Michael Francisco

Seth Cooper and Joe Manzari’s article, “ACLU Demands and Dover Designs,” raised fresh questions about the potential for a dismissal of the Kitzmiller case based upon mootness, potentially allowing the Dover Area School Board to avoid a large attorneys’ fees judgment against them by rescinding their intelligent design (ID) policy before Judge Jones issued his decision.

Opponents of intelligent design responded harshly to the AEI article (and my own reporting) by questioning the legal reasoning about mootness. One critic stated that the AEI article, and my commentary, “appear to be utterly ignorant of the voluntary cessation doctrine” and “there was virtually no chance that the case would be mooted.” Yet several Supreme Court cases dealing with mootness and a careful review of the law demonstrate that there was strong case for dismissal if the anti-ID Board had repealed the ID policy prior to the ruling. The argument is hypothetical (one might even say, “moot”!) because the Board ultimately rejected all arguments to repeal the policy, choosing instead to pin its hopes that Judge Jones would rule in favor of a policy they themselves rejected. But even if the odds were small that Judge Jones would have dismissed the case, or that an appellate court would have vacated the judgment on the ground of mootness, the puzzle remains. If there was nothing to be lost by rescinding the policy, would not even a slight chance of success have led a prudent school board to take advantage of the opportunity? Their choice resulted in an absolute guarantee that if the ID policy were struck down, then the Dover Area School District would be obliged to pay $1 million dollars in attorneys’ fees.

Legal commentary mentioning the Kitzmiller decision is now starting to appear in legal journals. In the Spring, 2006 issue of the Harvard Journal of Law & Public Policy, one of the most widely circulated law journals, the lead article addresses intelligent design, Kitzmiller, and the establishment clause.

Cristi L. Bowman’s article, “Seeing Government Purpose Through the Objective Observer’s Eyes: The Evolution-Intelligent Design Debates,” is available here.

Most of the article is about establishment clause jurisprudence, and an argument against part of McCreary County v. ACLU. Bowman argues that the government purpose prong of the Lemon test should return to focusing on “actual intent,” rather than trying to evaluate government purpose with an “objective observer.” Kitzmiller and the evolution-intelligent design controversy serve as the article’s setting for how the objective observer standard will play out in future establishment clause cases.

In the most recent news about the controversy about intelligent design in Kentucky, the Lexington Herald-Ledger‘s Political Notebook reports on the nomination of Kentucky’s State Board of Education candidates.

Kentucky Governor Ernie Fletcher took heat for speaking favorably about teaching intelligent design just before Judge Jones’ Kitzmiller decision was issued. The Governor had mentioned intelligent design in his State of the Commonwealth address in January, 2006 and then in February sent a letter about teaching intelligent design to the Kentucky Academy of Sciences. (The letter was in response to the Academy’s December vote to reject any teaching about intelligent design.)
After the Kitzmiller decision struck down the Dover Area School Board’s intelligent design policy, some states, such as Ohio, began retreating from teaching any skepticism of Darwin, out of false fears that critiquing evolution was the equivalent of teaching intelligent design. (See here and here.) The Kentucky Governor, however, has pressed forward, evidently realizing that Kitzmiller does not spell the end to intelligent design. Apparently some of the oft-repeated misconceptions about intelligent design have failed in the Bluegrass State.

The April, 2006 edition of Crisis Magazine features a critical review of the Darwin exhibit at the American Museum of Natural History. George S. Johnson’s article, “An Evening with Darwin in New York,” is a thoughtful analysis of the museum content mixed with general criticism of the Darwinian orthodoxy.

The article walks through the museum in broad brush strokes while taking note of the stories about Darwinian evolution not told by the exhibit. The review starts with the exhibits treatment of fossils, and features extended notes from Niles Eldredge, and many paleontologists who find the fossil record somewhat lacking as evidence for Darwin. Not surprisingly, the criticisms of these paleontologists, all mainstream secular scientists, were left out of the display.

The taxpayers in Dover Pennsylvania may have been fleeced by the ACLU and Americans United for Separation of Church and State (AUSCS) for a shocking $1 million dollar bill. Joe Manzari and Seth Cooper’s article today in The American Enterprise Institute Online brings this dirty little secret into the public light. A few months ago when the ACLU announced that they “generously” would only demand $1 million in attorneys fees for the Kitzmiller case, the casual observer probably thought nothing of it. However, once the facts are examined, as Manzari and Cooper nicely lay out, the attorneys fees collected by the ACLU are not merely the cost of losing a lawsuit, but rather look much more like a fat taxpayer Read More ›

Many news sources have picked up the Archbishop of Canterbury’s recent interview with The Guardian newspaper reporting a couple of minor comments he made about teaching creationism in schools. (For examples, see the Associated Press story or the New York Times story or the Reuters article in the Washington Post.)

With headlines like, “Archbishop Opposed to Teaching Creationism” (Associated Press) “Anglican Leader Says the Schools Shouldn’t Teach Creationism” (NY Times) or “Anglican leader opposes creationism in schools” (Reuters) one would think that the comments about creationism were central to the interview. Moreover, given that all of the articles discussed intelligent design, one would think that ID was relevant to the Archbishop’s comments. But not only did the Archbishop not focus on science curriculum in the interview, the interview never discussed intelligent design. Check for yourself, the entire interview transcript is available from The Guardian, and in more than 12,800 words, a scant 330 are devoted to “creationism;” no where is there any mention of intelligent design. Why, then, would each article talk about intelligent design?

In the April, 2006 issue of First Things, Villanova Law professor Robert T. Miller offers an opinion on “Darwin in Dover, PA.” (available online next month) that brings up several points worth highlighting.

Regarding Kitzmiller, Miller only half agrees with Judge Jones, agreeing that ID is not science as he defines it (which I will comment on more later), but disagreeing that ID is religion. To make his case, Miller’s opinion offers two different “senses” of science, one of which ID satisfies, the other of which he claims ID does not satisfy. Overall, the article focuses on the philosophy and nature of science, and devotes only a scant few paragraphs to the legal issues presented in Kitzmiller.

In Jack Krebs’ post at Pandasthumb, he takes Casey Luskin up on a challenge to show that the Kansas Science Education Standards somehow “sanction the teaching” of intelligent design. (Luskin has now responded as well.)

According to Krebs, “the standards do say to teach ID” (emphasis his). Unfortunately for Krebs, his reading of the Kansas standards is an exercise in torturing a text to say what one desires, instead of respecting the plain meaning of the text.

To make his case Krebs relies on a flawed chain of inferences which, at best, would establish that the standards merely permit teaching about some intelligent design ideas.

Krebs makes two big errors. First, he completely fails to explain why the standards include unambiguous language which say the standards “neither mandate nor prohibit teaching about” intelligent design. Krebs would have us stick our head in the sand and pretend the language doesn’t exist. Second, Krebs purposefully misreads into the KSS far more about intelligent design than the standards actually say.

The Darwinist opponents of teaching fully about evolution in Ohio may be engaging in a form of religious discrimination. By lobbying for a repeal of the Ohio State Board of Education standards, not only are Ohio students presented with a dumbed-down version of evolution, but religious supporters of teaching the best science are subject to discrimination.

By focusing on the personal religious views of some supporters, the opponents have engaged in conduct that looks a lot like discrimination against a public official because of his or her religion. Such religious discrimination could be a violation of the often ignored Article VI, No Religious Test clause of the U.S. Constitution, or the parallel Ohio State Constitutional provision.