Will the Elections Moot the Dover Case?


I have been trying all morning to find an answer to the question of whether last night’s elections, by changing the school board and, perhaps, the policy of that board, will make the Kitzmiller case moot or not. The answer does not appear to be as simple as one might think at first. After consulting with several prominent legal scholars, I have posted my understanding of this issue in all its various aspects at Dispatches from the Culture Wars. Any legal types who have anything to add, or corrections to make of my understanding of it, please comment there.


Don’t be disappointed. My greatest fear was that we would win the court case, but lose the election. In the long run this is a contest for the confidence of American voters. If that confidence is lost, no courts will protect science for long.

CNN reports the following:

A spokesman for the winning slate of candidates has said they wouldn’t act hastily and would consider the outcome of the court case.

Smart move.

But now I’m worried about Kansas because there will probably be no appeal and therefore no precident. A court test of intelligent design will then arise again somewhere. The financial disencentive from this case will no doubt discourage many other school districts from trying the same thing Dover did. But TMLC is well-funded and surely they will now attempt another big show trial, probably in Kansas. And then the DI and TMLC might be able to morph their message yet again and craft an improved legal strategy based on their experience in the Dover trial. If they prevail they could set a precident in favor of intelligent design. That would be disaster for science in America. (Or am I just being paranoid about this possibility happening?)

Word I hear is that if the newly elected Dover Board drops the ID policy before the judge rules, then the ACLU will ask the judge for a court order permanently banning the Dover District from ever implementing the policy again. So a ruling will come, one way or another.

As for Kansas – their, uh, “case” is basically the same as that made by all the “disclaimer stickers” that were so popular with the IDers a little while ago. Ya know, “evolution is just a theory”, “evolution has gaps”, “critically examine these problems with evolution”, “teach the controversy”. That argument lost, badly, in Cobb County. Given the fact that the case against the Kansas Board is even stronger (due to the inability of certain board members their to shut their Bibles and/or their mouths), I see zero chance of the Kansas standards surviving any court challenge. That would give the IDers crushing losses in Cobb County, Dover and Kansas – from three different district courts. That would pretty much seal their fate. It would also make it EXTREMELY unlikely that the Supreme COurt will agree to hear any case — they tend not to involve themselves in cases where a clear consistent decision has already been made by more than one district court or court of appeals.

And then the DI and TMLC might be able to morph their message yet again and craft an improved legal strategy based on their experience in the Dover trial.

Too late. Everything presented in the Dover trial is now a matter of legal record, under oath – the whole story of how “creationism” became edited to “intelligent design” being probably the most damaging (even MORE damaging if Dembski himself takes the stand and is questioned about his OWN ties to FTE and “Pandas”). If the IDers try to change or alter any of it, the judge will have some VERY pointed questions for them regarding their previous statements under oath.

If the Kansas Kooks are smart, they’ll recognize that ID is a lost cause, and give it up. If they’re NOT smart, then they will meet the same fate as the Dover Dolts did.

The election will not moot anything.

1) The judge will probably rule before the new board can legally change the rules. The new board does not take office until December and they must legally take at least a month to change the policy.

2) As other have pointed out the plaintiffs would still want a court order: hey they had a long fight to get a ruling for their side and they simply are not going to give up the legal victory. Testimony has been taken, the case will go forward and in the words of one of the lawyers, “Voluntary cessation of an illegal activity in response to a lawsuit does not moot the case.”

See this pre-election analysis of this issue.

In the end, it looks like the best possible results: 1) IDists get tossed out office and thus make a nice example for other politicians. 2) Our side gets a legal victory. 3) And we get a PR victory as well.

'Rev Dr' Lenny Flank Wrote:

If the Kansas Kooks are smart, they’ll recognize that ID is a lost cause, and give it up. If they’re NOT smart, then they will meet the same fate as the Dover Dolts did.

Actually, if the Kansas board is true to form (not smart), there’s a very bizarre possibility: the case ends up in federal district court as a case of copyright infringement. Recall that the NAS and NSTA have denied permission for use of their materials. I don’t see the Kansas board being smart about the copyright issue; they failed to learn their lesson from 1999, when those two organizations similarly withheld permission. This time around, those two organizations are more on the ball, taking a more pro-active stand, but the Kansas board adopted the standards anyway.

