On evolutionnews Rob Crowther quotes “a legal scholar” who is offering an interesting legal analysis of the Ohio situation.
Crowther informs us the scholar is Gonzaga University law professor David DeWolf.
Crowther hardly does DeWolf justice here. In addition to being a law professor, DeWolf was also the lead counsel for the Discovery Institute’s Amicus Curiae brief in the Kitzmiller case. In addition, DeWolf is one of the authors of “Teaching the Controversy: Darwinism, Design and the Public School Curriculum”.
Neither the Amicus Brief nor the “Teaching the controversy” fared to well in the Kitzmiller decision. In fact, the Amicus Brief may very well have been the reason why the Judge decided to rule that intelligent design is not science.
In “Teaching the Controversy: Darwinism, Design and the Public School Curriculum”, the authors wrote:
As this guidebook will show, teachers and school boards who choose to tell students about the evidence and arguments for intelligent design actually fulfill this Supreme Court mandate.
Uhoh… This does not bode well…
In fact, the judge went out of his way to address and reject the arguments presented by the Discovery Institute Amicus Brief as well as ‘teaching the controversy’ approach.
However, this does not prevent DeWolf from giving some advice to the Ohio situation:
“Not only is Ohio outside of Judge Jones’ legal jurisdiction, but the Ohio State science education standards explicitly acknowledge that they do not require the teaching of intelligent design, so his determination that intelligent design is not science doesn’t affect the actions of the Ohio Board of Education.”
But neither did the Dover Board require the teaching of intelligent design:
“The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part. Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations. Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves. With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.”(York Daily Record, January 8, 2005)
DeWolf’s own article shows how ‘teaching the controversy’ is synonymous with ‘intelligent design’ and as such, Judge Jones’ excellent analysis should apply to ‘teaching the controversy’ as well.
In fact Judge Jones did address the ‘teach the controversy’ issue explicitly:
Moreover, ID’s backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID.
Now, DeWolf’s record is hardly impressive
He predicted for instance that:
But the plaintiffs have made a second, broader claim. Their witnesses testified that intelligent design is not science; that it had “evolved” from creationism in order to evade the legal impact of Edwards v. Aguillard; and that it is an inherently religious belief that has no place in a science curriculum. By contrast, the school board presented witnesses who explained the scientific basis of design theory (the application to biology of clearly established methods for detecting the action of an intelligent agent); the benefit to science of permitting minority views; and the benefit to students from developing critical thinking skills. Fascinating as the trial testimony was, it is unclear that Judge Jones will answer the questions that formed the title of an article my co-authors and I published five years ago in the Utah Law Review, Teaching the Origins Controversy: Science, Or Religion, Or Speech? [PDF]. If Judge Jones does answer these questions, then the losing party will likely appeal the decision, and the Supreme Court could revisit some of the questions that were first raised in Edwards v. Aguillard.
Boy was DeWolf wrong… And as I have argued, the filing of the Discovery Institute’s Amicus Brief may very well have been a major reason why Judge Jones decided to address the issue of intelligent design not being science:
As USA Today reports
The Seattle-based Discovery Institute, the leading proponent of ID, told Dover its policy would invite a lawsuit. Instead, the think tank urges schools to “teach the controversy” about evolution without mandating intelligent design.
That’s the approach several boards are taking. Jones tried to drive a stake through it. “This tactic is at best disingenuous and at worst a canard,” he wrote. “The goal of (ID) is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID.”
He said no other part of the science curriculum was criticized in Dover, there was no evidence of disclaimers on other subjects and science has refuted ID critiques of evolution.
In other words, DeWolf whose comments on the Dover ruling seem to have misunderstood the legal reality now seems to be on his way for yet another faux pas.
Intelligent design’s failure as a scientific contributor has generated significant concerns amongst ID proponents, especially the Discovery Institute, but why would they care as they seem to support (at least at present) that ID should not be taught in high school settings. Judge Jones seems to have understood however that teaching the controversy is nothing more than a thinly veiled attempt to introduce intelligent design. As such, Jones’ ruling is very relevant to the Ohio situation.
Seems to me that DeWolf, once again most likely inadvertently , is strengthening the legal case against Intelligent Design.
Judge Jones has shown that ‘the emperor has no clothes’.
Judge Jones wrote:
To conclude and reiterate, we express no opinion on the ultimate veracity of ID as a supernatural explanation. However, we commend to the attention of those who are inclined to superficially consider ID to be a true “scientific” alternative to evolution without a true understanding of the concept the foregoing detailed analysis. It is our view that a reasonable, objective observer would, after reviewing both the voluminous record in this case, and our narrative, reach the inescapable conclusion that ID is an interesting theological argument, but that it is not science.
In other words there is no scientific controversy when it comes to intelligent design, it’s not even science.
DeWolf has argued elsewhere on the isssue of the Edwards ruling
I want to just say a few words about Edwards. Edwards, it seems to me, stood on three basic principles. The first principle in the Edwards case was there had to be a genuine secular purpose, and the court in Edwards found that the ostensible purpose of promoting academic freedom was a sham. I don’t think in Dover the secular purpose of promoting better science education by exposing students to criticism of Darwin’s theory is a sham. Again, it’s a very realistic notion given the prevalence of intelligent design in the culture that this ought to have some place in the science curriculum, and to be treated critically.
In other words, DeWolf’s argument is based on the premise that Intelligent Design serves a genuine secular purpose. In his Amicus Brief he argued that such a secular purpose may include ‘teaching the controversy’ or the fact that Intelligent Design is scientific. Both were rejected. In fact, the judge in strong words rejected the attempt by ID proponents to wrap ID in “teaching the controversy”.
As such, it is important for school boards to remember that the findings by Judge Jones are highly relevant and although they may not be direct legal precedent, their nature of being well and in depth argued, make the ruling one that will be hard to ignore. This concept of persuasive or advisory precendent includes
…cases which a court may use but is not required to follow in deciding its cases. In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues.
DeWolf finishes his article with:
To borrow from Mark Twain, the reports of the death of the controversy have been greatly exaggerated.”
Perhaps a more appropriate Twain quote would have been
Fiction is obliged to stick to possibilities. Truth isn’t.
Footnote  I am working on a thesis that it was the Amicus Brief filed by the Discovery Institute which ‘forced’ the Judges hand address the issue of intelligente design being science. DeWolf was the lead counsel for the Amicus Brief. Similarly, DeWolf has argued elsewhere, that teaching the controversy is constitutional. Seems that in both cases, he may have overreached.