Freshwater aficionados will recall that I pointed to differences between Freshwater’s request to the Ohio Supreme Court to hear his case (his Memorandum in Support of Jurisdiction–MiS) and the subsequent Merit Brief (MB) in which he actually argued his case. The Court accepted his appeal on the basis of two Propositions of Law (I and II) described in the MiS, but in the actual argument of the Merit Brief those two Propositions changed into two quite different propositions. Now the Mt. Vernon Board of Education has filed a motion to strike the two Propositions–in effect, to strike the whole basis for the acceptance Freshwater’s appeal–because of that bait and switch.
More below the fold.
In my earlier post I wrote
The first thing I note is that the wording of the two Propositions on the basis of which the Ohio Supreme Court accepted the appeal (I and II) differ in the request for acceptance of the appeal (the Memorandum in Support of Jurisdiction-MiS) and the Merit Brief (MB). I don’t know what standard practice is in this sort of case, but I present the two versions side-by-side so commenters more expert in the law than I am can weigh in:
The Board’s motion to strike the Merit Brief’s versions of Freshwater’s Propositions I and II, filed last Friday, says
Nowhere in either proposition of law accepted for review is there an argument that the Board terminated appellant’s employment contract based on the “content or viewpoint” of his religious discussions with students and his use of supplemental religious materials in class. Likewise, neither proposition of law accepted for review contains an argument that Freshwater’s termination was a form of “government censorship.” Rather, the Proposition of Law I accepted for review contains an argument about whether the Board provided Freshwater with a “clear indication as to the kinds of materials or teaching methods which are unacceptable.” The legal analysis required to resolve that issue is unrelated to the legal analysis required to determine whether the Board committed viewpoint or content discrimination and government censorship. Plus, none of the arguments in Appellant’s Merit Brief even address the accepted issue of whether Appellant was provided a clear indication of which materials and teaching methods were inappropriate. Therefore, Appellant’s Merit Brief Proposition of Law I is neither proper in form nor substance and was not accepted by this Court for review. Consequently, it must be struck.
The motion to strike says of Proposition II
Appellant’s Merit Brief Proposition of Law II should be struck for the same reasons. … This proposition of law is nowhere to be found in Appellant’s Memorandum in Support of Jurisdiction. A comparison of this proposition with those accepted for review shows that Appellant’s current arguments are a completely different approach to the appeal than that which was accepted for review. Nowhere in Appellant’s Memorandum in Support of Jurisdiction does Freshwater indicate to this Court he wanted to argue that his religious “academic discussions” and religious “supplemental academic materials” were appropriate.
So the bait and switch is clearly laid out in the motion to strike.
It’s also of interest that the motion to strike picked up my description of the evolution of Freshwater’s claims regarding the teaching of creationism and intelligent design. As I have noted several times (see here for an example), Freshwater claimed under oath in the administrative hearing that he did not teach creationism or intelligent design. But by the time we get to the Merit Brief filed with the Ohio Supreme Court, he claims that his teaching of creationism and intelligent design is appropriate. The motion to strike says
Freshwater has never made the argument that his teaching of intelligent design and creationism was acceptable as scientific theories. Indeed, Freshwater’s argument in this regard has evolved over time. Freshwater adamantly denied teaching intelligent design and creationism during the administrative hearing. (Tr. 376, ln. 14 (“I do not teach intelligent design”); Tr. 377, ln. 9(“I teach evolution. I do not teach ID or creationism”); see Bd. Exs. 19-20). Freshwater then claimed in his Complaint that he taught “about some commonly held beliefs of at least three of the world’s major religions.” (Compl. at 4 59). Then, at the Court of Appeals, Freshwater argued that he simply sought to “encourage his students to differentiate between facts and theories, and to identify and discuss instances where textbook statements were subject to intellectual and scientific debate.” (Appellant’s Appellate Br., at 9). He also claimed that he simply facilitated “classroom discussion concerning popular alternative theories to the Big Bang theory.…” (Id. at v). Yet, in his Merit Brief, Freshwater argues that he did teach creationism and intelligent design since they are permitted concepts (“creation science”). (Appellant’s Merit Br., at 16-18). Thus, Merit Brief Proposition of Law II asks this court to review an issue not raised by Appellant in the lower courts or administrative hearing.
