Re: Judge Jones sided with the Discovery Institute and ruled against the Dover school board policy.

David: I also believe, however, that the judge unnecessarily decided the question of what constitutes "science." The extended discussion of what constitues "science," in my view, wasn't needed to decide what was a relatively simple establishment clause issue, given the governing law and the record concerning the school board's conduct. We should all be wary, I think, of having federal district courts define for us what "science" means.

I disagree. The judge notices that the 3rd court typically rules on both the establishment as well as the Lemon clause. In other words, even if an appeals court were to rule that the Board did not violate the establishment clause given its own conduct then effect of the Dover's Statement was still primarily religious. In order to make that decision, the judge had to discuss and rule on the status of ID as science. Notice that the Discovery Institute's amicus brief argued that because of its scientific status, ID's primary effect was not religious.

In http://www.pandasthumb.org/archives/2005/12/activist_judge.html I address these issues in detail

First error, the judge is clear that the reason for the conclusion on whether ID is science as because it is essential to our holding that an Establishment Clause violention has occurred. So why would the judge raise these issues.
  Simply, he is following legal precendence
    Judge Jones wrote:
  Our next task is to determine how to apply both the endorsement test and the Lemon test to the ID Policy. We are in agreement with Plaintiffs that the better practice is to treat the endorsement inquiry as a distinct test to be applied separately from, and prior to, the Lemon test. In recent Third Circuit cases, specifically, Freethought Society v. Chester County, 334 F.3d 247, 261 (3d Cir. 2003), Modrovich, 385 F.3d at 401-04, 406-13, and Child Evangelism, 386 F.3d at 530-35, the court adopted the practice of applying both tests. The Third Circuit conducted the endorsement inquiry first and subsequently measured the challenged conduct against Lemon’s “purpose” and “effect” standards.4
    Footnote 4 reads:
    We do note that because of the evolving caselaw regarding which tests to apply, the “belt and suspenders” approach of utilizing both tests makes good sense. That said, it regrettably tasks us to make this narrative far longer than we would have preferred.
  
In other words, the judge showed a thorough analysis based on the pre-existing and evolving case law. The judge is merely showing an abundance of caution:
    Judge Jones wrote:
  Although ID’s failure to meet the ground rules of science is sufficient for the Court to conclude that it is not science, out of an abundance of caution and in the exercise of completeness, we will analyze additional arguments advanced regarding the concepts of ID and science.

Establising that ID is not science is essential when applying the Lemon test
    Judge Jones wrote:
  Although we have found that Defendants’ conduct conveys a strong message of endorsement of the Board members’ particular religious view, pursuant to the endorsement test, the better practice in this Circuit is for this Court to also evaluate the challenged conduct separately under the Lemon test.18 See Child Evangelism, 386 F.3d at 530-35; Modrovich, 385 F.3d at 406; Freethought, 334 F.3d at 261.
    Thus, Judge Jones, is merely applying the better practice in his Circuit to also look at the Lemon test. Given the evolving nature of case law in the area of the Establishment clause and the Lemon test, it seems rather prudent of the judge to address them both.

  Judge Jones wrote:
  To briefly reiterate, we first note that since ID is not science, the conclusion is inescapable that the only real effect of the ID Policy is the advancement of religion. See McLean, 529 F. Supp. at 1272.
  In other words both in purpose and effect the policy is to advance religion.

As far as courts deciding what science is, this seems well within its powers to do so.

Timothy Sandefur has argued this in depth http://www.pandasthumb.org/archives/2005/12/prof_dewolfs_cr.html#more

<quote>As I’ve explained, courts are called upon all the time to determine whether things fall into one category or another. Courts have been asked to decide whether, for instance, a radio is a “musical instrument,” Dunbar v. Spratt-Snyder Co., 226 N.W. 22 (Iowa 1929), or what the definition of “mathematics” is, John A. Steer Co. v. United States, 53 C.C.P.A. 67, 70 (Cust. & Pat. App. 1966), or what the definition of “fortune telling” is, Davis v. State, 160 N.E. 473, 475 (Ohio 1928), or whether softball is an “athletic contest,” Curtis v. Board of Educ. of Sayre Public Schools, 914 P.2d 656, 659 (Okl. 1995), or even what the definition of “art” is. In re Leonardo, 102 B.R. 202, 203-04 (E.D. Ca. 1989). Courts are rather often called upon to decide whether something is a “religion” or not, see, e.g., Kaufman v. McCaughtry, 419 F.3d 678, 681-82 (7th Cir. 2005); Borzych v. Frank, 2005 WL 2206785, at *11-12 (W.D. Wis. Sept. 9, 2005); Stately v. Indian Community School of Milwaukee, Inc., 351 F.Supp.2d 858, 867-69 (E.D. Wis. 2004). And, of course, courts have adopted workable definitions of “science,” as well. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 593 (1993). There’s no reason in the world why determining whether softball is an athletic sport is within the proper realm of the court, but determining whether ID is science is not.</quote>

----- Original Message ----
From: David Opderbeck <dopderbeck@gmail.com>
To: "George L. Murphygmurphy@raex.com" <gmurphy@raex.com>
Cc: Janice Matchett <janmatch@earthlink.net>; asa@calvin.edu
Sent: Wednesday, December 28, 2005 12:47:45 PM
Subject: Re: Judge Jones sided with the Discovery Institute and ruled against the Dover school board policy.

