Recently in Legal Issues Category

According to Inside Higher Education, Butler University has sued one of its own undergraduates, junior Jess Zimmerman, for defamation. The incident was also picked up by Stu Kreisman at the Huffington Post.

Details are murky, at least to me, but evidently the university had demoted both Mr. Zimmerman’s father, Michael Zimmerman, founder of Evolution Weekend, and his stepmother, Andrea Gullickson, the chairman of the school of music. When Professor Gullickson was demoted, Jess Zimmerman anonymously wrote a blog in which he accused the university of acting arbitrarily. The suit was dropped yesterday, but there is no guarantee that the university will not reinstate it.

(Photo courtesy LDEO)

September 29^th, 2009 Project UPDATE

Courtesy the University of Oregon, which reports on Sept. 22^nd that

After 30 days at sea and 16 days of successful seismic surveying of deep-sea hydrothermal ecosystems on the Pacific Ocean floor off British Columbia, researchers from two Northwest institutions have returned to dry land. Their mission to study the deep crustal structure of the Endeavour segment of the Juan de Fuca ridge had drawn last-minute opposition by environmental groups, who in court filings had sought to stop the seismic surveying because of potential harm to whales and other mammals. A portion of the ridge includes the Endeavour Marine Protected Area that was established to foster conservation and responsible scientific study. Canadian courts rejected the groups’ cases. Prior to sailing, the project – the Endeavour Seismic Tomography Experiment – underwent a thorough environmental assessment by Canadian and U.S. regulators. The timing of the expedition was chosen to minimize marine mammal encounters. During the survey, certified marine mammal observers monitored the region on a 24-hour per-day basis. “Not a single marine mammal was either visually observed or acoustically detected during the seismic survey,” said Doug Toomey, professor of geological sciences at the University of Oregon and principal investigator of the National Science Foundation-funded project that was done from the research vessel Marcus G. Langseth.

Update continues below the fold…

You will recall that in June John Freshwater filed a federal suit (see PT post here) against the Mt. Vernon City School District, several Board members, several administrators, and a bunch of John and Jane Does. Included among the defendants was David Millstone, attorney for the Board.

Now, according to news reports, Millstone has moved to be dropped as a defendant, arguing that it is improper to sue an attorney in order to pressure the attorney’s client. The news report describes a June 9, 2009, letter from R. Kelly Hamilton to the Board of Education that apparently suggested a settlement, including this sentence: “It will be interesting to observe the developments between Mr. Millstone’s representation and the interests of the Mount Vernon City School System.” According to the news report, Millstone’s filing characterized that sentence as “a ‘veiled threat’ to force Millstone out of representing the school board.”

The news report quotes Millstone’s attorney as saying “The claim against Mr. Millstone appears to be a pressure tactic aimed at the administrative process to terminate Mr. Freshwater’s contract.”

This is of a piece with Freshwater’s basic strategy, which is apparently to attempt to force a settlement one way or another. Freshwater’s pastor, Don Matolyak, has been making noises about settlement for some time now, always, of course, on Freshwater’s terms.

In other legal news, responses to Freshwater’s application to the Ohio Supreme Court for a writ of mandamus to compel testimony from Board members are coming in. They’re linked from here. The administrative hearing was due to resume September 10, but I strongly doubt it’ll happen that soon.

You’ll recall that the Institute for Creation Research—the creationist outfit that purports to award advanced degrees in the sciences—has filed a lawsuit against the Texas Higher Education Coordinating Board, objecting against its decision not to authorize the ICR’s granting of degrees. As I observed earlier, the original complaint in the case was 67 single-spaced pages long, and included 86 footnotes, including one that took up an entire page. It was a masterpiece of how not to write a complaint.

Well, the federal court didn’t take lightly to that, and ordered the ICR to file an amended complaint that complies with the Federal Rules of Civil Procedure, and the ICR has now done so. The new complaint is 20 double-spaced pages…but it is 20 pages of non-stop, thigh-slapping hilarity. It contains language that appears to be randomly cobbled together through some sort of Lawyer Phrase Generator, and which I defy any member of the bar to explain in sensible terms: “There are still 2 state statutes that are potentially dispositive (in a manner favorable to the [ICR]) as to issues of ‘first impression’, so this Court needs to make some Erie v. Thompkins guesses thereon.” What the hell does that even mean?

