Recently in Education and Legal Category

The National Center for Science Education announced that its executive director, Eugenie Scott, will retire at the end of the year:

NCSE’s executive director Eugenie C. Scott announced on May 6, 2013, that she was planning to retire by the end of the year, after more than twenty-six years at NCSE’s helm. “It’s a good time to retire, with our new climate change initiative off to a strong start and with the staff energized and excited by the new challenges ahead,” she commented. “The person who replaces me will find a strong staff, a strong set of programs, and a strong board of directors.”

The Times last week ran an article on the implementation of school vouchers in a number of states. My concern here is that the vouchers may be applied to religious schools and possibly home schools that have little oversight.

A brief note to let readers know that my analysis of the oral arguments before the Ohio Supreme Court will be up in a couple of days. I have some background material coming from outsiders that’s yet to arrive, and my tomorrow is almost fully booked already. So: Friday at the earliest, and possibly Saturday.

UPDATE: Video of the oral arguments is now up.

Oral arguments before the Ohio Supreme Court on the termination of John Freshwater’s contract as a middle school science teacher in Mt. Vernon, Ohio, are scheduled for the morning of Wednesday, February 27. Freshwater’s case is second on the schedule. Fifteen minutes of oral arguments are allotted to each side in each case, and I don’t know how long the break between cases is, so Freshwater’s case will be heard sometime after 0930 EST (1430 UT). Oral arguments will be live streamed on The Ohio Channel, and I was told by an administrator at the Court that video of the arguments should be archived at the same site that evening.

The documents in the Court’s review are here. The core documents are Freshwater’s Merit Brief (PDF here) and the District’s Merit Brief (PDF here). In addition, Steve and Jenifer Dennis, the National Center for Science Education, the Secular Student Alliance, the American Humanist Association, and Americans United for Separation of Church and State have filed amicus curiae briefs, all available at the general documents link above.

Recall that two lower courts, the Knox County Court of Common Pleas and the Ohio Fifth District Court of Appeals, both ruled against Freshwater. I still have no idea why the Ohio Supreme Court accepted the case for review, particularly in view of the bait and switch Freshwater’s attorneys pulled on the Court.

I suggest that interested folks preview a couple of the archived oral argument videos to get a feel for how the Court operates. In general, attorneys for both sides get to start their presentations but are rather quickly interrupted by questions from members of the Court.

As Matt noted above, one of the creationist so-called “academic freedom” bills was filed in the Montana state legislature. Now the Sensuous Curmudgeon reports that the bill has been tabled in committee, whatever that means. In that post SC also has a video of some of the testimony at the committee hearing on the bill, noting that the proposer, Representative Clayton Fiscus, was the only speaker in support while a couple of dozen professors, teachers, and citizens testified in opposition. It’s worth watching both for the testimony in opposition and for the almost sad ignorance and confusion of Representative Fiscus. I genuinely wonder how he navigates through life given his evident inability to think coherently. if he’s the best the Disco Tute can come up with to sponsor their bills, they’re in deeper trouble than I thought.

That video is edited from the full hearing, and another set of excerpts consisting mostly of speakers’ identifications is on NCSE’s YouTube channel. It does not include Representative Fiscus’ remarks. I wouldn’t be surprised if video of the full hearing including all testimony is somewhere, but I haven’t looked for it.

Update, February 4, 2013. NCSE has just reported that the Colorado bill has failed to make it out of committee. First in the nation, for this year at least! Unhappily, the vote was 7-6, which is entirely too close for comfort.

January is barely gone, the groundhog may or may not have seen his shadow, and the National Center for Science Education reports that already 8 anti-science bills have been filed in 6 states: Colorado, Missouri (two bills), Montana, Oklahoma (two bills), Arizona, and Indiana.

As Barbara Forrest notes, “Creationists never give up.” The bills have been carefully sanitized, but all will allow teachers to teach the purported strengths and weaknesses of scientific theories, most commonly “biological evolution, the chemical origins of life, global warming, and human cloning.” According to NCSE, the bills are also generally “protective” in that they forbid state and local authorities to prohibit such teaching. The bills pretend to foster debate, but the language is clearly code words for creationism.

A somewhat shortened version of the movie, The Revisionaries, will be shown on PBS Monday night at 10 Eastern Time. The Revisionaries is a documentary about attempts by the Texas State Board of Education to inject creationism into the school standards.

Here is what PBS says about the program:

Update, January 27: Phil Plait reports here that the bill almost certainly will not make it out of committee.