Hello everyone. I'm a law professor and a recent ASA member, and am the author of the "legal analysis" referenced further down in this discussion. It appears on my blog, Through a Glass Darkly, at http://www.davidopderbeck.com/archives/2005/12/dover_id_decisi.html. (I'm not the author of the "Dawn Treader" post that is the main focus of the discussion; my post was linked by the Dawn Treader, who's a good guy and a friend of mine). In response to Pim's comment about my blog post, I'd like to clarify a few things:
  
 First, as I stated clearly in my blog post, I was not addressing there the establishment clause issues. I believe the judge correctly decided the establishment clause issues, consistent with what I believe is awful establishment clause jurisprudence from the Supreme Court. So, I didn't "miss the point" of the decision; I think Pim missed the point of my post. And, I don't view this case as an example of "judicial activism," whatever that may be. This judge, I believed, reached the correct result under the constraints of the existing law. I should also note that my post was intended to offer some quick thoughts upon reading the Opinion; I don't claim that it's an exhaustive legal analysis of the sort that I might submit for professional publication.
  
 I also believe, however, that the judge unnecessarily decided the question of what constitutes "science." The extended discussion of what constitues "science," in my view, wasn't needed to decide what was a relatively simple establishment clause issue, given the governing law and the record concerning the school board's conduct. We should all be wary, I think, of having federal district courts define for us what "science" means. And, in this instance, I think the judge's effort to define "science" was largely vaucous. He ignored any serious discussion of the philosophy and history of science, and instead came up with a communitarian definition that boils down, in my view, to " a theory is 'scientific' if the currently ascendant scientific establishment approves of it." Being something of a Kuhnian / Quinian myself, that kind of definition is unsatisfying to me, and when backed with the force of law, seems somewhat frightening.
  
 I'd also like to note that an excellent and very civil discussion followed in the comments to my original post on the judge's opinion, with a variety of views represented. That discussion is ongoing, and I'd heartily welcome the perspectives of my fellow ASA members there (once again, the URL is http://www.davidopderbeck.com/archives/2005/12/dover_id_decisi.html)
  
 Wishing you all a great new year,
  
 David Opderbeck

 
 On 12/28/05, George L. Murphygmurphy@raex.com <gmurphy@raex.com> wrote: >
>
>
>
>
> Love it! ~ Janice :)
> Linked from:
> > http://www.mrdawntreader.com/the_dawn_treader/2005/12/so_they_went_an.html
>
> Dover Ruling December 2005
> "....Judge Jones sided with
> > the Discovery Institute and ruled against the Dover school board
> policy. No promotion of biological design in public school
> science classrooms.
> A better approach, in my opinion, is to allow biological design to
> flourish as a metascience as
> > Dr. Robin Collins suggests here. As a metascience, biological design
> will receive the time and support it needs to mature and
> flourish.
> Scientists make wonderful pragmatists and lousy philosophers.
> Philosophical arguments about science will not convince them to switch
> away from their current research paradigms. In order to gain
> traction and acceptance, design based research programs need to produce
> more discoveries, more break throughs and more cures. Research
> grants will follow, and so will more scientists.
> One interesting area to keep a close eye on is the oxymoronic research
> area known as directed evolution. It may prove to be an
> interesting testing ground of paradigms (design -vs- chance). I
> hope to post more on this interesting subject as I learn more about
> it.
> A second area where I think design based programs may yield superior
> results is in forensic biology. Just a hunch.
> Once biological design gains traction in the scientific community,
> and I have every reason to expect it will, then you will see a more
> interesting trial than the one we witnessed in Dover.
> Update: Some legal and philosophical analysis of the case from an
> expert over at
> > Through A Glass Darkly.

1) "Intelligent design as a metascience" is fine as long as we realize that its a specifically theistic metascience, thus religious, thus not something that should be appealed to by a science that operates in accord with methodological naturalism, which just gets us back to where we started: Intelligent design can be good theology but it's bad science.

& on this distinction, the essay by physics Nobel Laureate Eric Cornell in the 14 November issue of Time is quite good.

2) Scientists may make lousy philosophers but they generally don't compare in badness with philosophers telling scientists how to do science. Comte & the supposed impossibility of knowing stellar compositions is a prime example. If you want to know how science works, look at what scientists - both experimental & theoretical - do. Philosophers of science come in afterwards, after scientific successes & failures have occurred, & clean things up & make them look more respectable for their fellow philosophers. & if what's worked isn't in accord with current ideas about the philosophy of science, so much the worse for those ideas.

George L. Murphy

 
Received on Wed Dec 28 16:35:12 2005