Pandas and Part Three

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John West is not a lawyer, so it's hard to tell if his criticisms of Kitzmiller are utterly dishonest or just totally ignorant. His last posts have contained a lot of footstamping at the Judge's factual findings, and I'll leave those issues to Pim van Meurs. But in Part 3 of his criticism, West claims that Judge Jones erred by relying on previous editions of Of Pandas And People in determining whether it was a religious book or not.

But what in the world is wrong with this? The Supreme Court has recently reiterated that the most important element of an Establishment Clause case is context, and that historical details are important to understanding that context. See McCreary County v. American Civil Liberties Union of Kentucky, 125 S.Ct. 2722, 2734-35, 2735-37 (2005). Justice Souter, whose opinion in McCreary is an unusually good Establishment Clause decision, rejected the argument "that purpose in a case like this one should be inferred, if at all, only from the latest news about the last in a series of governmental actions." Id. at 2736. Instead, he took the "common sense" position, id. at 2737, that a court should consider the historical context of a challenged government action when deciding whether it violates the Establishment Clause, because that context will allow the court to perceive the government's sectarian intent.

And, of course, the facts justify Judge Jones in that expectation. Of Pandas And People began as a creationist tract, and was transformed into an Intelligent Design textbook by simply replacing the word "creation" with "design" and so forth---quite a symbol for the entire ID movement, which is just creationism dressed up in a lab coat. In fact, in one amazing incident (not mentioned by Judge Jones) one unpublished draft of Pandas reflected this change when a typo read, ""Evolutionists think the former is correct, cdesign proponentsists [sic!] accept the latter view."

West is bothered by the fact that Judge Jones denied the book's publishers the opportunity to intervene in the case to, in West's words, "defend [themselves]." But the publishers were not parties to the case, and had no need to "defend" themselves from anything. Their book was only evidence in a trial between two other parties. Federal Rule of Civil Procedure 24, as any attorney knows, governs whether a non-party can intervene in a case, and that rule entirely justified the court in denying the publisher's motion for intervention. But, again, John West is not an attorney, so I'll explain. Intervention is a process whereby someone who is not a party to a case---not a plaintiff or defendant---can become a party. This is a much bigger step than becoming an amicus, which is what happens when a non-party just has an opinion about a case, or just has some additional information to offer. The difference between an intervenor and an amicus is the interest at stake. An intervenor has some sort of "direct, substantial interest in [the] litigation," Brewer v. Republic Steel Corp., 513 F.2d 1222, 1223 (6th Cir. 1975), while an amicus "give[s] the court the benefit of its expertise," or provides further evidence. Id. at 1225.

Because intervention adds a new party to a case, it complicates things enormously. Intervenors can appeal, they can settle, they can do all sorts of things that make a case much more difficult to manage. This is why the Dover School Board opposed the publishers' motion to intervene as did the Plaintiffs. The Federal Rules give the right to intervene in spite of that kind of opposition only when the intervenor "claims an interest relating to the property or transaction which is the subject of the action" and which the "disposition of the action may as a practical matter impair." Obviously this was not the case here, since the publishers of Pandas in no way stood to lose a property right, or anything like it, as a consequence of the case. They argued that they stood to lose potential profits if because "[a] ruling by this Court finding that intelligent design theory is religion would destroy [their] ability to market [their] textbooks within this district," Motion to Intervene by FTE at 7, but this is not the sort of direct, tangible interest that warrants intervention as of right, particularly since private schools and private individuals are still free to purchase Pandas if they want, and because the publishers failed to provide any evidence to substantiate their claim of potential losses. Order Denying Motion to Intervene of FTE at 11. Judge Jones found that the publishers' asserted interest in the outcome of the case was "an uncertain and purely economic one," id. at 12, and that their "'interests [were] of a general and indefinite character,'" id. at 12 (quoting Harris v. Pernsley, 820 F.2d 592, 601 (3d Cir. 1987)). Thus the publishers had nothing to "defend," and intervention was not warranted.

