Further Thoughts on West’s Attack on Judge Jones

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John West as a post criticizing Judge Jones' Kitzmiller decision for being "activist." I've already explained why his arguments are baseless, and so has Pim van Meurs. But I do have a few more comments.

First, West complains that Jones went "far[ther] [than] necessary" in his decision, which he says is proof of "activism." It's true that courts avoid unnecessary questions when possible, and when they make decisions on matters that are not logically necessary to the outcome of the case, those decisions are "dicta," and are therefore not controlling. Best Life Assurance Co. v.Comm'r, 281 F.3d 828, 834 (9th Cir. 2002). Courts will avoid big questions--such as constitutional issues--if they can decide the case on a narrower issue instead. But Jones' discussion in Kitzmiller of whether ID is science is not dicta.

Of course, as van Meurs points out, the school board and their amici argued that ID is science, and therefore that it did not violate the Establishment Clause. They contended that "[s]ecular purposes for teaching about the theory of intelligent design include informing scholars about competing scientific theories of biological origins, helping students to better understand the contrasting theory of neo-Darwinism...and enhancing critical thinking skills." Brief Amicus Curiae of Discovery Institute at 6. The Institute characterized the Plaintiffs' argument as "false[ly] assert[ing] that the theory of intelligent design necessarily has the primary effect of advancing religion." Id. It was legitimate for Judge Jones to address this theory, and to reject it because ID is not science, and therefore cannot serve these asserted secular purposes.

Also, it is at least arguable that, even under the Lemon test, it is not unconstitutional for a government actor to adopt a perfectly secular act for religious reasons. For example, if the government were to build and erect a fire department, but did so on the grounds that God commanded them to do it, this would arguably not constitute an establishment of religion. I'm not saying one way or the other--the point is that the issue is a contentious one. It was therefore proper for the judge to address it.

Next, West complains about Judge Jones' statement that " no other tribunal in the United States is in a better position than are we to traipse into this controversial area." West is describes this as revealing "delusions of grandeur" because Jones is "speaking as if he is more powerful than a majority on the United States Supreme Court! He is staking out the claim to have the right and duty to decide the question of whether inteligent [sic] design is science for all other judges in the entire United States in the future." Of course, this absolutely misrepresents what Jones clearly means in this passage. Jones is saying nothing more than the obvious fact that a trial court judge is in the best position to assess the facts of a case. No competent lawyer disputes this standard principle of our legal system. While a higher court may certainly be equally competent to discuss whether or not, say, the Lemon test is the appropriate legal standard, no other court--especially after such extensive testimony from some of the leading figures on this subject--is in a better position to address whether or not Intelligent Design is religion or science. That is a factual determination, and Judge Jones is in the best position to discuss such a matter. It is one of the fundamental roles of the judiciary to write opinions like this, and thereby aid future courts that may have to consider similar cases in the future. Jones has never suggested that future litigants have no opportunity to present their evidence, or that his ruling must control other courts. It is intellectually dishonest to read this paragraph as suggesting that Judge Jones imagines himself as "speak[ing] for the entire federal judiciary."

West goes on to complain that Jones "use[d] judicial power to decide [a] divisive cultural controvers[y]." Of course, Jones did not decide a divisive cultural controversy. He decided that the school board violated the Establishment Clause by teaching religion in government-run classrooms. His ruling did not discuss whether religious accounts of the origin of species are true or not; his ruling simply said that they are not science. Nor does he bear any responsibility for the "divisive[ness]." That blame rests squarely on those who wish to teach religion in government classrooms under the guise of science.

Judge Jones, according to West, "wanted to decide the larger public controversy for all future legislators, school boards, and judges. That is judicial activism with a vengeance. It's the same type of activism that led the federal courts to try to decide the issue of slavery before the Civil War by judicial fiat in the case of Dred Scott." This is a reference to Robert Bork's theory of substantive due process--which, as I've explained, is really an argument against judicial review. And, as I've explained elsewhere, it betrays a profound ignorance of what the Dred Scott decision actually said.

Finally, West concludes by claiming that so-called "judicial activism" "betrays the democratic process and often leads to further polarization." But, of course, the whole purpose of the courts is to limit the "democratic process." The Bill of Rights limits the democratic process by saying that that process may not (among other things) deprive people of their freedom of religion, or speech, or press. When the legislature deprives an unpopular minority of these rights, and a court intervenes to protect these rights, that is certainly a limit on the "democratic process." But that is why we have courts. West's argument here is against the concept of judicial review itself. He prefers absolute, unlimited democracy which "giv[es] everyone a stake in the discussion." But a proper, legitimate democratic system contains limitations that protect the rights of the minority--limits enforced by an independent judiciary which, among other things, stands in the way of "democracy" when it tries to violate the Establishment Clause.

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Some good commentary on the Kitzmiller decision. John West as a post criticizing Judge Jones%u2019 Kitzmiller decision for being %u201Cactivist.%u201D I%u2019ve already explained why his arguments are baseless, and so has Pim van Meurs. But I do hav... Read More

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West’s argument here is against the concept of judicial review itself. He prefers absolute, unlimited democracy which “giv[es] everyone a stake in the discussion.”

the big problem with that is when some participating in said egalitarian discussion are misrepresenting themselves and their ideas, and out-and-out lieing.

or did West conveniently forget that part?

West’s argument here is against the concept of judicial review itself. He prefers absolute, unlimited democracy which “giv[es] everyone a stake in the discussion.”

