Answering a Comment on the New Dover Accusation

Over at the Panda's Thumb, there's a troll by the name of Larry Fafarman who has been posting under about 50 different names, using proxies to evade a ban. He's apparently posting under the name J Simes now and he's trying, both valiantly and absurdly, to defend the Manzari and Cooper article and make the case for collusion. (I notice now that the comment was deleted, since he's already banned, but it should be debunked anyway). Since he actually lists his arguments in order, it's nice and easy to take apart.

(1) At the Dec. 5 meeting, the new board members should have kept their campaign promises to repeal the ID policy and then offered to make an out-of-court settlement with the plaintiffs. Even if the new board members believed that it was probably too late for such actions to do any good, these actions would have at least been a symbolic gesture showing that the new board sincerely wanted to keep the campaign promises to repeal the ID policy and save the taxpayers money. They knew that this meeting was the last chance to ask for an out-of-court settlement and that they were lucky to get the chance. Question -- what possible harmful consequences could have resulted from taking the above actions?

He's ignoring several facts. First, the new board was not seated yet, only part of the board was. And they were sworn in at the Dec. 5th meeting, so they didn't have control of the agenda there. When the issue was brought up, they did what they should have done, put it on the agenda of the following meeting so there was time for public comment and so that the full board could be seated before taking the vote. If this whole argument collapses down to passing a pointless symbolic gesture, it's not much of an argument, is it?

(2) The plaintiffs might have been more willing to consider making an out-of-court settlement if Judge Jones had not assured them in advance that the board election would have no effect on his decision ( -- from http://www.ydr.com/doverbiology/ci_3223198 ). The new board's decision to not repeal the ID policy at the Dec. 5 meeting supported and reinforced Jones' decision to ignore the effect of the election . I think I smell a conspiracy here.

If you smell a conspiracy here, I suggest visiting a doctor, preferably a shrink. The out of court settlement would not have changed things. The attorneys for both sides wanted the case to be appealed to set a broader precedent, and because the case was almost over by that point, legal fees would still have to be paid. As for the judge, he was simply following the law. Under the voluntary cessation doctrine, the judge can't simply decide not to rule under such circumstances. And the article that he links to strongly cuts against his argument. From the article:

Napierskie asked the board to revoke the curriculum change that includes intelligent design, agree not to add it again and ask their legal representation, Thomas More Law Center, to file a motion to dismiss the lawsuit against them and pay $1 in damages.

Napierskie said he believes the action would make the case moot and prevent the district from paying legal fees.

"It's not as simple as let's dismiss the case and walk away with paying $1," said Thompson, who spoke with Napierskie prior to his motion. "By merely dismissing the case, even if that were agreed upon, would not eliminate the plaintiffs' ability to ask for reasonable attorney fees."

Their own attorneys said that Napierskie's proposal would not have gotten them out of paying legal fees. So has every single legal scholar who has commented on the plan. In fact, the only person in the article who says the plan might have worked to reduce the legal fees is from a theology school:

Kevin Alan Lewis, assistant professor of theology and law at the Talbot School of Theology, Biola University in California, said the defense could file a motion to dismiss on the basis that there is no controversy because the new board doesn't favor the curriculum.

And he is 100% wrong. Case law is very clear on this. I'll cite some for you. The 1982 case of CITY OF MESQUITE v. ALADDIN'S CASTLE, where plaintiffs had challenged a law as being unconstitutionally vague. In the middle of the court process, while the case was pending appeal, the city changed the law and filed a motion to dismiss - exactly what Napierskie proposed be done here. The Supreme Court ruled:

The fact that the phrase "connections with criminal elements" was eliminated from the ordinance while the case was pending in the Court of Appeals does not render the case moot. A defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Here, appellant's repeal of the objectionable language would not preclude it from reenacting the same provision if the District Court's judgment were vacated.