It’s nice to be noticed, even if implicitly. :)
It’s clear that Freshwater’s case has been turned into a vehicle for Hamilton to play out his First Amendment fantasies and the Rutherford Institute to push its ‘viewpoint discrimination’ view of the Constitutional prohibition on teaching creationism in public schools. Freshwater himself is no longer visible in the case; he’s just a pawn now. I have no idea how the Court will rule on the motion to strike. Best case: The Court tosses the appeal, declining to hear it based on the bait and switch that Freshwater’s lawyers pulled.
I would argue that the *best* case would be for the Court to toss the case with scathing comments about frivolous suits, citations from USSC court cases in this area and incompetent or dishonest lawyering…and sanctions to go with for wasting judicial resources.
However, reality and the tendency of appeals courts to do the minimum necessary to “resolve” cases suggests that they may just toss it based on the Board’s filing, simply as a way to get it off their plate with the least effort possible.
–W. H. Heydt
No predictions here. They took it even though (IMO) the arguments for doing so were lousy, so will they now turn it back based on good argument? Who knows. The cynic in me says that the decision to take it shows they have an axe to grind, so no, but I don’t put any confidence in that assessment.
It does happen that courts will accept motions to reconsider/strike when the full facts are brought again to the argument. During one of my divorce hearings, I had filed a motion to dismiss (based on lack of personal jurisdiction over me), and while the court initially denied the motion, upon a (successful) motion to reconsider, the court dismissed the case.
We (my attorneys & I) are not sure why the initial motion to dismiss was denied.
Bravo!
Someday this too shall pass. Sort of like a kiddney stone.
Congrats Richard! It’s nice to have your assessments confirmed. I think you are right about the best case scenario, but as W. H. Heydt notes, I sure wish the court could slap Freshwater’s lawyers for attempting to pull such a despicable act.
Nice timing btw - I was doing a search earlier to see if anything new had popped up in this case just out of curiosity. Thanks for the excellent summary.
So Richard, you’re arguing that similarity– between your PT posts and the legal motion to dismiss– is proof of common descent?
You do know, don’t you, that similarity is NEVER evidence of common descent?
(Sorry… couldn’t resist.)
In a “social” situation like this, it depends on how much of a diffusionist you are…
–W. H. Heydt
The case should be immediately dismissed with extreme prejudice. The lawyers who wrote the Merit Brief should be fined for contempt of court and the defendant should be jailed for contempt of court. If the court lets them get away with this, the entire thing will devolve into a fiasco of biblical proportions. But then again, who would have predicted anything else?
DS, good luck on the extreme prejudice. I think the CIA does that, not the courts.
After the Kitzmiller vs Dover trial ended, Judge John Jones forwarded a recommendation of perjury charges against Dover Board members Bill Buckingham and Alan Bonsell for lying under oath. Unfortunately, nothing ever became of the recommendations. IANAL, but I understand it can be tough to get such charges to stick.
Can you move to strike an entire Merit Brief on the grounds that it is unresponsive? Of course, once it was thrown out, the people who wrote it would just deny that it ever existed and try to submit another one that might or might not address the issues described in the Memorandum.
If the court had bothered to find out what went on in the first three years of this process, they would have known that this is the kind of crap that they were in for.
DS said -
Not only do I agree with this, but I would add that five year old children should never get cancer, that the death penalty, if it must be applied, should only be applied to the actually guilty, that bombs should never be dropped on civilians for no good reason, hell, dolphins should never be entangled in fishing nets.
We’ll see whether the court in question cares what should happen or not.
At least this development does represent progress.
I’m curious. Yahoo had an article yesterday with a picture of Obama with Bill Nye,the science guy. The subject was Nye’s concern over creationism’s threat to science. Why do we hear so little in pop culture about threats to science from the political left? The book ,Higher Superstition” written the 1990s ,subtitle,”The academic left & it’s quarrels with science” is an important book that documents leftist challenges to the sanctity of science. The authors, Paul Gross & Norman Levitt suggest the lack of courage on the part of science’s defenders(mostly in academe) for leftist perversion of science.PC retribution seems to the potential defenders’ concern. Why do we hear so much about creationism,so little about other threats to science ???