If anything is clear, it’s that the DI and the creationists in general are interested in results, and are NOT interested in process. West isn’t arguing against judicial review, he’s protesting a decision he sees as denying his religious convictions. Nor does West prefer “absolute unlimited democracy”, UNLESS it forwards his religious goals, and ONLY if it does so.

Tim Sandefur takes it for granted that if due process is not followed, then results are potentially unpredictable and capricious. But this position implies “we don’t know what the proper ruling should be in cases that have yet to arise, so the best we can do is follow well-established procedures because these produce the best results.” Kind of like science not knowing how something works, but trusting the scientific method to produce the best approximation we know how.

But remember, West is a creationist. Just as with science, he already knows the answers and the evidence either ratifies them or must be fooling us somehow, he already knows that anything that leads to the use of civil authority to enforce (his) religiious doctrine is proper. In other words, creationists have the legal as well as the scientific answers already, in advance. West does not (and probably CAN not) evaluate this decision according to how well it follows facts, or proper legal procedure, or indeed anything OTHER than whether it forwards his religious purposes. The “right” legal, social, and scientific answers are the only yardstick of quality and righteousness possible.

If Judge Jones had closed his eyes, spun around three times, sacrificed a pig, flipped a coin and ultimately decided for the defense, West would be applauding Jones’ legal acumen, his neutrality, and anything else West could find to praise. Only results matter. Any process that produces wrong results MUST have been wrong. West’s job is only to dig into the decision to find out where Jones went astray. We know he DID go astray because he decided for the bad guys.

ha! funny we both picked the exact same quote to focus on.

cheers

Thanks Tim, your legal expertise is extremely helpful. You argue much more forcefully that which I, as a novice feels is wrong with West’s claims. I am merely arguing from a personal understanding of the legal issues. Even then I found West’s comments to be poorly argued, and showed a certain level of unfamiliarity with what the judge actually said and how he was following 3rd circuit common practices. Anyone with access to the Judge’s ruling could read and understand what he said.

I guess activist now refers to courts follow standard judicial practices.

That Judge Jones’ decision to address whether ID is science may very well have been inspired by the Discovery Institute’s Amicus brief may come as a cold shower to the Discovery Institute. Ironically, it may very well have been the Amicus brief filed by the Discovery Institute which led the Judge to provide a full analysis why Intelligent Design fails being science. Judge Jones has presented a very thorough analysis of the situation and covered all the bases.

All this could have been easily avoided if the defendants could have shown that ID had some (non trivial) scientific value. As Judge Jones so clearly showed, it has few redeeming qualities in this area. And that’s why the DI is scared as it may affect how school boards around the country are going to approach these issues. I have argued elsewhere that the cost of misleading people to believe that there is positive scientific evidence for design is not limited to just theology but also to real life situations where people, based on flawed information, insist on implementing something which cannot pass legal muster.

the latest post on this issue on DI’s site contains the following:

Ohio’s “Critical Analysis of Evolution” model lesson plan was created to implement a benchmark in the Ohio state science standards which requires students to be able to “describe how scientists continue to investigate and critically analyze aspects of evolutionary theory.” The standards also clearly state that they do not endorse teaching intelligent design.

now if they could just stick to the words of what they spout here, and actually teach scientific alternatives to MET, nobody would have a problem.

but they won’t. and they don’t want to.

My question is: Is this as far as they can push the envelope of deceit? Is there some level beyond this that anybody can envision?

Flint

West isn’t arguing against judicial review, he’s protesting a decision he sees as denying his religious convictions

Well, he’s doing both but surely he’s most offended by the latter (though he doesn’t come right out and say it like an honest person might).

I addressed this point here

http://www.pandasthumb.org/archives[…]omment-64599

and the same question comes to mind: will these NeoChristians eventually merge their religion completely with politics? If the intend to do this, then surely the time is now when the ability of our nation’s journalists to debunk and defame charlatans and habitual liars is at a historical low.

For the hardcore NeoChristian, there is but one “True Christian” position for any policy issue and, most disturbingly, that position tends to gravitate towards the platform of the Texas Republican Party.

At the end of the day, this is just wholesale abuse of the idea of “religious freedom.” Where that phrase once meant that you won’t be forced to practice a religion imposed on you from elsewhere, it now means that anytime anyone disagrees with a NeoChristian about anything, it’s an “attack” on their “religious belief.”

And that’s a lie. It’s the Big Lie. It’s the kind of lie that immunizes the liar in our society from serious examination because of our current society’s norms when it comes to allegedly Christian religious beliefs.

In my opinion, this situation has to change or this country is going to rapidly swirl down the toilet.

In theory, this blog could help to facilitate that change but it won’t be a comfortable ride.

Ohio’s “Critical Analysis of Evolution” model lesson plan was created to implement a benchmark in the Ohio state science standards which requires students to be able to “describe how scientists continue to investigate and critically analyze aspects of evolutionary theory.” The standards also clearly state that they do not endorse teaching intelligent design.

As usual, the DI is BSing us.

The “intelligent design” movement got its first legal test in June 2001, when the Senate was debating the Elementary and Secondary Education Act Authorization Bill (later renamed the “No Child Left Behind” Act). During the debate, Pennsylvania Senator Rick Santorum introduced an amendment that had been partially written by Discovery Institute lawyer Phillip Johnson (and based on a law journal article written by Discovery Institute activist David DeWolf). The Santorum Amendment, introduced as a “sense of the Senate” resolution, read:

“It is the sense of the Senate that (1) good science education should prepare students to distinguish the data or testable theories of science from philosophical or religious claims that are made in the name of science; and (2) where biological evolution is taught, the curriculum should help students to understand why the subject generates so much continuing controversy, and should prepare the students to be informed participants in public discussions regarding the subject.”

