents to provide their kids with as good an education as doctrine permits, and how much is part of a larger long-term battle to insert their faith into the fabric of a secular world, one small nibble at a time.

    To me, the great irony is the deployment of “discrimination” accusations toward the goal of setting up a society that would rest on exactly that sort of discrimination, except MUCH more vicious and intolerant. The persistent “show both sides” demand by a group which diligently, even fanatically, excises any other views whenever they’re in position to do so, is kind depressing.

  25. #25 Larry Fafarman
    August 12, 2008

    After reading a lot about the Bob Jones Univ. biology textbooks (a two volume set), it was my general impression that they mostly present the core material correctly and that UC’s gripe was mainly about the bad philosophy of science presented in the introduction and maybe elsewhere in the books. I felt that UC’s gripe was legitimate and I supported UC’s rejection of these textbooks. Here was my proposed remedy:

    The fundies who claim credit for biology courses that used the BJU texts should be required to take the College Board subject test in biology. In exchange for being required to take the test, fundies who don’t get satisfactory scores on the test (ignorance of evolution could cause someone to get an unsatisfactory score) should be allowed to enroll in UC on condition that they repeat biology; IMO it would also be appropriate for UC to charge extra tuition for the repeated biology courses. Because the judge is the judge, he does not have to worry about being “fair” to unadmitted students who took “legitimate” biology courses in high school.

    The judge took much too long — three years — to make a final decision on what is a fairly straightforward case. Too much time was wasted on determining the rights of the parties — of course UC has the right to reject the textbooks and of course the plaintiffs have the right to challenge such rejection in court.

    Also, I was opposed to the acceptance of expert witness opinions on the books — this is the kind of “Monday morning battle of the experts” that was rejected by the courts in Edwards v. Aguillard.

  26. #26 Sophist FCD
    August 12, 2008

    Of course academic standards constitute “viewpoint discrimination.” They discriminate against, for example, the Flat Earth viewpoint. What I hope the ruling stated is that “viewpoint discrimination” is not unconstitutional.
    Here’s The United States Constitution, complete with all articles and amendments. Go ahead and search them for any mention of “viewpoint discrimination” or the outlawing thereof.

    Two points:

    1). The United States Constitution also does not contain the word “privacy”. That doesn’t seem to present a problem though.

    2). The state of California also has a constitution.

  27. #27 Flint
    August 12, 2008

    Larry:

    Yes, the sort of alternatives you propose are in fact available, and published by UC. These include taking approved courses in addition, scoring well on standardized tests, and other possibilities. But I can understand why UC would choose not to admit students who (quite deliberately) failed to meet published standards, and THEN provide them remedial education, charging them for doing so. If they wish to pay for remedial education to qualify for entrance, they could always do so anytime, and then reapply for admission.

    If UC is already rejecting up to 87.5% of in-state applicants, their admissions bar is necessarily set high. As you say, the large majority of applicants who played by the published rules are already being rejected. Why selectively admit those who refused to do so and couldn’t measure up, in preference to those who tried but couldn’t measure up?

    (What I still don’t understand is, why would parents who went to that much trouble to keep them so isolated from reality, now turn around and fight to have them exposed to the very worst the secular world can lay on them? Doesn’t seem consistent, and makes me seek more likely motives…)

  28. #28 Larry Fafarman
    August 13, 2008

    Flint said,

    Yes, the sort of alternatives you propose are in fact available, and published by UC.

    Wrong — the extended alternative that I proposed — allowing fundies who fail the College Board’s biology test (ignorance of evolution could cause someone to fail the test) to enroll in UC on condition that they repeat biology at their own expense — is not offered by UC.

    If they wish to pay for remedial education to qualify for entrance, they could always do so anytime, and then reapply for admission.

    But that is a big burden that would delay their graduation.

    If the BJU biology textbooks present the core material correctly — and so far as I can see, they do — then rejecting them because of a bad philosophy of science or presenting a religious viewpoint is arbitrary. I just happened to agree that the philosophy of science presented in the introduction is just so bad that UC was justified in rejecting the textbooks. In an op-ed piece in the Decatur Daily, Charles Haynes, a senior fellow at the First Amendment Center in Arlington, Va., wrote,

    Solely on academic grounds, the most problematic textbook may be the one used in biology. If UC can show that the text presents inaccurate or misleading science, then the university may have a legitimate basis for not accepting the course. If, however, the textbook presents the core information students need to know about biology, then the additional religious content should not disqualify the course. In other words, if the science itself is sound, then the fact that the authors promise to “put the Word of God first and science second” should be irrelevant in the university’s decision.

    And a Wall Street Journal article said,

    The university sends out a form letter to any school that proposes to teach biology and physics using one of the two biggest Christian textbooks now in circulation. The courses that assign such books, the letter claims, will not be “consistent with the viewpoints and knowledge generally accepted in the scientific community.” Students thus “may not be well prepared for success” in the university’s science courses. Chris Patti, the university’s general counsel, tells me that the textbooks have many “scientific errors” and the “biggest one is [the way they describe] evolution.”