Name a few. Do any of them rise to the level of the fundagelical / Rethuglican War on Science?
Domestic response is not in the CIA’s “official” charter - it would have to be the Secret Army of Northern Virginia or one of the other Treadstone/Blackbrier clones.
calhoun’s a drive-by, and almost certainly won’t bother with the answers he gets. There is a reason for responding, though.
The short answer is that the work he refers to, “Higher Superstition” by Gross and Levitt, is an attack essentially on the extension of postmodernist ideas to other fields than literature, where some effect can be seen in the social sciences, if you include anthropology, sociology, educational theory and history as sciences. The authors provide many examples of (typically obscure and unspecific) charges of cultural bias against various social science ideas, and show that their forwarders often substitute for them other culturally biased ideas that are no better. From this, it is true, some of the more eccentric pomos launch vague but often vitriolic attacks on science as a “way of knowing”.
The effect of this on the harder sciences has been negligible, however. Postmodernist criticism of “science” - as in physics, chemistry, biology or paleontology - as a western cultural construct has been confined to a few of the more excitable feminists and cultural contrarians, and is rejected as nonsense by most humanities scholars, including those who are as far left politically as the extreme pomos themselves. Marxists, for example, reject the entire farrago. Saying that this is a leftist assault on science is a gratuitous misrepresentation.
More to the point, this is an academic controversy waged in literary academia by the usual means - arcane learned papers and waspish correspondence in obscure journals. There is nothing here to compare with the headlong assault on biology directed from thousands of popular pulpits every week, or the well-funded fundamentalist ginger groups and lobbyists that work for them. Nothing exists here that remotely resembles the DI, or AiG, or Liberty University, or Pat Robertson’s organisation. There is nothing in it that comes remotely close to the continued, and sometimes successful, attempts by creationists, almost invariably from the far right of politics, to cripple or subvert education in evidential science.
When the man in the street can be heard to say something like, “Yeah, this science stuff, it’s all just a cultural construct, y’know,” rather than “I hear the jury’s still out on evolution”, then I’ll start to worry about it.
We don’t worry about the “left’s” threat to science for the same reason we don’t worry about the Girl Scout’s threat to science.
There aren’t any.
The left in the USA all but doesn’t exist and was never anti-science as a general belief. The fundie xians number 60 million or so and have their own party, the Teapublicans.
It’s been said that the only war Bush won was his War on Science.
And, just to add my usual corrective when this comes up, ‘left wing postmodernist’ is pretty close to a contradiction in terms in any case. Not that postmodernists are right wing either: they merely consider any grand ideological narrative to carry the seeds of its own incoherence – as a result of which Marxists, who are quite committed to one of these narratives as a driving force of history, tend to put them very much in the counterrevolutionary camp.
@Raven:
Not quite. Let’s not lose sight of the (mostly) left-wing anti-vaxxers, pro-homeopath, hippy-dippy alternative medicine crowd. Overall, the “left” isn’t anti-science, but they are still sometimes quite credulous. Not quite the full-scale attack we see from the creobots, but still…
The anti-vaccination movement with Jenny McCarthy as its chief spokesman, and there are other lunacies. But if you are going to stress scientific education, then of course I am in full agreement, Paul.
Paul Gross, who co-authored with Barbara Forrest “Creationism’s Trojan Horse: The Wedge of Intelligent Design”, has faulted the Radical Left’s emphasis on deconstructionist philosophy, especially with regards to the inane claim that scientific truth is no better than other kinds of truth. Other examples can be found in Shawn Otto’s “Fool Me Twice: Fighting the Assault on Science in America” by Science Debate co-founder Shawn Otto has faulted the Obama Administration for not being substantially better than its Republican predecessors in using science well in making public policy decisions. However, I will agree with my liberal friends that there is a greater danger emanating from the Religious Right, especially with regards to public understanding of science as reflected in accepting the overwhelming scientific evidence for biological evolution and anthropogenic global warming.
