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mootness and a careful review of the law demonstrate that there was strong case for dismissal if the anti-ID Board had repealed the ID policy prior to the ruling.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.
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