Law Evolution Science and Junk Science

1977 Indiana Creationist textbook case online

Old familiar arguments, same result.

Talk Origins posted the opinion in Hendren v. Campbell, a 1977 Indiana State court opinion rejecting the adoption of a creation science textbook.  Who cares what some Indiana trial court said almost 30 years ago?

These decisions are important for historical reasons to demonstrate that ID makes the same previously rejected creationist decisions. The ID arguments in Kitzmiller are the same ones rejected by the Indiana court in 1977.

A short civics lesson follows on the importance of any particular court decision. Court decisions are of varying importance. As a general rule, the decision is strictly binding only on the involved parties. In some circumstances, the decision may have broader precedential value by setting out an established rule to be followed by future courts.

Determining the binding effect or "precedential value of a decision can be a little complicated in our federal system. A U.S. Supreme Court decision is “binding precedent" on all courts that apply U.S. law or U.S. Constitutional law. The opinion of the highest court of a state has binding precedent on all courts applying the law of that state. Sometimes this includes federal courts, including the U.S. Supreme Court. Federal courts often apply the law of a particular state to a decision. If so, those federal courts are bound by the decisions of that state’s highest court.

The precedential value of a decision should not be confused with the decision’s persuasive authority. A persuasive decision involving a brilliant application of legal analysis to the facts can be written by any court and considered by any other court.

Hendren is a trial court decision, usually given little precedential value except by other Indiana trial courts. The opinion, however, holds that creation science is a sham designed to avoid the prior judicial precedents addressing creationism. The opinion also finds that a claim of “complexity” is also a sham for creationism. The opinion forecasts the Kitzmiller decision’s holding that specified complexity known as Intelligent design is also a form of creationism and a sham designed to avoid constitutional restrictions on teaching religion in public schools. In light of subsequent history, Hendren is persuasive authority, indeed.

DI resorts to pounding the table

There's an old expression in law.

If you can't win on the law, pound the facts.  If you can't win on the facts, pound the law.  If both the facts and law are against you , pound the table."

The DI, having lost on both the facts and the law, now pounds the table by linking evolution to Nazis, a favorite DI stunt when they get caught with no facts.

I've actually exchanged emails with Casey Luskin on this issue. (scroll down)

He complained about uncivil behavior of scientists opposed to ID and claimed that ID proponents were above that.  I gently referred him to Phillip Johnson’s article from Touchstone Magazine July/August 2004:

Dr. Goebbels would have been impressed to see what propaganda can accomplish even in a democracy, where citizens are legally free to protest. If a cultural elite has sufficient control of the news media and the textbooks, it can marginalize disfavored opinions by confining them in categories that effectively label them as unworthy of serious consideration.

This discussion took place on the opposite page of an open oven door at Auschwitz.  Yeah, those Nazis really took to evolution, didn't they?

In fact they took to evolution so well, they engraved "Darwin mit uns” on their belt buckles.

see:

Oh,  that's God, not Darwin on the Belt Buckle?  “Never mind.”

Here's some more  photographs showing the Darwinian influence on the Nazis:

         

large Christian denomination myself.  Unfortunately the vast majority of Christian religious leaders did not unequivocally condemn the Nazi anti-Semitism. 

It's very plain that the Nazi holocaust was inspired and fueled by nearly 1900 years of Christian anti-Semitism, not by any serious implementation of evolution.

This is not to say that Christianity should be abolished.  I happen to belong to a

One notable exception to the general rule was a Christian who was not part of a mainstream Christian denomination, and I readily acknowledge individual Christians who did the right thing often at the sacrifice of their own lives.

Nevertheless, any attempt to minimize Christian anti-Semitism as the fundamental root of the holocaust is simply a form of holocaust denial.  Mr. Luskin should review the DI civility guidelines, again.  Start by putting a moratorium on the Nazi comparisons.  Visit Orac’s site for holocaust denial links.

Wisconsin Legislators show sense

The Wisconsin legislature bucks the trend in Ohio and Utah.  Wisconsin lawmakers introduced a bill to ban the teaching of pseudoscience, including intelligent design, in public school science classes.

Kudos to Rep. Terese Berceau for taking a politically unrewarding but morally correct stand! Maybe other legislators will evolve backbones.

