Does <em>Kitzmiller </em>Matter? Will It Be Appealed?

The old Dover school board that promoted the ID policy was voted out and replaced with an anti-ID school board. Why would this new school board appeal the decision?

It might worth mentioning that given the creationist school board is now been replaced with a pro-science people. I doubt that those who sided with the plaintiffs will want to appeal the win.

I would consider the victory in the ballot box to be as important as a victory in court.

Well, it's not impossible that political pressures would encourage the new board to appeal. I don't think that's a realistic possibility, but it's not flatly impossible.

More importantly, I think Tim is just pointing out that Jones' ruling is not out of synch with his circuit---it's well-grounded in the controlling precedent, and likely to be favorably looked upon by higher courts (and parallel courts around the country).

donate to the Thomas More Law Center Court Issues Troubling Decision In Dover Intelligent Design Case ANN ARBOR, MI --- Today the district court judge issued a lengthy opinion in the Kitzmiller v. Dover Area School District case, holding that the School District violated the Establishment Clause of the United States Constitution by reading to students of a ninth-grade biology class a short, one-minute statement that mentions "intelligent design" twice. Pursuant to this statement, the book Of Pandas and People, which addresses intelligent design arguments, was placed in the school district library for students to voluntarily review, along with other books that are critical of intelligent design. This statement was read in a class in which Darwin's theory of evolution was taught pursuant to the Pennsylvania academic standards and pursuant to its standing in the scientific community. Moreover, the primary and only required text for this class, Biology by Prentice Hall, fully and! comprehensively covers the theory of evolution, and it was co-authored by one of the experts who testified for the Plaintiffs. According to the judge's opinion, this "policy" violates the Establishment Clause, which states, "Congress shall make no law respecting an establishment of religion." Richard Thompson, President and Chief Counsel for the Law Center, commented, "What is clear from this decision is that our present Establishment Clause jurisprudence, as several Supreme Court justices have noted, is in hopeless disarray and in need of substantial revision. In his opinion the judge bemoaned that the school district 'deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.' In this respect, he was correct. This case should have never made it into a federal courthouse. The Founders of this country would be astonished at the thought that this simple curriculum change 'established religion' in violation of the Constitution that they drafted." Several Supreme Court justices have openly criticized the way in which this body of constitutional law has developed. For example, Justice Thomas stated in his concurring opinion in the pledge of allegiance case, "Our jurisprudential confusion has led to results that can only be described as silly." In Edwards v. Aguillard, a case relied upon by the district court in which the Supreme Court held that it was unconstitutional to teach creationism alongside evolution, Justice Scalia criticized the Court's "embarrassing Establishment Clause jurisprudence." In a school prayer case, then Justice Rehnquist noted, "It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years." Justice Rehnquist is referring to the metaphor of the wall of separation between church and state. Thompson continued, "The district court's decision today continues along this path of applying a fundamentally flawed jurisprudence. Unfortunately, until the Supreme Court adopts a more coherent and historically sound jurisprudence, school districts like Dover will be at risk of costly lawsuits by the ACLU for adopting such modest curriculum changes such as the one at issue."

If the TMLC was so concerned about this decision they would pay the judgement against the school district. Remember, the school district has to pay the legal fees of the parents who sued them, and won.

-Matt

I don't understand why these people don't get it. Follow me step-by-step, as I lay it out.

1. ID = creationism.
2. Creationism is an essential branch of Christian fundamentalism.
3. Teaching that this essential branch of Christian fundamentalism is scientifically real is making a school do a church's job.
4. If your schools are now churches, then you your government has essentially created a state religion.

I don't think it can be more simple than that.

There's a small problem with an appeal, in that the old board might not have standing any longer to raise it, having been voted out. The new board is now in the position of the defendant, and will not want to waste any more legal fees. So the question becomes, what remaining interest does the old board have? Primarily, a dignitary interest in their capacity as possibly future board members. This opinion slammed them as acting outside the interests of the community, and to the extent they can have their name cleared, they must be able to appeal, as they may want to one day be an elected board member. They'd have to do it on their own dime though, or the TMLC's.

