Dispatches from the Creation Wars

Odessa Case Update

Things are proceeding in the Odessa NCBCPS case and I got my hands on the first few documents filed by both sides in the case. As I reported previously, the school board, represented by the Liberty Legal Institute, has filed several motions. The first is a Rule 68 offer of judgment. This document is not publicly available but the LLI attorney said in a press conference that it was an offer of $500 for the plaintiffs to go away. Yes, the plaintiffs laughed at it. They don’t want monetary damages and didn’t ask for any, so this is an absolutely pointless action on the part of the school board.

The second motion they filed was a Motion to Compel Mediation. This is also pointless, since there really isn’t any middle ground for mediation to be successful. The plaintiffs want the class declared unconstitutional; the school insists that it is constitutional. There’s not much room there. Bizarrely, the motion refers to a dispute over monetary damages where there is no such dispute:

This should not be a case in which the parties’ positions are polarized by social philosophy. This should not be a case where the parties’ quest is to prevail at all costs. This should not be a case where the specter of disagreement over monetary damages fragment the prospect of effective negotiation. Rather, this should be a case where the predominating objective of all parties ultimately is to accomplish a resolution which serves best the needs and interest of the parties and the community which is served by ECISD.

It makes one wonder if they even bothered to read the plaintiffs’ complaint, which does not ask for any monetary damages at all, even nominal ones. The judge may well order an attempt to mediate, but as long as the school insists on keeping the course, it’s not going to do any good. The plaintiffs’ response to this motion is directly on point:

Plaintiffs are open to fruitful conversation aimed at resolving this constitutional dispute. All indications from the public record, however, suggest that the Defendants have no such intent. Defendants did not confer with Plaintiffs’ counsel prior to filing their motion as required by the local rules of this Court. See Rule CV-7(h). Nor did the Defendants approach Plaintiffs’ counsel to explore private settlement negotiations prior to filing their motion. And the Defendants repeatedly have made clear their refusal to alter their conduct in any way to address Plaintiffs’ constitutional claims.

This is not, contrary to the statement in the Defendants’ Motion, a case about money damages.1 Plaintiffs seek to enjoin Defendants from continuing to violate the Constitution by teaching a Bible Course that is not objective but instead impermissibly advances religion generally and a particular religious viewpoint specifically. In their Answer, filed July 2, 2007, Defendants have flatly maintained that the Course, as they are teaching it, is constitutional. Similarly, in what they have called a Rule 68 Offer of Judgment, faxed to Plaintiffs on July 2, 2007, the Defendants offered a nominal monetary payment to the Plaintiffs (who have not asked for damages), but do not offer to make any changes in the Bible Course that would render it constitutional. In their public statements to the press, the Defendants have been less restrained, with one of the Defendants suggesting that “If they [the Plaintiffs] don’t have children in the class, they can kiss my butt.” See Exhibit A. In short, at present there is no reason to think that mediation would prove useful because there is not the slightest indication that the Defendants are willing to consider any changes in how the Bible Course is taught.

I’m not sure which is stranger, the fact that they think they can buy off the plaintiffs or the fact that they think they can buy them off for only $500. It reminds me of the scene in Caddyshack where Judge Smails puts 50 cents in Danny Noonan’s hand and says, “This is for you.” Whoa, slow down there big spender.

The next motion they’ve filed is a Motion to Dismiss Redundant Claims. As in most cases, this suit was filed against the school district itself and against the individual board members in their official capacities (as opposed to as individual citizens). A motion to dismiss redundant claims is used to remove defendants from a lawsuit; they are essentially saying “take all of the school board members and school officials off the suit by name and just have the suit against the school district itself.”

It’s an irrelevant motion; even if it’s granted, so what? It doesn’t change anything about the case. The individual school board members can’t be held responsible as individuals for the suit anyway, they can only be sued in their capacity as school board members. But here’s the bizarre thing: they aren’t making a motion to dismiss on the merits of the case, yet this motion to dismiss the redundant defendants contains substantive arguments on the merits. It left me scratching my head, as I’m sure it did the judge too. There is no logical reason to include substantive arguments if you aren’t asking for a dismissal on the merits of the case. This is really, really amateur legal work and that is not the way to get on a judge’s good side. I’m starting to think that the Liberty Legal Institute is going to make the Thomas More Law Center look competent.

Finally we come to the defendants’ actual attempt to answer the complaint. The first thing that jumps out at from the brief is that they clearly recognize that there are many things in the NCBCPS curriculum that are constitutional dubious. Their main response to the allegations in the complaint is that there are some things in the NCBCPS curriculum that they don’t teach in their school. They don’t specific which parts are left out, of course, but that will all come out in discovery.

Another thing that jumped out at me, and yet another similarity to the Dover trial, is that the school board members quoted in the media and in the complaint making comments that suggest a religious motivation for the policy at the time of adoption are saying that they don’t remember what they said to the media and therefore they deny having said them. For instance, Doyle Woodall, a member of the board, told the local paper, “This is America, it’s a Christian nation.” Butch Foreman, another board member, was quoted by the paper as saying that the class “would be a great thing” because it would help “the kids, who are religious and do go to church.” And here’s the response from the defendants’ answer:

With respect to the allegations in paragraph 21 of the Complaint, Defendant admit only that Defendants Foreman and Woodall did speak to representatives of the media concerning the Bible course. Defendants Foreman and Woodall do not recall the exact words they used in such interviews, and Defendants are, therefore, without knowledge and information sufficient to admit or deny the quotes attributed to them, and the allegations are, therefore, denied as a matter of law.

Could we have another Bill Buckingham situation on our hands, where they deny having said what the local media quotes them as saying? This could get very interesting. Another really odd statement appears at the end of this brief, where they list the reasons why they don’t think the plaintiffs have a case; the final one is this:

Plaintiffs’ equitable claims are barred, in whole or in part, because Plaintiffs’ own inequitable conduct and/or unclean hands.

That left me scratching my head, as did this:

Defendants hereby make demand for a jury trial on all issues subject to jury trial

Which would be…what issues, exactly? There are no issues here subject to a jury trial, it’s all equitable claims for injunctive relief. This really is all quite odd. They seem to think they’re being sued for monetary damages.