Dispatches from the Creation Wars

Francisco’s Evolving Accusation

I have a feeling that Michael Francisco got a warning from someone who knows what they’re talking about, who told him that he was coming dangerously close to defamation with his post at the DI blog, because last night he suddenly edited his post to make it a whole lot less actionable. That was quite predictable, of course, and I archived the original post. The first big lie is still in there, but changed to express a whole lot less certainty. Here’s the original passage:

Manzari & Cooper explain in detail how the newly elected Dover Area School Board, which campaigned on removing the ID policy actually voted to keep the policy during their first meeting. Why? Because the Board members understood that removing the policy would have ended the legal controversy. Without the school board voting to keep the policy, the same policy that board publicly opposed, the ACLU & AUSCS would not have been able to claim attorneys fees.

And here’s his sudden change of tune a few hours later, totally unacknowledged in the post:

Manzari & Cooper explain in detail how the newly elected Dover Area School Board, which campaigned on removing the ID policy actually chose to keep the policy during their first meeting. Why? Because the Board members understood that removing the policy could have ended the legal controversy. Without the school board deciding to keep the policy, the same policy that board publicly opposed, the ACLU & AUSCS may not have been able to claim attorneys fees.


All the “would haves” are now suddenly “could haves”. Why? I presume because Francisco may have actually consulted with a real attorney who told him that he was full of crap, that the chances of getting that ruling mooted bcause of a voluntary change of policy by the school board that could be reversed in the future were slim and none (and as my dad likes to say, slim just left town).

But bear in mind that without the school board knowing, or even believing, that by rescinding the policy they could moot the outcome of the trial, the entire artiface of deception on which this conspiracy theory is based comes crashing to the ground. Without that, he has to change his tune from claiming that they intentionally and willfully refused to do so for the purpose of funnelling money to the ACLU to merely claiming that by not rescinding the policy they “increased the risk” of having to pay the attorney’s fees. And a few hours after his bold accusation, he retreated to that position in a comment on Dembski’s blog:

If no decision would have been rendered, then no attorneys fees would have come. Repealing the policy would in no way guarantee that the case would be found moot, but keepign the policy in place guaranteed that the question would not even be examined.

In point of fact, it was trivially easy for Francisco to find out whether the board believed it could moot the trial by rescinding the decision. It’s right there in the minutes of the board meeting, which Manzari, Cooper and Francisco never bothered to check in the first place and would prefer to ignore now that it’s been pointed out to them:

3. Board president Reinking noted that legal counsel advised the board that the trial is over and can not change the outcome of any vote.

This is the same position, by the way, that was taken by everyone involved in the case, including the attorneys for both sides. It’s the same position taken by the Judge in the case. It’s the same position taken by every legal scholar who addressed the issue. There was virtually no chance that the case would be mooted. Everyone knew that at the time, including the school board. Only our three intrepid authors here seem to believe there was any chance the case would be mooted and they appear to be utterly ignorant of the voluntary cessation doctrine.

He then throws in this weak attempt to answer our responses to this drivel, and the changes in this paragraph are highly amusing. Here’s the original:

(Cooper and Manzari’s incredible findings stand regardless of whether the authors may have missed the point that one board member, Brian Rehm, had not yet had his election certified when the vote took place. If the best response the Darwinists can muster is to nitpick one paragraph about Brian Rehm while failing to refute the entire piece’s discussion of evidence of alleged collusion, then perhaps the Darwinists are missing the forest for the trees, just so they can engage in moral accusation!)

And here’s the amended version:

(Cooper and Manzari’s incredible findings stand regardless of whether the authors may have missed the point that one board member, Bryan Rehm, had not yet had his election certified when the vote took place. If the best response the Darwinists can muster is to nitpick one paragraph about Bryan Rehm while failing to refute the entire piece’s discussion of evidence of alleged collusion, then perhaps the Darwinists are missing the forest for the trees, just so they can attempt to dismiss this embarrassing scandal!)