It is also notable that there were two defendants in the caption: DOVER AREA SCHOOL DISTRICT, and DOVER AREA SCHOOL DISTRICT BOARD OF DIRECTORS. The former may refer to the 'present time' board, and the latter, the 'board at the time of the incident'. Since the DASD is only represented by its board of directors, it is otherwise redundant to name the DASDBOD also, unless the ACLU intended to denote the board at the time of the incident.

If the TMLC was so concerned about this decision they would pay the judgement against the school district. Remember, the school district has to pay the legal fees of the parents who sued them, and won.

I'm sure the establishment clause violation was the straightest road for the plaintiffs, and probably the only issue that attracted the services of the excellent attorneys who handled this case. But, in light of the actual findings by the judge, it is "silly" to suggest that the TMLC lost because of fuzzy Supreme Court jurisprudence. The Board voted in a policy that as a matter of fact misleads students. As the judge noted, what it advocated amounted to lying to science students about science. No school board has that power; and even with the usual deference granted in analogous situations, faced with witnesses that he found to be fundamentally untrustworthy, insisting on undermining their student's education, any judge would have smacked them down.

Interesting that the TMLC statement doesn't even make an attempt to refute that creationism is religious doctrine. They're not in the least bit concerned about Dover being appealed. TMLC, and the DI, have clearly known this was coming, and are preparing for the cases that WILL go to the Supreme Court.

So your task for the next couple of years is this: How to you convince Alito, Thomas, Roberts, and Scalia that only science should be taught in a public school science clase? Whether or not a brief statement is religiously motivated will have little to no impact.

The TMLC didn't ballyhoo that they were out to reverse Supreme Court "Establishment" jurisprudence. They claimed they were out to get ID into classrooms as science, and they apparently thought they had devised a strategy that would accomplish that under the existing precedents.

They were wrong. They just don't have the integrity to admit it. What a surprise!

An appeal would be up to the current - meaning new - school board. I haven't seen the complaint, but assuming that it doesn't name any of the former board members in their personal capacities, it is the collective board that is a defendant. And even if the former board members had been separately named, but in their official capacities only, under Fed. Rule of Civil Procedure 25(d), upon their replacement the new office holders are substituted as defendants. So, it's unlikely either that the original board members either can decide the appeal question or be liable for fees.

The present board would have to think long and hard about appealing. Appeal and loose and the fees and costs the district owes would be even greater. And while an affirmance from the Third Circuit Court of Appeals would be nice, a winning party can't appeal. So it's my bet that this is it.

An appeal would be particularly tough because the judge did all he could to bullet-proof it. He ruled for plaintiffs on a number of issues, any one of which would have lead to the same result, so an appellant would have to overcome all of them to prevail. And, as has been noted already, much of the decision is based on the judge's determinations as the trier of fact, and that's mighty, mighty, difficult for the appeals court to overturn.

An appeal would be up to the current - meaning new - school board. I haven't seen the complaint, but assuming that it doesn't name any of the former board members in their personal capacities, it is the collective board that is a defendant. And even if the former board members had been separately named, but in their official capacities only, under Fed. Rule of Civil Procedure 25(d), upon their replacement the new office holders are substituted as defendants. So, it's unlikely either that the original board members either can decide the appeal question or be liable for fees.

The present board would have to think long and hard about appealing. Appeal and lose and the fees and costs the district owes would be even greater. And while an affirmance from the Third Circuit Court of Appeals would be nice, a winning party can't appeal. So it's my bet that this is it.

An appeal would be particularly tough because the judge did all he could to bullet-proof it. He ruled for plaintiffs on a number of issues, any one of which would have lead to the same result, so an appellant would have to overcome all of them to prevail. And, as has been noted already, much of the decision is based on the judge's determinations as the trier of fact, and that's mighty, mighty, difficult for the appeals court to overturn.

I seriously doubt the Dover board will appeal. They would incur more expense and they're already over $1 million in the hole.

Those former Dover board members who lied on the stand...they perjured themselves. Are they going to be prosecuted? I hope so.