You may have to look at Paul Gross’ writings on the subject.
I have. He makes the same mistake. He, and others like him, can get back to me when he has proof that the action of the academics he cites have, or have even attempted to have, the sort of impact on science education that Freshwater’s handlers are currently trying to achieve. Until then, he and Levitt are merely pointing out that in academia, as everywhere in life, silly people have been known to say silly things.
This is as important for those in your camp, John, as it is in mine. The fact that all socially progressive ideas have been lazily labelled as ‘left wing’ and therefore placed on the tiresome US politics magical thinking continuum, established in the 50s, of liberalism-socialism-communism-stalin-HITLERBADWRONG!!!! is, I think, a major source of the current schizophrenic agonies of the US right in that it’s what’s making them feel forced to espouse the silly, mean-spirited positions that are currently drowning out the sensible (if, from my POV arguable) ones and scaring away undecided voters in droves.
I would add sex education to biological evolution and global warming.
“controversy waged in literary academia by the usual means - arcane learned papers and waspish correspondence in obscure journals” - that’s some of my very favorite reading!
I don’t have anything to offer beyond what has been said; I’m commenting here because I visit this blog daily and I get SO much out of it, and I want to thank the blogger and his commenters for the great information and (sometimes) witty repartee. It’s one of the many enjoyable ways I try to keep up with what’s going on in my beloved field of biology.
Not to mention the Germ Theory of Disease Deniers and HIV/AIDS denialists.
But since when have all these been considered the “left”.
It’s more like they are perpendicular to the left-right continuum. A lot of medical denialists are fundie xians.
These attacks were so savage and relentless that, in many decades as a scientist, I never even heard of them!!! I had no idea what Postmodernism was until I started following the creationist attacks. AFAICT, Postmodernism is pretty well dead. The few PoMo’s I’ve seen don’t even like to call themselves that any more.
Besides being all but invisible, they also lost. Just about everyone knows that apply PoMo thinking to science was a failure. There is really only one real world, after all and it doesn’t care what people think it should look like.
Is there a known date when the court will address the motion to strike?
Tangentially, does anyone know the outcome of the Coppedge / JPL case yet?
I agree with respect to science. But other venues such as middle east studies have been corrupted. The post modern left is not benign. For grins you should pick up a copy of Edward Said’s “Orientalism”.
Nope, and people–attorneys–I’ve asked don’t know, either.
The Sensuous Curmudgeon has covered that case closely, and AFAIK it’s still on-going.
Added in edit: Here’s SC’s most recent post on it.
Thanks, I’ll follow SC for the rest of the news.
Perhaps this will help: http://members.shaw.ca/jeanaltemeye[…]itarians.pdf
Obviously, the attempt to have the government teach their dogma in schools is a big reason why right-wing (but to play that game, it’s not all right-wing either) nonsense is opposed more than left-wing nonsense is.
However, no one should pretend that nonsense more supported by leftish types isn’t actually turned into government policy. NCCAM was pushed through by Tom Harkin, and although I don’t think it should be considered to be a total waste, it’s clearly questionable to be spending money on CAM instead of upon actually promising medical treatments.
Of course it’s not the same threat level, but it’s a false dilemma to pretend that, because one side is worse, the other side’s government-funded tripe isn’t deserving of mention and criticism.
Glen Davidson
As far as vaccinations go, it really doesn’t matter who makes the most noise about it, left, right or whatever. As a practical matter, the important vaccinations are the mandatory ones for school-age children. Forty eight states allow parents to withhold mandatory vaccines from their kids because of the parents’ “sincerely held” religious beliefs. These are the children who are not getting vaccinated. Eighteen of those states also allow exemptions for “philosophical” beliefs, but these are a small fraction of the total. As long as American society places more importance on adults’ mystical beliefs than on children’s welfare the problem will never go away.
A coupla quick points that I hope don’t distract too much from the Freshwater topic at hand:
1. Alan Sokal identifies as leftist. He wrote in his commentary on the Sokal Hoax that one of his motives for fooling Social/Text was that he wanted to reclaim science for the left.