    Such a statement is itself far from rigorous. The physics textbook is like any other — with pure science in it — except that a verse from Scripture stands at the head of each chapter. Barbara Sawrey, a chemistry professor at the San Diego campus, who advised the university on this matter, told Burt Carney, the school association’s legal-affairs director, that the verse appearances alone were enough to disqualify the textbook. (Talk about biased.) [in original] As for the biology textbook, it is certainly true that it includes a presentation of creationism and intelligent design, but it presents evolution as well, straightforwardly.

    Giving the fundies the generous alternative that I proposed would help justify giving UC the benefit of the doubt in its decision to reject the BJU textbooks and would thus tend to prevent the courts from overruling UC’s rejection of these textbooks. This kind of case is likely to arise elsewhere because a lot of other states follow UC’s lead in the accreditation of high school courses.

    If UC is already rejecting up to 87.5% of in-state applicants, their admissions bar is necessarily set high.

    No, UC is not rejecting 87.5% of in-state applicants — that’s is just the percentage of in-state high school grads who are ineligible for admission.

    As you say, the large majority of applicants who played by the published rules are already being rejected. Why selectively admit those who refused to do so and couldn’t measure up, in preference to those who tried but couldn’t measure up?

    As I said, the courts don’t need to concern themselves with being “fair” to students who took “legitimate” biology courses in high school.

    The courts often bend over backwards in efforts to accommodate even the most bizarre religious beliefs. For example, in Navajo Nation v. US Forest Service, the Navajos charged that artificial snow made from recycled wastewater containing only 0.0001 percent human waste and spread on only one percent of the area of their sacred mountain was a violation of their religious rights. The 9th circuit federal court of appeals ultimately rejected the suit but held an en banc rehearing (11 judges in the 9th circuit) and wrote a 100 page opinion.

    What I still don’t understand is, why would parents who went to that much trouble to keep them so isolated from reality, now turn around and fight to have them exposed to the very worst the secular world can lay on them?

    The answer to that is simple — tuitionwise UC is a bargain for in-state students and UC is more prestigious than all but the most expensive and most selective private schools.

    The positions of a lot of commenters here are based on prejudices against the fundies. I have proposed what is IMO a fair and quick solution to the dispute.

  29. #29 Flint
    August 13, 2008

    I admit I don’t find anything persuasive about the argument that UC ought to be required to admit those who voluntarily studied known unacceptable texts, then failed a standardized test, SOLELY because these people are fundies. This would seem to be religious discrimination on the face of it.

    The question of what constitutes “good science” is impossible NOT to politicize when it’s used as an admission criterion. It is of course perfectly accurate to present a laundry list of biological facts nobody disputes, while failing to relate then to any central notion of evolution. A good analogy would be a text that accurately notes that heavy objects fall, and presents the formula for change in rate of fall, while carefully avoiding (for religious reasons) that these “facts” relate to gravity. In neither case is the presentation inaccurate. In neither case is it good science.

    I can only be amazed that you consider your “admit them anyway, then educate them as they knew all along they should have been educated” proposal as fair and quick. I suggest a general principle: If you wish to be admitted to ANYTHING (be it a school, a job, a club or society, or whatever) AND you know the requirements for approval AND you refuse to adhere to them, then it is YOUR FAULT you didn’t get the position, and it is NOT the obligation of those whose guidelines you chose to ignore, to admit you anyway. Sheesh!

    Finally, I hope you noted that UC does (as mentioned earlier) admit many students whose preparatory courses included heavy doses of religious doctrine. UC isn’t rejecting fundies, UC is rejecting those whose curricula are deemed unacceptable for any reason. The ruling says that schools can establish and publish standards for admission, and enforce them. The position of commenters here is agreement with this policy.

  30. #30 Eric
    August 13, 2008

    Larry (#28) said:

    If the BJU biology textbooks present the core material correctly — and so far as I can see, they do — then rejecting them because of a bad philosophy of science or presenting a religious viewpoint is arbitrary.

    I disagree. I think Science is more than just a body of knowledge, it’s a practice. Students need to learn how to do science, not just learn facts and theories. That is why practically all (good) science classes include a lab. If you teach a kid “when the bible and empirical observation conflict, choose the bible,” then you’re not just presenting a religious viewpoint on top of regular science, you’re teaching them a completely wrong way to do science.

    Just to be clear here, how a student chooses their beliefs outside the lab is entirely up to them. But inside the lab, the methodology of science is to accept empirical observation over statements of authority or personal revelation. If they’re learning something else, they aren’t learning science.

    the extended alternative that I proposed — allowing fundies who fail the College Board’s biology test (ignorance of evolution could cause someone to fail the test) to enroll in UC on condition that they repeat biology at their own expense — is not offered by UC.

    It bears repeating that no student gets rejected outright because their biology class is unaccredited. It just means that the unaccredited class doesn’t count towards automatic admission. Students going to a largely unaccredited CA High School have access to three of the four UC admissions paths: regular admission, admission by examination, and admission by exception. See Douglass’ expert witness report, available on the same link I provided in comment #21.

    No, UC is not rejecting 87.5% of in-state applicants — that’s is just the percentage of in-state high school grads who are ineligible for admission.

