The “intelligent design” activists are promoting some new spin about the Dover case. (See previous posts: here, here, and here.) Basically the creationists have decided to blame the current Dover Area School Board for the million dollar legal fees that the district has to pay. The basis for the claim is that the current board rejected a proposal to recend the “intelligent design” creationism policy after the trial was over and before Judge Jones issued his ruling. As law student Michael Francisco of the Discovery Institute says:
In essence, the new Dover school board was fully aware that keeping the policy in place increased the risk of expensive attorneys fees. Manzari & Cooper explain why it now appears that there was collusion between the ACLU, AUSCS, and Dover school board members. If what Manzari and Cooper say is true, this alleged collusion allowed the school board to effectively guarantee the Kitzmiller decision at a purchase price of $1 million dollars. This appropriation of public funds should be cause for outrage. Check out the Manzari & Cooper article for more shocking details.
Of course this is wrong. Rescinding the policy at this point wouldn’t have changed the outcome of the trial. (See above links.) However, I find this a very interesting claim because it shifts the blame for the outcome of the Dover trial from the old pro-creationism board to the new anti-creationism board. Nowhere do these creationists place the blame for the million dollar legal fees where it belongs: the former board who willfully introduced “intelligent design” creationism into public schools knowing that they would get sued. Whatever happened to personal responsibility? Furthermore, the old board decided to go against their legal counsel and use the Thomas More Law Center, which voided their insurance and left the taxpayers with the bill.
As Judge Jones said in his ruling:
Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.
In essence, the old Dover school board was fully aware that creating the policy and keeping it in place increased the risk of expensive attorneys fees. Judge Jones explained why it appeared that there was collusion between the TMLC and Dover school board members. If what Judge Jones said is true (and it is), this alleged collusion allowed the school board to effectively guarantee the Kitzmiller decision at a purchase price of $1 million dollars. This appropriation of public funds should be cause for outrage. Check out Judge Jones’s decision for more shocking details.
The citizens of Dover knew who was at fault, they voted against every incumbent last November and again in January.
Unbelievable. It was the newly elected Dover School Board’s fault that the city got stuck with a million dollars in costs for losing the Dover case. Never mind the school board’s initial decision to violate the United States Constitution by using government classrooms as pulpits for the propagation of religious beliefs. No, it was the newly elected board’s fault for “keeping the policy in place” that led to the million dollars in costs.
This demagoguery has simply got to stop.
Timmy’s Trackback says:
Yeah, good luck with that.
Oh, it wasn’t a trackback. Whatevah.
Isn’t this a bit schizophrenic?
After all, it seems like their argument is now “Wow, this policy was a looser, why didn’t the school board have enough brains to dump this stinker because they shoulda known it was gonna cost them a lot of coin?”
The time frame being, of course, after the ID advocates had put on their best case and before the court had spoken, so the supporting assumption would be that the last, best, argument, as presented was an obvious failure, and it was obvious that the court would find ID was an inappropriate subject for high school biology classes.
They must be running out of ideas when they have to stoop to scraping this sort of argument out of the toilet.
The ACLU obviously used way too many talented lawyers, costing too much money. They should have used less lawyers, more junior ones, or better yet, they should have mismanaged their case and lost it. That would have been perfect.
Tim Sandefur, perhaps not understanding that people might have legitimate questions about his posts, doesn’t let hoi polloi comment on his threads. So I’m posting the question on this similarly-topiced thread:
The creationists are arguing that had the new board acted reasonably, the judge would have mooted the case and we’d all have gone home. Tim says the the mooting either wouldn’t have happened, or the mooting would have been reversed. But he doesn’t explain why. So I’m curious about why. What made this case so immootable?
I don’t think the Discovery Institute is going far enough here. Yes, the new school board deserves blame for not waving a magic wand and magically disappearing the illegal actions of the previous board. Yes, the judge deserves blame for judging the case on the facts and the law when he should have just made something up so the school board could have won. Yes, the ACLU deserves blame for its pigheaded insistence the school board follow the law in the first place. But these are all relatively minor players in what transpired in Dover, and putting undue emphasis on them is in a way just blaming the messenger. I think we all know what the real culprit here is: The U.S. Constitution.