2. There are anti-science people on both sides of the political divide (and along any other sociopolitical axis you might want to draw up). But the left poses no significant threat to scientific progress at the moment. The peak of leftist science denial was the postmodern/poststructural movement. That is now just about dead except as an art movement (which is where it can be a good thing), and even at its political peak it was really only powerful in the academic left, specifically the social sciences. So, yeah, quite a few professors of sociology, linguistics, and social anthropology had loopy ideas. It was worth fighting against, but it was never, even at its worst, remotely on par with the anti-evolution, anti-AGW, anti-environment, pro-“Bell Curve” lunatics that are running one of the two major US political parties.
3. NCCAM has proven to be a wasteful exercise, but it was never anti-science. It was not great science because the idea was that NCCAM would find all the evidence to support alt meds that was just waiting to be uncovered, i.e. they built a cart and expected a horse would appear, but the actual trials funded by NCCAM have generally been well conducted and honestly reported (which is why the results have been so disappointing to the alt med crowd).
I think that it should be pointed out that Harkin was joined in his support of alternate “medicine”by Utah Senator Orrin Hatch, probably because many of the manufacturers of such “medicines” are located in Utah.
Germany? Mr. Kwok must be joking. Chancellor Merkel has proposed to phase out all the nuclear power plants in Germany. In my opinion, she should be ashamed of herself, being a PhD physicist who taught the subject in a German university for many years before going into politics. She should know better.
If I am a “right wing sockpuppet” then I’m in distinguished company: Michael Shermer, Paul R. Gross, Timothy Sandefur (who once offered some of the best legal analyses as a PT contributor in years past but no longer, I wonder why). I would rather be one than be associated with a New Atheist advocate who allows people to post death threats on his website and treat them as “jokes”.
Go back and start lusting after girls. I hear Emma Watson might be available, moron. Ditto Lucy Liu.
I should note that I have not identified Dr. Alan Sokal as a right-wing critic of Leftist anti-science thought. If you have read my comments carefully, I have been quite explicit in identifying himself as someone who still views himself as part of the Left. Indeed he does want “to reclaim” science for the Left.
I also agree that there is unfortunately a greater danger from the Right with regards to anti-science bias. However, to my surprise, Science Debate Shawn Otto believes that there is still good reason to be wary of the Left, and he regards himself as a Liberal Democrat (though he does note that one of his ancestors founded the Republican Party in Minnesota back in the 1850s).
Three years ago I attended a World Science Festival panel featuring NASA climatologist James Hansen and Rensselaer Polytechnic Institute President Shirley Jackson, a highly regarded nuclear physicist who was once the chairman of the U. S. nuclear regulatory commission. It was she who reminded her fellow panelists that the Europeans - primarily the French and Germans - are building the safest nuclear power plants in the world and that we in the United States are technologically years behind them.
You demand that creationists respect well established scientific data with regards to biological evolution, as do yours truly and many others here in the United States. May I suggest that you heed what experts like Drs. Hansen and Jackson have been saying? Like it or not, the only credible alternative to relying exclusively on coal and oil is nuclear power.
1) No-one is doing this.
2) Your own example is of a bipartisan bill; so far every single proposed example of “leftist” science denial in this thread has been an example of some mild thing that cuts across the political spectrum.
3) Your own example illustrates the far worse quality of the Republican party at this time, because NCCAM advocates testing claims, which is at worst money wasted testing unlikely hypotheses. Meanwhile, some Republicans advocate weakening FDA labeling requirements for supplements and the like, which is an attack on public health and public understanding of science.
I will condemn any Democratic party or left wing science denial as loudly as anyone. However, the lack of good examples here, combined with the constant efforts at false equivalence and assignment of mild, ubiquitous traits to “the left”, in a desperate effort to come up with an example of contemporary “leftist science denial”, has left me convinced that no-one can provide a decent, fair example for me to condemn.
I suggest you start reading Shawn Otto’s “Fool Me Twice” if you haven’t already, or correspond with him either via the Science Debate website or contact him at Facebook.