Because the House version of the No Child Left Behind Act did not include any corresponding version of the Santorum Amendment, a House/Senate Conference Committee was required to reach agreement on a joint bill to be agreed upon by boht chambers of Congress. After a flood of letters and testimony from prominent science and education groups pointed out that the Santorum amendment was nothing but a thinly veiled excuse for teaching “intelligent design theory” in classrooms, the conference committee dropped the amendment, noting, in their Conference Report, “The conferees recognize that a quality science education should prepare students to distinguish the data and testable theories of science from religious or philosophical claims that are made in the name of science. Where topics are taught that may generate controversy (such as biological evolution), the curriculum should help students to understand the full range of scientific views that exist, why such topics may generate controversy, and how scientific discoveries can profoundly affect society.” When the final version of the No Child Left Behind bill was passed by both the House and the Senate, it did not contain any portion of the Santorum Amendment.

Creationists/IDers and their supporters have, however, attempted to claim that the No Child Left Behind bill not only permits but actually requires schools to teach “intelligent design theory”. Santorum himself, for instance, wrote in March 2002, “At the beginning of the year, President Bush signed into law the “No Child Left Behind” bill. The new law includes a science education provision where Congress states that “where topics are taught that may generate controversy (such as biological evolution), the curriculum should help students to understand the full range of scientific views that exist. If the Education Board of Ohio does not include intelligent design in the new teaching standards, many students will be denied a first-rate science education.” (Washington Times, March 14, 2002, cited in “ID-Activists-Guide”, NCSE website). Two Ohio Congressmen also claimed, “The Santorum language is now part of the law”. (Washington Times, March 20, 2002, cited in “ID-Activists-Guide”). Neither of these claims, of course, are true — the Santorum language was dropped from the bill in committee, and the only time it is mentioned is in the accompanying Conference Report, which is not a part of the bill and has no legal force or authority.

The topic of the Santorum Amendment was brought up in Ohio as the result of another legal effort by the Discovery Institute to force “intelligent design theory” into school classrooms. In early 2002, the state of Ohio was carrying out a review of its statewide science curriculum, when chemist Robert Lattimer objected to the prominence of evolution in the science standards, and lobbied for inclusion of “intelligent design theory” as a “scientific alternative” to evolution. The effort attracted the attention of the Discovery Institute, which unleashed all its lobbying abilitites in an effort to push ID “theory” into the Ohio science standards. Friendly legislators introduced a bill into the state House of Representatives which would “require that whenever an explanation for the origins of life and its diversity is included in the instructional program of a school district or educational service center the instructional program shall encourage the presentation of scientific evidence objectively and disclose the historical nature of origins of life science and any material assumptions on which the explanation is based.”

The bill read:

“Sec. 3313.6013. It is the intent of the general assembly that to enhance the effectiveness of science education and to promote academic freedom and the neutrality of state government with respect to teachings that touch religious and nonreligious beliefs, it is necessary and desirable that “origins science,” which seeks to explain the origins of life and its diversity, be conducted and taught objectively and without religious, naturalistic, or philosophic bias or assumption. To further this intent, the instructional program provided by any school district or educational service center shall do all of the following:

(A) Encourage the presentation of scientific evidence regarding the origins of life and its diversity objectively and without religious, naturalistic, or philosophic bias or assumption;

(B) Require that whenever explanations regarding the origins of life are presented, appropriate explanation and disclosure shall be provided regarding the historical nature of origins science and the use of any material assumption which may have provided a basis for the explanation being presented;

(C) Encourage the development of curriculum that will help students think critically, understand the full range of scientific views that exist regarding the origins of life, and understand why origins science may generate controversy.” (Ohio House Bill 481)

The Discovery Institute brought out all its big guns in Ohio, including such luminaries as Johnson and Dembski, but in the end, the legislative bills all failed. Not only did the Ohio board not include “intelligent design theory” in its standards, but it specifically excluded it by name. Although students under the new science standards should be able to “describe how scientists continue to investigate and critically analyze aspects of evolutionary theory”, the board noted, “The intent of this indicator does not mandate the teaching or testing of Intelligent Design.” (Ohio Board of Education, December 10, 2002)

“Intelligent design” advocates, however, seized on the words “critically analyze aspects of evolutionary theory”, and immediately re-introduced “intelligent design theory” through the back door, using a new strategy that has become known as “teach the controversy”. Now, instead of attempting to push “intelligent design theory” into schools, the Discovery Institute and its supporters have been forced to retreat to the much weaker notion of teaching the alleged “scientific problems” with evolution instead. The new strategy drops any mention of “intellgient design”, and instead attempts to argue that somehow, somewhere, something must be wrong with evolution.

As part of the new strategy, members of the Ohio Board of Education proposed a “model lesson plan” that was largely written by Discovery Institute members and supporters, entitled “Critical Analysis of Evolution”. The model lesson pointed out the same supposed “scientific problems with evolution” that the Discovery Institute had been preaching for years. Included in the model lesson plan were “goals” such as:

“Describe one piece of evidence used to challenge evolution and explain why it is important.

Compare and contrast the supporting and challenging information regarding the aspect of evolution you studied.