Were it not for the U.S. Constitution and its bigoted “separation of church and state”, the actions of the old school board would have been legal. Without a Constitution, it would not have been necessary for the new school board to wish away court cases; nor necessary for the judge to bend over backward to get the case dropped; nor would the ACLU have even been able to bring its suit against the school board in the first place. Would that this could have been so! But alas, under the tyrranical rule of that intolerant document and its anti-Christian amendments, our local governments are barred from their natural right of enacting law respecting an establishment of religion.
Now, because of this Constitution’s absurd imposition, the Dover school board will have to pay a million dollars in court costs at a time when they desperately need that money to provide basic educational needs to their children. Why could the Constitutional framers have not thought of the clear negative effects they were having on our nation’s schoolchildren? How many more school boards must be bankrupted before this Constitutional reign of terror is brought to an end?
I’m no lawyer, but, with all that’s transpired, perhaps, the Dover Board has grounds for suing the DI and the TMLC for legal malpractice. After all the DI led them down the garden path, only to jump ship when reality stared them in the face. And the TMLC promised to absorb all costs. Yes, I know they supposedly only promised to represent the Dover Board por bono but couldn’t or wouldn’t hold the board harmless for damages, but it there’s a case to be built, I suspect a sharp lawyer could find it. The DI, afteralll is well known for leaving a trail that betrays their actions, motives and intent. I suspect such a trail could be found in Dover..
Hmmmmm. I think Keanus is on to something here.
Dover ISD suing DI? Hmmmmm.
Steve s,
The simplest and best answer is that a case like Dover is only moot if the challenged action (here, the creationist policy) is not capable of repitition. If the school board were dissolved and all future educational policy was mandated from the federal government, then the school board could argue that the case was moot - the parents got what they wanted (the end of the policy) and the challenged action could never recur (because no school board would exist to re-enact the same or a similar policy).
But the election of a new board did not moot the case because even if the new board repudiated the challenged policy, it did not and could not ensure that no future boards would reenact it. In fact, something similar happened in Kansas, if I recall correctly–a creationist board was voted out, and the new board struck their policy (or proposed policy). But once the furor died down, a new creationist board was quietly voted in at the next election, and it reinstated pro-creationism policies.
In other words, if the board moved for a dismissal on the grounds of mootness, the parents would respond by pointing out that an elected board cannot constrain the actions of *future* elected boards, and that the challenged actions could and probably would be repeated barring judicial action. If the court granted the board’s motion, or mooted the case on its own initiative, then the parents would have appealed. The appellate court would have certainly not allowed the case to be mooted, and would have remanded it back to the district court for resolution on the merits.
Timothy quoted language from Justice Ginsburg in his second post that roughly sketches out the legal reasoning in a more formal way. The key case that she cites is, I think, United States v. W. T. Grant Co., 345 U.S. 629, 632-633 (1953). That case holds that voluntary cessation of the challenged activity *can* moot a case, but it is the defendant’s burden to show that there is “no reasonable expectation that the wrong will be repeated.”
Essentially, here there was a reasonable expectation that the wrong would be repeated by a future board.
steve s, the quick answer can be found on wiki. There are three exceptions to mootness. The relevant one is voluntary cessation. The idea behind the voluntary cessation exception is to prevent a lawbreaker from adopting a policy, dropping it temporarily when a lawsuit is filed, and then re-instating it after the suit is declared moot. It applies here because the board could reinstate the ID policy after the decision was mooted. Additionally, a new board, duly elected in the next round of elections, might reinstate the policy. There is a strong support still for the ID policy (the elections were actually fairly close), and we need look no further than Kansas to see how likely an ID-sympathetic board is to be elected. A number of the plaintiffs in this case would still have standing by the next round of elections.
