Re: Establishment Clause issues in the Dover case

From: David Opderbeck <dopderbeck@gmail.com>
Date: Fri Dec 30 2005 - 22:03:28 EST

If anyone is still interested in this unfortunately tedious thread, I've
posted a somewhat lengthier explanation of why Judge Jones' ruling on
"science" wasn't essential on my blog here:
http://www.davidopderbeck.com/archives/2005/12/kitzmiller_and.html#more

On 12/30/05, David Opderbeck <dopderbeck@gmail.com> wrote:
>
> I disagree with your understanding of the case, the case law, and the
> local practice, which is both wrong and uninformed. I agree with the result
> in the case, but disagree with much of the reasoning used to reach the
> result.
>
> On 12/30/05, Pim van Meurs <pimvanmeurs@yahoo.com> wrote:
> >
> > 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 < dopderbeck@gmail.com>
> > To: Pim van Meurs <pimvanmeurs@yahoo.com>
> > Cc: asa@calvin.edu
> > 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 <pimvanmeurs@yahoo.com > 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 < dopderbeck@gmail.com>
> > > To: Pim van Meurs <pimvanmeurs@yahoo.com>ec
> > > Cc: asa@calvin.edu
> > > 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 <pimvanmeurs@yahoo.com > 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 22:05:53 2005

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