The word “herein” is sprinkled randomly throughout, rather like the way Miss Teen South Carolina sprinkles “such as.” It occurs four times on page 2 alone–including “venue herein,” whatever the heck that means. There are italics, boldface, ALLCAPS, and all sorts of different combinations herein, of course. There are delightful spelling errors (“advertizes”), rhetorical flourishes (“as if with a ‘scarlet letter’”), and neologisms (I can’t decide if “favoritistically” or “applicational bounds” is my favorite). Of course it quotes the Bible. It even has rhetorical questions! In a complaint!

Now, judges get crap like this complaint all the time, and sadly for them, the liberal pleading rules generally require judges to allow the case to proceed if they can find somewhere in the complaint anything that would entitle the plaintiff to relief. That sometimes means doing the work of the plaintiff’s lawyers. If the court does anything like that here, it’ll face heavy work. But here is really the core of the ICR’s complaint: “[ICR] seeks declaratory relief that it may, as a matter of academic freedom…institutionally opine (as a matter of institutional academic speech),–that a given graduate student is worthy to be recognized as having earned [ICR]’s ‘Master of Science’ in ‘Science Education’ degree.…”

As I blogged before, I think there actually is something to this objection: the relationship of the state to educational institutions (however bogus) is not a simple one: an organization has a First Amendment right to grant titles to whomever it pleases–to declare John Smith to be a “deacon” or a “scholar” or what have you. And for the state to confiscate the use of certain terms (like “degree”) does implicate the constitutional rights of those organizations and the individuals who comprise them. The Texas Supreme Court held as much in HEB Ministries, Inc. v. Texas Higher Education Board, 235 S.W.3d 627 (Tex. 2007).

That’s a straightforward constitutional argument, and one worthy of being addressed by a court. But something tells me it won’t be addressed in this case, in which the ICR’s counsel alleges all sorts of virtually random causes of action. It seems to allege that the Texas Higher Education Coordinating Board violates the monopolies clause of the state Constitution, the Fourth Amendment’s searches and seizures clause, the due process clause, the equal protection clause, the freedom of speech clause, the freedom of the press clause, the freedom of association, the Texas Government Code, laws against defamation, the public emoluments clause, the Texas Religious Freedom Restoration Act, anti-discrimination laws, the Texas Education Code, and even the “no titles of nobility” clause of the U.S. Constitution! The complaint even argues that for the state of Texas to regulate higher education “interferes with interstate commerce” (emphasis original, natch).

Writing a complaint is not a hard task for a lawyer. The rules are clear. There are plenty of examples to copy. It doesn’t require rhetorical skill or eloquence–indeed, you are supposed to avoid these things. You don’t have to write footnotes (in fact, you shouldn’t). It’s something that any competent attorney can do. But the ICR’s complaint is just wackiness through and through. Creationists appear to be no better at law than they are at science.

(By the way, here’s an interesting civil procedure tidbit: the complaint seeks to allege causes of action under the Texas Constitution, but the defendants are being sued pursuant to Ex Parte Young. Under Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1980), a federal court has no supplemental jurisdiction to hear state constitutional claims in such an action.)

I just received an e-mail from the Center for Inquiry, which begins thus:

Matthew LaClair … has alerted us that his former history teacher, David Paszkiewicz, is at it again. You may recall Mr. Paskiewicz–he’s the one who was recorded by LaClair telling students that dinosaurs were on Noah’s Ark and if “you reject the Lord’s salvation, you belong in hell” (New York Times, 12/18/06). This time, he is acting as the advisor of a Christian club at Kearny High School (located 10 miles outside of Manhattan in New Jersey), called the Alpha and Omega Club, which has scheduled [a field trip to the Creation Museum in Petersburg, Kentucky, June 5-7].

LaClair, who is no longer a student at the school, learned about the trip from the student newspaper. He evidently alerted the school district’s lawyer and also contacted Americans United for the Separation of Church and State. He convinced the school board to postpone the trip till school was out today, June 5, so that the trip would take place entirely out of hours (I infer, therefore, that the trip is no longer an official school field trip). In addition, he got the school board to remove the listing of the Christian club under history and social science.