There are two basic reasons that the case would not have been mooted. The first is that, as Tim pointed out, there is a legal doctrine that says that voluntarily stopping the illegal action is not enough to moot the case. If that safeguard wasn’t there, the legal system would be crippled in many cases. Otherwise, someone being sued could stop whatever it was that got them sued, have the case ruled moot, then start doing the same thing all over again. (Repeat to infinity if necessary.)
The second reason that the case could not be mooted is because the plaintiffs were suing to end the policy and for nominal damages and lawyers fees. The unconstitutional, illegal policy had already been put into effect. It had already resulted in harm to the plaintiffs. The plaintiffs had sued to protect their rights, and a great deal of time, effort, and money had already been spent on the case. None of that would have been changed had the board voted to end the policy. Mooting the case would have left the plaintiffs stuck for those costs, even though those costs were caused by the board’s actions.
Did the Thomas Moore lawyers worked Pro Bono for the schoolboard ?
Did they waive their fees after their disastrous legal advice and terrible courtroom performance ?
Well, I am not in any form a lawyer, but I know how to look stuff up. Here’s a basic description of the Mootness doctrine at wikipedia.
Or if for some reason you don’t like Wikipedia, here’s an article at Cornell’s legal information institute.
In order for the case to have been demonstrated moot, by what appear to be quite basic consequences of how mootness works in the first place, the court would have to have been confident that the new school boards’ decision to drop the intelligent design policy would have lasted forever. Since eventually the new school board will have to go up for reelection, this is clearly doesn’t work.
I would also expect that the other mootness exception applies (i.e., it seems to me that school board terms are short enough that you cannot reasonably expect any court case on something like the Dover ID policy to finish before the term of the school board that instituted the policy, and so the “evading review” exception should apply), though maybe we should find an actual lawyer to weigh in on that one. The Cornell article explicitly lists elections as an event too “short term” to qualify for the mootness rule, but in that case they were talking about court cases regarding the runup to an election, not court cases impacted by the aftermath of an election.
— — — —
(Another complication which may apply, but I don’t have a cite: if my memory serves correctly the entire reason why the new school board never dropped the intelligent design policy is because their first meeting was in fact held after the court ruling had been handed down. I remember seeing something before the ruling claiming that it would actually be impossible for the school board to drop the intelligent design policy before the dover ruling was handed down, because they did not take office until a certain date and even after that date, they would not be able to enact any changes the intelligent design policy without first waiting through a mandatory 30 day public comment period– which if I remember right would have brought them well into January even if they had held an early emergency meeting. I do not know for certain at the present time, whether this timeline still applied by the time the ruling was handed down. That might be something to look into.
It is also interesting to me that as far as I am aware the TMLC never expressed any desire to prevent the Dover decision from being handed down either before or after the ruling was handed down, and the TMLC, not the DI, were the ones in control of the Dover court case… the DI is playing backseat driver months after the case ended here, and I don’t think that’s a very strong position from which to be inventing new legal theories.)
Oh, and hey, as long as I’m pasting large blocks of possibly-redundant text from other websites: I just noticed a thread on t.o. where catshark links this relevant blog post from way back in November of 2005, which in turn has a link to…
This even more relevant court case from 1982. In that case, a city in Texas had passed a law that was being argued unconstitutional, at least in part due to the inclusion of a specific unconstitutionally vague phrase. The city changed the law while the court case was in progress, then tried to have the case declared moot because the thing being claimed unconstitutional was no longer law. This is a situation and argument basically identical to that which the Discovery Institute wishes could have been made in Dover. The Supreme Court’s response was:
No, I think the new board (minus Rehm) was seated in December. That’s what this YDR news story says.
Interestingly, it also says that the old school board, still in power in November, offered no second to David Naperskie’s motion to drop the policy. So here is another reason blaming the new board is half-baked.
Moving to the Thomas More Law Center – the TMLC also told the Dover school board that dropping the policy after the trial, but before the decision, would not help avoid fees, plus the TMLC was still actively litigating the case into December – writing proposed findings of fact and conclusions of law, and rebuttals to the plaintiffs’ proposed findings of fact and conclusions of law. To its credit, TMLC was committed to a vigorous defense of their clients through to the conclusion. And they couldn’t very well say “We admit it, we were wrong” after everything they had said inside and outside of the courtroom over the previous year – this would destroy whatever credibility they had left with the judge, and furthermore why would anyone ever take TMLC as counsel again if they did this kind of reversal?
