Kitzmiller v. Dover Area School District

[phcatlantis]

A federal judge ruled on Tuesday that it was unconstitutional for a Pennsylvania school district to present intelligent design as an alternative to evolution in high school biology courses because it is a religious viewpoint that advances "a particular version of Christianity."

Read...

The ruling is http://www2.ncseweb.org/kvd/main_docs/kitzmiller_342.pdf at NCSE

Instead of going back and forth over the merits of ID, let's talk about two other points of interest.

1. How is establishment clause jurisprudence evolving in this case and others (notably Selman v. Cobb County). Kitzmiller goes now to appeal in the 3rd Circuit, and Selman is already in the 11th.

2. Let's say these cases are ultimately resolved such that school boards enjoy greater leeway in setting life science education standards, up to and including instruction in philosophy of science, unscientific alternatives, etc. From the perspective of sociology, political and educatio science, and public policy, what are the likely consequences of such an outcome. On the education point, try to anticipate geographic variation in instruction and student academic performance (NAEP math and science scores?) as well as changes in curricula.

This is, of course a discussion, not a conference or a research pool. I'm not expecting a great deal of digging and modeling, or that first points be defended in their entirety. Just curious to see whether or not an online forum can host a conversation on this issue without resorting to logic chopping and militia-style constitutional lawyering.

 

[selfAdjoint]

Read...
The ruling is http://www2.ncseweb.org/kvd/main_docs/kitzmiller_342.pdf at NCSE
Instead of going back and forth over the merits of ID, let's talk about two other points of interest.
1. How is establishment clause jurisprudence evolving in this case and others (notably Selman v. Cobb County). Kitzmiller goes now to appeal in the 3rd Circuit, and Selman is already in the 11th.

Not sure what you mean by this. There is a lot of judicial history with ordinary creationism in the schools shot down by the establishment clause, and this decision seems to extend this reasoniong to ID. That would be a stance I think the courts would approve, since it gives them a minimum path to stare decisus, always their guide and guerdon.

2. Let's say these cases are ultimately resolved such that school boards enjoy greater leeway in setting life science education standards, up to and including instruction in philosophy of science, unscientific alternatives, etc. From the perspective of sociology, political and educatio science, and public policy, what are the likely consequences of such an outcome. On the education point, try to anticipate geographic variation in instruction and student academic performance (NAEP math and science scores?) as well as changes in curricula.

I can't see this in the elementary schools. It is actually necessary in high school, where if the schools are doing their job, the students are introduced to critical thinking, about evolution as well as everything else. I don't see a geographic speculation as being productive. Given the way threads on this forum evolve I just see it producing a lot of pro and con stereotyping.

This is, of course a discussion, not a conference or a research pool. I'm not expecting a great deal of digging and modeling, or that first points be defended in their entirety. Just curious to see whether or not an online forum can host a conversation on this issue without resorting to logic chopping and militia-style constitutional lawyering.

I'm not hopeful, but we'll see.

 

[phcatlantis]

Not sure what you mean by this. There is a lot of judicial history with ordinary creationism in the schools shot down by the establishment clause, and this decision seems to extend this reasoniong to ID.

A good deal of that case law was decided over thirty years ago under the Warren and Burger courts, with the exception of Aguillard (where Scalia and Rehnquist dissented). If you believe today's Court will follow suit, that's definitely a point worth discussing.

That would be a stance I think the courts would approve, since it gives them a minimum path to stare decisus, always their guide and guerdon.

As Lawrence v. Texas followed the minimum path of stare decisis from Bowers v. Hardwick?

I can't see this in the elementary schools. It is actually necessary in high school, where if the schools are doing their job, the students are introduced to critical thinking, about evolution as well as everything else.

Just to be clear, this isn't an advocacy thread; especially on the outcomes point. There's little if any discussion (here, at least) about the consequences of the legal proceedings on other areas in American life.

 

[selfAdjoint]

Your advent here with a good background in the legal precendents and discussions of the courts is the best thing that has happened on this forum in a long time. I bow to your knowledge and take your point about advocacy.

I would shakily suggest that Roberts will not want to seem to be under Scalia's thumb and that he might use a stare decisus argument with burking of the differences between traditional creationism and ID as a means to avoid that.

 

[phcatlantis]

Your advent here with a good background in the legal precendents and discussions of the courts is the best thing that has happened on this forum in a long time. I bow to your knowledge and take your point about advocacy.

I'm no lawyer, at least not yet. I have a hard on for the subject and look forward to going to law school soon. As for advocacy, that point was just because there are like a billion threads out there on ID and evolution that almost exclusively deal with some obligation to believe or the ethical quality of the participants.

I would shakily suggest that Roberts will not want to seem to be under Scalia's thumb and that he might use a stare decisus argument with burking of the differences between traditional creationism and ID as a means to avoid that.