Evaluate the scientific data supporting and challenging areas of evolution in light of the scientific method. In other words, is the data that is used to support or challenge evolution consistent or inconsistent with the scientific method? Are there any limitations? (NOTE: steps of scientific method: Observation, hypothesis, test, retest and conclusion)”

The model lesson plan included links to several Internet websites from the Discovery Institute and other supporters of intelligent design “theory”. These websites were later dropped after heavy criticism. Also dropped was a direct reference to the anti-evolution book “Icons of Evolution”, written by Discovery Institute member Jonathan Wells.

In March 2003, the Board passed a modified version of the lesson plan which, while erasing all of the references to intelligent design “theory”, nevertheless accepted most of the Discovery Institute’s “teach the controversy” strategy and included many of the supposed “scientific criticisms of evolution” that have been trotted out for years by the Discovery Institute and other creationists. Several court challenges are already pending to the Ohio lesson plan.

Of course West will lash out. He’s angry and upset, and probably frequently breaks out in tears these days.

Several DI guys went to Harvard, and they successfully founded a multi-million dollar institute. You just know at some point these guys felt on top of the world, unstoppable. The future was theirs. But this week an impartial judge called their activities pathetic, their hidden agenda obvious to even a child. The PR train has come to a halt. Everyone can see that their life’s work is a failure. Even some conservative politicians like Santorum now cross the street to avoid eye contact. In their Seattle building they sit, filled with shame and lonliness and no idea how to recover. It is hard for others to understand how ashamed they are of themselves, how completely they have been humiliated in public. Their ‘darwinist’ opponents have built careers and reputations which earn respect and invitations to international conferences, while they have nothing to show for their lives but some semi-literate fans and the occasional royalty check. They are middle-aged failures, and people talk behind their backs, people know they are liars. They write opinion pieces about how healthy they are, how ineffective Judge Jones’s ruling is, but no one believes them, not even themselves. When they walk through the halls and see colleagues they don’t see a winning team anymore, they see losers looking at their shoes as they pass, and they wonder if they should just get in their car and drive away from this building, which now reeks of dishonor and inadequacy.

West said:

Judge Jones, according to West, “wanted to decide the larger public controversy for all future legislators, school boards, and judges. That is judicial activism with a vengeance.

Judge Jones was careful to note jurisdiction for the Middle District of Pennsylvania, and the order applies only to the Dover school board. West either cannot read, did not read and is relying on misinformation, or is being an activist misinformation specialist himself.

But I digress. “Activism with a vengeance?” Jones stayed in his court in Pennsylvania. Contrast this with West, whose minions have visited state boards in Ohio, Texas, Kansas, Pennsylvania, Minnesota and Florida (and probably a lot more), and played an activist role in that they brag about in federal legislation and legislation and school board policy in Missouri, Minnesota, Kansas, Texas, Pennsylvania, Montana, Tennessee, Florida, South Carolina, and we’re probably just scratching the surface. Indeed, it may be said that West’s group has been more activist in this issue than either national political party. Someone closely watching may wonder whether Discovery Institute shouldn’t be a 501(c)(4) group, to legitimize their lobbying.

West’s group was wrong, Judge Jones noted that fact, and now they are running and howling like a (righteously) scalded dog. Should we be surprised?

Fom the text: “West goes on to complain that Jones “use[d] judicial power to decide [a] divisive cultural controvers[y].” “

I thought this was a scientific controversy.

Addenda to Lenny’s excellent summary of the situation in Ohio,

The principal author of Ohio’s “Critical Analysis of Evolution” lesson plan was Bryan Leonard. It was based on material he had been teaching in his suburban Columbus school and which he used as the basis of his testimony before the Kansas Board of Education in May.

Americans United submitted a public records request to the Ohio Department of Education and received documents related to this lesson plan. An announcement from AU and Ohio Citizens for Science is on the OCS website. (It’s currently the second item, just below the announcement of the Cleveland Debate.) In there you’ll read

At that time, some members of the board and supporters of ID insisted there is nothing in the lesson about intelligent design.

But documents released by the Ohio Department of Education reveal that staff scientists and outside reviewers alike regarded the lesson as embodying intelligent-design creationism without labeling it as such. Even pro-creationist reviewers of the lesson thought it contained ID. One urged the department to add yet more information about intelligent design.

During the lesson plan production process, state Department of Education staffers went so far as to comment that one aspect of the lesson was a lie. Other notes made clear that material presented was wrong, off-topic and an oversimplification. Outside reviewers of the lesson agreed. One noted the lesson linked to websites including ones that were ID thinly veiled and obviously ID, and a slick ID site.

Lenny: What court challenges are pending in Ohio? I’m not aware of any.

Lenny Flank, a legislative quibble:

Santorum’s amendment to the No Child Left Behind Act was not introduced as a Sense of the Senate resolution. He wanted it to be part of the law. The chief sponsor of the NCLB, however, was so unhappy with the amendment that he first asked Santorum to not offer it, and when Santorum claimed to have the votes to pass it (probably true), the bill’s sponsor said he’d take down the entire bill. Sen. Ted Kennedy was the chief sponsor, and he understood the Trojan Horse Santorum was trying to push through the gates.

Other senators listened to Kennedy, and Santorum was convinced to offer the amendment, changed into a sense of the Senate resolution, with a colloquy scripted between him and Kennedy. Sense of the Senate resolutions are absolutely non-binding, and that effectively removed it from the NCLB bill – as such a resolution, it was not even printed up in the bill passed by the Senate. No one on the House side offered any corroborating amendment. The conference report on the bill notes that the resolution existed on the Senate side.