I see. Thanks for clarifying.
In other words, the school board’s decision on whether or not to attempt to moot the case, because of the mootness doctrine and the unmootability of the lawsuit, was itself moot.
Here’s my question – is this discussion moot?
I do believe it is.
At the moment the ID lot of kooks are too distracted obsessing about how evolution make Dr. Pianka the height of all evil at the moment. Once they are bored of that I’m sure they’ll find time to come up with some new dumb argument to explain why they lost at dover.
Nick said: Here’s my question — is this discussion moot?
Hmmmm …ever since Super-Larry ran out from under the stands and ripped open his plastic Mac. and revealed a moot ..er moot(giggle). He went strangely mute. So barring (or should that be baring) a dose of nitric oxide, I’d say the mootness is moot.
If this discussion was an Entmoot, would it still be moot?
Would we have managed to get past the introductions of the various trees already though?
It shouldn’t be forgotten in all this that these bozos are accusing the new Board members of dereliction of their official duties and, in effect, theft of the District’s money based on nothing more than ignorance of the law or deliberate lies. This is an unwarranted attack on the good names of people whose only “offense” was to stand up in public and oppose the unconstitutional religious aims of the old Board in particular and the ID movement in general. It displays, better than any opponent of ID could possibly do, the bankruptcy of ID both intellectually and morally.
They are rather fond of shooting themselves in the foot (or head, as Lenny is fond of pointing out).
They enjoy it so much, they do it on an almost daily basis.
To tell the truth, if they were even a little smarter, everyone who isn’t a fundamentalist xian would be in trouble.
However, it’s been over a 100 years now of these idiots and charlatans proclaiming the waterloo of ToE, and their ideas just keep recycling themselves, with the same level of rigor and logic as always.
It would take a tremendous stroke of luck for them to achieve the goals they dream of in their wishful thinking haze.
I do wish there was a way to limit the collateral damage they repeatedly cause to the very folks they are trying to “save”, tho.
*sigh*
suing these folks is like putting a man who vandalizes your house in jail; the damage is already done by the time these things get to court, and takes months or years to undo.
Because they could go right back out and change the policy again.
Instate policy. Get sued. Remove policy to moot case.
Reinstate policy. Get sued. Remove policy to moot case.
Reinstate policy. Get sued. Remove policy to moot case.
Later, rinse, repeat as many times as you feel like…
This is actually pretty brilliant spin. You have to consider who the intended audience is.
The people who supported the ID movement in Dover were the Christian far right. They read different publications than the mainstream, believe different truths, and might as well live in a parallel universe. This will be reported in their publications, and they will swallow it hook, line, and sinker The goal is to stoke the anger, not just in Dover but around the country.
Then, when the more reasonable citizens get lazy again, they can go on the warpath again.
The troops are the target of this spin, not us or the general public.
The ACLU is another target. The far right las long hated the ACLU for defending unpopular ideas, atheists, minority religions, gays, etc. and generally getting in the way of their desire to turn America into an authoritarian collectivist state.
Others have answered this. I’ll just point out that a key requirement, totally not understood by our resident pro se moron, is that the plaintiffs have standing, meaning they are subject or will be subject to actual harm, as opposed to mental distress at not liking the situation. In the famed Elk Grove v Newdow Pledge of Allegiance case, the judges voted 5-3 to moot the case because the state courts assigned essentially all rights to the mother. (The other 3 ruled Newdow had standing, and that SCOTUS should have heard the case, and they would have ruled the Pledge constitutional. Scalia recused himself.)
Our resident pro se moron has bizarrely understood this as “open season on mooting”, which is par for his infinitesimal brain. The only way something like this would be relevant mootwise would be if it was revealed that all the plaintiffs did not have standing, say through living in the wrong school district, or not having custodial rights over their children.
