Re: Establishment Clause issues in the Dover case

From: Pim van Meurs <>
Date: Fri Dec 30 2005 - 17:31:05 EST

With ONE major difference namely that it was clear that the term "creation science" in Edwards was religious, but it was not clear, and defendants actually argued this, whether ID served a secular purpose. Remember that in Edwards the court ruled that the term 'creation science' was religious as was obvious from the legislative history. In Kitzmiller, the term ID was argued to be NOT religious in nature, and in fact it was argued to be scientific, making the purpose of the ID policy mostly secular, irregardless of the statements made by the board.
 As Establishment Rulings from the SC suggest, there is some doubt as to how to interpret intent and purpose from the legal history itself. However, by ruling that ID is not a science but religious, the Judge avoided dealing with the legal changing landscape on these issues.
 This was a major argument against ruling that the purpose prong would fail and thus as the judge himself admits, it was essential to rule on this issue. Even the defendants (and of course the plaintiffs) raised the issue of ID as a science as an important issue.
 If youy want to disagree with the Judge that's fine with me but the issue of ID being science was essential to determine if the ID policy served a secular purpose. After all, that's exactly what the defense and the DI amicus and the defense expert witnesses were all arguing.
 So do you disagree with the Judge on these matters?
----- Original Message ----
From: David Opderbeck <>
To: Pim van Meurs <>
Sent: Fri Dec 30 12:08:59 2005
Subject: Re: Establishment Clause issues in the Dover case

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
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.

 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

 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 17:32:18 2005

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