This is a victory of the Constitution over the Christian Dominionists who want to establish a theocracy in the US.

The Thomas More Center should be ashamed of themselves for saddling the Dover board with this huge bill and walking away.

The ruling will not likely be appealed by the slate of new board members, who in the November election ousted the group that installed intelligent design, the new board president said Tuesday.

I have been following the Dover case practically from its inception. While the big news organizations have had coverage over the year, one of the best sources I've found has been the York Daily Record that has all its stories archived under "Dover Biology."

I can well remember when we, down here in Louisiana, were the laughingstock of all those northerners when our Legislature tried to put Creationism into the public school curriculum.

That attempt lasted about as long as the Dover school board's shot at Intelligent Design.

Now most of the efforts toward ID are in states well above the Mason-Dixon Line or being pushed by folks from northern environs.

Us Bible Belters have yet to show any/much interest in ID.

Any explanation for that?
John Hays
Ruston, LA

Us Bible Belters have yet to show any/much interest in ID. Any explanation for that?

Ed Hensley writes, "The old Dover school board that promoted the ID policy was voted out and replaced with an anti-ID school board. Why would this new school board appeal the decision?" I don't think they would. I was just saying what would happen if they were to appeal, but I think they'll want to let this thing die. As a legal matter, however, I think scott pilutik is wrong about standing. They would have standing because the ruling is a valid judgment against them, limiting their discretion, which would be enough. Nor is the case moot, under both the "voluntary cessation" and "capable of repetition yet evading review" rules.

I actually disagree with Michael Hopkins that "the victory in the ballot box [is] as important as a victory in court." I often hear this in other contexts as well. But when we're talking about a matter of constitutional import, then we are talking about something that is, or ought to be, beyond the reach of politics. As Justice Jackson famously put it, "[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to...property...may not be submitted to vote; they depend on the outcome of no elections." Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943). If we have to persuade political majorities to support us on these issues, then we're conceding that they are not constitutional boundaries. And they are constitutional boundaries. It's nice that the perpetrators of the ID policy were thrown out of office---but it's far better that it is made clear that their policy was unconstitutional.

Doyle says that the Dover School Board was "lying to science students about science. No school board has that power." Unfortunately, this is not correct. School boards do have the constitutional authority to lie to students---to lie brazenly, as often as they want to. The only situation I know of in which they are constitutionally forbidden from lying to students is on issues of lying in such a way as to establish religion, or prohibit the free exercise thereof. But, like it or not, they can lie to students about race, sex, politics, science---anything they want to except religion.

The corporation was the defendent, so the current Board would, as I think we have clearly established here, be responsible for bringing an appeal.

However, it is obvious that the previous Board members neglected their fiduciary duties (loyalty, care) in execution of their board service, and would be liable if the corporation decides to bring a suit.

It also seems unlikely that Buckingham and Bonsell will be prosecuted for perjury, but the current Board could certainly sue them for lying and negligently (or even maliciously) exposing the corporation to liability.

As a legal matter, however, I think scott pilutik is wrong about standing. They would have standing because the ruling is a valid judgment against them, limiting their discretion, which would be enough. Nor is the case moot, under both the "voluntary cessation" and "capable of repetition yet evading review" rules.

— Timothy Sandefur

I don't really want to change the subject, but, in Connecticut, a school board has enumerated powers granted it by statute, and does not have unlimited discretion to lie and lie brazenly as often as they want to. Of course, happily, in Connecticut there is almost no chance of a Dover style board acting like this one did.
Now, will Sean Hannity and Ann Coulter call for the prosecution of these two liars? I seem to recall that all lying under oath requires a swift prosecutorial response.

Bonsell is quoted today in one of the York online newspapers saying he still believes intelligent design is science and that the new board should appeal the ruling.

What a total nutjob that guy is.

What is clear from this decision is that our present Establishment Clause jurisprudence, as several Supreme Court justices have noted, is in hopeless disarray and in need of substantial revision. In his opinion the judge bemoaned that the school district 'deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.' In this respect, he was correct. This case should have never made it into a federal courthouse.

