[asa] Opderbeck, In Defense of Dover, Part II

From: David Clounch <david.clounch@gmail.com>
Date: Sat Nov 28 2009 - 18:36:02 EST

*Sorry if this is a duplicate or has been mentioned previously. I just
noticed entry #2 last night. An interesting set of comments appears on the
blog afterwards.*

Given that, let me explain I personally use the term IDT to differentiate
the "concept" of ID from IDM "the movement" or "the advocates". The
comments by Peter raises the question of whether scientific theories must
be testable. Off the cuff, I'd say no to that. The requirement for testing
is too narrow and the subject of what constitutes a "scientific theory"
causes entire books to be written. Regardless, I don't think IDT the
"concept" and ID the "scientiifc theory" (whatever that might be) are the
same things at all. So what we see on the blog is a naive, overdone,
overclaimed, reactionary sort of response to David Opderbeck's article.
Which is what one would expect from the blogosphere. And it is one more
reason we need lawyers involved in educational policy and protecting the
public's interests. -Dave C


*Here is the Opderbeck piece. Enjoy.


*Every Friday, "Science and the Sacred" features an essay from a guest voice
in the science and religion dialogue. This week's guest entry was written by
David Opderbeck. Opderbeck is a professor of law at Seton Hall University
School of Law and serves in the school's Gibbons Institute of Law, Science &
Technology. His blog Through a Glass Darkly
<http://www.tgdarkly.com/blog/>addresses issues in theology and the
science and religion dialogue. This is
a follow-up to his post "In Defense of

This post will discuss how the law interacts with "science." The interaction
of law and science is a vast and fascinating topic. I can mention here only
some brief highlights of a handful of the important issues. As part of this
discussion, I'll offer some thoughts about Judge Jones' treatment of
"science" in the *Kitzmiller v. Dover Area School
design case. At the end of the post, I'll suggest some resources
for further reading on the relationship between law and science.

*The Gatekeeper Function*

One of the most significant ways in which law and science relate is in the
use of "expert" testimony. Federal Rule of Evidence ("FRE") 702 states that

If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise. . . .

For example, in a product liability case, engineering experts might testify
as to the soundness of the design of the product at issue, and medical
experts might testify as to the nature and extent of the plaintiff's

When a party seeks to introduce expert testimony, the court must serve as a
"gatekeeper" over what can be presented to the jury. According to FRE 702,
when the court exercises this gatekeeper function, it must ensure that "(1)
the testimony is based upon sufficient facts or data, (2) the testimony is
the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case." These
criteria were grafted into the FRE as a result of the Supreme Court's
opinions in *Daubert v. Merrill Dow
*Kuhmo Tire v. Carmichael*<http://supct.law.cornell.edu/supct/html/97-1709.ZS.html>,
in which the Court discussed the gatekeeping functions of trial courts with
respect to expert testimony.

The Daubert standard represents both a *pragmatic* and an
*epistemological*limitation on the adversarial trial process. The
scope and propriety of this
limitation has been hotly debated among legal scholars, lawyers and judges.
It seems clear, however, that there must be *some* limits on what can count
as "expert" testimony, and that the trial courts, in their traditional role
as evidentiary gatekeepers, must to some extent determine what can be
presented to juries as "scientific" evidence. We lack the judicial and
social resources to turn every trial into a perfect search for the truth.
The best we can do is come as close as possible to the truth as the time,
cost and functional limitations of the judicial system can accommodate. This
means there must be some limits on what testimony can be presented under the
"expert" umbrella.

*Gatekeeping and Kitzmiller*

Supporters of Judge Jones' approach in the *Kitzmiller* case suggest that a
similar gatekeeping function is important with respect to public education.
Without some demarcation of what can be taught as "science" in the public
schools, aren't we opening the floodgates to the teaching of all sorts of
pseudo-science, such as astrology and young earth creationism? I think this
is a valid concern. For this and other reasons, I personally don't agree
with the "teach the controversy" approach promoted by many ID advocates. If
I were to serve on my local school board, I would not vote in favor of
introducing ID materials into the science curriculum, primarily because I
don't believe the ID program has generated sufficient results to reach the
public schools. Like the courts, the public schools lack the time and
resources to address views that fall far outside the scientific mainstream.

In my view, however, when the issue is the local public school curriculum,
the political level at which such resource allocation decisions should be
made ordinarily is that of the local school board, in conversation with the
academic community and under the broad oversight of state and national
standards-setting bodies. The *judicial* scientific gatekeeping role usually
should relate only to traditional judicial functions, such as what sorts of
evidence can be considered by juries.

