Freshwater: (Amended 3/4) Remarks on the oral arguments

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Preface: These remarks are not particularly well organized (I’m fighting a lousy head cold), and are intended to serve as starting points for discussion based on the video of oral arguments before the Ohio Supreme Court on February 27.

Oral arguments before the Ohio Supreme Court in the case of John Freshwater’s termination as a middle school science teacher were held on February 27. News coverage is already out there: the Columbus Dispatch and HuffPo have stories, and the Mount Vernon News has the most complete news story, unfortunately behind a subscription wall.

At first blush the oral arguments did not helpful to the Board. The Rutherford Institute attorney representing Freshwater, Rita Dunaway, was polished and answered questions from the justices with facility. She seemed well-versed on the case and had references to the record and law at her fingertips. And she stayed on message: She knew the argument she wanted to make and stuck to it.

On the other hand, the attorney for the Board of Education (retained by the Board’s insurance company), David Kane Smith, was not as smooth and did not seem as well-prepared or facile in his responses to questions. He seemed to have trouble getting back on track after questions, and did not seem at ease, as Dunaway did.

However, Smith was operating under a disadvantage: he was subjected to exceptionally aggressive and discursive questions from one member of the Court, Justice Paul Pfeifer. Pfeifer’s questions departed significantly from the kinds of questions he has asked in other cases, he used details that were not part of the record before the Court and which were tangential (if not irrelevant) to the case and its record, and he posed at least one question which called for unfounded speculation from Smith.

I’ll make some more remarks about the oral arguments below the fold.

Overall Impression

A couple of quotations from the Dispatch story tell the tale of the oral argument made on behalf of the Board of Education:

“I would have preferred to be arguing it myself,” said David Millstone, the Cleveland attorney who represented the district through a two-year administrative hearing which concluded Freshwater injected his creationist religious views in the public classroom and wouldn’t stop when school officials asked him to do so.

and

“I was squirming,” said Douglas Mansfield, another attorney who has represented the school district in a federal lawsuit against Freshwater. “I think that the full and accurate record didn’t get heard by the court.”

I can almost hear Millstone and Mansfield, the two attorneys in the world who know the Board’s case best, grinding their teeth at the performance of David Kane Smith, the insurance company lawyer who represented the Board. I have to say that it was not evident to me that Smith knew either the details of the case or the relevant law well, and many of his responses were frankly mistaken (I’l describe a few examples below). But there are mitigating circumstances.

Smith’s efforts were not uniformly bad. He made several points well, including his description of the differences in scope of review at the several judicial levels, and in pointing out that in a case of differing witness statements in the hearing, the hearing referee, not an appellate court, is there to judge the competing credibility of witnesses.

In contrast with Smith’s problematic performance, the Rutherford Institute attorney who represented Freshwater, Rita Dunaway, was knowledgeable about her case and easily responded to questions from the Court, repeating her basic claims at every opportunity and specifically citing references from the law and the administrative hearing. She knew the argument that she wanted to make and she made it at every opening. Of course, she played fast and loose with the record, engaging in normal creationist tactics like cherry picking and misrepresenting testimony. For example, she suggested that the Board’s own experts in the administrative hearing said there are “debatable issues within evolution,” implying that’s what Freshwater taught, which is false. She flatly claimed that it was not creationism that Freshwater was teaching. She said that the Board jumped to the unjustified conclusion that “… discussion of peppered moths and gaps in the fossil record … happens to be consistent with principles of creationism and that that amounts to injecting personal religious belief.” Further, that leap of the Board “… manifests a very clear hostility toward religion,” which is the First Amendment argument the Rutherford Institute is pushing.

Dunaway falsely claimed that it is merely “coincidental” that what Freshwater taught by way of objections to evolution are consistent with “major world religions.” In fact, of course, creationism has no existence independent of fundamentalist sectarian Christianity. Moreover, it has no arguments except variants of “evolution can’t do this or that,” the very sort of arguments Freshwater’s handouts used. Its roots are in Seventh Day Adventist evangelist George McCready Price’s early 20th century critique of mainstream geology, which was repeated in Whitcomb and Morris’s The Genesis Flood, which repeated a good part of Price’s arguments while minimizing references to Price’s prior use of the same arguments. Its contemporary advocates are ministries like Answers in Genesis and propaganda mills like the ill-named Discovery Institute. When your materials come from sites like allaboutgod.com, which testimony in the administrative hearing established that some of Freshwater’s teaching materials did, it ain’t a coincidence that they are firmly grounded in fundamentalist Christianity.

In a question to Dunaway (ca. 63:00) Justice O’Neill noted that this is a hybrid case–a constitutional case and an employment case–and Dunaway is asking for reinstatement. O’Neill asked if that requires the Court to ratify everything [Freshwater] has done. Dunaway didn’t answer the question. Instead, she replied that

… it would still leave open to the Board the opportunity to give Mr. Freshwater whatever clear directives it wants to offer him.

If one of those orders were to constitute censorship, then you would have a different case. Then you would have a case like the other teachers’ speech cases that have been decided, where it might very difficult for Mr. Freshwater to argue that a specific order violates his First Amendment rights. But here you have an ad hoc non-policy based termination that is censorship and manifests religious hostility.

(Italicized emphasis in her tone of voice)

You better believe that if Freshwater is reinstated, there’s going to be heavy pressure on the Board and school administration to write and promulgate some “clear directives”!

