Re: Establishment Clause issues in the Dover case

From: David Opderbeck <>
Date: Fri Dec 30 2005 - 15:08:59 EST

No, Pim, you miss the point -- again, and again, and again. The folks on
the Dover school board made almost exactly the same arguments to justify
their policy as did the state in *Aguilard*. That, in fact, was one of the
things the judge in *Kitzmiller* was so outraged about. He saw this as a
dishonest way of trying to get around *Aguilard*. I'm tired of beating this
dead horse, so if you feel you need to get the last word by saying the same
mistaken things over again, go ahead -- but you are wrong, you have always
been wrong, and you always will be wrong about this.

On 12/30/05, Pim van Meurs <> wrote:
> You miss the point. The defendants argued that the ID policy did not fail
> the purpose prong because ID is scientific. In other words, the ID policy
> was claimed to serve a secular purpose. Since the actions of the legislator
> or in this case the board has been argued to provide poor evidence of
> purpose, addressing that ID is NOT science is highly relevant. Especially
> since Pandas and People, which was used as evidence of ID being just
> another form of Creationism, had been argued to be not representative of the
> ID status as a science.
> In Aguillard the ruling was that it was religious in nature because the
> legislators' actions and comments had shown that creation-science is
> religious. However it is not clear that ID is similarly religious in nature
> Thus it is essential for the purpose prong to fail that ID is shown to be
> religious and not science, or the purpose prong may be met by a secular
> purpose.
> The status of ID as a science is essential. Testimony during the trial
> provided the necessary information to rule on this topic and since it had
> been raised as the reason why the primary effect of ID is not religious, it
> seems to me that ruling on this issue is essential to the purpose prong.
> ----- Original Message ----
> From: David Opderbeck <>
> To: Pim van Meurs <>ec
> Cc:
> Sent: Friday, December 30, 2005 5:35:35 AM
> Subject: Re: Establishment Clause issues in the Dover case
> Pim -- sigh -- no one disputes any of this. No one disputes that the
> Lemon test and the endorsement test apply under at least some readings of
> the Third Circuit establishment clause jurisprudence, and no one disputes
> that the defendants raised the advancement of science education as a
> "secular" purpose, just as the defendants in *Aguilard* did. But what you
> still don't understand, apparently, is that none of this *required* the
> district court to undertake a lenghty discourse on whether ID is "science"
> generally.
> All the court had to say with respect to the "purpose" prong of the *Lemon
> * test is this: *"the defendants have adopted a policy similar in many
> respects to that in Aguilard, except that the policy here elides specific
> references to God. The record is clear, however, that the defendants
> intended that the "designer" be understood to be "God," and that the current
> "intelligent design" policy is merely an extension of an earlier failed
> "scientific creationism" policy with some different language. Accordingly,
> the court finds that the Dover school board's policy fails the "purpose"
> prong as did the "creation science" policy in Aguilard." *
> **
> That's it. That would have satisfied the Third Circuit jurisprudence and
> it would have been essentially bullet-proof on appeal. There may be many
> reasons why the court did much more than that, but the requirements of the
> Third Circuit or Supreme Court establishment clause jurispurdence isn't one
> of them.
> *
> *
> On 12/29/05, Pim van Meurs <> wrote:
> >
> > Establishment Clause issues in the Dover case
> >
> > In the Dover case both the defendants and plaintiffs agreed that the
> > Lemon test applies but the defendants argued that the endorsement test did
> > not apply since it applies only to religious display cases.
> >
> > While the Judge makes it clear that under the endorsement test, the ID
> > policy failed the test, there are at several reasons to also address Lemon.
> >
> > 1. The defendants disagree that the endorsement test actually
> > applies
> > 2. Both the defendants and plaintiffs accept that the Lemon test
> > applies
> > 3. It is common practice in the 3rd Circuit to address both the
> > endorsement AND the Lemon test sequentially.
> > The Third Circuit, moreover, treats the endorsement test as separate
> > from the Lemon test, applying the endorsement test first and then conducting
> > a separate Lemon inquiry. Best practice in this circuit, therefore, would be