My recollection of the Ohio affairs is that at one point Discovery Institute operatives testified to the state board of education that NCLB requires intelligent design in biology. The ever-prepared Kenneth Miller protested, however, and was able to bring up on his laptop, for projection to the Ohio board, the text of the NCLB from the Library of Congress’ Thomas website; a search of the text revealed that there was no such language in the law. (Maybe someone has news reports of that?) Scalded, the Discovery Institute began a scurrilous campaign claiming that conference reports have the force of law, an issue that federal courts have rejected in minor arguments before.

Sen. Kennedy has noted before that the Bush administration broke several promises to him on NCLB, including the promise to provide adequate funding so that the bill doesn’t require the sapping of financial resources to schools (the testing burden alone has required cutbacks in instruction and numbers of teachers in several states, and even ultra-conservative Utah has refused to play under the NCLB rules). Kennedy’s office has been most adamant that the Santorum Amendment has never been law. Santorum claimed to understand that when he asked Kennedy for the colloquy, but he has since claimed otherwise.

The Santorum Amendment is one more in a long string of broken promises made to America’s school children and school systems. But you’re right, it is not law, and it is not binding.

It’s not smart, either. Other nations continue to eclipse our nation’s performance in educating kids in and about science. It is now a serious challenge to our national economic system (see the balance of trade deficit with China, for example). My conversations with medical school recruiters recently indicates that our failure to teach evolution straight up and well is definitely a contributing cause. Foreign students know how the world works better than U.S. students, even in life sciences. Our balance of trade deficits grow because we import their technological achievements now.

(Yes, intelligent design is a threat to our nation’s economy and future.)

Ken Miller has his own description of the debate before the Ohio Board of Education in March 2002. Participants were Miller, Lawrence Krauss, and the DI’s Jonathan Wells & Stephen Meyer.

Here’s what Miller had to say about the “Santorum amendment.”

Finally, and most importantly, Meyer offered a “compromise” on the issue. This was, of course, accompanied by a slide labeled “compromise” showing cartoon people smiling, shaking hands, and slapping one another on the back. Compromises, apparently, make people very happy. The compromise was that his side was willing to drop its insistence that ID be placed in the State standards — if, of course, the standards made it clear that individual teachers should be free to teach the scientific controversy about Darwinism. This, he said, would help Ohio to open the minds of its students, and would meet the high standards for evolution education mandated by the “Santorum language” in the new education law, the No Child Left Behind Act. My jaw dropped as he concluded with this statement, but more on that later.

Later:

The question period, in which each speaker was given one or two minutes to respond to each question, provided opportunity for us to reiterate and amplify our points. One particularly telling moment came when a questioner asked about the “Santorum” language in the No Child Left Behind Act, which supposedly requires the teaching of alternate scientific theories. Meyer enthusiastically agreed that it did, and urged Ohio to follow the “law”. I stepped to my computer, asked for its screen to be projected in front of the audience, and then explained that I had a copy of the law on my laptop and would execute a search for the word “evolution,” which supposedly is in the language of the bill. As the audience buzzed (and a few of its members chuckled), the search came up empty. Why? “Because,” I informed the audience, “the ID folks have misled you” (I should have been blunt enough to say that they lied). Santorum’s amendment to the Senate’s version of the bill was watered down during the conference committee and then was relegated to its report. The language that Meyer cited is not part of the bill, was not signed into law by the President, and does not have the force of law. The effect on the audience was dramatic. The ID folks had been caught in a lie. How did Wells respond? Incredibly, he simply picked up a copy of the conference report and read the language slowly, apparently on the principle that if a falsehood is repeated often enough, people will begin to believe it. No one was fooled, however, and the ID folks had blundered badly on the most basic issue of all — telling the truth.

No reference to Kennedy’s role in the “Santorum amendment” would be complete without the inclusion of his letter to the editor of the Washington Times in March 2002:

Edward Kennedy Wrote:

The March 14 Commentary piece, “Illiberal education in Ohio schools,” written by my colleague Sen. Rick Santorum, Pennsylvania Republican, erroneously suggested that I support the teaching of “intelligent design” as an alternative to biological evolution. That simply is not true. Rather, I believe that public school science classes should focus on teaching students how to understand and critically analyze genuine scientific theories. Unlike biological evolution, “intelligent design” is not a genuine scientific theory and, therefore, has no place in the curriculum of our nation’s public school science classes.

Despite that the Santorum language in the NCLB committee report has no legal basis, ID groups of course push it as ‘law.’ For example the creationist Oklahomans for Better Science Education (OBSE)(http://www.obse.org/) push the ‘legality’ on their web site and in workshops for teachers they have offered.

[This creationist group should not be confused with our Oklahomans for Excellence in Science Education (OESE) (http://www.biosurvey.ou.edu/oese/). We wonder why they picked a name so close to ours. ‘Excellence’ bests ‘Better’ anytime!]. On their web site the creationist OBSE quotes the full Santorum language and states one of their purposes: “To ensure that Oklahoma school districts and their science teachers are advised of their legal rights, through Constitutional law, that permits teaching competing or divergent scientific theories of origin.”

Unfortunately, teachers attending their workshops receive a certificate that allows local school districts to give professional continuing education professional creit!

We need to do a better job in making clear that the Santorum language has NO basis in law.

Regarding all the stuff about the Santorum Amendment and the Ohio standards —- I presume all of this will be gone over with a very fine-toothed comb if the Kansas Kooks have their “teach the controversy” crap dragged into court.