Why are we even discussing this? You just know that if the new Dover board tried to drop the ID policy before the trial ended, we would instead be dissecting the DI’s latest tirade about “The cowardly new Dover board being so unsure of evolutionism that they tried to back out of the trial before the judge could rule on the case.”
This is just a lame attempt to shift focus and to construct a new rallying point for the faithful.
Yeah, maybe instead of actual lawyers, they could have used second year law students. That would have made things cheaper, and more competitive as well.
Why does the Constitution hate our freedoms?
On the topic of mootness, we’re assuming that the litigation was based solely on enforcing a cessation of this policy. I have not seen the formal documentation, but an additional reason the case could have been concievably unable to be mooted (is that even a word?) likely could have been any assertion of harm on the part of the plaintiffs.
Back to the chicken stealing incident mentioned in one of the many posts about this - simply because one ceases going to a property and killing chickens would not absolve them of potential previous liability for the prior fowl play, so to speak. Also, to whomever posted the link from wiki (I think) where the corporation was polluting, this same principle applies. Not only did they have (remote) potential for repeat offense, but a measurable harm had been inflicted and was being asserted in the complaint. If this was a component at Dover, it would have provided yet another basis for not ruling the case was moot.
A lawyer can correct me if I’m wrong, but that is my general understanding from dealing with mootness in the past.
This would be an interesting article for the York Daily Record. Headline: “Discovery Institute associate (?) claims new board responsible for lawsuit fines”
The article could then review the DI’s past association with the losing side of the case and the assistance they provided to the former school board.
How about this headline: “At no time has the DI strongly rebuked the Thomas Moore center for recklessly leading the former school board into a costly lawsuit”. The inner text could read: “While the DI’s response to the decision continues to focus on the judge and essentially blameless new school board, the conduct of the Thomas Moore law center consistently fails to appear on the radar of ‘targets’ in DI articles. Curious observers have not failed to notice that the DI institute, which claims to be agnostic with respect to religious views nonetheless constistently fails to criticize the policies of religiously oriented organizations.”
Would one of the contributors to PT, preferably one who participated in the trial, be willing to post a timeline of events. It might be easier to understand why certain actions were taken by the parties involved. I wonder if the DI’s major media campaigns follow any pattern?
Delta Pi Gamma (Scientia et Fermentum)
Joe McFaul has already done it.
Thanks Reed
Delta Pi Gamma (Scientia et Fermentum)
My understanding of Robert’s Rules of Order is fuzzy at best, but, with respect to a meeting agenda, public boards in most places must publish the agenda for a coming meeting in advance so the public is aware both of the meeting and the items to be discussed. They may not add an unannounced item for a decision at a meeting. I don’t know if this is relevant to the Dover Board’s decision on ID, but as an earlier posted noted, the agenda for the Dover Board’s meeting, the first with the new members, was almost certainly set by the previous members and they could not have held a vote on the ID policy and be in accordance with open meeting laws. I could be completely off base but all my empirical experience in attending meetings of public boards seems to confirm that.
Now that I think about it, why hasn’t the DI suggested pursuing the OLD board members personally? I’ll start out the research:
http://www.ocde.k12.ca.us/legal/LIA[…]ECT_1983.pdf
http://home.law.uiuc.edu/lrev/publi[…]3/bedell.pdf
and my personal recent favorite: High school pricipal is not entitled to qualified immunity for tearing up student’s “Bong Hits 4 Jesus” sign in violation of the student’s free sppech rights, see
http://www.ca9.uscourts.gov/ca9/new[…]/0335701.pdf (see last three pages of opinion.)
Apologies for pdf links, but point made–where’s the call for personal liability?
There was no way the old school board left to redress the issues at hand without a lengthy court case, so they bear the responsibility of the costs incurred. If those costs damage the education of the children in the district…
shouldn’t the same parents that had grounds to sue originally now have similar grounds to sue for recovery?