    You and Flint are both wrong on this point. The UC System guarantees admission to the top 12.5% of CA high schoolers that take accredited courses. All others are free to apply through regular admissions, and are thrown into the pot with out-of-state applicants, foreign applicants, home schoolers, basketball stars who didn’t pass their college prerequisites, etc…
    It’s the guarantee that ACSI students lose. They don’t lose the ability to be admitted regularly.
    And frankly, I’m not sure they even lose the guarantee. If all but one course is accredited, I think UC just doesn’t count that course in the GPA. So if you did well in all the other accredited courses and are in the top 12.5% without counting biology, you still might qualify for the guaranteed admissions. But I’m not sure about that; you need to ask someone affiliated with UC.

    The positions of a lot of commenters here are based on prejudices against the fundies. I have proposed what is IMO a fair and quick solution to the dispute.

    You’re proposing an exception to the regular admissions process which is unnecessary and favors a small religious minority who can’t pass a standardized test. How exactly is that fair?

  31. #31 Eric
    August 13, 2008

    Post Script to my previous comment:

    Larry, there’s an even easier way for ACSI students to ensure they qualify for UC’s automatic admission policy. UC only requires one unit (i.e. one year) in “Chemistry or Physics or Biology, or Zoology or Botany, or Physiology.”

    So, the student could just take a different course.

    After all this is high school we’re talking about. Its not like avoiding high school biology is going to limit their choice of what they can major in.

  32. #32 Larry Fafarman
    August 13, 2008

    (http:// prefixes removed from URL links to prevent comment from hanging up on spam filter)

    Kevin Vicklund’s summary of the decision on his “Missing the Point” blog is wrong. He wrote,

    Reasonableness

    At long last, the judge turned to the meat of the motion: whether the rejections were reasonable. If the plaintiffs could raise a genuine issue of material fact, the case would proceed to trial. If not, the judge would rule in favor of UC and the case would be over. And once again, ACSI’s lack of preparation was their undoing. The untimely expert witness reports excluded as untimely, ACSI had no admissible evidence that any of the four courses were unreasonably rejected. Lacking that basis, ACSI’s case had absolutely no merit, and the judge quickly and ruthlessly tore through the tissue-thin veneer they tried to paint over their deficiencies.

    — from
    missingthepoint.wordpress.com/2008/08/10/2nd-summary-judgment-in-acsi-v-stearns/

    Contrary to Kevin’s above statements, the Judge did cite the expert witness reports and rule on the question of the reasonableness of the rejections, as in the following example from the National Center for Science Education’s website:

    In addition to a host of procedural considerations, the latest ruling addressed the university system’s decision to deny approval for a biology course submitted by Calvary Baptist School (not to be confused with the Calvary Chapel Christian School), which used the A Beka text Biology: God’s Living Creation. The book was evaluated by Barbara Sawrey, who described it as taking an “overall un-scientific approach to the subject matter”; her opinion was echoed by the defendants’ expert witnesses Donald Kennedy and Francisco J. Ayala (a Supporter of NCSE), who stated that neither the A Beka text nor Bob Jones University Press’s Biology for Christian Schools is appropriate for use as the principal text in a college preparatory biology course. Kennedy wrote, “the problem is not … that the creationist view is taught as an alternative to scientific explanations, but that the nature of science, the theory of evolution, and critical thinking are not taught adequately.”

    Michael Behe, a proponent of “intelligent design” creationism, served as an expert witness for the plaintiffs, but his defense of the textbooks were unavailing. In his ruling, Judge Otero wrote, “Plaintiffs offer little admissible evidence to the contrary. Plaintiffs’ Biology expert, Dr. Michael Behe, submitted a declaration concluding that the BJU text mentions standard scientific content. … However, Professor Behe ‘did not consider how much detail or depth’ the texts gave to this standard content. … Therefore, Professor Behe fails to refute one of Professor Kennedy’s primary concerns that the nature of science, the theory of evolution, and critical thinking are not taught adequately. Accordingly, there is no genuine issue of material fact as to this issue. Defendants had a rational basis for rejecting Calvary Baptist’s proposed Biology course.”

    — from http://www.ncseweb.org/resources/news/2008/CA/782_victory_in_california_creation_8_12_2008.asp

    Also, Kevin should use plain English instead of high-falutin legal jargon. For example, he said, “Normally, objections to standing cannot be waived.” What in hell is that supposed to mean? Here is the translation: In the federal courts, plaintiffs must always satisfy the Constitution Art. III’s “cases and controversies” provision that is interpreted by the courts as requiring the following conditions: (1) — an injury in fact; (2) — a causal relationship between the injury and the challenged conduct; and (3) — a likelihood that the injury will be redressed by a favorable decision.

  33. #33 Mike Dunford
    August 13, 2008

    Contrary to Kevin’s above statements, the Judge did cite the expert witness reports and rule on the question of the reasonableness of the rejections, as in the following example from the National Center for Science Education’s website:

    Larry, you really, really need to learn how to pay attention to what’s going on around you – particularly if you want to talk about it.

    The ACSI lawyers attempted to use additional expert opinions from their experts. These were opinions on topics that weren’t discussed in their initial expert reports. The additional expert material was ruled inadmissible because the time for submitting expert opinions had passed 11 months earlier. That’s what Kevin was talking about.

  34. #34 Ginger Yellow
    August 13, 2008

    “I think Science is more than just a body of knowledge, it’s a practice. Students need to learn how to do science, not just learn facts and theories.

    Indeed. Which is exactly why learning science from a textbook that says the Word of God comes before science, in a scientific context, is unacceptable. That’s the very opposite of scientific practice.