National Center for Science and Education Files Selman Amicus Brief

The NCSE Join here  has published its amicus brief in the Selman case on Line

For those who don’t know Selman, it’s the Cobb County anti-evolution school sticker case currently on appeal. An amicus curiae brief is actually a Latin euphemism, for “friend of the court.” The legal fiction is that these briefs are by neutral third parties, and therefore more likely to be even handed than those of the actual combatants. In the real world, these briefs are usually by concerned interest groups, whose interests may be broader or different that those of the litigants, but certainly not “even handed.” Since such briefs are not submitted by litigants, the court doesn’t need to accept them or read them. For that reason, the term “brief” is not a legal oxymoron in this situation. Good amicus briefs are concise, making a few key points, and don’t attempt to cover the entire case. The NCSE brief is a great amicus brief.

The strength of this brief is that it demonstrates that anti-evolution efforts in education have a very long history. This is important. “Teach the controversy” sounds like a very reasonable statement unless you understand the decades long effort to create the controversy when none exists in the first place as the excuse to teach only half the controversy that should never have been taught.

The brief observes that there has been at least three generations of religions based creationist attacks on the teaching of evolution in public schools. The “first generation” was the prohibition of teaching evolution in public schools. This was banned by Epperson v Arkansas.

Creationism then moved to the "second generation"—balanced treatment laws. Under such schemes, evolution and creationism were to be given equal time or equal weight. This approach was shot down in Edwards v. Aguillard. Selman represents the “third generation.” The stickers are part of an overall plan to diminish scientific ideas on religious grounds and endorse specific religious beliefs. This is a fair summary of the Wedge Strategy.

As I previously noted, one key point of the trial court’s decision was its recognition of sham arguments being made in support of the school stickers. Francis Beckwith  has argued that inquiries into religious motivations of ID supporters are prohibited legally and not relevant logically (see comments 25995 and 25999). He is correct that usually religious beliefs of individuals in legal proceedings are irrelevant. However, there is a common exception to that general rule. That exception occurs when the ostensible reason offered for a policy, such as the stickers, is non-sectarian, but is, in fact, a sham for the actual religious reasons underlying a policy.

Courts frequently deal with sham transactions.  A typical situation is a sale of assets from one business entity to another just prior to the first entity’s business dissolution. Was this just waht it appears to be, a sale in the ordinary course of business or, is it a disguised attempt to put assets beyond the reach of creditors? Courts typically look for certain facts common to fraudulent conveyances, such as below market sales prices, “installment” payments, and transactions between relatives. These are called “badges of fraud.” The mere presence of one is not dispositive, but as more badges appear in the transaction, the more likely the court will set it aside as a sham. Clearly, the state of mind of the involved parties is relevant in determining sham transactions of any kind. Feigned ignorance of the benefits of the sham is another typical badge of fraud. (“I didn’t know there could be tax consequences!”) Consequently, when religious individuals attempt to palm off some matter such as Intelligent Design” as non-religious, a court is entitled to determine if the proffered claim is a sham. Stated incuriosity about the identity of the designer, for example, is an obvious “badge of fraud.” Mr. Beckwith is simply legally wrong when he claims that courts cannot examine religious motivations in such circumstances.

The trial court in Selman clearly recognized that the stickers were a sham for religiously- based interference with the teaching of science. The sham arguments being made were that the stickers were merely intended to “promote critical thinking” and stress that evolution is “merely a theory.” The trial court rejected the argument that these were the real motivation and not intended to promote religion generally or any particular religious teaching in particular. In short, the stickers were a sham.

The Amicus brief’s discussion of the history of anti-evolution efforts is so important because the history identifies some of the hallmarks of creationism, a better term in this context than badges of fraud, but the two concepts are identical. Now that the Court of appeals has the historical context, it is easy to see that the hallmarks of creationism are the same whether the proponents identify themselves as Biblical Literalists , Six day Creationists , Scientific Creationists, Intelligent Design Theorists or even Post-Darwinists. The hallmarks of creationism employed by each of these groups of proponents are exactly the same.