I want to see how things shape up in the 11th Circuit before making a decision. I will step out on the limb and predict that Jones' decision in Kitzmiller will not resemble the ultimate resolution in its most ambitious point--legal definitions of the scientific method and unscientific criticism (i.e., ID is inherently religious). Finally, there are two different questions in play between the 3rd Circuit and the 11th. One is a question of whether or not ID can be presented as an academic challenger to evolution and the other is whether or not secular life sciences can be challenged even in passing by disclaimer. I think we're in for some very rich establishment clause jurisprudence as a result of these; a lot of decisions are in play, including Lemon. Note that neither will make it to the Supreme Court before Alito is confirmed, and Kitzmiller and Selman are going up in Circuits that haven't dealt closely with Establishment Law cases in quite some time, and that Alito will sit on a Court that didn't exactly get along during McCreary County v. ACLU.

 

[selfAdjoint]

I wonder if you could be persuaded to explain in detail what you see as the case law basis and the different issues before the different circuits? Sorry to lay that work on you, but it would be a tremendous benefit to this forum to have it; perhaps we could induce the powers that be to make it a sticky!

 

[phcatlantis]

I wonder if you could be persuaded to explain in detail what you see as the case law basis and the different issues before the different circuits?

I'm going to get back to you today on this, largely because we always jump to USC and chuck the horizontal citations. If we really want to get a hang of where this is going, I've heard and suspect to be true that weight will attach to the circuit and district case law on this issue. Right now, I'm going to get read Kitzmiller and the documents in Selman. Anybody else interested can get Selman's docs here. I'm looking for the 11th Circuit docs right now.

 

[selfAdjoint]

Thank you for the link to the Selman decision; I found it very interesting and fair, although the judge could not comment, because no evidence for it had been submitted, on what one might infer was the School Board's real reason for the decision to include the stickers: namely fear for their elective status. A political storm had blown up over the textbooks, with active grassroots campaigning, petitions and all, and unless the Board at least made a gesture of caving, they could look forward to being ex-boardmembers after the next election.

The effect prong of the Lemon test was the key in this decision. Although it involves a conclusion by the jurist, it is less of a conclusion than is involved in trying to psych out motive. Will this be the case in future decisions?

 

[Astronuc]

For some background on case law regarding separation of church and state issues, see

http://en.wikipedia.org/wiki/First_Amendment

http://en.wikipedia.org/wiki/Establishment_Clause_of_the_First_Amendment

http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

http://en.wikipedia.org/wiki/Separation_of_church_and_state_in_the_United_States

As with any source, this is a good starting point, but one should cross reference with other sources.

 

[Moonbear]

Probably the most directly relevant case is EDWARDS v. AGUILLARD, 482 U.S. 578 (1987) http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=482&invol=578

In this section of the opinion, you could replace the term 'Creationism' with 'Intelligent Design' at every mention given that ID claims any "supernatural being," not just the Judeo-Christian God, as does this portion of the opinion:

As in Stone and Abington, we need not be blind in this case to the legislature's preeminent religious purpose in enacting this statute. There is a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution. 9 It was this link that concerned the Court in Epperson v. Arkansas, 393 U.S. 97 (1968), which also involved a facial challenge to a statute regulating the teaching of evolution. In that case, the Court reviewed an Arkansas statute that made it unlawful for an instructor to teach evolution or to use a textbook that referred to this scientific theory. Although the Arkansas antievolution law did not explicitly state its predominate religious purpose, the Court could not ignore that "[t]he statute was a product of the upsurge of `fundamentalist' religious fervor" that has long viewed this particular scientific theory as contradicting the literal interpretation of the Bible. Id., at 98, 106-107. 10 After reviewing the history of antievolution statutes, the Court determined that "there can be no doubt that the motivation for the [Arkansas] law was the same [as other antievolution statutes]: to suppress the teaching of a theory which, it was thought, `denied' the divine creation of man." Id., at 109. The Court found that there can be no legitimate [482 U.S. 578, 591] state interest in protecting particular religions from scientific views "distasteful to them," id., at 107 (citation omitted), and concluded "that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma," id., at 106.

These same historic and contemporaneous antagonisms between the teachings of certain religious denominations and the teaching of evolution are present in this case. The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind. 11 The term "creation science" was defined as embracing this particular religious doctrine by those responsible for the passage of the Creationism Act. Senator Keith's leading expert on creation science, Edward Boudreaux, testified at the legislative hearings that the theory of creation science included belief in the existence of a supernatural creator. See 1 App. E-421 - E-422 (noting that "creation scientists" point to high probability that life was "created by an intelligent mind"). 12 Senator Keith also cited testimony from other experts to support the creation-science view that "a creator [was] responsible for the universe and everything in it." 13 2 App. E-497. The legislative history [482 U.S. 578, 592] therefore reveals that the term "creation science," as contemplated by the legislature that adopted this Act, embodies the religious belief that a supernatural creator was responsible for the creation of humankind.