Perhaps he realized how ridiculous he sounded claiming that our side was “missing the forest for the trees” to engage in “moral accusation” when he and Cooper and Manzari are the ones engaging in moral accusations with absolutely no evidence to support those accusations. As for embarrassing, the only one who is looking embarrassed at this point are these three keystone cops, busily inserting foot in mouth time and time again.

When Francisco refers to the “evidence of alleged collusion” he is simply playing a game of pretend. There was no evidence given for collusion in the original article and even the rank speculation they engaged in has turned out to be based on false premises. Their accusation boils down to nothing more than speculation and imagination and it is completely counter-intuitive.

Why on earth would the school board want to drain a million dollars from their own budget? Why on earth would they intentionally give a million dollars that they could use to improve their school and community to a group they have no connection to at all? It makes no sense whatsoever. In fact, it relies on the new school board being made up of completely vile people who willfully tried to screw over all of their fellow citizens and drain the school system that their own children attend. In what alternate universe does this make any sense?

Here’s the last paragraph, as amended without admission. Here’s the first draft:

In essence, the new Dover school board was fully aware that keeping the policy in place risked a large sum of Dover taxpayer funds. Manzari & Cooper explain why it now appears that there was collusion between the ACLU, AUSCS, and Dover school board members. This alleged collusion allowed the school board to effectively purchase the Kitzmiller decision at a price of $1 million dollars. This appropriation of public funds should be cause for outrage. Check out the Manzari & Cooper article for more shocking details.

And here’s the amended version:

In essence, the new Dover school board was fully aware that keeping the policy in place increased the risk of expensive attorneys fees. Manzari & Cooper explain why it now appears that there was collusion between the ACLU, AUSCS, and Dover school board members. If what Manzari and Cooper say is true, this alleged collusion allowed the school board to effectively guarantee the Kitzmiller decision at a purchase price of $1 million dollars. This appropriation of public funds should be cause for outrage. Check out the Manzari & Cooper article for more shocking details.

We’ve already established that the new school board was “fully aware” of the opposite reality than what Francisco is claiming. They really should be ashamed of themselves for pedding such ridiculous accusations without evidence. There are no “shocking details” in the Manzari and Cooper article other than the things they get completely wrong. Their entire argument amounts to noting that the school board voted not to rescind the policy in early December and engaging in unsupported speculation that they did so in order to give money to the ACLU, which they had no incentive to do and every incentive not to do. The only basis for this accusation is the fevered imagination of this bunch of wingnuts.

Comments

  1. #1 Raging Bee
    April 5, 2006

    ID propagandists with a visible sense of shame? We could be witnessing macroevolution! (As an “explanatory filter,” intelligent design certainly doesn’t work here.)

    This looks like a standard tactic of propagandists: the creationists goaded the school board into wasting huge amounts of money defending a policy that they knew was wrong, and when this fact becomes apparent, they cover their butts by hurling similar accusations at their enemies.

  2. #2 JonF
    April 5, 2006

    “Michael Francisco” seems to ring a faint bell; did he write something almost as stupid a year or so ago and get thoroughly pwned?

  3. #3 ivyprivy
    April 5, 2006

    Francisco is a second year law student at Cornell. He wrote a dismissal of the Kitzmiller verdict. Are ethical shortcomings sufficient cause for dismissal from law school?

  4. #4 Ginger Yellow
    April 5, 2006

    Again going on UK libel law (and if it came to that, the school board could sue in Britain without any legal difficulty beyond enforcing damages) the changes don’t actually make it any less actionable. The defamation is still posed in absolute terms – “Why? Because the Board members understood that removing the policy could have ended the legal controversy.” It couldn’t have, for the reasons you stated above. And the board members understood it couldn’t have. I wouldn’t be surprised to see another amendment soon chaing “the Board members understood” to “the Board members may have understood”.