Justice Pfeifer’s peculiar questioning

In preparation for the oral arguments, I watched video of several other cases to get a feel for the style and manner of the justices. It looked to me like that style and manner differed in this case. Justice Paul Pfeifer in particular wandered far from the Court’s role in cases like this, a role that entails basing questions and decisions on the record before the Court (but see below about “de novo” consideration). When Freshwater appealed the decision of the Knox County Court of Common pleas upholding his termination to the Ohio 5th District Court of Appeals, I posted on the appeals court’s role:

The court of appeals is restricted to reviewing the record, which consists of the common pleas court judgment entry, the [official, minuted] actions of the school board, and the transcript of proceedings.

The Ohio Supreme Court, I am told by attorney friends, generally operates on the same principle, confining its review to the record generated by lower entities and the briefs filed concerning that record.

Pfeifer didn’t confine his questions to the record. For example, in a rambling and contentious question, Pfeifer asked Smith when the Board of Education really decided to fire Freshwater, insinuating that the Board began its investigation of Freshwater merely to provide cover for firing him. That’s reminiscent of the conspiracy theory that R. Kelly Hamilton, Freshwater’s lawyer, outlined in his summary brief to the administrative hearing referee. Smith did a good job of describing the circumstances that stimulated the investigation, though I think he erred when he speculated that the Board may have made its decision in April rather than at its meeting in June. Better to have said ‘That’s not something I can speculate about without violating attorney-client privilege’ or some such verbiage. It’s not uncommon for justices at this level to propose hypotheticals to explore the limits of a requested ruling, but Pfeifer’s question about when the Board decided to fire Freshwater was far from that vein.

Another example: In characterizing the meeting at which the Board of Education adopted its resolution to terminate Freshwater’s contract, Pfeifer mentioned that that decision on Freshwater was preceded in the meeting by a decision by the Board to grant a limited tax abatement to Rolls Royce. That’s a peculiar detail for a Supreme Court justice to notice. The insinuation seemed to be that the Board thought more of a luxury automobile maker than Freshwater. However, Pfeifer didn’t mention (or perhaps doesn’t know) that the Rolls Royce in question is Rolls Royce Energy Systems, a manufacturer of large turbine pumps for oil pipelines and major employer in Mt. Vernon, and that the manufacturing has been going on in Mt. Vernon for nearly two centuries, started by Cooper Industries (formerly Cooper Bessemer) which was founded in Mt. Vernon in 1833. Rolls Royce Energy Systems recently bought the facility from Cooper Industries after a period as a joint venture of the two. The tax abatement, a common occurrence in school districts, was tied to an expansion of that manufacturing facility with a corresponding increase in employment.

Pfeifer also took a gratuitous shot at R. Lee Shepherd, the administrative hearing referee, calling Shepherd’s final report to the Board of Education “superficial.” I don’t know if there is prior history between Shepherd and Pfeifer–they live in adjacent counties–and would discourage speculation about it unless a commenter has specific knowledge of relevant facts.

All in all, Smith was interrupted by questions more often than Dunaway and was subjected to more hostile questions. She got softballs, he got Nolan Ryan fastballs mixed in with spitters from Justice Pfeifer. That made it difficult for him to present a coherent case.

Standard and scope of review

One line of questioning to Ms. Dunaway asked whether she was requesting a “de novo” review by the Supreme Court. She answered in the affirmative. I am faaaaaar from an expert in legal matters, but consulting Wikipedia and looking at some cases produced by a search on [“Ohio Supreme Court” “de novo review”], it looks like a “de novo” review means that the appellate court, or in this case the Ohio Supreme Court, can bring into its consideration material that was not included in the record before it. [As noted in cepetit’s comment below, this is an inaccurate description of “de novo” review.] Dunaway clearly wants this to happen–she has to have it happen–since her argument on Freshwater’s behalf is different from the several arguments proffered by Freshwater in the administrative hearing and in his briefs submitted to the Knox County Court of Common Pleas and the Ohio 5th District Court of Appeals, all three of which rejected those (differing) arguments.

Smith did make a clear argument that the Court’s consideration ought not be de novo.

What do the oral arguments portend for the Court’s decision?

On the surface, as I’ve indicated, the Court seemed to be hostile to the Board’s case and sympathetic to Freshwater. Whether that is a reliable predictor of the Court’s decision is another question. Attorney Smith was quoted in the Columbus Dispatch story:

Asked about the questioning, Smith said at the hearing’s end, “That can be something that makes one uncomfortable.”

He said he has never been able to predict an outcome based on the line of questioning during oral arguments.

Other attorneys I have spoken with concurred with Smith’s suggestion that the tenor of questions in oral arguments is not a reliable predictor of decisions. One can hope!

What if Freshwater is reinstated?

In a question to Dunaway (ca. 63:00) Justice O’Neill noted that this is a hybrid case–a constitutional case and an employment case–and that Dunaway is asking for reinstatement. O’Neill asked if that requires the Court to ratify everything [Freshwater] has done. Dunaway didn’t answer the question. She replied that

… it would still leave open to the Board the opportunity to give Mr. Freshwater whatever clear directives it wants to offer him.

If one of those orders were to constitute censorship, then you would have a different case. Then you would have a case like the other teachers’ speech cases that have been decided, where it might very difficult for Mr. Freshwater to argue that a specific order violates his First Amendment rights. But here you have an ad hoc non-policy based termination that is censorship and manifests religious hostility.

You better believe that if Freshwater is reinstated there’s going to be heavy pressure on the Board and school administration to write and promulgate some “clear directives”!

The direction of this thread

Finally, an excerpt from a comment by diogeneslamp0:

diogeneslamp0 said: I would like to issue a general warning. We may be angry about Judge “it’s a theory in’t it” Pfeiffer, but we should avoid attacking the Ohio judges personally, making accusations not based on evidence, speculating, etc. If we criticize the judges, our criticism should be limited to their professional behavior in the matter at hand. I don’t want us to launch off into personal attacks analogous to the despicable behavior of Dembski and the DI’s attack on Judge Jones from Kitzmiller v. Dover.