    If the BJU biology textbooks present the core material correctly — and so far as I can see, they do

    Have you read any of Mike’s posts on the content of the textbooks? They don’t even come close to “present[ing] the core material correctly”. They use definitions of evolution that are unrecognisable to evolutionary scientists (eg evolution necessarily leads to more complexity), they contain falsehoods about the evidence (eg most mutations are harmful), and palpable absurdities about what evolution entails or implies (eg evolution –> communism, saltation etc)

  35. #35 Larry Fafarman
    August 13, 2008

    Flint said,

    I admit I don’t find anything persuasive about the argument that UC ought to be required to admit those who voluntarily studied known unacceptable texts, then failed a standardized test, SOLELY because these people are fundies. This would seem to be religious discrimination on the face of it.

    My proposal actually discriminates against the fundies — it requires them to take the test and repeat biology — at their own expense — if they fail the test, even though the text apparently covers the core material correctly. Ignorance of evolution could cause someone to fail the test — that is why I proposed that those who fail the test be allowed to enroll if they repeat biology.

    It appears to me that the BJU texts cover the core material adequately — I reluctantly agreed with UC’s rejection only because the bad philosophy of science in the introduction just goes too far, e.g., “If the conclusions contradict the Word of God, the conclusions are wrong, no matter how many scientific facts may appear to back them. ” If I were a real hardliner, I would say that the bad philosophy of science is not sufficient reason to reject the text. Government should be generous in accommodating religious beliefs but sometimes a line needs to be drawn — I gave the example of where the 9th circuit court of appeals rejected the Navajos’ claim that their religious beliefs were violated by spreading artificial snow containing 0.0001 percent human waste on one percent of the area of their sacred mountain — see volokh.com/posts/1218240786.shtml

    It is of course perfectly accurate to present a laundry list of biological facts nobody disputes, while failing to relate then to any central notion of evolution.

    This notion that evolution is central to biology is just plain wrong. You can be a great biologist and know nothing about evolution and/or not believe in evolution. As Dennis Prager put it, you can believe in creationism and be a great biologist, you can believe in witchcraft and be a great biologist, you can believe that the earth is on the back of a turtle and be a great biologist. I would add that you can be knighted, lorded, and get a Nobel prize for work in biology without knowing anything about evolution.

    Eric said,

    Students need to learn how to do science, not just learn facts and theories. That is why practically all (good) science classes include a lab

    What evidence do you have that the fundy biology classes don’t include lab work? Anyway, that is not an issue in the lawsuit.

    Students going to a largely unaccredited CA High School have access to three of the four UC admissions paths: regular admission, admission by examination, and admission by exception.

    The special admissions path generally requires them to be in the top 2-4% rather than the top 12.5% of the general admissions path — that is part of the complaint.

    The UC System guarantees admission to the top 12.5% of CA high schoolers that take accredited courses. All others are free to apply through regular admissions,

    Those accepted in regular admissions are considered to be in the top 12.5% — that’s the target.

    And frankly, I’m not sure they even lose the guarantee. If all but one course is accredited, I think UC just doesn’t count that course in the GPA.

    Wrong — you have to satisfy the a-g course requirements to be admitted in the general admissions program.

    You’re proposing an exception to the regular admissions process which is unnecessary and favors a small religious minority who can’t pass a standardized test. How exactly is that fair?

    As I said, my proposal actually discriminates against the fundies. And the courts do not always need to be concerned about fairness — sometimes upholding the constitution or the laws is not fair.

    IMO my proposal justifies giving UC and other public universities a lot of discretion in rejecting high school biology textbooks and thus should reduce the amount of litigation over such rejections. Time that courts waste on high-profile cases takes time away from low-profile cases.

  36. #36 Larry Fafarman
    August 13, 2008

    Mike Dunford said,

    Larry, you really, really need to learn how to pay attention to what’s going on around you — particularly if you want to talk about it.

    I do pay attention and I am obviously the most knowledgeable commenter here.

    Your above remark would be uncalled-for even if I were wrong here, which I am not.

    The ACSI lawyers attempted to use additional expert opinions from their experts. These were opinions on topics that weren’t discussed in their initial expert reports. The additional expert material was ruled inadmissible because the time for submitting expert opinions had passed 11 months earlier. That’s what Kevin was talking about.

    In his section on “reasonableness” (see comment #32), Kevin said that the judge, in ruling on the issue of reasonableness, excluded the ACSI’s expert witness reports as untimely, but the judge cited Michael Behe’s expert witness report in ruling on that issue.

  37. #37 Larry Fafarman
    August 13, 2008

    Ginger Yellow said,

    If the BJU biology textbooks present the core material correctly — and so far as I can see, they do

    Have you read any of Mike’s posts on the content of the textbooks? They don’t even come close to “present[ing] the core material correctly”. They use definitions of evolution that are unrecognisable to evolutionary scientists (eg evolution necessarily leads to more complexity),

    Well, there are blind salamanders and blind fish, believed to have evolved from sighted salamanders and sighted fish, so apparently evolutionists don’t believe that evolution always leads to more complexity. But a lot of critics of evolution theory deny that evolution ever leads to more complexity, so saying that evolution leads to more complexity is actually something of a pro-evolution position, even though most evolutionists disagree with that position.

    they contain falsehoods about the evidence (eg most mutations are harmful),

    Well, aren’t most mutations harmful?

    and palpable absurdities about what evolution entails or implies (eg evolution –> communism, saltation etc)

    Nothing about evolution -> Nazism, racism, etc.?