  5. #5 raj
    April 5, 2006

    Are ethical shortcomings sufficient cause for dismissal from law school?

    Probably not. A year or two ago, Bruce Leiter of LeiterReports had a smack-down of one of the editors of the Harvard Law Review, a fellow named van Dyke (I forget his first name), who wrote an idiotic book review of a creationist/ID book. Leiter tore him from limb to limb (and the smack down is still being referred to on the Web). A far as I know, van Dyke was permitted to remain at Harvard.

    BTW, that should tell you something about the quality of Harvard law grads.

  6. #6 Dave S.
    April 5, 2006

    raj writes:

    … a fellow named van Dyke (I forget his first name)…

    Dick!

    hhehe…funny on several levels. :)

    Actually his real first name is Lawrence.

  7. #7 Mr. Upright
    April 5, 2006

    Francisco’s a bigger liar than just that. From the original post:

    Manzari & Cooper explain in detail how the newly elected Dover Area School Board, which campaigned on removing the ID policy actually voted to keep the policy during their first meeting.

    Um, no. Actually, Manzari and Cooper said no such thing, and no vote was recorded in the minutes.

    In his heavy alteration to the post, Francisco changes the above to read:

    Manzari & Cooper explain in detail how the newly elected Dover Area School Board, which campaigned on removing the ID policy actually chose to keep the policy during their first meeting.

    Still not quite right. The closest that Manzari and Cooper come to claiming what Francisco asserts is later, asking “Why would the new board keep in place the evolution policy it once so ardently opposed?”

    However, it is clear from the minutes that the Board did not “choose” to keep the policy in place. It chose (or rather the president chose) to put the policy on the agenda for the next meeting. The worst thing the board chose was inaction.

    However, inaction may not have been a choice, either. I don’t know Roberts’ Rules by heart, but when I was presiding officer of my faculty, I got some experience with parliamentary procedure. The president/presiding officer sets the agenda for each meeting. Reinking was not president when the agenda for the Dec. 5 meeting was set. (This is the meeting at which the new members were sworn in.) I doubt she could have set the agenda for that meeting.

    Furthermore, since Napierskie was acting as a private citizen, I don’t believe he actually had standing to “(propose) a resolution to rescind the old board’s evolution policy” as Manzari and Cooper recount. Such a motion would fall on deaf ears unless the board first votes to put it on the agenda, then a board member makes the motion to rescind the policy. (I’m not clear on all the technical details…we didn’t follow Roberts’ Rules too closely and I don’t know how closely the Dover board follows them.) In other words, inaction at the Dec. 5 meeting was the order unless the board decided through procedure and votes to take action.

    In fact, Reinking did take action. She put the issue on the agenda for the next meeting…the first agenda she controlled. She stated that she wanted to “include the community” in the decision, and announcing that it would be on the agenda for the next meeting was a proper thing to do.

    Of course as Ed and others have pointed out, an immediate decision would have done nothing to change the legal process. I just wanted to add further evidence that Francisco is a lying tool.

  8. #8 PaulC
    April 5, 2006

    Francisco:

    If the best response the Darwinists can muster is to nitpick one paragraph about Bryan Rehm while failing to refute the entire piece’s discussion of evidence of alleged collusion

    If the worst the critics can say about my batch of cookies is that one of the chocolate chips is really a mouse dropping…

    I honestly have to wonder about the logical capacity of people who can make statement’s like Francisco’s weak backpedaling on Rehm. Obviously, he thought the inclusion of Rehm’s alleged involvement was a key part of his initial argument. If he thinks there’s any argument remaining, it’s time for mea culpas and a major rewrite. You cannot just pile on the BS and insist that there’s a good argument there until somebody demonstrates that every single piece is BS.

    A logical argument requires that every assumption holds and every deduction follows. It’s understandable that people can make a minor mistake while being able to salvage a valid argument, but honesty demands that they do it themselves and not expect their opponents to do so.