Phil Plait of Bad Astronomy reports here on the latest creationism bill in Colorado. As always, the bill is disguised as an academic freedom bill but, as Plait says, questions evolution, cloning, and global warming and omits, say, religion and literature:

If this were really about academic freedom, why is it so specific? Why not include all fields of science, instead of just those three? In fact, why not include all academic fields? I’d be fascinated to see literature, art, and math added to that. Or religious study…how about supplementary texts that show the contradictions in the Bible? I wonder how that would go over. [Ellipsis in original.]

Me? I do not wonder at all.

Acknowledgement. Thanks to Mike Klymkowsky and James DeGregori for the link.

You will recall that attorneys for the Mt. Vernon Board of Education moved to strike parts of his merit brief, the document that makes his argument to the Ohio Supreme Court to overturn his termination as a middle school science teacher in Mt. Vernon, Ohio. The Board’s argument was that his merit brief included Propositions of Law that are significantly different from those in his Memorandum in Support of Jurisdiction, the document on which the Court’s acceptance of the case was based. I described that in Freshwater: The bait and switch laid out.

This morning I was notified that the Court has denied that motion to strike. The notification reads in full:

DECISION: Denied Ref: Motion to strike propositions of law 1 & 2, appendix pages 49 & 55-56, and supplement pages 103-116 from the merit brief of appellant

Notification Date/Time: 11/28/2012 9:15:28 AM

The ruling is not yet on the case documents site. That should be up sometime in the next 24 hours. If it says more than the notification I received I’ll flag it here.

I find the ruling inexplicable: Why would the Court accept a case on one set of Propositions of Law but then permit the appellant to argue his case on the basis of a different set Propositions? Beats the hell out of me.

Last night, I saw a splendid production of “How the World Began” produced by the Boulder Ensemble Theater Company, also known as Betsy. If you hurry, you can catch the last performance of Catherine Trieschmann’s fine play this afternoon at 4 p.m. According to the director, Betsy’s production is only the fourth, after New York and two other cities.

Very briefly, the play involves a young, idealistic, single, pregnant biology graduate who comes from New York to teach biology in a rural Kansas town, at least in part because it has recently been destroyed by a tornado. Early on, she obliquely refers to creationism as gobbledygook and is challenged after school by a very troubled student. Unfortunately, she digs in her heels and refuses to apologize, with consequences both predictable and unpredictable.

As those who follow the Freshwater affair know, John Freshwater appealed his termination as an 8^th grade science teacher to the Ohio Supreme Court, filing a Memorandum in Support of Jurisdiction that induced the Court to accept his appeal, then a Merit Brief which laid out his argument for overturning the termination decision and which, not incidentally, made a different argument than that made in the Memorandum in Support; in effect, Freshwater pulled a bait and switch on the Court. The Board of Education filed a Memorandum in Response to Freshwater’s Merit Brief, and Freshwater has now filed a reply. I’ll describe some salient features of his reply below the fold.

The big guns are out in the Freshwater appeal to the Ohio Supreme Court. A slew of briefs–including the Board of Education’s merit brief and amicus briefs from the National Center for Science Education, the Dennis family, Americans United for Separation of Church and State with the Anti-Defamation League, and the American Humanist Association with the Secular Student Alliance, along with requests for permission for attorneys to appear representing several of those organizations–were filed yesterday with the Court.

It will take me a while to read all the material, but below the fold I’ll mention a few highlights from a fast first reading.

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.

One of the claims in John Freshwater’s appeal to the Ohio Supreme Court is that he was “…not provided any clear indication as to the kinds of materials or teaching methods which are unacceptable…”. That is, no one told poor John what he couldn’t teach by way of alternatives. I spend a little time looking for evidence that he was in fact given guidance with respect to material inappropriate for use in his 8^th grade science classroom. It turns out that there’s a fair amount of evidence that on a number of occasions Freshwater was specifically instructed that creationist and intelligent design material was not appropriate. I’ll mention a few salient occasions here that took me less than 30 minutes to find. Note that they’re from sworn testimony in the administrative hearing, the basis for the original resolution to terminate Freshwater’s employment as a middle school science teacher.

First, of course, there’s Freshwater’s 2002-2003 proposal that the Mt. Vernon district adopt the Intelligent Design Network’s Objective Origins Science Policy, and to add “critically analyze evolution” language to the district’s science curriculum. In support of his proposal Freshwater offered Jonathan Wells’ Survival of the Fakest, originally published in that distinguished science journal The American Spectator (actually a conservative commentary rag). He also distributed Wells’ Ten questions to ask your biology teacher about evolution, and among those who spoke to the BOE in support of his proposal was young earth creationist Georgia Purdom, then an assistant professor at Mt. Vernon Nazarene University, now a full-time employee of Answers in Genesis.