For example, referring to evolution as merely a theory, not a fact, is a hallmark of creationism. (See Brief, p. 21, fn 2). So is the claim that “students should think critically about evolution.”

The Brief also effectively used the history to link Scientific Creationism, addressed by Epperson and Edwards, with the Institute for Creation Research and the Discovery Institute’s claimed Intelligent Design Program, showing that each employed the same hallmarks of creationism recognized by the trial court in this case and by the appellate court in Freiler v. Tangipahoa Parish Board of Education. Since the only difference between this case and Freiler is that the Freiler discalimer was oral and Selman's was written, thie trial court's decision should be upheld.

See more comments and discussion at Panda's Thumb.

Frivolous Intelligent Design lawsuits

The Panda’s Thumb links to some legal activities undertaken by alleged Intelligent Design creationists, here and here.

In one matter, a California attorney who had earlier field a federal action against the school district sued Eugenie Scott of the National Center For Science and Education [what! You're not a member?! Join now!] for defamation based on her article in California Wild

He alleges that she didn't accurately state facts relating to the school board activities in that article. Now, it’s not uncommon to attempt to use defamation laws to stifle the public discussion of opposing points of view.

The defamation lawsuit brings up two legal issues:

1. Is there any way to short circuit the process and avoid expen$ive and time con$uming court battle$?

2. Is there any way to make the loser pay the attorney’s fees and costs for frivolous lawsuits?

Getting a Frivolous lawsuit dismissed early.

The general answer to question #1 is that most legal systems have a means to challenge the complaint itself early in the case. These motions, called demurrers or motions to strike for failure to state a claim, are usually unsuccessful because they must assume for purposes of the motion that he facts in the complaint are true. Unbelievable as it may seem, sometimes plaintiffs and their lawyers sue where there’s no possibility of recovery under any circumstances. Most, however, are clever enough to at least allege “facts” in the complaint to avoid getting immediately dismissed, even if the allegations are exaggerations or false. The significant point is that the complaint, no matter how unlikely factually, is assumed to be true for purposes of ruling on these motions.

The second opportunity to get a suit thrown out before trial is a motion for summary judgment. In this case, the defense can offer evidence that demonstrates that the complaint’s allegations are undisputably false. If the court determines there are no factual disputes—that is the opposing parties agree on the actual facts, then it’s not necessary to hold a trial, the judge can determine the applicable law to the undisputed facts. That’s what happened in the Selman and Aguilard cases.

In California, there is a different method that may terminate the defamation lawsuit. California has a “SLAPP” statute allowing courts to dismiss lawsuits intended to stifle public discussions. The acronym stands for Strategic Lawsuits Against Public Participation. Here are the important sections of the statute:

“Sec. 425.16. Claim Arising from Person's Exercise of Constitutional Right of Petition or Free Speech -- Special Motion to Strike.

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

(b) (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike…

(c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.

****

(e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: .... (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

The California Wild article is certainly a “written statement in a public forum in connection with an issue of public interest” as defined by the statute. I also think Mr. Caldwell’s suit is an attempt to chill public discussion through abuse of the judicial process. A SLAPP motion should be successful here. Note that a defendant who is successful on a SLAPP motion can recover attorney’s fees.

Recovering attorney's fees

The answer to question #2 is more complicated. As a general rule in the U.S. legal system each side is responsible for its own attorney’s fees. There are a few exceptions to the general rule. Contracts often have a clause awarding attorneys’ fees to the winning side if a dispute arises over the contract. Certain laws, usually civil rights laws and consumer protection laws allow attorney’ fees to the winning side. Other than these exceptions there is no right to recover attorney’s fees.

Sometimes attorney’s fees are awarded if the lawsuit is clearly “frivolous.” Frivolous” in this sense is a term of art and does not enjoy its meaning as commonly understood. Generally, frivolous means more than “no chance of success” and also included an examination of the plaintiff’s motives. The law does not want to discourage “creative” lawsuits but does want to discourage lawsuits intended to harass a defendant. Frivolous lawsuits therefore have a sense of maliciousness to them. Peloza v Capistrano Unified School District is a good example. The lawsuit was creative in the sense that Peloza attempted to argue that evolution was a religion and requiring him to teach it violated the First Amendment—a creative argument that the court shot down in flames. The court of appeal held that his argument, although a dead bang loser was not frivolous and reversed the trial court’s ruling awarding attorney’s fees to the school district for a frivolous lawsuit. I think the Court of appeals was correct. His lawsuit was creative but not malicious.