QFT. I welcome comments on these or other aspects of the oral arguments.

Addendum: On the standard and scope of review

An attorney friend sent me this:

Freshwater’s attorney asked the S.C. to have a “de novo” review. That would be a change in the standard the S.C. applies to teacher termination cases. The standard of review for the S.C. and the Court of appeals is whether there was undue prejudice by the Common Pleas Court judge (Eyster) in his review of the case. The standard for the Common Pleas Court is whether the Referee’s report was supported by substantial evidence of record. At levels the review can be based upon misinterpretation or misapplication of law, but when a de novo review is requested, she is talking about the court looking at the evidence and reweighing it to determine whether there was sufficient evidence to support a finding of termination. (sort of a simplified explanation).

That’s different from my amateur attempt above. I welcome more clarifications.

74 Comments

I can’t really comment on Ohio administrative kaw since I don’t practice there. I can say that on more than one occasion, I have faced very hostile questioning from an appellate panel and then prevailed. Sometimes if you don’t get many hard questions, its because you don’t have much of a legal case to test with questioning.

One small comment: Creationism does exist outside of fundamentalist sectarian Christianity. It also sometimes coincides with fundamentalist sectarian Islam (see Harun Yahya) and fundamentalist sectarian Judaism (see Avigdor Miller).

Of course, they tend to mostly repeat arguments generated by fundamentalist sectarian Christians. And it’s certainly a very minority position in Judaism. Not sure about Islam. The real problem with the “major world religions” claim is more our standard western privileging of these three religions. Christianity and Islam are very large, yes, but Judaism is not. And other religious populations are not insignificant. There are 900 million Hindus, 380 million Buddhistsetc. Freshwater-style creationism does not represent these religions much at all.

Of course, the only legally relevant argument is that it is a religious belief. Period. Being compatible with some believers of 3 major world religions is not a defense, it’s an admission that it’s a religious belief. “There is only one God and all other religions are lies” is also compatible with decent portions of those religions, and most of us agree that shouldn’t be taught in public schools.

Swimmy said:

One small comment: Creationism does exist outside of fundamentalist sectarian Christianity. It also sometimes coincides with fundamentalist sectarian Islam (see Harun Yahya) and fundamentalist sectarian Judaism (see Avigdor Miller).

Yeah, I thought about them while I was writing the post. But I took a provincial stance: In this country (the U.S.), creationism is a creature of fundamentalist Christianity. As you note, essentially all of the pseudo-scientific arguments Harun Yahya makes are borrowed from that American strain of thought.

Of course, the only legally relevant argument is that it is a religious belief. Period. Being compatible with some believers of 3 major world religions is not a defense, it’s an admission that it’s a religious belief.

That’s a problematic claim. I can’t think of a single scientific theory that is not consistent with the beliefs of some subset of believers from the three Abrahamic religions, nor of a scientific theory that is not inconsistent with the beliefs of some other subset of believers. And merely being consistent with a religious belief does not mean the scientific theory has its roots in that belief and depends on adherence to that religious belief for its acceptance. That last is what is constitutionally problematic.

Nice summary Richard. Thanks!

I don’t mind so much that the court appeared to question concepts outside the scope and record of the case (though I wonder why they decided to do that), but I am concerned that they did not appear all that interested in the facts presented in the case. It seems the court either thinks this case is about something else or wants it to be about something else. That strikes me as odd.

I wrote

I can’t think of a single scientific theory that is not consistent with the beliefs of some subset of believers from the three Abrahamic religions, nor of a scientific theory that is not inconsistent with the beliefs of some other subset of believers.

Let me amend that. I can’t think of a single scientific theory that is not thought by some subset of believers from one or more of the three Abrahamic religions to be inconsistent with its beliefs, nor of a theory that some subset doesn’t think is consistent with its beliefs. Some religious believers are real good at claiming consistency between their beliefs and science, but that’s a statement about the believers and their ability to (over-) interpret their religious writings, not about the science. Then add the “adherence necessary” criterion.

It seemed like to me that Freshwater wants the SC to not only reinstate him but to agree that the school board was trying to censor his teaching. I kept asking if the Justices read Kitzmiller v Dover and so on.

I was also troubled that the school board lawyer didn’t put the kibosh on the attempt to use the appeal reargue the whole case.

I just hope they keep it just an employment case and not try to open the creationism/contraversy can of worms

If they can review the hearing that the board of education held, does that mean that Freshwater’s testamony that he never taught creationism and then lied about it come into play?

voncadfile said:

It seemed like to me that Freshwater wants the SC to not only reinstate him but to agree that the school board was trying to censor his teaching. I kept asking if the Justices read Kitzmiller v Dover and so on.

I was also troubled that the school board lawyer didn’t put the kibosh on the attempt to use the appeal reargue the whole case.

I just hope they keep it just an employment case and not try to open the creationism/contraversy can of worms

The procedure is run by the judges. Not the other way around. The board lawyer doesn’t have the authority to put the kibosh on anything during the procedure.

I think the bottom line is whether the court is going to allow the “de novo” argument. The court had no intent of reviewing the administrative hearing. They want the opportunity to make a First Amendment ruling. They are either going to accept the “de novo” argument and overturn the case on the First Amendment argument, or choose to not accept the argument and reject the appeal with very little comment. If they accept the First Amendment argument, they have to know the case will be appealed to the US Supreme Court. Therefore, their ONLY consideration will be whether they think the case could win in the Supreme Court. I would think this is a very weak Supreme Court case and creationist will not be happy that any perceived advances they have made in the last 20 years will be crippled by another Supreme Court loss. Ultimately, I think the fact Freshwater never attempted a First Amendment defense in his original hearing is going to cripple his “de novo” First Amendment argument.