What if a local school board gets a curricular decision "wrong" and there is
no improper religious purpose or other illegality? In my view, that concern
ordinarily should be addressed through the process of open debate and
political action. The reality is that local political bodies sometimes make
"bad" decisions that are not unlawful or unconstitutional. The possibility
of bad local decisions is one of the costs of democratic governance. It's a
cost that usually is mitigated by the self-correcting processes of
democracy. Concerned parents remain free to elect new local officials.

In the relatively rare circumstances in which the local political body acts
for clearly improper religious *purposes* (such as the *Kitzmiller* case and
the *McLean v. Arkansas Board of
*Edwards v. Aguillard*<http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=482&page=578>cases),
the courts can remedy those actions under the establishment clause
of the first amendment to the Constitution. The primary inquiry in such
cases, however, is not to ask if it is "science", Even if this demarcation
question could be answered definitively in a philosophical sense (which I
believe is doubtful at best), this still would not necessarily resolve
whether the governmental decision involved an improper religious purpose or

"Science" and "religion" use different methodological tools and varying
rules of discourse, but both disciplines inquire into the same ultimate
reality. It is therefore entirely possible for interdisciplinary approaches
to exist that are neither purely "science" nor purely "religion." In fact,
much of today's serious faith-and-science scholarship relies on this notion
of interdisciplinarity. (For a discussion of this notion, see Alister
McGrath, *A Scientific Theology:
2002)). There is nothing facially unconstitutional about exploring
such interdisciplinary approaches in a public educational setting.

This leads to my primary criticism of the *Kitzmiller* decision. I don't
believe Judge Jones should have ventured a broad definition of "science" in
the *Kitzmiller* case, as though such an exercise necessarily ends the
discussion of constitutionality. Under the applicable standards for
establishment clause cases, the proper inquiry is into purposes and effects:
was the government's purpose "secular" and was the primary effect of the
government's decision to advance or inhibit religion or to produce an
excessive entanglement of government and religion? Whether an idea is
labeled "religion" or "science," in itself, is irrelevant to the
constitutional question. "Religion" is a constitutionally proper subject of
study in the public schools, provided that the purpose and effect of that
study is not sectarian.

Rather than wading into the deep waters of defining "science" over against
"religion," then, Judge Jones should have focused primarily on the purposes
of the Dover school board, which clearly were to proselytize for a
particular kind of creationism, rather than to explore interdisciplinary
approaches to science and religion generally.

This analysis, of course, begs one of the big questions in the ID debate: is
ID inherently entangled with religious purposes? Should efforts to introduce
ID into the public school science curriculum *always* be met with skepticism
under the establishment clause?

The looming presence of this question is one of the key reasons I don't
believe Judge Jones played the role of "activist judge" in *Kitzmiller*,
even though I am critical of the opinion. The question whether ID, like
"creation science," is inherently religiously motivated, is a live concern,
and was extensively briefed and argued to the court by both sides. In order
to address the question of religious motivation, the court could not have
avoided *some* consideration of the essential nature of ID theory.

In my view, however, there is a significant qualitative and quantitative
difference between giving an issue some consideration and making it the
central issue in the case. The court could easily have said something like
this, and nothing more than this, on the demarcation issue:

The question of ID theory's scientific merits, and indeed whether ID theory
is properly considered 'science,' is hotly disputed by the parties. The
court finds, after hearing extensive testimony, that the mainstream
scientific community generally does not consider ID theory to be valid
science. Combined with the clear overriding religious purposes of the school
board members, this finding establishes that there was no valid secular
purpose for the school board's actions and that the proposed curriculum
would result in excessive government entanglement with religion.

In this context, the Judge Jones' effort to define "science" in a broad
sense was unnecessary, but not "activist." In any event, the term "activist
judge" generally sheds far more heat than light on the complex nature of the
judicial function.

What, then, should we make of the link between ID theory and religion? I'll
address this in my next post. I'll also offer my views about ID theory as a
form of "natural theology."

Some general resources on the intersection of science and law:

   - Robin Cooper Feldman, *The Role of Science in
   * (Oxford Univ. Press 2009)
   - Carl F. Cranor, *Toxic Torts: Science, Law, and the Possibility of
Univ. Press 2006)
   - David L. Faigman, *Laboratory of Justice: The Supreme Court's 200-year
   Struggle to Integrate Science and the
Books 2004)
   - Sheila Jasanoff, *Science at the Bar: Law, Science and Technology in
Univ. Press 1995)

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Received on Sat Nov 28 18:36:39 2009

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