I’m sorry, but the Kansas State BoE has a stupid majority running it. Apparently, they’re so blinded by their ideology that they can’t think straight.

Thank you, ‘Rev Dr’ Flank, for easing my mind a little.

Since the school district could return to the offending activity at any time, the case is not moot merely on the basis of voluntary cessation. Only if the offending conduct could not “reasonably be expected to recur” would mootness be found. The school district is an entity unto itself as opposed to a temporal collection of these or those individuals, and it is well within the range of probability that a newly elected board elected next year or the year after could seek to commit the same offending activity.

It doesn’t fit under the ‘capable or repetition yet evading review’ doctrine because it isn’t inherently limited in duration to escape review, like abortion, for instance.

There is an interesting question of whether the school district could appeal should they lose. My guess would be no.

As a general rule, we can look to corporations law, where a shareholder who ceases to be a shareholder loses standing to participate in a derivative suit. I can’t find any cases directly on point to this scenario (old school board (or even old corporate board) sought to retain standing to appeal after its ouster), although I’ll bet there must be some.

If we presume that the plaintiffs win at trial, the newly elected board members will have no motivation to appeal on behalf of the school board, as appeals are expensive; and they explicitly disagree with the old school board’s position that led to this litigation - indeed, it’s the likely reason they were elected.

But there are other considerations at play here - Thomas More will certainly want to appeal; the old board members will want to appeal; the community at large (on both sides) may want it appealed for separate reasons; the losers want to overturn a win, and the winners want to see the holding crystallized into precedent binding on the entire Circuit. But those reasons may venture beyond the purpose of the judiciary, which is merely to decide “cases and controversies.” And a trial court ruling would effectively negate that.

I’m probably missing something here, but it’s an unusual situation. In corporate law disputes, where litigation combined with board election changes is most common, it would seem odd that the originally-sued and now-ousted board would wish to retain any standing interest to appeal, which is maybe why lexis is drawing a blank for me.

My instinct, however, is that it will be difficult for Thomas More to appeal, for lack of an interested client. But I’d not put it past them to try. I’d expect it even.

The case is still at issue so long as the new board does not change the policy before the Judge rules.

If the Judge rules against the school board they can accept the ruling, change the policy, and not appeal. I assume the new board would prefer that outcome.

If the ruling is against the parents, the new board can still change the policy giving the parents a victory in spite of the ruling, but a partial victory it would be because still a defeat for the unfettered teaching of science without badgering from religious zealots.

Even if the new board changed the policy before the Judge rules, I think he can still issue a ruling if he wants to. Federal Judges can do anything that they want to do. But he could also just issue a ruling that isn’t a ruling on the merits because the case is now moot. It might depend upon whether he had the ruling ready to go at the time they changed the policy. If he hadn’t done the work yet, it might just be easier to go fishing.

If the new board changes the policy it might be said that this presents a clear demonstration of the people resolving a public policy dispute through the democratic process and that courts should defer to that process and not get invovled. At lease not in the absence of a clear constitutional question.

.. seems like at least one member of the old board is desperately trying to get the others to roll over to ‘moot’ the case and avoid the plaintiff’s costs - doesn’t show a lot of confidence that they might win their case .. see End to Dover suit sought and Backing out possible, not simple from the YDP

YDR Wrote:

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

Oh yay, this makes sense. Next move for Mr Napierskie will be him sticking his fingers in his ears and yelling at the top of his voice “LA LA LA Not Listening! I Can’t Hear You! LA LA LA” over and over when the decision is read.

The outgoing board knew, or should have known, with all the “legal advice” they received over the last year and a half, that there would be consequences for trying to put religion in the science classroom. Now they know they are going to loose and loose bad they want to try to quit the game and pretend it never happened. I’m sure the DI would be all for that to. Dover School District may loose a bit of money but DI is bound to have much more money poured down the drain when the decision is read.

Now they know they are going to loose and loose bad they want to try to quit the game and pretend it never happened


followed by… can you guess it?

claiming victim status.

they’ll simply end up spining this as being “victimized” by the legal system.

doesn’t every dishonest criminal claim they were railroaded by the justice system?

About this Entry

This page contains a single entry by Ed Brayton published on November 9, 2005 1:19 PM.

A clean sweep in Dover was the previous entry in this blog.

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