"Perhaps they would argue ... that the Endorsement Test is not appropriate for analyzing whether the ID policy violated the Establishment Clause."

I can't imagine an appeal against the religious intention of the policy (clearly a crushing victory) or more general matters of getting religiously tainted philosophy into science classes (arguable maybe, but nobody seriously thinks this has much hope in a higher court). Surely the narrow case they would try to argue on appeal is that ID was improperly ruled NOT SCIENCE. The bleat now will be that a court which "misunderstood" Behe and didn't examine the Fig Newton Himself can't make a general ruling that ID isn't science, only that ID wasn't proved to be science within the context of this case. If TMLC could secure a ruling that ID is real science, while jettisoning the direct interests of the old board (viz were their actions proper regarding intent or establishment issues), then the interests of the ID movement are served perfectly. I'm not expecting to see an end to all this until an unbelievably dreary case involving both Behe and Dembski defending their claims in excruciating detail.

I'm not expecting to see an end to all this until an unbelievably dreary case involving both Behe and Dembski defending their claims in excruciating detail.

Hey, I know you guys are all excited--deservedly so!--but, please, try to be a little understanding with your faithful pizza-delivery personnel: while we pride ourselves on the swift completion of our appointed rounds, for most of the day, pizza orders have been running roughly four times normal for a typical Tuesday in mid-December.

And there's a conspicuous spike in the orders of double-cheese!

Ah, the heck with it! Go ahead and run us off our feet! This is too much fun!

Us Bible Belters have yet to show any/much interest in ID

I actually disagree with Michael Hopkins that "the victory in the ballot box [is] as important as a victory in court." I often hear this in other contexts as well. But when we're talking about a matter of constitutional import, then we are talking about something that is, or ought to be, beyond the reach of politics.

...we'd have the opposite side winning the case, yet for entirely sound legal reasons?

Hey, I know you guys are all excited---deservedly so!---but, please, try to be a little understanding with your faithful pizza-delivery personnel: while we pride ourselves on the swift completion of our appointed rounds, for most of the day, pizza orders have been running roughly four times normal for a typical Tuesday in mid-December.

sir_toejam,

While I hope you're right, I sinceriously doubt it. I think Scalia would carefully read the disclaimer the TMLC wrote for the district administrators to read, and find nothing in it establishing an official state religion. He'd note that keeping an open mind is a good idea, that theories are indeed NOT facts, that the obvious religious motivations of those pushing the disclaimer are irrelevant to the effect, that ID is in fact not being taught, that discussing such matters at home with parents is a sound idea, that no evidence was presented at trial indicating that a single student's faith was altered, and so on and on and on.

In short, that the establishment clause was NOT violated in any way. I'm sure he could find plenty of precedents in support, and phrase things as judges do. The case, like any complex case, is an ocean of facts, all subject to interpretation. If you seriously think someone of Scalia's horsepower could not select and justify and interpret to fit his faith and his politics, I think you are very seriously underestimating him. And let's face it: Thomas is to Scalia as Geesey was to Bonsell.

Politics matters.

Hey, I'm in such a good mood tonight, I might actually even *TIP* you. :>

In fact, the plaintiffs' own witness said that it would be unfair to attribute to the school board various drafts of "Of Pandas and People," which the school board never even saw. Secondly, this idea that "creationism" is an old concept that the courts have already decided on flies in the face of the testimony of two credible scientists who basically testified, subject to rigorous cross-examination, that what they were basing their theory of intelligent design was scientific data, empirical data, that they saw in their labs, the complex biological structures that they viewed they concluded could not have been caused by Darwin's theory of natural selection acting on random mutation; that these complex biological systems were there because they served a purpose. And that's the reason that they said it is an intelligent design.

BTW, I'm not sure how the transcript writer decided to put Thompson's use of creationism in quotes. He simply said the word creationism. I was bracing to hear what he had to say after denying that creationism is an "old concept" and then he segued into a comment about intelligent design. Anyway, it seemed mighty strange to me, and a funny mistake unless I really missed something.