    All I know about the BJU biology textbook (a two-volume set) is that it contains a chapter of about 15 pages on evolution and a chapter of about 15 pages on creationism (maybe including ID and other scientific — or pseudoscientific, if you prefer — criticisms of evolution). An author of a Wall Street Journal article says that the chapter on evolution presents evolution “straightforwardly.”

    For a number of reasons, there are some things that should not be decided by the courts or should only rarely be decided by the courts — some of these reasons are: deciding would take too much time, judges are not experts, and arbitrary decisions are required. IMO one of those things is the approval of textbooks for high school course accreditation by a university. A lot of people feel that the BJU biology textbook should be rejected just because of the bad philosophy of science in the introduction, but then there is the question of whether such rejection is fair if the textbook presents the core material adequately. I proposed what I think is a reasonable compromise.

  38. #38 Sophist FCD
    August 13, 2008

    Well, there are blind salamanders and blind fish, believed to have evolved from sighted salamanders and sighted fish, so apparently evolutionists don’t believe that evolution always leads to more complexity. But a lot of critics of evolution theory deny that evolution ever leads to more complexity, so saying that evolution leads to more complexity is actually something of a pro-evolution position, even though most evolutionists disagree with that position.

    Are you kidding me? You think being wrong about basic ideas is ok as long as the error can be interpreted (wrongly, by the way) as being in some way pro-evolution? Double-you tee eff?

    Well, aren’t most mutations harmful?

    Given that you’ll probably accumulate at least one hundred of them during your lifetime, you should really hope that they aren’t.

    All I know about the BJU biology textbook (a two-volume set) is that it contains a chapter of about 15 pages on evolution…

    It appears to me that the BJU texts cover the core material adequately…

    It’s good to know you did such a thorough investigation before coming to a conclusion.

    If you want to know how dumb this book is, this should suffice:

    Some babies die very soon after birth as a result of genetic disorders. It appears that God designed into the genetic mechanism of humans (and most organisms) a genetic screen that eliminates many greatly deformed individuals, preventing major genetic disorders from continuing.

    This is what you call adequate?

  39. #39 Mike Dunford
    August 13, 2008

    In his section on “reasonableness” (see comment #32), Kevin said that the judge, in ruling on the issue of reasonableness, excluded the ACSI’s expert witness reports as untimely, but the judge cited Michael Behe’s expert witness report in ruling on that issue.

    Larry, you’re still not paying attention.

    Open the pdf of the decision. Go to page 8 of the pdf. Scroll down to line 12 on page 8. This line marks the start of a section titled, “Plaintiffs’ Recently Disclosed Expert Conclusions”. The section runs through to page 9, line 15. That line ends the section with the following statement:

    “Accordingly, Plaintiffs’ recently acquired expert opinions will be excluded.”

    This meant that the judge based his decision only on the original expert opinions – the ones he cited – and not the material that ACSI tried to tack on way after the deadline had passed.

    When the judge dismissed (a few months ago) ACSI’s claim that the policy was unconstitutional, they needed to show that the (constitutionally acceptable) policy was applied to the specific courses in question in an unconstitutional manner.

    Because the idiots running the case for ACSI hadn’t planned on losing their claim that the entire policy was unconstitutional, the expert reports that they originally submitted focused almost entirely on the broad policy. They realized this, and got their experts to write up affidavits containing additional opinions. Those opinions are the ones that were thrown out by the judge.

    Without the ***new*** expert opinions, ACSI did not have anything to support their claim that the policy was unconstitutional AS APPLIED to the specific courses. Which is why Kevin is right when he said (emphasis added for Larry’s benefit):

    “with the UNTIMELY expert witness reports excluded as untimely, ACSI had no admissible evidence…”

  40. #40 Larry Fafarman
    August 14, 2008

    Mike Dunford said,

    Larry, you’re still not paying attention.

    Will you stop saying “you’re not paying attention” every time you disagree with me? That is getting very annoying.

    In fact, I am paying very good attention because I am seeing errors and possible errors that others are not seeing. And I am also reading this stuff extensively.

    “Accordingly, Plaintiffs’ recently acquired expert opinions will be excluded.”

    Those expert opinions that were excluded (on 38 course rejections) were not the expert opinions that Kevin was talking about in his section on “reasonableness”:

    Reasonableness
    At long last, the judge turned to the meat of the motion: whether the rejections were reasonable. If the plaintiffs could raise a genuine issue of material fact, the case would proceed to trial. If not, the judge would rule in favor of UC and the case would be over. And once again, ACSI’s lack of preparation was their undoing. The untimely expert witness reports excluded as untimely, ACSI had no admissible evidence that any of the four courses were unreasonably rejected. Lacking that basis, ACSI’s case had absolutely no merit, and the judge quickly and ruthlessly tore through the tissue-thin veneer they tried to paint over their deficiencies. (emphasis added)

    For starters, a correction: that was not four courses, it was five courses: four Calvary courses plus a non-Calvary biology course (see top of page 12 of the opinion). Contrary to what Kevin says above, plaintiffs’ expert witness reports on those courses were not excluded and were cited in reasonableness determinations on pages 12-18 of the opinion (the citation of Behe’s expert report is described in comment #32). So what Kevin says above is wrong.