Freshwater’s proposal was rejected by the District’s Science Curriculum Committee and then by the Board of Education. That looks like a clear indication to me.

The Columbus Dispatch is the major (and conservative-leaning) newspaper in central Ohio. Its coverage of the Freshwater case has been quite good–it had a reporter attending many of the sessions of the administrative hearing. Now, with the Ohio Supreme Court having accepted Freshwater’s appeal for consideration, the Dispatch has a strong editorial on the topic. The last three paragraphs of the editorial are

Lower courts have spoken clearly: Freshwater violated the Constitution by using his position as a teacher to attempt to impart his religious beliefs.

Equally important, he failed his students, by presenting a religious belief as science, when it is nothing of the sort. Science, by definition, is the study of natural processes, not supernatural ones. Any theory that invokes supernatural explanations for natural phenomena is not science, it is religion, and therefore is inappropriate in a science class.

The Supreme Court can do public education a great service by upholding the right of school boards to insist that science classrooms be reserved for the teaching of science.

It was good to read that.

The Ohio Supreme Court has accepted John Freshwater’s appeal of his termination as a middle school science teacher in the Mt. Vernon, Ohio, City Schools. The appeal was accepted on two Propositions of Law asserted in Freshwater’s Memorandum in Support (large-ish pdf).

The first Proposition of Law in the appeal claims that

The termination of a public school teacher’s employment contract based on the teacher’s use of academic freedom where the school board has not provided any clear indication as to the kinds of materials or teaching methods which are unacceptable cannot be legally justified, as it constitutes an impermissible violation of the rights of the teacher and his students to free speech and academic freedom under the First Amendment to the United States Constitution and a manifestation of hostility toward religion in violation of the First Amendment’s Establishment Clause.

The second Proposition of Law claims that

The termination of a public school teacher’s employment contract based on the mere presence of religious texts from the school’s library and/or the display of a patriotic poster cannot be legally justified, as it constitutes an impermissible violation of the rights of a teacher and his students to free speech and academic freedom under the First Amendment to the United States Constitution and a manifestation of hostility toward religion in violation of the First Amendment’s Establishment Clause.

More below the fold (if my power stays on!)

I read Public money finds back door to private schools in the NYTimes last night and planned to post on it this evening, but Jerry Coyne beat me to it. I’ll quote just a bit from the story and refer you to Coyne’s post:

Mr. Arnold, the headmaster of the Covenant Christian Academy in Cumming, Ga., confirmed that his school used those texts but said they were part of a larger curriculum.

“You have to keep in mind that the curriculum goes beyond the textbook,” Mr. Arnold said. “Not only do we teach the students that creation is the way the world was created and that God is in control and he made all things, we also teach them what the false theories of the world are, such as the Big Bang theory and Darwinism. We teach those as fallacies.”

With creationist books from Bob Jones University and A Beka bought via donations that yielded state tax credits for the donors.

As I posted earlier, in April John Freshwater filed a Notice of Appeal and a Memorandum in Support of Jurisdiction with the Ohio Supreme Court, asking that the Court consider an appeal of his termination. Now the Board’s attorneys have filed a Memorandum in Response. Basically, the Board argues that the case as decided by the 5^th District Court of Appeals is a narrow one, a “run of the mill termination case,” concerned solely with whether the Knox County Court of Common Pleas abused its discretion in denying Freshwater’s appeal of his termination. The Court of Appeals ruled that there was no abuse of discretion.

The Memorandum in Response argues that Freshwater’s appeal to the Supreme Court is no more than a ploy to convince the Supreme Court that it should “take another look at the facts”–in effect, to rehear the case. It argues that Freshwater is attempting to “transform this case into one about academic freedom and free speech,” but no substantial constitutional question is raised by it. It says that Freshwater’s invocation of academic freedom and free speech in his MIS is a “… desperate attempt to make this case appear as a matter of public or great general interest … [and] … has no basis in reality” (p. 11). The Memorandum in Response argues that had Freshwater been allowed to continue his behavior in the classroom, the Board of Education, in its failure to control Freshwater’s behavior, would itself have been exposed to the risk of violating the Establishment Clause and resulting litigation.

The next step is for the Supreme Court to decide whether it will hear the case or let the Appeals Court ruling stand. I have no idea how long that will take, but I’ll try to find out what typical delays are.