The Center for Inquiry notes that there are still some troubling problems. School officials initially approved the trip, which suggests to CFI that they were “asleep at the wheel.” CFI adds that

a public school teacher with strong religious convictions and a record of proselytizing is being allowed to serve as the advisor of a religious club and use his position to have a public school approve a patently religious-based fieldtrip.

Religious clubs are permitted in schools, but the adviser is supposed to be “neutral.” CFI questions the teacher’s neutrality since he

has overtly and repeatedly discussed and promoted religious beliefs with his students in the past, and his proposed fieldtrip to the Creation Museum demonstrates that he continues to do so today, dangerously blurring the line between his own personal faith commitments and his obligations as a teacher in a government-funded public school system.

A court in California has ruled that the Establishment Clause was violated by comments a schoolteacher made against certain religious propositions. Ed Brayton has details here. Personally, I’m troubled by the ruling for reasons that First Amendment expert Eugene Volokh explains here.

This news story has been raising some eyebrows lately: it appears that a North Carolina judge has ordered three children of a divorcing couple to be sent to public school in part because of the father’s concern that the children are being taught creationism at home. Prof. Eugene Volokh, a First Amendment expert, has some comments here. Personally, I’m very skeptical about the news report. Legal reporting is often extremely misleading, and it’s always best to be skeptical. In this case, the story only quotes the mother (who, of course, lost the case and is the one complaining) and not the judge. The mother claims that the judge based his ruling in part on this issue, but we don’t have the judge’s own words before us.

Putting that aside, this is not an easy question to call. Of course, the prospect of a judge basing a custody decision solely on this issue is very troubling–there are far more relevant factors in a custody case than whether a child is receiving adequate science instruction. And a parent has a right to direct the religious upbringing of a child, including the right to teach a child ludicrous religious dogma instead of science. That’s a sad thing, but people often think other people’s exercise of freedom is a waste. Certainly history includes many atrocious cases in which atheist parents have lost their children because judges thought it was “better for the child” to be taught religion.

Still, the father also has a right to educate his children, and if he thinks the children are not being instructed adequately, he has a legitimate complaint. There are good reasons to be concerned about the quality of education in home schooling environments (although there are certainly many very high quality home schoolers). In a case like this, it is probably best to ensure that although the mother is free to teach her children her religious beliefs, the father is also free to teach real science to kids if he chooses. But, again, we don’t know all the facts, or even the other side of the story.

I think everyone can at least agree that child custody cases are extremely complicated matters–which cannot be accurately described in a brief news story, and obviously should not be decided on the basis of evolution or creationism education alone–and that except in cases of actual abuse, minor children should not be taken from parents because of the religious instruction that parents are giving their kids. The problem is, when does religious instruction become abuse? That line can often be blurry–but if it’s just a dispute over evolution and creationism, it’s clearly not abuse.

By Hector Avalos, Ames, Iowa

Count this as another loss for the Discovery Institute in Iowa—right behind its failed efforts to portray intelligent design as legitimate research in Iowa universities. The “Evolution Academic Freedom Act,” based on the model language promoted by the Discovery Institute, never even made it out of the relevant subcommittee in the Iowa legislature. March 13 was the deadline for any further action.

The bill was introduced by Rod Roberts, a Republican legislator, in early February. By mid-February, the faculty at Iowa institutions of higher learning launched a petition that eventually gathered some 240 signatories from about 20 colleges, universities, and research institutions in Iowa.

I am so incredibly tardy with this information that Arizonian John Lynch and the lovely folks at Uncommon Descent have already blogged this, but recently an “academic freedom” bill was introduced in Iowa. For those who may be unfamiliar, in addition to “teach the controversy,” these “academic freedom” bills are one of the new tactics for creationists who want to introduce creationism into science classrooms via the back door by claiming that teachers need the protection to teach “the full range of scientific views” when it comes to evolution (in other words, to teach creationism/ID). The bill states that:

Our friend Law-Suit Larry has filed a petition for certiorari in the U.S. Supreme Court, asking that Court to review the Ninth Circuit’s decision in his lawsuit against the U.C. Berkeley Understanding Evolution website. (We’ve blogged about this case in the past.) He was assisted in this work by the Pacific Justice Institute, an organization that focuses largely on cases relating to religion issues. Caldwell is representing his wife as the petitioner, but the respondent coincidentally is also named Caldwell, meaning that the case is Caldwell v. Caldwell, with Caldwell as one of the lawyers, and they’re all different people.