The opposite holds true in the recent action against Eugenie Scott and I hope it is thrown on a “SLAPP” motion or deemed frivolous at some later date.

Creationism "Speciation Event" observed

Reader John Runnels, a Louisiana Patent Attorney with a scientific and technical background far exceeding that of Seth Cooper and the other ID lawyers, sent me the Discovery Institute link to the latest creationism lawsuit, this one in California.

The lawsuit is filed by lawyer Larry Caldwell of Roseville California against the local school district and board members.  The lawsuit arises out of Mr. Caldwell's proposal to present an alternative viewpoint to the teaching of evolution.  The Proposal is a thinly disguised attempt to introduce the Discovery Institute Intelligent Design alternative to evolution.  The suit is entertaining for a number of reasons. First, Mr. Caldwell apparently alleges that calling a person “Christian” is a form of epithet and intimidates that person into silence in public debates. He also alleges that identifying educational materials as “Christian” somehow violates the Establishment Clause. He doesn't mind identifying himself as a Christian, but he objects when other people do it.

Most humorous is his effort to distance himself from Intelligent Design. The suit doesn’t mention Intelligent Design” except to deny its involvement.  Apparently Creationism’s Trojan Horse now needs its own Trojan Horse. This appears to be a "speciation event" in the long process of creationism's evolution.

Furthermore, the lawsuit appears to be directed more for media and public consumption than intended to convince a federal judge. Federal Judges have a habit of being offended by grandstanding complaints such as this one. For that reason, I wouldn’t be surprised if the federal judge summarily tosses the suit.

In any event, Mr. Caldwell alleges three causes of action in the Federal lawsuit, all alleging violations of 42 U.S.C 1983, the federal civil rights enforcement statute.  He claims that  the school board denied his right to free speech,  violated the establishment clause, and  he was denied equal protection under the 14^th amendment. 

Instead of forthrightly advocating the teaching of Intelligent design, his proffered plan teaches a "minority Scientific Viewpoint."   Apparently Intelligent Design has become so well identified as a front for religious interference in schools that it can no longer be effectively used. The term du jour for "creationism" is has now become “Minority Scientific Viewpoint.“ I guess this could be termed a “speciation event” in the continuing evolution of “creationism.”

Mr. Caldwell defines “Minority Scientific Viewpoint” as “the scientific viewpoint held by a growing minority of credentialed professional scientists who are skeptical of the ability of random mutation and natural selection-the center piece of Darwin’s original theory of evolution_ to account for the complexity of life…” Complaint Paragraph 30.  The lawsuit arises out of the school board's dismissal and alleged ridicule of his proposed plan to present this Minority Scientific Viewpoint” as part of the science curriculum. Caldwell decided to christen his proposal the QSE (Quality Science Education) Policy. His proposal is backed allegedly by a legal opinion by David DeWolf, a Discovery Institute linked faculty member at Gonzaga and backed by Cornelius Hunter, Ph.D., well known as a creationist. For some reason, the school board was not impressed by either Dr. Cornelius Hunter science opinions or Mr. DeWolf’s legal opinion, determining that they were religiously based.

The first 61 pages of the 96 page(!) complaint are a lengthy and irrelevant series of facts. These can be distilled into the following:  (1) Caldwell presented his QSE for consideration;  (2) The QSE was rejected because it was not good science but was essentially religiously motivated and inappropriate on that basis for a public school science curriculum; (3) some of the people opposing him raised their voices and called him bad names, like “Christian” and shared his e-mail with each other. 

His legal claims are based on the argument that his free speech rights were violated by intimidation when he was publicly accused of being Christian, that the establishment clause was violated by an official government determination that his proffered materials were Christian, and finally, his right to equal protection under the law was violated by treating his materials summarily rather than giving them the attention they deserved.