  41. #41 Jason
    August 14, 2008

    What is science but a METHOD by which we use to break down and explain what we think is true about our physical world based on observable data? By definition, Right? So what happenes when an observable truth does NOT hold up within the scientific model? (ie. we are still trying to fit quantum mechanics into this tiny little box), we simply dismiss or at best, postpone it, right? Now, I’m not saying science is a weak model, but it is incomplete at best. It seems to me the closed-minded ones here are the “Orthadox Scientists” who claim monopoly on the means to truth. I do not know the details about this particular textbook and/or lawsuit. I propose we all drop the hubris; perhaps its alright to consider ALL possible points of view within the realm of education.

  42. #42 Coin
    August 14, 2008

    Hi, something minor I was curious about.

    In a discussion elsewhere about this case I found myself mentioning (as earlier news reports on the subject I had read had claimed) that UC does on occasion accredit courses which incorporate religious content, and that it is only those courses that fail to meet their quality guidelines which are denied. I was asked if I could provide any examples of religious courses which UC admitted– just for comparison with the denied courses listed in the lawsuit– and realized I could not actually find any examples. I’m now myself kind of curious what some examples of classes “with a religious perspective” or incorporating religious content that met UC’s guidelines, if any such examples exist, might be.

    I find that UC’s factsheet on the case says “UC has approved 43 courses at Calvary Chapel as a-g college preparatory courses, and these courses cover all disciplines, including science”; since Calvary Chapel supposedly forces the “Christian perspective” into all of its courses, probably those 43 courses would be good examples of “religious” classes that still managed to serve the college preparatory function. Is there anywhere that one could find a description of any of the Calvary courses that were admitted, or otherwise a good prototypical example of a “religious” course admitted under the a-g guidelines? I don’t find anything obvious in the filings listed on UC’s website.

    Thanks!

  43. #43 Sophist FCD
    August 14, 2008

    I do not know the details about this particular textbook and/or lawsuit. I propose we all drop the hubris; perhaps its alright to consider ALL possible points of view within the realm of education.

    Yes, and that is what religion and philosophy classes are for. But science is not about all that is possible, or for that matter “points of view”. It is a “possible” “point of view” that the universe was created last Thursday in such a way that it is indistinguishable from one that is 14 billion years old. This, however, has nothing to do with science, and it would be silly to count a class in last-Thursdayism as a science credit.

  44. #44 Larry Fafarman
    August 14, 2008

    Sophist FCD said (#38) —

    You think being wrong about basic ideas is ok as long as the error can be interpreted (wrongly, by the way) as being in some way pro-evolution?

    OK, so the book made a boo-boo. It happens. But I am surprised that a fundy biology textbook would say that evolution necessarily leads to more complexity — that statement tends to show that maybe the textbook is not as anti-evolution as has been claimed. Also, did UC point out specific factual errors in the textbook? It seems to me that UC was mainly concerned with the bad philosophy of science.

    Well, aren’t most mutations harmful?
    Given that you’ll probably accumulate at least one hundred of them during your lifetime, you should really hope that they aren’t.

    I am not talking about silent mutations or minor mutations — I am talking about expressed mutations that are big enough to confer a major advantage. I would say that most such big mutations are harmful.

    It appears to me that the BJU texts cover the core material adequately…

    It’s good to know you did such a thorough investigation before coming to a conclusion.

    I did as good an investigation as I could do without actually buying the book (maybe it’s in a library somewhere, but I can’t get down to libraries).

    Some babies die very soon after birth as a result of genetic disorders. It appears that God designed into the genetic mechanism of humans (and most organisms) a genetic screen that eliminates many greatly deformed individuals, preventing major genetic disorders from continuing.

    This is what you call adequate?

    This is the first time I have seen that statement, so I have not called it anything yet. It looks like they are trying to make the inane statement that genetic defects that are bad enough to cause death soon after birth are not going to be transmitted to the next generation by the victim (duh), but that has nothing to do with a “genetic screen.” And many genetic defects are transmitted by carriers who are themselves not affected or are only partly affected, e.g., hemophilia, Tay-Sachs disease, and sickle-cell disease (though being a carrier of sickle-cell disease confers resistance to malaria) — and that transmission by carriers is arguably not good genetic design.

  45. #45 Larry Fafarman
    August 14, 2008

    I see a big problem here, and that problem is that it is not practical or realistic to resolve these disputes in the courts. It is turning the courts into textbook accreditation agencies. For the following reasons, courts are ill-suited for this function:

    (1) Fully evaluating textbooks is very time consuming, and the courts must rely to a great extent on the opinions of biased evaluators representing the litigants.

    (2) The judges are not experts in the subjects of the textbooks being evaluated.

    (3) The evaluations require arbitrary and subjective decisions.

    IMO the main question in these textbook evaluations is whether the books present the core or standard material adequately and just add a religious viewpoint. The plaintiffs charged that UC previously accredited textbooks that have non-Christian special viewpoints (and that therefore might not present the core or standard material adequately), but the judge in this case did not respond to that charge.