I predict a Freshwater loss. Of course, I also predicted the Ohio Supreme Court would not hear the appeal!!

Does anyone know why the Board decided not to use its lawyers who were most familiar with the case?

Flint said: Does anyone know why the Board decided not to use its lawyers who were most familiar with the case?

The Board’s case is being run (and paid for) by their insurance company’s lawyers; hence Smith’s role. David Millstone was the Board’s attorney for the admin hearing, while Douglas Mansfield was the Dennis family’s personal lawyer.

And apparently the insurance company is run by Dilbert’s boss.

alicejohn said:

voncadfile said:

It seemed like to me that Freshwater wants the SC to not only reinstate him but to agree that the school board was trying to censor his teaching. I kept asking if the Justices read Kitzmiller v Dover and so on.

I was also troubled that the school board lawyer didn’t put the kibosh on the attempt to use the appeal reargue the whole case.

I just hope they keep it just an employment case and not try to open the creationism/contraversy can of worms

The procedure is run by the judges. Not the other way around. The board lawyer doesn’t have the authority to put the kibosh on anything during the procedure.

I think the bottom line is whether the court is going to allow the “de novo” argument. The court had no intent of reviewing the administrative hearing. They want the opportunity to make a First Amendment ruling. They are either going to accept the “de novo” argument and overturn the case on the First Amendment argument, or choose to not accept the argument and reject the appeal with very little comment. If they accept the First Amendment argument, they have to know the case will be appealed to the US Supreme Court. Therefore, their ONLY consideration will be whether they think the case could win in the Supreme Court. I would think this is a very weak Supreme Court case and creationist will not be happy that any perceived advances they have made in the last 20 years will be crippled by another Supreme Court loss. Ultimately, I think the fact Freshwater never attempted a First Amendment defense in his original hearing is going to cripple his “de novo” First Amendment argument.

I predict a Freshwater loss. Of course, I also predicted the Ohio Supreme Court would not hear the appeal!!

In my opinion it would be virtually impossible for SCOTUS to rule in favor of First Amendment rights in this case. If they were to do so, it would be contrary to well established precedent and it would mean the end of public education in this country.

So, once again, it makes no sense at for the court to try to turn this into a FIrst AMendment issue when it clearly was not in the first place. And as Rondo points out, the lawyers would then have a field day reviewing the sworn testimony of Freshwater to the effect that he did not teach creationism. EIther he lied and should be found in contempt of court, or it isn’t a First Amendment case. Those would appear to be the only two options.

I tried to watch the hearing live, but just got so frustrated and angry that I couldn’t keep it up for long.

Regarding Pfeiffer, while he is a Republican, he is generally quite liberal, so I was extremely surprised by his questioning.

One small comment: Creationism does exist outside of fundamentalist sectarian Christianity.

True.

In some Moslem countries, 80-90% of the population are creationists.

And there are dozens or hundreds of different creationist “theories” (or mythologies). Hinduism has one, Buddhism, the various Pagan and tribal religions, Mayan etc..

As you point out, they are all religious. And they mostly contradict each other on every point. Trying comparing the Navaho, Mayan, Xian, and Hindu versions.

DS said:

alicejohn said:

voncadfile said:

It seemed like to me that Freshwater wants the SC to not only reinstate him but to agree that the school board was trying to censor his teaching. I kept asking if the Justices read Kitzmiller v Dover and so on.

I was also troubled that the school board lawyer didn’t put the kibosh on the attempt to use the appeal reargue the whole case.

I just hope they keep it just an employment case and not try to open the creationism/contraversy can of worms

The procedure is run by the judges. Not the other way around. The board lawyer doesn’t have the authority to put the kibosh on anything during the procedure.

I think the bottom line is whether the court is going to allow the “de novo” argument. The court had no intent of reviewing the administrative hearing. They want the opportunity to make a First Amendment ruling. They are either going to accept the “de novo” argument and overturn the case on the First Amendment argument, or choose to not accept the argument and reject the appeal with very little comment. If they accept the First Amendment argument, they have to know the case will be appealed to the US Supreme Court. Therefore, their ONLY consideration will be whether they think the case could win in the Supreme Court. I would think this is a very weak Supreme Court case and creationist will not be happy that any perceived advances they have made in the last 20 years will be crippled by another Supreme Court loss. Ultimately, I think the fact Freshwater never attempted a First Amendment defense in his original hearing is going to cripple his “de novo” First Amendment argument.

I predict a Freshwater loss. Of course, I also predicted the Ohio Supreme Court would not hear the appeal!!

In my opinion it would be virtually impossible for SCOTUS to rule in favor of First Amendment rights in this case. If they were to do so, it would be contrary to well established precedent and it would mean the end of public education in this country.

So, once again, it makes no sense at for the court to try to turn this into a FIrst AMendment issue when it clearly was not in the first place. And as Rondo points out, the lawyers would then have a field day reviewing the sworn testimony of Freshwater to the effect that he did not teach creationism. EIther he lied and should be found in contempt of court, or it isn’t a First Amendment case. Those would appear to be the only two options.

Dammit man! You have spelled my name wrong for the fourth time now. It is Rando R A N D O, please get it right.

I agree with everything else, I just want you to spell my name right.

Rando said:

DS said:

alicejohn said:

voncadfile said:

It seemed like to me that Freshwater wants the SC to not only reinstate him but to agree that the school board was trying to censor his teaching. I kept asking if the Justices read Kitzmiller v Dover and so on.

I was also troubled that the school board lawyer didn’t put the kibosh on the attempt to use the appeal reargue the whole case.