I, for my part, am VERY VERY interested to see exactly how (and by whom) “teach our alternative theory of ID” mutated into “OK, don’t teach our alternative theory of ID, teach the controversy about evolution instead”.

I think any judge with an IQ above room temperature will see that “teach the controversy” is nothing but the latest in a long string of attempts by creationist/IDers to attack evolution for religious reasons.

And thankfully, the Kansas Kooks were kind enough to provide a pretty good description of their religious reasons, in public, in print.

The Wedge-ites had better hang on to their crying towels. They’ll need them again after Kansas.

Finally, and most importantly, Meyer offered a “compromise” on the issue. This was, of course, accompanied by a slide labeled “compromise” showing cartoon people smiling, shaking hands, and slapping one another on the back. Compromises, apparently, make people very happy. The compromise was that his side was willing to drop its insistence that ID be placed in the State standards — if, of course, the standards made it clear that individual teachers should be free to teach the scientific controversy about Darwinism. This, he said, would help Ohio to open the minds of its students, and would meet the high standards for evolution education mandated by the “Santorum language” in the new education law, the No Child Left Behind Act.

This single statement, all by itself, is enough to kill any chances for “teach the controversy” in Dover. It is, as Meyer is helpful enough to point out, simply an attempt to talk about ID in classes without calling it ID.

I can’t WAIT for the Kansas trial.

Lenny: What court challenges are pending in Ohio? I’m not aware of any.

I thought several were filed in the immediate aftermath? Were they subsequently dropped?

If there aren’t any currently pending, well, who wants to volunteer to START one? I’ve no compunctions against kicking the nutters while they are down. Indeed, as I’ve always said, my organizing strategy has always been to kick them, kick them again, kick them till they’re down, kick them in the head as they lie there, then run over them with a truck just to make sure.

ID is on the ropes. *Now* is the time to go straight for their gonads. I’m tired of allowing THEM to set the agenda and pick the fights.

Lenny wrote

The topic of the Santorum Amendment was brought up in Ohio as the result of another legal effort by the Discovery Institute to force “intelligent design theory” into school classrooms. In early 2002, the state of Ohio was carrying out a review of its statewide science curriculum, when chemist Robert Lattimer objected to the prominence of evolution in the science standards, and lobbied for inclusion of “intelligent design theory” as a “scientific alternative” to evolution. The effort attracted the attention of the Discovery Institute, which unleashed all its lobbying abilitites in an effort to push ID “theory” into the Ohio science standards.

It actually started earlier, with the introduction of a “teach two models” (evolution and ID) motion by Ohio State Board of Education member Deborah Owens-Fink in 2000. That motion was defeated 9-5, but it was the catalyst that ultimately produced the 2002 brouhaha.

Lenny further wrote

“Intelligent design” advocates, however, seized on the words “critically analyze aspects of evolutionary theory”, and immediately re-introduced “intelligent design theory” through the back door, using a new strategy that has become known as “teach the controversy”.

That shift occurred in 2002, at a public forum. Meyer made the switch in the question period. McE above has given more details and an appropriate link.

Ed Darrell wrote

But I digress. “Activism with a vengeance?” Jones stayed in his court in Pennsylvania. Contrast this with West, whose minions have visited state boards in Ohio, Texas, Kansas, Pennsylvania, Minnesota and Florida (and probably a lot more), and played an activist role in that they brag about in federal legislation and legislation and school board policy in Missouri, Minnesota, Kansas, Texas, Pennsylvania, Montana, Tennessee, Florida, South Carolina, and we’re probably just scratching the surface. Indeed, it may be said that West’s group has been more activist in this issue than either national political party. Someone closely watching may wonder whether Discovery Institute shouldn’t be a 501©(4) group, to legitimize their lobbying.

Note in this connection that according to Seth Cooper, formerly of the Discovery Institute, the initial approach was by Cooper to Buckingham, not the reverse.

Finally, Lenny wrote

ID is on the ropes. *Now* is the time to go straight for their gonads. I’m tired of allowing THEM to set the agenda and pick the fights.

Have (just a little) patience, Lenny. Note what McE wrote above about the documents obtained by Americans United. There are thousands of them, and some are real gems. :)

RBH

RBH,

Patience, yes – but let’s be prepared.

For example, I think the next round of textbook hearings should open with a hundred or so public witnesses telling exactly how and where the textbooks need to beef up the teaching of evolution. Just for one quick example, the statement of Science magazine this past week should be included in the box or chapter titled “How Do We Know Evolution Is the Theory?”

We need to beef up the examples in all the books. The Horse evolution charts need to be matched with Eldredge’s work on trilobites, and all the books should specifically mention the 20 or so consensus species in the line leading to modern humans. With photos.

There should be in each of the books a discussion about how hard it is to develop an AIDS or HIV vaccine, because of the mutation rate of the viruses (I heard on researcher say that within three months of serious infection, each victim has a “separate species” of the virus.) The public health implications should be made crystal clear.

And I’d like to see a discussion in each of the texts about the economic effects of applied evolution: New apple varieties, the rise of grapefruit and the industry that has resulted from pink grapefruit, a sport mutation; the development of the Russet Burbank potato that fuels McDonalds empire; the evolution of the American apple maggot, and attempts to control it; Monsanto’s moth evolution tracking laboratory, and why it exists; the war on the cotton boll weevil, now carefully coordinated to avoid pushing the weevil to evolve pesticide resistance before it can be pushed out of North America; work on wheat blights, especially by the universities in Kansas, for Kansas’ big crop; the fight against imported Argentine fire ants, and their evolutionary responses to early efforts to eradicate them; the fight against malaria worldwide; etc., etc.