This is binding precedent. Judge Jones had no choice but to follow that precedent and issue the ruling despite the voluntary cessation of the policy being challenged. When he said before the Dec. 5th school board meeting took place that the case had to go on regardless of what they did there, he wasn't engaging in a "conspiracy", no matter what this guy thinks he smells, he was following the law.

(3) New board members have blamed the former board members for the expense of the lawsuit but to my knowledge have not condemned the assignment of an excessive number of plaintiffs' attorneys, 9-10, which drove up the attorney fee award. At least five plaintiffs' attorneys were in the courtroom on each day of the 6-week trial (-- from http://www.philly.com/mld/inquirer/13928874.htm ). Those 9-10 attorneys were not mostly just names on a distribution list.

New board members have blamed the old board for the expense for good reason. They ignored the legal advice of their own counsel and the legal advice of the Discovery Institute, both of whom told them that they were going to lose in court and have to pay legal fees. By any sane criteria, that is precisely where the blame belongs. As for the number of attorneys involved for the plaintiffs, he's right when he says that they weren't just names on a distribution list.

Pepper Hamilton had 5 attorneys assigned to the case, 3 of them partners, plus attorneys from the ACLU and Americans United, and they all worked their butt off. That's why they so clearly kicked the tails of the Thomas More Law Center, which had at least 3 attorneys on the case full time. But there's another side to that. By committing so many resources to the case, Pepper Hamilton was taking a huge risk - lose the case and they get nothing after racking up huge expenses. Win the case, and they still likely get less than half of those expenses reimbursed.

Every hour that one of their attorneys worked on that case was one hour they could have spent billing in a case that wasn't pro bono. The total expenses were over $2.5 million, but they ended up getting $1 million, or 40% of the total, so they still end up taking a big loss on the case. That's okay, big firms budget for such cases, so there's no need to feel sorry for them. But there's also no need to criticize them for putting on the best case they could and taking the risk of devoting all that expense to it and getting nothing in return at all.

(4) Some new board members said that they did not want to do anything about the ID policy until after the release of the Dover decision ( --from http://www.ydr.com/doverbiology/ci_3223198 ). This wait-and-see policy could be justified only if (i) the new board members believed that the defendants had some chance of winning the case and (ii) the new board members would have been willing to defend the ID policy in an appeal, something that would have been completely contrary to their campaign promises to repeal the ID policy.

But as has already been established ad nauseum, nothing the board did could possibly have changed the outcome of the case. The judge was going to rule no matter what the board did at the Dec. 5th meeting because that's what the law requires him to do. That is the single key and overwhelming fact at the core of this argument and these guys just continue to stick their fingers in their ears and yell LA LA LA LA LA when it's brought up.

(5) After the board voted to approve the $1 million settlement, the new board president said of Pepper Hamilton, which together with the ACLU and the AU represented the plaintiffs, "I think that Pepper Hamilton was very gracious." -- from http://www.yorkdispatch.com/features/idesign/ci_... Of course, since the settlement had already been approved, there was no longer any need for her to say anything nice about the plaintiffs' legal representatives, who alone were to blame for driving up the legal costs by assigning an excessive number of attorneys.

The new board president was right, they were very gracious. They settled the legal bill for less than 40% of the real expense incurred. The fact that she didn't have to say that is irrelevant. If it's true, or if she believes it to be true, what's wrong with saying it?

(6) By not taking any action at the Dec. 5 meeting, the new board was risking not just the $1 million of the final settlement, but was risking the $2+ million that the plaintiffs initially asked for.

There ya go, Larry. Just keep on pretending that the board could have changed the outcome of the case despite all the case law and the opinion of every lawyer attached to the case and every legal scholar in the nation. Don't let those pesky little facts get in the way of a perfectly good delusion.

The new board will never be able to prove that it was not in cahoots with the plaintiffs and the plaintiffs' attorneys.

The new board doesn't have to prove that there was no collusion - you have to prove that there was. And so far, you're making quite a fool of yourself in the attempt.