I just hope they keep it just an employment case and not try to open the creationism/contraversy can of worms

The procedure is run by the judges. Not the other way around. The board lawyer doesn’t have the authority to put the kibosh on anything during the procedure.

I think the bottom line is whether the court is going to allow the “de novo” argument. The court had no intent of reviewing the administrative hearing. They want the opportunity to make a First Amendment ruling. They are either going to accept the “de novo” argument and overturn the case on the First Amendment argument, or choose to not accept the argument and reject the appeal with very little comment. If they accept the First Amendment argument, they have to know the case will be appealed to the US Supreme Court. Therefore, their ONLY consideration will be whether they think the case could win in the Supreme Court. I would think this is a very weak Supreme Court case and creationist will not be happy that any perceived advances they have made in the last 20 years will be crippled by another Supreme Court loss. Ultimately, I think the fact Freshwater never attempted a First Amendment defense in his original hearing is going to cripple his “de novo” First Amendment argument.

I predict a Freshwater loss. Of course, I also predicted the Ohio Supreme Court would not hear the appeal!!

In my opinion it would be virtually impossible for SCOTUS to rule in favor of First Amendment rights in this case. If they were to do so, it would be contrary to well established precedent and it would mean the end of public education in this country.

So, once again, it makes no sense at for the court to try to turn this into a FIrst AMendment issue when it clearly was not in the first place. And as Rondo points out, the lawyers would then have a field day reviewing the sworn testimony of Freshwater to the effect that he did not teach creationism. EIther he lied and should be found in contempt of court, or it isn’t a First Amendment case. Those would appear to be the only two options.

Dammit man! You have spelled my name wrong for the fourth time now. It is Rando R A N D O, please get it right.

I agree with everything else, I just want you to spell my name right.

Sorry Rando. It won’t happen again, hopefully. I guess I just have old timers disease.

Richard wrote “The Rutherford Institute attorney representing Freshwater, Rita Dunaway, was polished and answered questions from the justices with facility.”

Do you suppose that’s because they had practice sessions to rehearse their back-and-forth dialog? Because it sure looks well choreographed.

DS said:In my opinion it would be virtually impossible for SCOTUS to rule in favor of First Amendment rights in this case. If they were to do so, it would be contrary to well established precedent and it would mean the end of public education in this country.

The end of public education in this country is a declared goal of the Christofascists, including the Christian Reconstructionists behind the Rutherford Institute.

About the First Amendment right to free speech:

I work for a Federally Funded Research and Development Center in the United States. I am not a government employee. Our management encourages us to be engaged in our local and national communities, because discussions about science and society need input from scientists and engineers with relevant knowledge.

Here is the important point: We may NOT advocate for political or religious causes on company time, with company equipment, or represent that we are speaking for the Research Center. During work hours we are paid to conduct scientific research and (in my case) create web sites that are scientifically valuable. I check in my First Amendment rights when I enter the building, and I get them back when I leave for home. While I’m on the clock, I do what my management chain instructs me to do.

I’m puzzled that Freshwater’s attorney is trying to bring up the First Amendment at all. If I stood up in a meeting about satellite data and urged everyone to Vote for Whoever, I would get reprimanded. If I put a big message saying God sent Hurricane Katrina to punish the people of New Orleans* on the division web site, within five minutes somebody would come into my office and probably fire me. I don’t have the First Amendment rights at work that I do at home. And that would be true even if I still worked for my previous employer making disk drives and not an FFRDC. Your First Amendment rights are limited as a condition of your employment, depending on the job duties you are required to fulfill (media people might address political and cultural issues).

And high school teachers are paid to teach the science curriculum set by their Administration and School Board.

*for living below sea level. :-)

Richard B. Hoppe said:

Of course, the only legally relevant argument is that it is a religious belief. Period. Being compatible with some believers of 3 major world religions is not a defense, it’s an admission that it’s a religious belief.

That’s a problematic claim. I can’t think of a single scientific theory that is not consistent with the beliefs of some subset of believers from the three Abrahamic religions, nor of a scientific theory that is not inconsistent with the beliefs of some other subset of believers. And merely being consistent with a religious belief does not mean the scientific theory has its roots in that belief and depends on adherence to that religious belief for its acceptance. That last is what is constitutionally problematic.

I realized after I posted that I worded it poorly. My apologies.

Carl Drews said:

About the First Amendment right to free speech:

I work for a Federally Funded Research and Development Center in the United States. I am not a government employee. Our management encourages us to be engaged in our local and national communities, because discussions about science and society need input from scientists and engineers with relevant knowledge.

Here is the important point: We may NOT advocate for political or religious causes on company time, with company equipment, or represent that we are speaking for the Research Center. During work hours we are paid to conduct scientific research and (in my case) create web sites that are scientifically valuable. I check in my First Amendment rights when I enter the building, and I get them back when I leave for home. While I’m on the clock, I do what my management chain instructs me to do.

I’m puzzled that Freshwater’s attorney is trying to bring up the First Amendment at all. If I stood up in a meeting about satellite data and urged everyone to Vote for Whoever, I would get reprimanded. If I put a big message saying God sent Hurricane Katrina to punish the people of New Orleans* on the division web site, within five minutes somebody would come into my office and probably fire me. I don’t have the First Amendment rights at work that I do at home. And that would be true even if I still worked for my previous employer making disk drives and not an FFRDC. Your First Amendment rights are limited as a condition of your employment, depending on the job duties you are required to fulfill (media people might address political and cultural issues).

And high school teachers are paid to teach the science curriculum set by their Administration and School Board.

*for living below sea level. :-)

Exactly. To try to claim otherwise means the end of a free society, the end of government employees, the end of public education and the beginning of anarchy. The christians will not get their way, they will be drowned out. They will lose in the end. They should be fighting any attempt at this kind of nonsense the hardest of anyone because they are the ones who have the most to lose. Just go a head and try it, you’ll learn soon enough. The rational segment of society isn’t going to stand to for it.