Moreover, Judge Jones found that the publishers waited five months before filing their motion---not what you'd expect of a group trying to "defend" themselves---and that they filed their motion only a month before discovery was set to close, meaning that to allow intervention would have required changing that deadline and possibly allowing a whole new round of depositions and other discovery. Id. at 8. And there was no reason to believe that the school board would not do just as good a job of defending ID as the publishers of Pandas. Id. at 15-19.

Of course, a judge may also choose to allow intervention anyway, if "an applicant's claim or defense and the main action have a question of law or fact in common," but remember, intervention means that the applicant becomes an actual party---the publisher would become a defendant in the case. That's a big step, since, as I've said, intervention complicates cases a great deal. This is why " if an amicus curiae status adequately protects an applicant's interests, this will be chosen instead of intervention, where the only issues involved are of law, and the applicant would contribute little but possibly complicate the proceedings, or where the applicant has only an attenuated interest in the legal issues, and intervention might significantly complicate the proceedings." 25 Fed. Proc., L. Ed. § 59:382 (2005). It was entirely appropriate to for Judge Jones to deny permissive intervention to the publishers and to grant them amicus curiae status instead. The decision of a judge to keep a case simple and require a party that has only an opinion or evidence to offer to do so through an amicus brief is " the kind of judgment on which the district court's expertise and authority is at its zenith." Daggett v. Commission on Governmental Ethics and Election Practices, 172 F.3d 104, 113 (1st Cir. 1999).

What is "grotesque" here is not Judge Jones' ruling, but John West's ignorant and dishonest characterization of this case. He ought to hesitate before accusing people of "misappl[ying] the relevant legal standards" when he himself has so little understanding of what those legal standards are. Judge Jones was correct to limit the publishers' participation to that of amici, and right to find their rationalizations for their disguised creationist tract to be unconvincing.

13 Comments

Mr. Sandefur:

You forgot to respond to this little tidbit:

“C. A Similar Rule Applied to Plaintiffs’ Own Expert’s Publication Would Disqualify Dr. Kenneth Miller’s Textbook.

Plaintiffs claim that references to “creation” and “creationists” deleted from pre-publication drafts of Pandas establish the equivalence of intelligent design and creationism. Yet the first two editions of a biology textbook actually published by plaintiffs’ expert Dr. Kenneth Miller explicitly affirmed the anti-religious claim that Darwinian theory “required” belief in philosophical materialism: “Darwin knew that accepting his theory required believing in philosophical materialism, the conviction that matter is the stuff of all existence and that all mental and spiritual phenomena are its byproducts… Suddenly, humanity was reduced to just one more species in a world that cared nothing for us… Worst of all, there was no divine plan to guide us.”

Dr. Miller was quick to point out that later versions of his textbooks removed such anti-religious statements. But if unpublished drafts—never seen by the school board or students—evidence the “real meaning” of Pandas, what should be the significance of language that Dr. Miller actually published? Plaintiffs’ attempt to rely on pre-publication drafts of Pandas not only ignores the context in which the constitutional issues in this case arise, but threatens to open a floodgate to lawsuits challenging the “hidden agenda” of textbooks widely used by students today.…Similarly, another early draft (also from when the manuscript was still titled “Biology and Origins”) stated: “[T]here are two things about which we cannot learn through uniform sensory experience. One is the supernatural, and so to teach it in science classes would be out of place … [S]cience can identify an intellect, but is powerless to tell us if that intellect is within the universe or beyond it.” By unequivocally affirming that the empirical evidence of science “cannot tell us if the intellect behind [the information in life] was natural or supernatural” it should be clear that the early drafts of Pandas meant something very different by “creation” than did the Supreme Court in Edwards. The decision to use the term “intelligent design” in the final draft to express the emerging theory of origins was not an attempt to evade a court decision, as Plaintiffs have alleged, but rather to furnish a more precise description of the emerging scientific theory.”

And the difference betweeen Miller’s text and Kenyon’s is????