I actually disagree with Michael Hopkins that "the victory in the ballot box [is] as important as a victory in court." I often hear this in other contexts as well. But when we're talking about a matter of constitutional import, then we are talking about something that is, or ought to be, beyond the reach of politics.[...]

— Timothy Sandefur

[Removed]

Certainly the new board won't want to *appeal* -- but might they be able to sue the old board, and/or the TMLC, to recover those legal costs? As I'm reading this, they first incurred the costs as plaintiffs, but simultaneously to having them imposed on the defendants (the Dover School Board), at least some of them became the Dover School Board, thus inheriting the loser's penalty for the case they won! Not the weirdest thing I've heard come out of a courtroom, but it doesn't seem fair....

David Harmon
That process [...but it doesn't seem fair] was started as soon as corportions had the same rights as a "person".
To paraphrase Chairman Mao political power is projected through the barrel of pork.

I rushed home this evening in time to see the segment on the PBS News Hour. I have to admit I didn't pick up on Thompson's use of "creationism" when he wanted to say "intelligent design."

I noted, however, that he looked really stressed ... and pitiable. You could almost feel sorry for him. ALmost. His initial comments pretty much mirrored the press release someone posted above, but even as he was racing to get his points made, he managed to get in a "Big Bang" and at least one "flagellum."

A majority of the new Dover School Board announced after the election that the winning slate of candidates had already decided that whatever Judge Jones decided they would let stand -- there would be no appeal.

The were also honest enough to note that they did not win a stunning victory and if you look at the votes counts you clearly see it was a close election. Only a few hundred votes separated the winners from the losers. The community itself is quite divided. But then most of the community like most of the school board who voted for the ID statement are probably clueless as to what ID said. But given the turn-about in Kansas don't be too shocked if we see a ID board get elected in Dover next election and the fight resumed.

Personally I'm hoping that the Board is presented with a whopping bill --- sadly losing money is frequently better persuader than logic, especially given the financial problem school district is currently is having.

Regarding the school's attorney he warned them prior to "changing the curriculum" that 1) it probably wouldn't hold up in court and 2) TMLC would only be providing their services for free but would not cover the attorney's costs should the Board lose and that odds were good they would given the ongoing documented discussion of creationism etc.

Judge Jones quotes part of the attorney's "warning" letter in his decision and notes sharply how the Board decided to ignore their own attorney's advice, but then that was fitting as they saw fit to ignore the science teachers.

Point of Information: Can the Judge Jones charge the Board members with perjury or must the local DA or U.S. PA do that? He certainly was clear in the fact that they lied both in their depositions and in court.

I think this ruling will draw a deeper division between the two factions making up the Big Tent: the Elites of the Right and the Theocrats. The Elites know better than to do something so impulsive as teach substance-less, evidence-less ID, so they try the underhanded approach, which means having to hide Christ behind the jargons of Information Theory, and telling their more impetuous brothers to be patient, for their own good. Of course, the Theocrats will have none of it. For the Theocrats, if God is not mentioned directly, there is a genuine Fear that the masses will soon lose Faith, as God becomes diluted in the meaningless euphemisms attributed to Him. Quite simply, you can't evangelize Information Theory. Not only that, to the simple-minded, any elitist 'tudes is a big red warning sign. How dare anyone profess to know better than God's direct revelations? Shame on the Elites of the Right for hindering the progress of Theocrats, all in the name of Their Own Good.

With respect to the ruling, the Theocrats will blame the Elites for abandoning them. It was Judas-like betrayal. In the final hours of battle, the likes of Dembski and Meyer ran away. Not only that, the Judge, being an elitist Bush nominee, will be seen as Pilate, having washed his hands of this whole dirty matter by doing what was easy: sticking to the law. The Elites will be suspicious of the political fickleness and stupidity of the Masses of Theocrats. They want to try again, as Elitists are loathe to admit failure. But they know they really need a new scheme. Just how many different labels can they devise for "God Did It?" And can they convince the Masses that _this time_ it will be all different? And when Satan has finally been defeated, will the Elites dutifully step down as Prophets of the Lord, to the let the Theocrats take over and divine God's Will?