Anyway, aren’t these the same lunatics who are always going on about what the founding fathers really wanted? Do they really think this is what they had in mind?

Good news is, I could then start teaching any damn fool thing I wanted myself and no one could do anything about it. Satanism, human sacrifice, the sky is the limit. I have First Amendment rights don’t you know. There would be no way they could fire me.

ahcuah said: Regarding Pfeiffer, while he is a Republican, he is generally quite liberal, so I was extremely surprised by his questioning.

It’s possible that he was trying to probe the insurance Co’s side of the case in part by trying to rattle the attorney.

I have read that there is little to no direct connection between questions asked during oral arguments at the appellate levels and that actual opinions of the judges involved. Apparently it is common to use questions to explore the range of possibilities. Pfeiffer’s judicial history may be a better indicator of how he would try to drive the decision than the questions asked during the oral arguments.

Indeed, it’s possible that the Freshwater’s lawyer was given “softball” questions because the judges didn’t think there was really much of case on that side, so there was no need to probe for additional information.

Further thoughts on Pfeiffer: If he is indeed a relatively moderate Republican in his philosophy, it could well be that he went after Freshwater’s lawyer to play to his more conservative Republican electorate. It is a no-cost strategy that could potentially help him in his next election. Whether he will then vote to his base, of course, remains to be seen.

air said:

Further thoughts on Pfeiffer: If he is indeed a relatively moderate Republican in his philosophy, it could well be that he went after Freshwater’s lawyer to play to his more conservative Republican electorate. It is a no-cost strategy that could potentially help him in his next election. Whether he will then vote to his base, of course, remains to be seen.

Pfeiffer is too old to run again. (Ohio has an upper age limit for its judges.)

DS said:

In my opinion it would be virtually impossible for SCOTUS to rule in favor of First Amendment rights in this case.

Recent rulings, the direction the court is taking in the voting rights case, and the history of the conservative majority on SCOTUS regarding teaching creationism as science, suggests otherwise. A 5 to 4 ruling completely supporting “academic freedom” looks to be entirely possible. Complete madness.

trnsplnt said:

DS said:

In my opinion it would be virtually impossible for SCOTUS to rule in favor of First Amendment rights in this case.

Recent rulings, the direction the court is taking in the voting rights case, and the history of the conservative majority on SCOTUS regarding teaching creationism as science, suggests otherwise. A 5 to 4 ruling completely supporting “academic freedom” looks to be entirely possible. Complete madness.

My point was not that the ruling could not be made. My point was that it could not be implemented. It would be like ruling that a hospital could only use drugs that were lethal. They could make that decision, for whatever reason, they just couldn’t stay in business very long.

DS said:

My point was not that the ruling could not be made. My point was that it could not be implemented. It would be like ruling that a hospital could only use drugs that were lethal. They could make that decision, for whatever reason, they just couldn’t stay in business very long.

Not sure I’m following, but I often encounter opinions that don’t seem to appreciate just how successful the anti-science education movement has been in their 50 or so years. It is not at all unusual to encounter public school biology teachers, anywhere in the country, who have been influenced by the “equal time” argument (in one of its many guises). If you don’t believe me just spend a little quality time with Google and search school biology web pages for prominent names among creationist writers. Then search your local library for those same names and see where the books are shelved. If we were actually teaching students what science is and how its done, what is currently out there among the “open minded” teachers would be devastating to a student’s understanding of science. As it is, it’s just a major part of the problem of a public that believes science is something that sounds “sciency”. The Freshwater case is unusual in that its come to this point and attracted attention. Most school teachers and administrators aren’t interested in fighting the culture wars and will do whatever it takes to keep the local majority happy while avoiding attention.

trnsplnt said:

DS said:

My point was not that the ruling could not be made. My point was that it could not be implemented. It would be like ruling that a hospital could only use drugs that were

lethal. They could make that decision, for whatever reason, they just couldn’t stay in business very long.

Not sure I’m following, but I often encounter opinions that don’t seem to appreciate just how successful the anti-science education movement has been in their 50 or so years.

It is not at all unusual to encounter public school biology teachers, anywhere in the country, who have been influenced by the “equal time” argument (in one of its many

guises). If you don’t believe me just spend a little quality time with Google and search school biology web pages for prominent names among creationist writers. Then search

your local library for those same names and see where the books are shelved. If we were actually teaching students what science is and how its done, what is currently out

there among the “open minded” teachers would be devastating to a student’s understanding of science. As it is, it’s just a major part of the problem of a public that

believes science is something that sounds “sciency”. The Freshwater case is unusual in that its come to this point and attracted attention. Most school teachers and

administrators aren’t interested in fighting the culture wars and will do whatever it takes to keep the local majority happy while avoiding attention.

There is a fine line between recognizing that there is a valid issue here, and throwing one’s hand up in despair.

We don’t know what these Ohio Supreme Court judges will do.

If SCOTUS hears another creationism case, the current nine members would plausibly go 5-4 against it (because Kennedy has no track record on creationism but has tended not to

pander excessively to the religious right, whatever else one may say about him).

Even if not, at worst they could argue that it was permitted to teach some narrow disguised version of creationism, masked as “non-religious” “doubts about evolution”. (Freshwater’s case, in the version before the Supreme Court of Ohio, is merely that what he taught wasn’t religious and didn’t violate existing standards when he did it. That claim is absurd but the fact that he was tolerated for twenty years is intensely uncomfortable.)

They could not order even teaching of “scientific doubts about evolution”. They could not tell affluent suburban schools that they were required to teach such “doubts”.