> > for this Court to do the same here. (From the Plaintiffs FOF)
> >
> > As for how the endorsement test relates to Lemon, the Third Circuit
> > treats the endorsement inquiry as a distinct test to be applied separately
> > from, and prior to, the Lemon test. Thus, although this Court need not blind
> > itself to the fact that there is substantial overlap between the endorsement
> > inquiry and Lemon's effect prong, the best practice will be for the Court to
> > evaluate defendants' conduct under the endorsement test first, and then to
> > subject it to traditional Lemon analysis.
> >
> > In a number of opinions, the Third Circuit wrestled with how to view the
> > endorsement test. In Black Horse Pike, the court initially took the view
> > that it made no difference whether the endorsement test was regarded as "a
> > separate inquiry" or merely "part of the inquiry under Lemon" because, as
> > the court saw it, "the import of
> > Modrovich v. Allegheny County,27 and Child Evangelism,28 the court
> > adopted thethe test is the same."23 Later, in Tenafly Eruv Ass'n v. Borough
> > of Tenafly, the court took a different tack, treating the endorsement test
> > as having superceded Lemon.24 But in its most recent spate of
> > Establishment Clause opinions, the court has settled on a
> > belt-and-suspenders approach:25 In Freethought Society v. Chester County,26
> > practice of applying both tests, conducting the endorsement inquiry first
> > and then,
> > separately, measuring the challenged conduct against Lemon's traditional
> > purpose and effect standards.
> >
> >
> >
> > Under the Lemon test the court looked at the primary purpose and primary
> > effect.
> >
> > Traditionally the purpose test is applied first,
> >
> > As the Plaintiffs' FOF explains
> >
> > The purpose inquiry involves considering the policy language,
> > "enlightened by its context and contemporaneous legislative history"213
> > including, in this case, the
> > broader context of historical and ongoing, religiously driven attempts
> > to advance creationism and denigrate evolution.
> >
> > But the Board may still argue that they are advancing a secular purpose,
> > namely teaching science or providing a balanced science education (this is
> > essential the DI's argument)
> >
> > For the Supreme Court has repeatedly held that, to survive judicial
> > scrutiny, any asserted secular purpose "has to be genuine, not a sham, and
> > not merely secondary to a religious objective."
> >
> > The Plaintiffs' FOF again
> >
> > To The Extent That Defendants Advance A Secular Purpose, It Is A Sham.
> >
> > To the extent that defendants claim to have changed the biology
> > curriculum in order to improve or "balance" science education, their
> > asserted purpose is a sham: Because intelligent design is not science, it
> > can do nothing whatsoever to improve or balance science education. All it
> > can do is mislead the students and interfere with their science education
> > just as three of plaintiffs' experts (Drs. Alters, Miller, and Padian) and
> > one of defendants' own experts (Prof. Fuller) testified that it would. And
> > hence, when weighed against the legion evidence of the Board's actual
> > purpose, the absence of evidence that the Board actually acted with an eye
> > toward furthering any secular purpose, and the fact that the policy would
> > not serve the asserted secular purposes, the asserted purposes should be
> > rejected as shams.
> >
> > Now from the Defendants' Findings of Fact
> >
> > In addition both Baksa and Nilsen believed that the board had a
> > legitimate educational goal not a religious purpose when the board approved
> > the curriculum change.
> >
> > and
> > 923. Finally, the court concludes that the curriculum change adopted by
> > the board on October 2004, demonstrates that the board had a legitimate
> > secular educational purpose. ... these results do not reflect a
> > religious purpose; they demonstrate that the board had a legitimate secular
> > educational purpose -- to advance science education
> > and
> > These primary effects of the DASD's curriculum change advances wholly
> > legitimate and secular education goals, generally speaking to advance
> > science education by making students aware of another scientific
> > theorie.</quote>
> >
> > So it clear that the defendants were raising the scientific nature of ID
> > as the reason why the board had a valid secular educational purpose, not a
> > religious one. it was essential for the court to show that ID failed to
> > have the claimed secular purpose, since it was not science.
> >
> >
> >
Received on Fri Dec 30 15:10:03 2005

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