I’ve read the petition (which is not online), and it’s an interesting piece of work. It urges the court to take the case on the grounds that the theory of “standing” needs to be clarified in the context of web pages. (Non-lawyers for whom these terms are confusing should start by reading this)

For the three people who don’t read Pharyngula, Ken Miller is guest-blogging on Carl Zimmer’s Loom, swatting Casey Luskin’s latest attempts to spin the Kitzmiller trial testimony on irreducible complexity.

PZ feels almost sorry for Luskin. I don’t: I saw him hovering outside the meeting room of the Ohio State Board of Education during our wars here. No sympathy at all on my part.

Added in edit: All three parts of Miller’s smack-down of Luskin are up on The Loom now: Part 1, Part 2, and Part 3. Part 3 is particularly interesting, with Miller looking at why Luskin is attempting to rehabilitate the ID position in the light of its epic failure in Kitzmiller.

Creationist Nathaniel Abraham’s lawsuit against the Woods Hole Oceanographic Institution—which PZ Myers discussed in this post, and which Hyphoid Logic discussed at length last month—has been thrown out by a federal judge in Massachusetts for procedural problems. The judge did not need to hear oral arguments, or to issue a long opinion; in a single-sentence order he merely ruled against Abraham because he did not file the lawsuit within the proper time period after receiving a notice from the Equal Employment Opportunity Commission, and because the defendant—Woods Hole scientist Mark Hahn—could not be personally sued under the federal law in question. Abraham argued that he did not actually receive the notice, but he failed to allege as much in his complaint, and the defendants pointed out that courts presume that such letters are received about a week after they are sent—while Abraham filed his lawsuit more than a year after it was sent.

The decision is not a ruling on the merits, and might be appealed. The case is Abraham v. Woods Hole Oceanographic Institution, et al., No. 07-12237 (D. Mass.)

There’s been legal action at last. XVIVO just couldn’t stand by and let their work be stolen and used for vile purpose.

Dear Mr. Craft:

This letter will constitute notice to you, as Chairman of Premise Media Corporation, of the copyright infringement by your corporation, and its subsidiary, Rampant Films, of material produced by XVIVO LLC, in which XVIVO holds a copyright.

It has come to our intention that Premise Media and Rampant Films has produced a film entitled “Expelled: No Intelligence Allowed,” which is scheduled for commercial release and distribution on April 18, 2008.

The story is already up at ERV’s and Henry’s. Regular readers know that this matter has a history. Newby’s can start with links at ERV’s. NCSE has the legal letter in beautiful pdf format.

But I want to pose this question: how many theaters, if any, will show Expelled on 18 Apr 2008? And should you aid your local theaters by explaining the matter?

On April 4, 2008 at 7:00 pm CDT (GMT - April 5, 2008 at 12:00 midnight), Dr. Kenneth R. Miller, a professor of biology at Brown University, will give a talk entitled God, Darwin, and Design: Lessons from the Dover Monkey Trial. Miller was a lead witness in the Dover, Pennsylvania “intelligent design” case that began in September 2005, and which has been front-page news since it started. The talk is sponsored by the The University of Texas at Austin, which is also web-casting the event, live.

The public is invited to participate in the Live Webcast of the lecture, April 4, 2008 at 7:00 pm CT (click here for times all over the world). The webcasts are very high quality, and viewers can submit questions to the speaker through our website, and hear the speaker answer several online questions in real time. The webcasting software we use requires viewers to download a small plugin, but it is very simple and quick to install.

A link to the details of the lecture and the webcast could be found at: http://www.esi.utexas.edu/outreach/[…]tures/Miller

It is recommended that participants log in to the University of Texas at Austin link several minutes before 7 PM CDT, to have time to download the required plug-in before the Webcast begins.