    The opinion shows the potential size of the burden on the courts. The opinion says that UC rejected more than 175 courses proposed by ACSI schools (see page 8 of the opinion) during the relevant time period (though some of those rejections might have been for the same reason). The plaintiffs submitted untimely expert witness reports on 38 rejected courses (see pages 8-9 of the opinion) and timely expert witness reports on 5 rejected courses (see pages 12-18 of the opinion).

    IMO the only easy way to assure that the core or standard material is included in the course materials is to require the fundy schools to use standard, non-Christian texts and add the Christian viewpoints by means of supplemental materials.

    Why do the fundies insist on having Christian this and Christian that? I think that one of the reasons for that is the extreme hostility that the courts have shown towards religion — or anything even suggesting religion — in the public square. Examples: Three court decisions — Kitzmiller v. Dover, Selman v. Cobb County, and Freiler v. Tangipahoa Parish — ruled against evolution disclaimers in public school science classes, though the disclaimers were just sops to the fundies (and other Darwin doubters) because only Darwinism is actually taught. Because of the threat of a lawsuit, Los Angeles County removed a tiny cross from the county seal.

  46. #46 SLC
    August 14, 2008

    I would suggest that Mr. Dunford follow the lead of Ed Brayton, Jason Rosenhouse and Pandas’ Thumb and delete all comments by Mr. Fafarman. His blathering has taken up more then 1/2 of this thread to little effect.

  47. #47 Larry Fafarman
    August 14, 2008

    SLC, is someone hassling you? When someone starts hassling you, then is the time to get uptight — not before.

    If you don’t like my comments, no one says that you have to read them.

  48. #48 themadhair
    August 21, 2008

    SLC said:

    I would suggest that Mr. Dunford follow the lead of Ed Brayton, Jason Rosenhouse and Pandas’ Thumb and delete all comments by Mr. Fafarman. His blathering has taken up more then 1/2 of this thread to little effect.

    I respectfully disagree. Leaving Mr. Fafarman’s comments up highlights the absurdity of the ASCI claim.

    Consider this gem from Mr. Fafarman which manages to elegantly sum up just what exactly is wrong here:

    OK, so the book made a boo-boo. It happens. But I am surprised that a fundy biology textbook would say that evolution necessarily leads to more complexity — that statement tends to show that maybe the textbook is not as anti-evolution as has been claimed. Also, did UC point out specific factual errors in the textbook?

    When you have a commenter complaining that UC failed to point out a factual error, directly after he mentions one, then you know there is something wrong.

    The fact that Mr Fafarman fails to grasp is that UC has entry requirements not only as a selection criteria, but also as a means of ensuring the successful applicants possess the necessary educational background in order to be able to take UC’s courses. A student that fails to meet the UC requirements in question is very unlikely to have that required standard of education. While some may find Mr. Fafarman’s comments ignorant and illogical, they do a better job illustrating why UC has taken the stance that it has.

  49. #49 W. Kevin Vicklund
    August 22, 2008

    Sorry about my absence, I’ve been too busy to respond.

    Larry, if you want to avoid looking like a fool, I suggest you pay closer attention to what people around you are saying. As I explicitly clarified earlier in this thread, and as Mike twice informed you, the expert opinions that I spoke about in my section on reasonableness were in fact part of the 38 excluded reports. This left just the original reports, which did not discuss reasonableness on an individual course level, and which I referred to as the “thin veneer” that the judge quickly disposed of.

    I misread my notes, leading to the incorrect number of courses remaining – that is a mistake I freely admit to making. Thank you for pointing out the error.

    As far as Larry’s “compromise” (which he proposed about a year after he rejected the UC’s equivalent) goes:

    As others have repeatedly pointed out, it is the same sort of compromise that UC already offers (and since Larry needs clarification to grasp the meaning, “same sort” means similar, not identical). The only difference is that UC requires that the student take the remedial course prior to admission, whereas Larry would instead require that the student take the course after admission. ACSI had already made it clear that this type of compromise was not acceptable to them.

    Furthermore, Larry is wrong when he says that his “compromise” would lead to fewer lawsuits. In fact, it would lead to more lawsuits. The UC guidelines make explicit the requirement that all science classes properly teach what Larry calls the philosophy of science. It is one of four requirements that all science classes must meet (1, algebra as a prereq; 2, the nature of science; 3, 20% of the class time spent in labs; and 4, the core concepts covered in depth and with rigor). It is not by any means arbitrary. Furthermore, UC course reviewers and expert witnesses have stated under oath that it is more important than teaching the core concepts of the individual disciplines – a feeling that is quite obviously shared by many of the pro-science bloggers and commenters. If the judge ordered this “compromise” he would be inviting chaos and an explosion of lawsuits. Anytime a school had a course rejected because it failed to meet an enumerated requirement, rather than correct the deficiency they could claim that the requirement is arbitrary and tell their students to take the class, take the subject test, and if they failed the test, they could get in and take a remedial course. If UC denied entrance to such a student, the student and school could then sue under the (non-binding) precedent established by Judge Otero. And UC is barred by law from lowering their standards like that unless they commensurately tighten their standards elsewhere.

    Larry also is in error (and is making a category error) when he claims that his solution discriminates against the fundies. This is patently false. The relevant comparison is whether his solution favors fundy students taking unapproved courses over non-fundy students taking unapproved courses. A non-fundy student taking a remedial course still has to pay out of pocket for that course, but unlike the fundy student in Larry’s “compromise” would have to do it before being admitted. It should also be noted that taking a remedial class before admission does not necessarily delay graduation, because that class could be taken while the student was still in high school (the UC admissions site makes that an explicit option).