No textbook should be without a discussion of ring species and their implications for evolution theory.

I’m sure readers here have better examples, and more of them. We should have them cataloged, in advance, and gift them to the publishers now, so they can get the stuff in the books.

Remember the old cartoon of the two buzzards sitting in the tree in the desert? “Patience my a–! I’m gonna go kill something,” one says.

Patience is easier on a full stomach.

I find it amusing that some of the same people who claim that Judge Jones “went too far” are also wont to applaud the tart, extra-judicial commentaries in Justice Scalia’s rulings and dissensions.

ID is on the ropes. *Now* is the time to go straight for their gonads.

Right on Lenny.

And RBH, that’s great that those documents exist. But why isn’t the substance of McE’s comment a front page story on the Panda’s Thumb?

Here’s what I notice reading this thread:

Ken Miller: “search came up empty. Why? “Because,” I informed the audience, “the ID folks have misled you” (I should have been blunt enough to say that they lied).

OCS website: “During the lesson plan production process, state Department of Education staffers went so far as to comment that one aspect of the lesson was a lie.”

And we know what Judge Jones said.

We were handed a can of paint by Judge Jones and the color is “LIAR.”

It’s time to pick up the damn brush already and give the Discovery Insitute and its lying employees a new coat. What are people afraid of???

Don’t fxck it up and let the paint dry.

Every new article on the front page of Panda’s Thumb should include the word “Lie” or “Perjury” or “Falsehoods” or “Distorts.” Every single one.

That’s how you communicate information to people who are NOT capable of grasping subtle inuendo and sarcasm, i.e., the American public.

I like this thinking. Particularly the bit about beefing up evolution education. There should be a thread for this - what things would people like to see in evolutionary textbooks?

My favourite thought at the moment is a computer-based (online?) taxonomic tree of life, with photos of living species and photos of fossils of extinct ones. Obviously doing this in its entirety would be impossible, but starting with the species closest to humans and working outwards would provide a great illustration. You’d be able to include infinitely more detail than could be put into a dead-tree version.

The DI’s reaction to Dover is really very telling. The only way they’ve been able to respond to this catastrophe is by shooting out lies and distortions, and threatening to swiftboat anyone they perceive as getting in their way. As odious as this is, to me it’s a strong hint that they have no Plan B, they that truly have no idea where to go from here. Otherwise I can’t help but think their response would be a tad more coherent and dignified. They put all their eggs in one basket, and this where it got them.

It might take them quite a while to come up with a new strategy other than gutter-level character assassination.

It might take them quite a while to come up with a new strategy other than gutter-level character assassination.

I agree. That’s why now is the time to hammer the living bejeezus out of them.

The public’s mind is as ready now as it will ever be to receive the rest of the story about the disgusting way in which the Discovery Institute and its employees behave.

The DI’s reaction to Dover is really very telling. The only way they’ve been able to respond to this catastrophe is by shooting out lies and distortions, and threatening to swiftboat anyone they perceive as getting in their way.

Genuine, simple, down-to-earth, honesty is the first thing you must sacrifice to be a fundamentalist christian. The DI folks have crossed that line a long time ago.

Don’t forget that there is still a stealth campaign by the intelligent design/creationism (IDC) movement to change the laws at the state and federal levels. They intend to have their way no matter what the scientific community and the courts and say. I have noticed that the Kangaroo Court in Kansas and the Dover trial have been training grounds where these fanatics shed their martyr blood and find ways to hone their stealth tactics. We will probably begin to see more fake posters at scientific conferences, more “teach the controversy” harangues, and more sophistry papers by Meyers, Wells, and others. These people thrive on generating confusion.

I am all for teaching about their controversial tactics in a social science class (it would make a lovely unit on propaganda techniques). The more people know about IDC tactics, the more they might begin to question the motives of IDC promoters

Corkscrew Wrote:

My favourite thought at the moment is a computer-based (online?) taxonomic tree of life, with photos of living species and photos of fossils of extinct ones.

Check out the Tree of Life project … they’re only addressing living species, however.

Don’t forget that there is still a stealth campaign by the intelligent design/creationism (IDC) movement to change the laws at the state and federal levels. They intend to have their way no matter what the scientific community and the courts and say.

Indeed, as fun as it is to laugh at the DI’s discomfiture, let’s not forget that the whole agenda of the IDC people runs via a stealth campaign by a million little local groups. People make the mistake of thinking IDC is coordinated by a single group, and that if you zap that group then the whole effort will be crippled. Wrong. Given their total failure to pass themselves off as scientists and their piss-poor performance in courts, IDC (like the Mafia or Al-Qaeda) now proceeds out of million little independently-acting ‘cells’, usually with not much more than emotional support from the ‘head office’. All the other side needs is some especially aggressive or conniving folks in some obscure school district, and they’ll simply pressure evolution out of the science classes and pressure IDC in. If no one locally is paying attention or if no one local objects, no one outside that neighborhood will even know it’s happening. Before you know it, there’ll be a million podunk school districts teaching junk science. This is what we have to keep in mind in pondering where to go from here.

It’s time that those supporting ID, when they use lies, be shown to be and named as liars or, if in a courtroom under oath, perjurers. These should not be simple words of emotion, but cool descriptions, backed by indisputable proof or the overwhelming preponderance of evidence, of what these people are doing and why they cannot be allowed to influence public education.