This is a terrible complaint and in fact is a risky strategy because there may be yet another U.S. District Court ruling addressing the Christian motivation underlying all evolution attacks.  Keep up the good work.  I agree with Mr. Runnels that the complaint is unlikely to achieve its legal objectives. We can only hope that it will also fail to achieve its political and publicity objectives as well.

Selman Amicus Brief Online

Talk origins (thank you for the link!) has posted the Amicus Curiae brief filed by various educational and scientific interest groups in support of the challenge to the anti-evolution stickers in the Selman v. Cobb County School District case.

For non-lawyers, typically only the people with a direct stake in the outcome are allowed to participate in a lawsuit. These are the plaintiff and defendants and are collectively referred to as “the parties.” Outsiders, curiosity seekers and interest groups are not generally permitted to participate as parties if they don’t have a direct interest in the outcome. An exception to this general rule is what is known as an amicus curiae brief.

Amicus curiae literally means “friend of the court” and connotes an image of a disinterested but knowledgeable outsider. By permission only, the amicus curiae is permitted to file a brief with the court. The court has wide discretion in granting or denying permission for filing of such briefs.  Nevertheless, in cases of widespread public interest, a court will often accept briefs from a wide range of outside individuals and organizations interested in the outcome.  In fact, acceptance of various amicus curiae briefs is another way to subtly bulletproof a decision by indicating that the court at least considered the input from a multiple viewpoints.

Nobody actually believes the connotation that the amicus curiae briefs will be disinterested. They are expected, however to be knowledgeable.  Also they are expected to be BRIEF.  Now, to many non-lawyers, “legal brief” is a classic oxymoron. In reality there are strict page limitations on most legal briefs.  In particular, amicus curiae should not tax the court’s patience by being verbose. The effective amicus brief should make its point and address the broader policy and social issues that are likely to be overlooked or ignored by the parties, who, after all, are only interested in winning this one case.

The Amicus Brief submitted by the Colorado Citizens for Science is a superb example of an effective amicus brief. First, it is indeed short--10 pages.  Next, it addresses several common creationist mischaracterizations of evolution. The brief points out that Intelligent Design proponents misrepresent evolution as “just” a theory, when it is both a fact and a theory. Also Evolution is not a theory of universal cosmic origins as is often misrepresented. For these reasons, the proposed sticker is inaccurate and singles out evolution as suspect or somehow deficient or second-tier. These inaccuracies alone are not enough to invalidate the sticker, but if the sticker is part of an overall strategy to subvert scientific knowledge that conflicts with fundamentalist religious beliefs, then the court could find the stickers are unconstitutional. The brief makes this point succinctly.

What I loved about the brief was its reliance on Daubert v. Merrell Dow Pharmeceuticals. Daubert doesn’t directly apply to science teaching in public schools.  The Daubert case addressesthe separate issue of the admissibility of scientific evidence in the courtroom.  In Daubert the U.S. Supreme Court cautioned judges that they must be the gatekeepers against junk science being introduced into the courtroom.  The Daubert decision then provided several criteria to determine whether the proffered expert scientific testimony is based on legitimate science. My personal opinion is that Intelligent Design fails to qualify under the Daubert analysis and the motives for offering it in school are correspondingly suspect, so I'd recommend raising Daubert in any litigation involving Intelligient Design creationism.

The Amicus Brief didn’t explicitly make this but they do use Daubert to rebut two tactics used by creationists. First, the brief addresses the claim that a scientific controversy exists, and therefore the controversy should be taught in school. Daubert recognizes that such controversies are often manufactured and that a trial judge cannot abdicate the responsibility to resolve the controversy in favor of legitimate science. Second, Intelligent Design often compiles a list of scientists who “doubt evolution.”  It is a sad commentary that anybody can find an “expert” to testify their way on any subject in court. Trial judges routinely address exactly this problem in evaluating experts in the courtroom and truth is not determined by numbers of crackpots on one side or another.  Daubert recognizes that just because the person is an “expert’ doesn’t mean necessarily that the science is any good at all and two proponents of junk science are not better than one. The brief highlights this with the Project Steve List, which makes the point understandable to any federal judge who has ever had a bogus expert in the courtroom.

Finally, the brief makes clear that the attack on evolution is religiously based, despite now implausible claims to the contrary.

Overall, a very good brief that achieved a great result.