    Larry also asks whether UC pointed out specific factual errors in the textbook. According to Behe’s disallowed expert testimony, the answer is yes. Behe analyzed the course review notes of a number of the biology course rejections that used the book, and mentions a number of times the course reviewer gave specific examples of errors. But, as one reviewer noted, “the textbook has a plethora of errors to[sic] numerous too[sic] list.” (I have noted that spelling does not appear to be a strong point for the course reviewers). The standard course feedback forms do not permit an exhaustive list of errors to be included. A certain amount of errors are expected in any textbook. It is when these errors grow too numerous that it becomes a problem. Since it is not the specific errors, but rather the quantity of errors that are important to the approval decision, it is appropriate to simply state that there were too many errors. This is precisely the tack UC took in its rejection letters.

  50. #50 eric
    August 22, 2008

    Larry (#45) said:
    I see a big problem here, and that problem is that it is not practical or realistic to resolve these disputes in the courts. It is turning the courts into textbook accreditation agencies.

    I agree. The people most qualified to determine whether a textbook prepares a kid for studying at UC would be the UC professors. They will, after all, be teaching the courses the kids have to take.

    And that is how UC does it. It was ACSI – not UC – that attempted to bypass the professors opinion using the court system.

    What evidence do you have that the fundy biology classes don’t include lab work? Anyway, that is not an issue in the lawsuit

    Well, Larry, I was replying to your post #25:

    it was my general impression that they mostly present the core material correctly and that UC’s gripe was mainly about the bad philosophy of science presented in the introduction and maybe elsewhere in the books

    Since the intro you are referring to says “…if the conclusions contradict the Word of God, the conclusions are wrong, no matter how many scientific facts appear to back them up…” my comment about teaching kids what they should do when empirical observation and the bible appear to contradict each other is HIGHLY relevant to your complaint. Don’t you think?

    That quote is not how science is done. Scientists do not take observations, then refer to their bibles, and then decide on a conclusion that best fits the bible. And telling kids to use that methodology is not adding a religious perspective (as ACSI contended), it is telling them the wrong way to do science.

  51. #51 Larry Fafarman
    August 22, 2008

    Kevin Vicklund:

    Larry, if you want to avoid looking like a fool, I suggest you pay closer attention to what people around you are saying.

    You and Mike Dunford are the ones who look like fools for constantly falsely accusing me of looking like a fool for not paying close attention to what others are saying. I pay very close attention — that is why I find so many errors.

    This left just the original reports, which did not discuss reasonableness on an individual course level, and which I referred to as the “thin veneer” that the judge quickly disposed of.

    That statement that the “original reports” (for the 5 course rejections reviewed by the court) . . .” did not discuss reasonableness on an individual course level” is just plain wrong. Comment #32 shows where the opinion cited plaintiffs’ expert witness Michael Behe’s discussion of reasonableness on an individual course level, the biology course’s textbook. On pages 12-18, the opinion cites other plaintiffs’ expert witness reports’ discussions of reasonableness on an individual course level.

    As far as Larry’s “compromise”

    I have given up on this compromise idea, except perhaps as a temporary measure to give a break to students who took the rejected fundy courses before UC rejected those courses. One of the reasons why I changed my mind was that I realized that the amount of potential litigation is getting out of hand, with 38 new challenges to UC course rejections in addition to the original 5 challenges.

    eric said,

    Since the intro you are referring to says “…if the conclusions contradict the Word of God, the conclusions are wrong, no matter how many scientific facts appear to back them up…” my comment about teaching kids what they should do when empirical observation and the bible appear to contradict each other is HIGHLY relevant to your complaint. Don’t you think?

    Yes, that statement discourages critical thinking and promotes spoonfeeding Christian dogma to the students. Even if one thinks that the bible is always right, it can be a useful mental exercise to try to figure out why the bible could be wrong. In the introduction, that statement not only attacks evolution but even attacks the possibility that a ” ‘scientific’ explanation of the biblical locust (grasshopper) plague in Egypt” could be correct. At least the more commonly quoted statement from the introduction, “The people who have prepared this book have tried consistently to put the Word of God first and science second,” is open to the possibility that science could be correct and the bible wrong. I now agree that the philosophy of science in the introduction of the Bob Jones Univ. biology textbook is just so bad that UC was justified in rejecting the textbook.

    I am still concerned that UC may be discriminating against the Christian schools by accepting non-Christian main textbooks that have narrow viewpoints. IMO to be fair, main textbooks with narrow viewpoints — including non-Christian viewpoints — should not be allowed in UC-accredited high school courses.

  52. #52 Larry Fafarman
    August 23, 2008

    My review of the final decision is now on my blog at the top of a post-label list of ten posts about the case — see

    http://im-from-missouri.blogspot.com/search/label/ACSI%20v.%20Stearns

  53. #53 Larry Fafarman
    August 27, 2008

    Kevin Vicklund’s blog has a followup post which clears up the misunderstanding about the plaintiffs’ expert witness reports —

    http://missingthepoint.wordpress.com/category/legal/first-amendment/acsi-v-uc/

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