  9. #9 Daniel
    April 5, 2006

    Does anyone have a link to where a member of the new DASB explains that the real reason they ran for election on the promise that they wouldn’t immediately rescind the ID policy was because they didn’t want to repeat the style of policy changing that the old board had engaged in?

    I’d heard something like that back in November – aside from the legal issues, that convinces me that the new board members are simply doing exactly what they told voters they’d do.

  10. #10 Julie Stahlhut
    April 5, 2006

    BTW, that should tell you something about the quality of Harvard law grads.

    There’s an old saying that goes something like this:

    Q. What do you call someone who graduated at the bottom of his med school class?
    A. “Doctor”.

    It’s worth noting that just because someone had the undergrad grades and the LSAT scores to get into a prestigious law school doesn’t mean that he’ll always think logically — or that he won’t ever deliberately (and/or incompetently) bend logic and facts into a transparently bad argument.

  11. #11 Stoffel
    April 5, 2006

    IANAL, but I picked up the notion somewhere in my education–maybe high school–that in the U.S. judgment is made by what the laws are at the time, both civil and criminal. If the law changes such that some activity that used to be legal is now illegal, you can’t be prosecuted for actions before the law changed. Likewise, if you do something illegal that is since legalized, you CAN be prosecuted, even after the law changes, regardless of whether you keep up the activity. The same goes for civil cases. Therefore, if the board changes its policy, it’s moot as far as the original complaint is concerned.

    Do I have this right? And is this common knowledge? If so, why is this even a topic of conversation, much less debate?

  12. #12 Ed Brayton
    April 5, 2006

    Stoffel wrote:

    IANAL, but I picked up the notion somewhere in my education–maybe high school–that in the U.S. judgment is made by what the laws are at the time, both civil and criminal. If the law changes such that some activity that used to be legal is now illegal, you can’t be prosecuted for actions before the law changed. Likewise, if you do something illegal that is since legalized, you CAN be prosecuted, even after the law changes, regardless of whether you keep up the activity. The same goes for civil cases. Therefore, if the board changes its policy, it’s moot as far as the original complaint is concerned.

    That’s criminal law; we’re dealing with constitutional questions here and that is an entirely different animal. No one is being prosecuted in this case, no one is going to go to jail, so such questions are irrelevant. In cases like this, the voluntary cessation doctrine is the key. Once the case is heard, the agency cannot just voluntarily stop doing what it did to cause the suit to be filed and moot the case because there would be nothing stopping them from putting the same policy back in place after the case is dismissed. The court still issues a ruling.

  13. #13 Daniel
    April 5, 2006

    JonF said:

    “Michael Francisco” seems to ring a faint bell; did he write something almost as stupid a year or so ago and get thoroughly pwned?

    Well, he did write this, criticizing Judge Jones’ legal capacity to judge what is/isn’t science. Ed nicely debunked that one too.

  14. #14 LarryFarma
    April 7, 2006

    The bottom line is this: would it have hurt if the new board had in early December immediately rescinded the ID policy and offered to make an out-of-court settlement with the plaintiffs ? It would not have hurt, and it might have helped. There are several ways that the new board could have legally taken these actions under Pennsylvania`s Sunshine Act — (1) by an emergency vote at the regular Dec. 5 meeting, (2) a special meeting (24 hours notice), (3) an emergency meeting (no notice), and/or (4) a closed “executive session“ for consultation with attorneys. The board knew that there was little time to act, because the decision was due in late December or early January. Michael Francisco is absolutely right — by not taking these actions, the new board assured that the mootness issue could never be considered in the courts, either by Jones or by an appellate court. And one good argument in favor of mootness was that there was no opportunity for the original defendants to appeal the case because they had been voted off the board, and hence there was no real opportunity for a judicial review of a decision on the merits. Furthermore, Judge Jones had no business assuring that the school board election results would not affect his decision — this assurance completely undermined the school board`s bargaining position in possible negotiations for an out-of-court settlement. Also, several new board members said in mid-November that they did not want an out-of-court settlement !! ( See http://www.ydr.com/doverbiology/ci_3223198 )