People make the mistake of thinking IDC is coordinated by a single group, and that if you zap that group then the whole effort will be crippled.

Who are these people you are referring to? I don’t see anyone here making that allegation.

Please clarify.

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Now that the external loonies are finally entering a retreat

Really? Is that official?

Now that the external loonies are finally entering a retreat, we should start looking at that second problem more closely.

We should have started looking at the problem, uh, 50 years ago. How many generations do you think it will take to create a public education system that creates a population of educated Americans with substantially increased literacy in the English language, science, and history? I’m guessing three or four.

Remember that Americans by and large really couldn’t give a rat’s behind about the state of public education to the extent they are asked to pay for improving it with their tax money.

Do you recall the outcome of the last great “debate” this country had about education? Remember “No Child Left Behind”?

How’s that plan working out?

Well, I think the best response to this is to just follow what Corkscrew said: Beef up science education. The best offense is a good defense; the best way to keep junk science like IDC pushes out of the schools is to try to get good, solid science education taught in and emphasized by the schools instead.

Alas, the US has demonstrated, time and time and time again, that it simply does not care about educating its citizens. (shrug)

In any case, since ID is not about science, science education will not help stop it. ID is fundamentally (pardon the pun) an anti-democratic political movement — and the US has also demonstrated, time and time and time again, that it doesn’t care about democracy, either. The only way that ID will be defeated, once and for all, is for America to *defend democracy*. For REAL. Not just the pious phrases mouthed by politicians as they send troops off and pass laws restricting and criminalizing political dissent.

…and pass laws restricting and criminalizing political dissent

and have the President decide he needs to spy on all of us to keep us in line.

Do you recall the outcome of the last great “debate” this country had about education? Remember “No Child Left Behind”?

Maybe I was just mistaken, but that didn’t really seem at all like what I’d call a “debate”. Debates have more than one side.

And anyway, the “No Child Left Behind” act had little or nothing to do with the quality of education, which is the problem as I’d see it here. At best, “No Child Left Behind” was about consistency of education– the bill attempts to peg all school districts (or all demographically similar school districts, anyway) to the same level of quality of education. The bill makes bears no influence as to what that level is. (This is at best; at worst “No Child Left Behind” is just a change in the kinds of paperwork that state education funding uses.)

Does any lawyer here think that the present Dover school boerd could sue the TMLC for bad representation?

Never work. You think it’s easy representing pill-popping, semi-literate liars?

I’d sooner help edit Salvador Cordova’s Handbook of English Grammar.

As a lawyer, I can see two areas where the school board could potentially sue the TMLC.

1. The lawyer has the absolute obligation to inform the client of all risks of litigation. In this case, one risk is a loss followed by payment of the other side’s attorney’s fees. Did TMLC adequately advise the school board of the risk of loss and the potential exposure to attorney’s fees?

Any reasonable attorney would have told the client that the risk of litigation in this case was substantial. The client should have been told that it had less than a 50% chance of success, and the plaintiff’s attorneys’ fees might be above $1,000,000.

If the client was told this and then decided to go ahead anyway, the lawyer has no liability. If the client was not told this, the lawyer has exposure, in my opinion.

2. There was perjured testimony at trial. It is unethical for an attorney to knowingly offer perjured testimony. As is clear from this case, the result is lethal to your position. If it’s unethical, it’s also malpractice. If the attorneys knew or should have known that their own witnesses would commit perjury, they may be liable.

We don’t know what the attorneys knew about the impending testimony or what their advice to the school board was. Only the board and the lawyers know.

There was perjured testimony at trial. It is unethical for an attorney to knowingly offer perjured testimony. As is clear from this case, the result is lethal to your position. If it’s unethical, it’s also malpractice. If the attorneys knew or should have known that their own witnesses would commit perjury, they may be liable.

We don’t know what the attorneys knew about the impending testimony or what their advice to the school board was. Only the board and the lawyers know.

Although, if the Dover Dolts end up in court on perjury charges, we may get to find out.

And if we do find out that TMLC and/or DI coached the Dolts into perjuring themselves, well, that will make me very very happy.

Well we know that the TMLC solicited more than one school board, so we could ask them what TMLC said.

Kick ‘em in the wallet and they might get the message.

Joe McFaul:

Any reasonable attorney would have told the client that the risk of litigation in this case was substantial. The client should have been told that it had less than a 50% chance of success, and the plaintiff’s attorneys’ fees might be above $1,000,000.

If the client was told this and then decided to go ahead anyway, the lawyer has no liability.

In Jones’ decision, he quoted at some length from an email written by the school district’s legal department or staff lawyer, and sent to the board. This email clearly says that IF they go ahead with inserting ID into science class, they’ll be sued by somebody. That other districts in West Virginia and Maryland have decided against doing so because of this same risk, and that the Supreme Court has clearly decided against those who have tried anything similar.

Jones emphasizes that the school board chose to entirely disregard this advice. So I take it the school district’s legal department is off the hook. But one might think such a message would cause the school board to ask some pointed questions of the TMLC. They’d be nuts if they didn’t. However, if they did, there was no mention in the decision.

Thanks for the response Joe. It rally galls me that the whole lying charade parades itself through a federal court, gets caught in the act, and then pretends it didn’t happen.

About this Entry

This page contains a single entry by Timothy Sandefur published on December 24, 2005 1:35 AM.

Chiquita Update: The show will go on, Dembski or no was the previous entry in this blog.

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