What is the lecture about?

At ‘The Questionable Authority’, Mike Dunford reports on the California Creationist Lawsuit.

Several Christian schools are suing the University of California for unfairly and unconstitutionally refusing to accept a number of courses taught at Christian schools as meeting UC’s admissions criteria.

According to Inside Higher Ed the judge has made his ruling and granted partial summary judgment in favor of the UC system. Mike promises two more postings to discuss particular aspects of the ruling.

One of the posts will focus on Judge Otero’s discovery of various typical Creationist argument techniques (most notably strawmen and quote mining) in the Christian School’s claims. The second will focus on the valuable, but accidental, contribution made by Mike Behe - on behalf of the side of good science.

Part 2 has been added

and Part 3 Summary Judgment in California Creationist Case: Behe Shoots, Scores, We Get Point (Part 3 of 3)

On Uncommon Descent William Dembski claims that Richard Dawkins has admitted that life could be designed and thus wonders: “Is ID therefore scientific?”. As I will show this is a logically flawed conclusion.

First of all lets point out Intelligent Design does not claim merely that life is designed but that such design can be detected via scientific methods. In this aspect if differs from science which admits that design always remains a logical possibility, however science also accepts that if such design is ‘supernatural’ no scientific method can detect such design.

On Friday, Florida State Senator Ronda Storms introduced an anti-evolution bill to the legislature. She did so quietly, and without fanfare. No press release was issued, and so far the legislation has not received any attention in the press. It also doesn’t seem to have attracted any attention from the Discovery Institute or any of the other major anti-evolution websites, either. That’s actually a bit of a surprise, since the bill in question is remarkably similar to a “Model Academic Freedom Statute” that the Discovery Institute posted on a website that they (and a media company) set up to promote a movie.

This whole thing raises so many issues that it’s hard to decide where to start. There’s the Orwellian language of the act itself. There’s the egregious misunderstanding of the concept of academic freedom that’s contained in the bill. There’s the remarkable similarity between the bill before the Florida legislature and the Discovery Institute’s “model statute.” There’s the narrow focus of the law. There’s the lack of concern shown for “academic freedom” as it relates to anything but teachers and students who want to stick their heads in the sand and pretend that evolution’s not a real, solid scientific concept. And that’s just scratching the surface. There’s just no way that I can address all of this in a single post. Fortunately, I’m confident that between the comments section for this post and whatever other bloggers may decide to write on this topic, most of the things I miss will be covered in short order.

Right now, I’m going to focus on the mockery that the circumstances surrounding this bill make of the Discovery Institute’s frequent assertions that religious beliefs have absolutely nothing to do with this sort of thing. (Yes, I know it’s hard to make a mockery of a mockery, but they’ve managed it. Again.)

Read more at The Questionable Authority, where comments may be left.

Yesterday the Discovery Institute held a press conference at the capitol building in Des Moines, to announce Guillermo Gonzalez’s plans to sue Iowa State University over their decision to deny him tenure. Supposedly the lawsuit will be filed pending the rejection of an appeal to the Board of Regents, which is virtually guaranteed simply for the fact that the Regents typically uphold tenure decisions. Joining Casey Luskin, Rob Crowther, Gonzalez’s attorneys, and a few other DI folk was state Senator David Hartsuch (R-District 41).

The core of the DI’s assertion is that there were “secret tenure deliberations” aka a plan to oust Dr. Gonzalez because of his ID views.

Continue reading at Neurotopia.

By SA Smith

It is one thing to correct Michael Behe, some structure guy with zero research experience on HIV-1 evolution. But considering the sheer number of DI “fellows” who are lawyers, and the fact I’m just a biology student with zero experience in law, I found it rather strange that I caught something the DI lawyers evidently had no problem with:

NOVA has released a Press Release outlining the exciting new program. For more information visit NOVA Judgement Day Companion site or the Pressrooms at pbs.org/pressroom or Pressroom.wgbh.org The show will air on November 13, 2007 at 8pm ET/PT on PBS.

Check your local listings and spread the news