Furthermore, it is not happenstance that the legislature required the teaching of a theory that coincided with this religious view. The legislative history documents that the Act's primary purpose was to change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. The sponsor of the Creationism Act, Senator Keith, explained during the legislative hearings that his disdain for the theory of evolution resulted from the support that evolution supplied to views contrary to his own religious beliefs. According to Senator Keith, the theory of evolution was consonant with the "cardinal principle of religious humanism, secular humanism, theological liberalism, aetheistism [sic]." 1 App. E-312-E-313; see also 2 App. E-499-E-500. The state senator repeatedly stated that scientific evidence supporting his religious views should be included in the public school curriculum to redress the fact that the theory of evolution incidentally coincided with what he characterized as religious beliefs antithetical to his own. 14 [482 U.S. 578, 593] The legislation therefore sought to alter the science curriculum to reflect endorsement of a religious view that is antagonistic to the theory of evolution.

In this case, the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint. Out of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects. As in Epperson, the legislature passed the Act to give preference to those religious groups which have as one of their tenets the creation of humankind by a divine creator. The "overriding fact" that confronted the Court in Epperson was "that Arkansas' law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with . . . a particular interpretation of the Book of Genesis by a particular religious group." 393 U.S., at 103 . Similarly, the Creationism Act is designed either to promote the theory of creation science which embodies a particular religious tenet by requiring that creation science be taught whenever evolution is taught or to prohibit the teaching of a scientific theory disfavored by certain religious sects by forbidding the teaching of evolution when creation science is not also taught. The Establishment Clause, however, "forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma." Id., at 106-107 (emphasis added). Because the primary purpose of the Creationism Act is to advance a particular religious belief, the Act endorses religion in violation of the First Amendment.

We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught. Indeed, the Court acknowledged in Stone that its decision [482 U.S. 578, 594] forbidding the posting of the Ten Commandments did not mean that no use could ever be made of the Ten Commandments, or that the Ten Commandments played an exclusively religious role in the history of Western Civilization. 449 U.S., at 42 . In a similar way, teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction. But because the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act furthers religion in violation of the Establishment Clause. 15

And, if there is any question whether the current court might still uphold this opinion, in a 2001 decision regarding a school's prohibition of religious groups to use school grounds for an afterschool function, in which the court found the prohibition unconstitutional because it was not a school-endorsed function, but an afterschool, non-compulsory function, they refer to Edwards v. Aguillard to clarify the distinction between an afterschool function and a required part of the curriculum.

GOOD NEWS CLUB et al. v. MILFORD CENTRAL SCHOOL
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/533/98.html

Equally unsupportive is Edwards v. Aguillard, 482 U. S. 578 (1987), in which we held that a Louisiana law that proscribed the teaching of evolution as part of the public school curriculum, unless accompanied by a lesson on creationism, violated the Establishment Clause. In Edwards, we mentioned that students are susceptible to pressure in the classroom, particularly given their possible reliance on teachers as role models. See id., at 584. But we did not discuss this concern in our application of the law to the facts. Moreover, we did note that mandatory attendance requirements meant that State advancement of religion in a school would be particularly harshly felt by impressionable students.6 But we did not suggest that, when the school was not actually advancing religion, the impressionability of students would be relevant to the Establishment Clause issue. Even if Edwards had articulated the principle Milford believes it did, the facts in Edwards are simply too remote from those here to give the principle any weight. Edwards involved the content of the curriculum taught by state teachers during the schoolday to children required to attend. Obviously, when individuals who are not schoolteachers are giving lessons after school to children permitted to attend only with parental consent, the concerns expressed in Edwards are not
present.7

Another, somewhat related decision is found in, SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE, individually and as next friend for
her minor children, et al. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=530&invol=290, related to prayers/invocations prior to school football games, and serves to further clarify the distinctions made when activities are compulsory, even if just for a few students, compared with entirely voluntary.

The second part of the District's argument--that there is no coercion here because attendance at an extracurricular event, unlike a graduation ceremony, is voluntary--is unpersuasive. For some students, such as cheerleaders, members of the band, and the team members themselves, attendance at football games is mandated, sometimes for class credit. The District's argument also minimizes the immense social pressure, or truly genuine desire, felt by many students to be involved in the extracurricular event that is American high school football. Id., at 593. The Constitution demands that schools not force on students the difficult choice between whether to attend these games or to risk facing a personally offensive religious ritual. See id., at 596. Pp. 18-21.

Something more peripherally related, but worth a read as well is GRAND RAPIDS SCHOOL DISTRICT v. BALL, 473 U.S. 373 (1985) http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=473&invol=373&pageno=390 , which addresses using public funds for nonpublic school students in primarily religious-affiliated schools to teach non-secular subjects.