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News Kitzmiller v. Dover Area School District

  1. Dec 21, 2005 #1

    The ruling is http://www2.ncseweb.org/kvd/main_docs/kitzmiller_342.pdf [Broken] 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.
    Last edited by a moderator: Apr 21, 2017 at 10:36 PM
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  3. Dec 21, 2005 #2


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    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.

    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.

    I'm not hopeful, but we'll see.
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  4. Dec 21, 2005 #3
    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.

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

    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.
  5. Dec 21, 2005 #4


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    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.
  6. Dec 21, 2005 #5
    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 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.
    Last edited: Dec 21, 2005
  7. Dec 21, 2005 #6


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    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!
  8. Dec 21, 2005 #7
    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.
  9. Dec 21, 2005 #8


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    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?
  10. Dec 23, 2005 #9


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  11. Dec 23, 2005 #10


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    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:

    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.


    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.

    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.
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