From a pragmatic view, they could not likely permit overt teaching of sectarian religion as science - that would cause chaos, as they would then have to specify which religion could or could not be taught as science. For pragmatic reasons, as well, an absurdist argument that curricula and standards mean nothing and that high school teachers have a “first amendment right” to teach anything at any time could not be issued. That would essentially defeat the purpose of having high schools, and would open the door to many things that creationists and Republicans would not want.

All efforts to teach post-modern ID/creationism as science have occurred in relatively conservative, rural areas, and have nevertheless always met with intense local resistance. The Freshwater case is ongoing, but other cases have already lost, often both in court and at the local ballot box.

I’m not arguing that we should not take this issue seriously. It is a very serious issue. It is a major expression of post-modern authoritarian ideological denial of physical reality. At the same time, though, we should recognize reality.

Sectarian science denial in public schools is NOT particularly popular in the US.

The obvious message for any taxpayer, insurance professional, or school administrator here is that Freshwater is a divisive, inflammatory, self-serving troublemaker who has involved the school district in two expensive legal proceedings already, one of which, the Dennis family suit, is over, and the other of which is still costing the insurance company plenty of money.

No-one who could predict any of this in advance would ever hire Freshwater, or let him teach with lax oversight.

This case, however it turns out in the end, is an intense argument against allowing sectarian science denial into science class.

In fact, it’s in many ways a more intense argument against it than if it had been easier to stop Freshwater. The fact that, once established, it can do massive and expensive damage before you can stop it, is a very strong argument to vigilant against it to begin with.

Zack Kopplin, the young activist behind the initiative to repeal Louisiana’s antievolution law and the effort to expose the funding of creationism through vouchers-for-private-schools schemes nationally, was interviewed on Moyers and Company — and the segment is now viewable on line.

http://billmoyers.com/segment/zack-[…]-classrooms/

harold said:

No-one who could predict any of this in advance would ever hire Freshwater, or let him teach with lax oversight.

This case, however it turns out in the end, is an intense argument against allowing sectarian science denial into science class.

In fact, it’s in many ways a more intense argument against it than if it had been easier to stop Freshwater. The fact that, once established, it can do massive and expensive damage before you can stop it, is a very strong argument to vigilant against it to begin with.

Good point. That’s why the best possible outcome, (other than just admitting that Freshwater was caught fair and square and should take his medicine like a man and stop his whining), would be for the court to overreach its bounds, try to claim Freshwater had some First Amendment rights, then be shot down by SCOTUS after another lengthy court battle costing Freshwater and his goons millions. To go along with his lunacy, would be like ruling that it was OK for doctors to just pray for their patients instead of treating them because they had First Amendment rights! At some point you are just going to have to realize that that argument is just plain crazy and that’s not what you really want anyway.

Umm.. that’s weird. My last post got hung up for, like, an hour, before it posted.

Just weird.

harold said:

And yet paradoxically http://dilbertblog.typepad.com/the_[…]are_bul.html

Yep; irony everywhere. :-)

Perhaps one of the things that keeps Scott Adams producing cartoons day after day for years is that he suspects that everything is bullshit; so he just makes fun of it.

After all, when he first started out, he had people sending him stories from inside the bowels of industry that were bizarre enough to become the grist for his cartoons. After a few years of that kind of correspondence, one could very likely start seeing all of life as nothing but bullshit.

I think that another point that can be added to your comment about unskilled administrative/”executive” workers becoming the new aristocracy is that there is a rather large number of people in this country who not only have total distain for an education, they hate people who have an education; and they can’t distinguish between charlatans like the ID/creationist leaders and people who have made the honest effort to get it right.

As long as ID/creationists and other such charlatans - and their political operatives - can find and pander to such an audience, they remain a threat.

Speaking of Scott Adams, readers may be interested in his recent addition to (and subsequent partial removal from) this prestigious list:

Entry #439 (?)

AltairIV said:

Speaking of Scott Adams, readers may be interested in his recent addition to (and subsequent partial removal from) this prestigious list:

Entry #439 (?)

In that link you provided, Adams is quoted as saying this:

“In order to be certain that God doesn’t exist, you have to possess a godlike mental capacity – the ability to be 100% certain. A human can’t be 100% certain about anything. Our brains aren’t that reliable. Therefore, to be a true atheist, you have to believe you are the very thing that you argue doesn’t exist: God.”

I suspect he got that from Thomas Kindell’s snarky 2004 talk (that “argument” is given at about 5 min, 40 sec into the video). Kindell is tracking the line that he learned from Henry Morris at the ICR.

That silly “argument” might go all the way back to at least A.E. Wilder-Smith.

It is hard to tell if Adams is poking fun at this line of thinking or is taking it seriously. It seems to match Adams’s humor in his Dilbert cartoon.

harold said: If computer people hired computer people, they’d do what they used to do, hire promising people with strong general skills, and quickly bring them up to date on the narrow specifics. But they can’t. They have to ask administrators to advertise and fill the position.

Oh, it’s worse than that. The typical pointy-haired boss, who by definition doesn’t understand what the job vacancy involves, writes a job specification and gives it to the hiring folks in HR. The HR wonks, who have no clue about what’s involved in doing the job, write a job ad which doesn’t describe the job, sort through the incoming resumes which they don’t understand, and present a group of unqualified applicants to the pointy-haired manager, who chooses the wrong candidate. It’s a wonder we’ve gotten as far as we have.

Richard B. Hoppe. said: In this country (the U.S.), creationism is a creature of fundamentalist Christianity.

I wouldn’t necessarily agree Richard.