I’ve been rereading “Monkey Girl,” (Amazon; Barnes&Noble) Edward Humes’ excellent book on the Kitzmiller trial, and ran onto something I’d either missed first time through or forgotten. As is the case in the Freshwater affair, the Rutherford Institute got involved in Kitzmiller. It represented three sets of Dover parents who requested that they be allowed to intervene in the case, joining the school board as defendants. Filed the same week that the Board’s intelligent design-based statement was read to the first classes in school, the Application to Intervene argued that those parents had a stake in the outcome of the trial, and therefore should be allowed to participate as defendants, represented, of course, by the Rutherford Institute.

The Rutherford Institute argued on behalf of the three sets of parents that if the plaintiffs (Tammy Kitzmiller, et al.) prevailed and the ID statement to biology classes was forbidden to be read, their children would not be able to hear about intelligent design. The Application to Intervene as Defendants (PDF) claimed that

The Intervenors seek to participate in this action because, if the Plaintiffs are successful, the lawsuit will have the effect of censoring the Dover Area School District Board and shielding all ninth graders from criticism of Darwin’s Theory of Evolution.

…

[The intervenors] seek to ensure that their children will have full access to information concerning the theory of evolution, including its many gaps for which there is no evidence. The Applicants further seek to ensure that their children not be denied access to a critical analysis of evolution merely because some persons believe that critics of the theory are religiously motivated. (pp. 2-3)

Further, in the Application to Intervene Rutherford argued that parents of school children are entitled to assert a “… First Amendment right of access to information and ideas in an academic setting…”. Still further,

The Applicants have a substantial legal interest, rooted in the First Amendment, in making sure that their children are not prevented from learning about intelligent design.

That is, parents are constitutionally empowered to determine what should be covered in public school science curricula, regardless of whether it’s accepted science or fringe pseudoscience. Consistent with Michael Behe’s and Scott Minnich’s admissions in their Kitzmiller testimony that their redefinition of science would substantially broaden the landscape of admissible explanations in science, extending it into the supernatural, the Rutherford Institute’s argument would pave the way for the return of astrology and alchemy to the science classroom, should some parent or teacher wish it.

In a way the route for Rutherford Institute’s involvement in both Dover and Mt. Vernon was similar. Rather than being a principal actor, involved in the original disputes, Rutherford was a late-comer, entering the processes well after they were in progress. It attempted (in Dover) and succeeded (in Mt. Vernon) in inserting itself into an on-going process, making arguments that neither side made prior to Rutherford’s participation. In both cases it is arguing for an expansion of First Amendment rights, in the Dover case the right of parents to determine what will be taught in public school science classrooms, and in the Mt. Vernon case the right of a teacher to override instructions from the Board of Education regarding curriculum matters. And in both cases the result would be the inclusion of any damn fool thing a parent or teacher wants taught, regardless of its appropriateness to the class or the validity of its content. As the response from the plaintiffs in opposition to the Application to Intervene put it,

Second, if Applicants were correct that there is a First Amendment right of parents to dictate the content of public school curricula, that right would eviscerate the well-recognized authority of school districts to set their own curricula. (p. 7)

The Rutherford Institute’s argument has developed and been elaborated in the seven years between Kitzmiller and Freshwater, but it rests on the same foundation: A claimed First Amendment right to allow anything at all to be taught in science classes, subject only to the idiosyncratic wishes of individual parents or teachers.

For more, see NCSE’s Archive of Rutherford Intervention documents.

Added in edit: I’m not sure I made it clear that Judge Jones denied the request to intervene in Kitzmiller.

One of the salient properties of anti-evolutionist coverage of the Freshwater affair has been a systematic misrepresentation of the case. On various anti-evolutionist blogs and Christian news outlets, the case has consistently been characterized as being concerned solely with Freshwater’s personal Bible on his desk, excluding any mention of the various religious items displayed in his classroom, his use of blatantly creationist materials in class, his insubordination, and his multiple mutually contradictory accounts of what he in fact taught and what he did with the Tesla coil. In a recent report of an interview with Freshwater all those themes are repeated. It’s of note that the interview is on a web site with the motto “Restoring Truth to History Class,” one of whose recent emphases appears to be on Islamic infiltration into public school curricula in the U.S.

Given the false statements in its Freshwater story, I wonder what “truth” means to that site. The first paragraph of the story has four sentences. Every sentence has an error of fact. Below the fold I’ll walk through parts of the story, pointing out some of the distortions, misrepresentations, and plain falsehoods it contains.