Michael Shermer is a Libertarian. And it is Mr. Kwok who lusts after 15 year old girls on the New York subway.
Obviously, Mr. Kwok doesn’t bother to read the posts that he likes to bad mouth. In my comment, I strongly criticized Chancellor Merkel for her position on phasing out nuclear power plants in Germany. Contrary to Mr. Kwok’s assertion, I strongly favor nuclear power and always have. By the way, Mr. Kwok is seriously in error in stating that nuclear is the only alternative to coal and oil for electricity production (it should be pointed out that Mr Kwok is apparently unaware that oil currently supplies less the 3% of electricity production in the US). Natural gas, which is now in world wide surplus and which the US has the largest deposits in the world, is a viable alternative. Natural gas produces 1/2 the carbon per KWH of electricity produced as compared to coal.
You are kidding, right? After Three Mile Island, Chernobyl and the Tsunami, what rational person wouldn’t be skeptical about the safety of nuclear power plants? Comparing people who have legitimate concerns about the dangers of nuclear power and radioactive waste to creationists is absurd. This is not like anti-vaccers; there are legitimate, observable, empirical concerns.
I don’t lust after 15 year old girls, moron. But I know that you still lust after Cameron Diaz. As for Shermer, he is a Libertarian, but he does harbor views that are in some alignment with those who are Conservatives. Let me just say that I have heard this from a mutual friend of ours whom I won’t disclose.
You missed my comment regarding nuclear physicist Shirley Jackson, who believes that nuclear power plants can still be built safely here in the United States. She’s just one of many “rational” people who still endorses this view.
All I’m saying is that it is ridiculous to lump people skeptical of nuclear power in with anti-vaccers and creationists. I don’t doubt that a case can be made for nuclear power; I merely dispute that opponents are a bunch of luddites.
Remember “More people died at Chappaquiddick Island than at Three Mile Island”?
Then why are you doing it? Your absurd attempts to make CAM junk out to be across the board nonsense reveals your bias.
I do think that CAM might have as many adherents on the “right” as on the left, but it’s not their thing overall, especially Reiki and other Eastern mystical nonsense. While NCCAM pays money to look into that (First Amendment anyone?), I’m sure your average fundamentalist isn’t applauding. Proponents of CAM are rarely right-wing types, and they are more the lobbying type, outside of the monied interests.
What does that have to do with CAM tendencies? Just because Hatch helped with the original $2 million (not technically NCCAM then, but it was its start) doesn’t change the fact that Harkin was the force behind the bill. Furthermore, it wasn’t just Tom who enthused over it, Democrat Bedell who was another of the real forces behind this junk:
csicop.org/si/show/ongoing_problem_with_the_national_center/ (put www. in front to paste, here and in most subsequent addresses)
Bedell had a great idea for conducting the research:
Ibid.
Making stuff up as you go along doesn’t do anything for your “case.” Apart from the sleazy money side (Hatch), the spokespersons for CAM are largely liberal to leftish, people like Andrew Weil. People almost as biased as yourself, like PZ, own up to it:
From Pharyngula, “Damn the NCCAM”
Oooh, just return to the false dilemma after spouting a bunch of half-truths (at best).
Gee, isn’t that big of them. Do you think that might be why I said it wasn’t entirely wasted? Of course I’m simply not interested in your false dilemmas, while you are, so you just go back to “who’s worse” on science. I already said the right was, and you attack your strawman
And how good are these experimental procedures, and the conclusions, anyway? Chris Mooney:
washingtonmonthly.com/features/2001/0204.mooney.html
Imagine how relevant that would be if I were promoting the Republican Party.
Imagine how irrelevant that is since I’m not.
You sure didn’t here.
Gee, you denied what is the case, then declared that you win on the evidence that you twisted into the shape you wanted it.
Since you do nothing but handwave, attack strawmen, and ignore what is actually the case with NCCAM, I am convinced that you’re being your usual highly biased self.
Glen Davidson
Should have been:
Glen Davidson
OK, this thread is degenerating. Thanks for playing, folks.
Update