I don't think so. It is an uneasy relationship these two have, and I think we will see more of it develop in the coming days.

Slate's William Saletan has submitted an editorial ( http://www.slate.com/id/2132807/ ) that appears to me to be half well-founded and half ludicrous. The latter half is the portion in which he (I think) claims that Judge Jones' decision means that ID is banned once and for all from all public-school study, including social studies and comparative religion classes:

But if unscientific theories are religious, and religion can't be taught, it's unclear how notions related to ID could be debated in schools, or how their truth or merit could be entertained. And that's bad news for science, because it offers people with creationist sympathies---roughly half the American public---no outlet in the public education system outside of the science classroom.

Why it's necessary for the "truth or merit" of ID to be "entertained" in public schools escapes me, but that aside, it seems to me (an attorney with nominal experience with Establishment Clause cases) that Saletan has brutally misinterpreted the Dover decision. Both before and after the opinion, public schools can obviously address ID in comparative religion or (as Saletan suggests, apparently thinking he's had a novel idea) social studies classes, so long as they don't endorse religion or otherwise violate the Lemon test in the process. Saletan, you moron.

Thousands of public schools in the U.S. deal with explicitly religious material (e.g., Paradise Lost, various Martin Luther King speeches, or the freakin' BIBLE) all the time without violating the Establishment Clause. The Dover decision blatantly concentrates on the presentation of ID as science and the connected assaults on evolution. Schools can't legally do that, but there's no indication of a problem with, er, "teaching the controversy" in a social studies class as long as the class doesn't misrepresent the status of ID or real evolutionary theory in the process. (Such misrepresentations, of course, are what the Discovery Institute means by "teaching the controversy"--but never mind.)

Er, several of you regular PT posters can, clearly, run rings around me when it comes to EC jurisprudence and the Dover case. Any of you interested in responding to Saletan? I think it'd be edifying.

Diane Rehm discusses Dover, On right now! (10:22 am EST).

I'll be able to listen but not call in. The better speakers in this group might want to be prepared to counter some of the BS flung onto the show Just In Case.

Rieux
You point to an interesting phenomenon.
The lack of Intelligence behind the Designers, and their political allies.
Some even have PhD's.
William Saletan has a public platform where opinion is passed off as fact.

Even though the extreme right may claim Orwell as their poster boy, great Art has the nasty habit of revealing more truth than is desirable when you are trying to hide reality.

George Orwell wrote: "Circus dogs jump when the trainer cracks the whip. But the really well-trained dog is the one that turns somersaults when there is no whip."

They were not able to to fool the Intelligence of Judge Jones.
They were not able to to fool the Intelligence of the majority of scientists/Theologians and children of the enlightenment.

Where does that leave them ?
The more this goes on their Intelligence will look increasingly ....well stupid.

The Founders of this country would be astonished at the thought that this simple curriculum change 'established religion' in violation of the Constitution that they drafted.

— a prominent Dick

Re: Comment #63688
Posted by 'Rev Dr' Lenny Flank on December 20, 2005

It seems to me that folks here have a hard time accepting that Scalia, et al., look at establishment clause cases differently. For them, what is of primary importance is that it is firmly established that the state uses references to God all the time (got money in your pocket?) and this doesn't violate separation of church and state. So long as there is balance with other references, so the argument goes, it can't be concluded that the state is establishing a religion. The DI has understood this, and known it was coming, for years. Why do you think that they never issue a comment without including their support for good evolution education? Because they're being nice? Look at the questioning in the Cobb County case appeals court. They're establishing that the county has great evolution education and that the sticker is a mere trifle that doesn't establish religion. So yes, they can easily get a Supreme Court decision upholding the teaching of creationism in public school science classes and still claim that they're following the constitution. What's needed is a good argument for why teaching science is different from putting up a nativity scene. Just because creationists lie doesn't mean that a determined right wing ideolog on the Supreme Court has to apply the Lemon test. The Lemon test is not the same thing as the establishment clause.