Here in Northern Ireland, young Earth creationism is now widely preached in all evangelical protestant denominations e.g. Baptist, Brethren (both open and closed), Elim Penticostal, Evangelical Presbyterian, Congregational etc. Even the Presbyterian Church in Ireland (one of the four main Christian denominations in Ireland) seems to be largely YEC now, although it does allow for different views.

On the UK mainland it’s even worse. Yoiung Earth creationism has found it’s way into the Chrurch of England and Methodists.

I would imagine the situation is similar in the US.

I think a distinction needs to be drawn between Evangelical Protestantism and fundamenntalist Christianity. There are many evangelical Protestants (who are probably creationist in one form or another) who would regard themselves as evangelicals but not fundamentalist.

I certainly wouldn’t regard the Presbyterian Church in Ireland or the Chrch of England as being fundamentalist, yet both are riddled with YECism.

Bruce Waltke conducted a survey of US evangelical theologians. This seems to show that 46% accepted the option “No objection to creation by evolution”. 19% accepted “Evolution is bad science in part because it presumes an old earth”.

Barriers to Accepting the Possibility of Creation by Means of an Evolutionary Process” at BioLogos.

harold et. al.

The other side of that coin is that the people who do know their jobs and have the skills are too bloody valuable at doing the things for the company and can’t be spared for management.

Having been in corporate America for the last few years, I can attest to that. I’ve been passed for promotion 2 years running, yet have been the lead science expert for a multi-national project. I’m much to important to promote away from the project.

Sorry for the derail… back to creationism… oh, everything has already been said?

Any updates on Freshwater? Is there an expected end date for the SC review?

Many coaches in this country are now being paid multimillion dollar salaries. A study was performed to see if these high salary coaches were bringing winning seasons to the institutions that are hiring them. Conclusion? No correlation whatsoever to high salaries with winning seasons. The authors of the study speculate that there is intense pressure to correct the performance of a losing team. Hiring a multimillion dollar coach may not actually increase poor performance, but at least the pressure to increase performance has been reduced as the person hiring the coach can point to that as a positive measure that has been taken. Ever since I heard about this study I have been thinking that the CEO position has the same racket. No actual performance increase but you pay the money anyway so that shareholders can be assured that no expense is being spared on trying to make the company more profitable.

ogremk5 said:

harold et. al.

The other side of that coin is that the people who do know their jobs and have the skills are too bloody valuable at doing the things for the company and can’t be spared for management.

Having been in corporate America for the last few years, I can attest to that. I’ve been passed for promotion 2 years running, yet have been the lead science expert for a multi-national project. I’m much to important to promote away from the project.

Sorry for the derail… back to creationism… oh, everything has already been said?

Any updates on Freshwater? Is there an expected end date for the SC review?

Sounds like somebody read “The Peter Principle”.

The following essays seem to suggest that Young Earth Creationism is not acquiring new advocates:

The State of Creation Science as Measured by Scholarly Publishing by “Natural Historian”, November 3, 2012 in Naturalis Historia

The Next Generation of Creation Scientists? by “Natural Historian”, October 28, 2012 in Naturalis Historia

Ian Derthal said:

Richard B. Hoppe. said: In this country (the U.S.), creationism is a creature of fundamentalist Christianity.

I wouldn’t necessarily agree Richard.

Here in Northern Ireland, young Earth creationism is now widely preached in all evangelical protestant denominations e.g. Baptist, Brethren (both open and closed), Elim Penticostal, Evangelical Presbyterian, Congregational etc. Even the Presbyterian Church in Ireland (one of the four main Christian denominations in Ireland) seems to be largely YEC now, although it does allow for different views.

On the UK mainland it’s even worse. Yoiung Earth creationism has found it’s way into the Chrurch of England and Methodists.

I would imagine the situation is similar in the US.

I think a distinction needs to be drawn between Evangelical Protestantism and fundamenntalist Christianity. There are many evangelical Protestants (who are probably creationist in one form or another) who would regard themselves as evangelicals but not fundamentalist.

I certainly wouldn’t regard the Presbyterian Church in Ireland or the Chrch of England as being fundamentalist, yet both are riddled with YECism.

It’s not the church which is fundamentalist it’s the person - the Anglican church goes from fundamentalists to Catholics to agnostic atheists. All YECs are fundamentalists as YEC comes from the fundamentalism of believing the bible as the literal truth. The vast majority of Anglicans are not YEC and to say that Anglicanism is riddled with YECism is an exaggeration - by far the majority are as happy with the teaching of evolution as the catholic hierarchy

Paul Burnett said:

harold said: If computer people hired computer people, they’d do what they used to do, hire promising people with strong general skills, and quickly bring them up to date on the narrow specifics. But they can’t. They have to ask administrators to advertise and fill the position.

Oh, it’s worse than that. The typical pointy-haired boss, who by definition doesn’t understand what the job vacancy involves, writes a job specification and gives it to the hiring folks in HR. The HR wonks, who have no clue about what’s involved in doing the job, write a job ad which doesn’t describe the job, sort through the incoming resumes which they don’t understand, and present a group of unqualified applicants to the pointy-haired manager, who chooses the wrong candidate. It’s a wonder we’ve gotten as far as we have.

I just discovered the “Dilbert Salary Theorem” that neatly describes all this. (And also explains the salaries at the DI and the Creation Museum.)

Given:

Time = Money;

Knowledge = Power;

Power = Work / Time;

Substituting “Knowledge” for “Power”, and “Money” for “Time” gives:

Knowledge = Work / Money;

Solve for “Money:

Money = Work / Knowledge;

Therefore, as Knowledge approaches zero, Money approaches infinity, regardless of the amount of work done.

Is that the new math? :p

About this Entry

This page contains a single entry by Richard B. Hoppe published on March 1, 2013 1:35 PM.

My Freshwater analysis is a few days out there. was the previous entry in this blog.

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