While DI is now weeping and whining that the school board should have mooted the case before the decision, let’s just give everyone a quick reminder what the, uh, Isaac Newton of Information Theory had to say just before the decision was announced:
Hmmm, nothing there anywhere about rescinding the policy. I wonder why not? Ohhhhhhhh, that’s right – because Isaac gave IDers less than a 10% chance of utterly completely totally losing.
As for “ID’s intellectual vitality”, well, that didn’t do so well in Ohio, did it. (snicker) (giggle)
What a bunch of whiny crybabies.
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The ACLU obviously used way too many talented lawyers, costing too much money. They should have used less lawyers, more junior ones, or better yet, they should have mismanaged their case and lost it. That would have been perfect.
Yeah, it’s the ACLU’s moral obligation only to use mediocre talent and halfhearted effort, and to let themselves get crushed with as little trouble as possible. People who put their best efforts into what they do, and stand up to liars and bullies, only cause more trouble. Shame on those mean commie bastards for vindictively proving they were right and making other people look stupid! That’s not the Bible-Belt-American Way.
Pardon me if this has already been mentioned, but most states have open meetings laws which require entities like school boards to only consider items placed on an advance agenda. The purpose is to make the public aware of what will be decided at the meeting, so they can attend and comment.
Therefore the newly sworn-in board could not have legally rescinded the policy at the meeting being discussed. The old board could’ve placed this on the agenda at the previous meeting, and IIRC it came up but they did not do so.
All the newly sworn-in board could do legally was to place the topic on the agenda for the next meeting (January). Which I believe they did …
Now I don’t know for certain that Pennsylvania has such an open meetings law, but most states do, and if so the DI folks are asking in essence blaming the newly sworn-in board for following the law.
Don, yes, Pennsylvania has a Sunshine law.
So DI and the folks at Uncommon Descent really ARE arguing that the new board is to blame because they choose not to break the law.
Wow. How hilarious. Well, I’ve posted to Uncommon Descent but my guess is that Dave Scot will roundfile it.
One of the elements of the Kitzmiller case developed in testimony during the trial was that the Dover school board had violated their own procedural rules in revising, considering, and adopting the “intelligent design” policy on a schedule that did not permit the usual periods of public comment.
From Bill Buckingham’s cross-examination:
So, the ID advocate version of reality insists that the new school board act with the same reckless disregard for procedure as the old school board did. I think that we have, at long last, found a point on which ID advocates are consistent: all school boards must act improperly at all times.
Thanks for that snippet, Wesley. I read Pennsylvania’s Sunshine Law, and it doesn’t require agendas be published in advance, my bad. However it appears to be the common practice among school boards in Pennsylvania to do so as part of their standard practice. I found a couple of Penn school board websites and they both state that agendas will be published in advance.
So what the DI claims the board should’ve done would not have been illegal, apparently, but certainly would’ve violated the board’s standard practice. Given that their legal counsel advised them not to do so, it’s clear they did the right thing.
The issue is not, and never has been, topicality. Larry was banned for repeated Rule 6 violations. Since then, Larry has engaged in a large number of unauthorized accesses, illicitly evading IP address banning to make unauthorized use of the PT comment facility. In recent posts, Larry has also taken up threats to disrupt the comment system further by masquerading himself under names of known commenters. Larry has indicated that his campaign of harassment goes beyond unauthorized use of the PT comment system, as he states that he has emailed other entities to denigrate PT’s comment policy on the basis of the wildly inaccurate view that he summarizes in the above quote. We can, and will, show otherwise to entities like Scientific American, should they credulously take Larry’s false accusations seriously enough to contact us.
No Larry (posting as sevenelcar), your posts are deleted because you are banned, not because they are off-topic. How many times do we have to tell you that?
If you hadn’t deliberately gotten yourself banned, I’d be happily debating you to this day.
I’m surprised that, in all the talk about DI’s BS about the school board colluding with the lawyers to rip off big legal fees, no one pointed out the simple fact that renders that whole argument nonsensical:
http://www.yorkdispatch.com/local/ci_3535139
An excerpt:
Wow! A gracious winner and a graceful looser. Who would ever believe that could still exist?
Update