Creation, as west said, was a placeholder term. It was never meant to denote the supernatural, but instead as a very loose engineering term. It’s sort of like separating Darwin from Darwinism.

Well, West is an Associate Professor (and Department Chair) of Political Science and Geography. It is to be expected that he would know little about law or biological science. It is less clear is why he would choose to spend so much time & effort publicly flaunting his ignorance in these areas. Perhaps he hasn’t got anything interesting to say within his domain of expertise?

Whocares Wrote:

Creation, as west said, was a placeholder term. It was never meant to denote the supernatural, but instead as a very loose engineering term. It’s sort of like separating Darwin from Darwinism.

Right and the moon is made of cheese…

And even if your argument is correct that the same rule would disqualify Miller’s textbook, this was not the legal issue at hand. It’s the change from creationism to intelligent design around the time of the Edwards v Aguillard ruling which makes the issue to relevant

John West’s trouble is that he is deathly afraid of the unknown. That’s what this is all about. West sees evolution - indeed, all of science - as a front in the culture war. He is afraid of what will happen if his side loses the war, and he is willing to sacrifice anything - honesty, rationality, credibility, legality, etc. - to win. As long as ignorance and fear like this persist in the world, we can look forward to more opposition.

Great job summarizing complicated legal topics. I was not aware that the Pandas and People publishers wanted to actually intervene and become a party to the case.

Perhaps someone should try to get Miller’s Biology textbook out of our schools then, Whocares. I wonder how well that boat would float?

From Pandas And People

Today we know of two general categories of causes – natural and intelligent.

Seems that intelligent thus is the opposite of natural,or unnatural or supernatural?

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whocares Wrote:

And the difference betweeen Miller’s text and Kenyon’s is????

The difference is that the changes (deletions) in Miller’s text resulted in a change in the text’s content, while the changes in Pandas did not. From the Decision (p. 32 ff):

As Plaintiffs meticulously and effectively presented to the Court, Pandas went through many drafts, several of which were completed prior to and some after the Supreme Court’s decision in Edwards, which held that the Constitution forbids teaching creationism as science. By comparing the pre and post Edwards drafts of Pandas, three astonishing points emerge: (1) the definition for creation science in early drafts is identical to the definition of ID; (2) cognates of the word creation (creationism and creationist), which appeared approximately 150 times were deliberately and systematically replaced with the phrase ID; and (3) the changes occurred shortly after the Supreme Court held that creation science is religious and cannot be taught in public school science classes in Edwards. This word substitution is telling, significant, and reveals that a purposeful change of words was effected without any corresponding change in content, which directly refutes FTE’s argument that by merely disregarding the words “creation” and “creationism,” FTE expressly rejected creationism in Pandas.

(…)The weight of the evidence clearly demonstrates, as noted, that the systemic change from “creation” to “intelligent design” occurred sometime in 1987, after the Supreme Court’s important Edwards decision. This compelling evidence strongly supports Plaintiffs’ assertion that ID is creationism re-labeled.

That’s the difference, as you should, and perhaps do, already know.

I should also point out that the portion of the Judge’s ruling I exerpt above explains why this:

Creation, as west said, was a placeholder term. It was never meant to denote the supernatural, but instead as a very loose engineering term. It’s sort of like separating Darwin from Darwinism.

…is a lie.

philosophical materialism.

there’s that horrid creationist construct again.

doesn’t even make sense when you think about it.

I assume the “materialism” part actually refers to naturalism, which by it’s very nature is not philosophical, so isn’t the term an oxymoron basically?

Creation, as west said, was a placeholder term. It was never meant to denote the supernatural, but instead as a very loose engineering term. It’s sort of like separating Darwin from Darwinism.

lol. yeah, right.

post hoc hypotheses are always the best, aren’t they? always so satisfying.

[Removed. Look, folks, comments are for comments, not just for insults. -TMS]

About this Entry

This page contains a single entry by Timothy Sandefur published on December 28, 2005 3:17 PM.

How West got Lost was the previous entry in this blog.

West on the legal and ethical propriety of Judge Jones is the next entry in this blog.

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