  15. #15 Ed Brayton
    April 7, 2006

    LarryFarma wrote:

    The bottom line is this: would it have hurt if the new board had in early December immediately rescinded the ID policy and offered to make an out-of-court settlement with the plaintiffs ? It would not have hurt, and it might have helped. There are several ways that the new board could have legally taken these actions under Pennsylvania`s Sunshine Act — (1) by an emergency vote at the regular Dec. 5 meeting, (2) a special meeting (24 hours notice), (3) an emergency meeting (no notice), and/or (4) a closed “executive session“ for consultation with attorneys.

    This is the same ridiculous argument that DaveScot is making, that the only possible reason they could have had for not taking a vote the first hour after being sworn in is if it was illegal. It all rests on the false assumption that the board had some reason to believe that such a vote would have changed something and that simply isn’t true. It would have done absolutely nothing and they knew that, so there was no reason to do anything other than business as usual.

    The board knew that there was little time to act, because the decision was due in late December or early January.

    As we used to say in debate, Larry, repetition is not refutation. No matter how many times you repeat this lie it’s still a lie. The board did not know that, the board knew the opposite. It’s right there in the minutes of the meeting what they were advised by the board’s attorney (the same one the previous board ignored, which is what got them into hot water).

    And one good argument in favor of mootness was that there was no opportunity for the original defendants to appeal the case because they had been voted off the board, and hence there was no real opportunity for a judicial review of a decision on the merits.

    And you think this is a good argument in favor of mootness? It would get laughed out of court. It’s an absolutely horrible argument and legally meaningless. The opportunity for review is always contingent upon the losing side choosing to appeal and in any case involving a legislative body, there will be a chance that a change in the makeup of the body will change the policy during the process (remember, it takes a good 3 years to go from the district court to the appeals court, so this is common). Yet in not a single case has this ever been used to moot such a case. You are simply claiming a legal standard for mootness that does not exist and pretending it does.

    Furthermore, Judge Jones had no business assuring that the school board election results would not affect his decision — this assurance completely undermined the school board`s bargaining position in possible negotiations for an out-of-court settlement.

    No, reality may have undermined their bargaining position. The fact that there was nothing they could do to moot the decision at that point may have undermined their position. What do you want, the judge to lie about the law when asked? The legal standard for mootness is clear and well established; he had no choice but to follow the precedents, and this is agreed to by every legal scholar involved and by the attorneys on both sides. It’s time to give up on this silly fantasy that the case could have been mooted. It simply is not true.

    Also, several new board members said in mid-November that they did not want an out-of-court settlement !! ( See http://www.ydr.com/doverbiology/ci_3223198 )

    You know what’s funny about all these articles you reference, Larry? They all argue against your position, but you like to pretend otherwise. In that article, Richard Thompson himself says that rescinding the policy would not have changed the outcome of the case. And your representation of what the school board members said is false. Here’s the actual text:

    Several incoming board members, including Patricia Dapp, Terry Emig and Judy McIlvaine, said they want to hear what the judge has to say in the case. Some believe it will help bring closure and healing to the community.

    “We want to hear what the judge has to say” is not the same as “we don’t want an out of court settlement.” They already knew that an out of court settlement would not change anything and that they were going to get a ruling from the judge. Saying that they wanted to hear what the judge has to say because it would bring closure to the community is just a recognition of reality – having a judge rule on it and overrule it means that they didn’t have to keep arguing about whether to keep the policy in place or not. It makes it a non-issue for future elections and that would have prevented future arguments over it in Dover (which is what it has done, of course) and that, in their view, is better for the community. Given that a settlement would not have changed the money they had to pay, this is another reasonable justification for not pointlessly doing something on Dec. 5th.