“The Forbidden Preference”

Albert Alschuler, a highly regarded law professor at the University of Chicago, is no radicalrightchristian, but he is very critical of Judge Jones’s opinion in Kitzmiller v. Dover Area School District, which threw Intelligent Design out of the Dover, Pennsylvania, schools. (HatTip to Howard Bashman)

Most of the Dover opinion says in effect to the proponents of intelligent design, “We know who you are. You

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  1. Richard Nieporent December 26, 2005 at 9:45 am | | Reply

    John I was also troubled by that ruling. As I have indicated numerous times I am no advocate of Intelligent Design. It has nothing to do with science and should not be taught in a science class. However, that being said, it is not up to the Judge to read minds or impugn the real intention of the defendants in the lawsuit. Is it really asking too much for the Judge to just rule on the facts of the case? It reminds me of the speech codes that were promulgated on many campus where they would not only ban

  2. Laura(southernxyl) December 26, 2005 at 9:52 am | | Reply

    “The Dover opinion appears to say that the forbidden preference taints whatever the board may do, and if the public can discern the board’s improper desire, any action it takes also has an unconstitutional effect.”

    I wondered about that. I thought it was just me.

  3. Mike McKeown December 26, 2005 at 1:00 pm | | Reply

    I am not sure I agree with the thrust of the post. I am not a lawyer, nor have I read the full opinion, but I have followed the case closely. In full disclosure, I am also a working biologist and geneticist. Ken Miller, a notable witness for the plaintiffs, is a friend and colleague. At multiple times in the last six months I have discussed the Kansas State Board of Education, the Cobb County, GA, situation, and the Dover case with Ken.

    The narrow ruling, that was possibly the minimum expected by the end of the trial, would have been that this board was clearly, by the words and actions of its members, clearly using ID as a mapping of religious creationism that could be used in the classroom. If the opinion had stopped there, even without an appeal, other school boards of similar opinion need only be more circumspect to potentially beat the precedent.

    The judge did go well beyond that. In particular, he noted that ID does require a

  4. Richard Nieporent December 26, 2005 at 1:54 pm | | Reply

    Mike, I also, thank God :-), am not a lawyer and as you can infer from my comments I do not disagree with you about the nature of ID. ID clearly makes reference to a creator by nature of the intelligent part of its name. Just as clearly, ID is not in itself a religion. However, if we are to ban ID because it infers a creator then we should also ban environmentalism as a science from the classroom since it is taught with reference to a higher power, be it Mother Nature, Gaia or some

  5. Michelle Dulak Thomson December 26, 2005 at 2:12 pm | | Reply

    John,

    I am reminded of an argument by the ACLU in one of the “moment of silence” cases (early 80s, I think) that such a law is unconstitutional if its proponents can’t prove that “nowhere among the law’s purposes is the opportunity for prayer.” (Quoting from memory, so may not be word-for-word accurate.)

    Your “forbidden-preference” analogy seems to me a little overdrawn, because the lines between “quotas” and “goals” and between “goals” and “outreach” have always been kept deliberately fuzzy, whereas the ones between “science” and “religion” and between “church” and “state” have been kept deliberately keen.

    Mike McKeown,

    I don

  6. actus December 27, 2005 at 6:22 pm | | Reply

    “But he’s neither a dummy nor a shil for Intelligent Design, so let’s assume his characterization is fair”

    Dover did this to teach kids creationism. A religious view. Part of the proof of that is their religious motivation, part of the proof of it is that ID is a fraud perpetrated by people with a religious goal.

  7. actus December 27, 2005 at 6:27 pm | | Reply

    “However, that being said, it is not up to the Judge to read minds or impugn the real intention of the defendants in the lawsuit”

    Judges can’t decide people’s intents? what the hell are you talking about?

  8. Michelle Dulak Thomson December 27, 2005 at 8:08 pm | | Reply

    actus,

    ID, so far as I can see, is not a “fraud.” I doubt it belongs in a science classroom before college level, where students studying evolutionary biology will presumably know a bit more and be able to evaluate it properly. But I also doubt that the account of the origin of life presented in my own early science texts — that bollocks about the “primordial soup” just by accident assembling itself into a very complex self-replicating system, which is what you need in place before natural selection has anything to work on — belongs in a science classroom either. No one seems particularly exercised about that, and yet it’s just as “unfalsifiable” as ID is. Its only merit in this context is that it’s 100% God-free.

    “However, that being said, it is not up to the Judge to read minds or impugn the real intention of the defendants in the lawsuit”

    Judges can’t decide people’s intents? what the hell are you talking about?

    I think, actus, that the point was that a law shouldn’t be invalidated just because a judge thought (correctly or otherwise) that the people promulgating it would rather have had something further, but stopped at a certain point, at what they understood to be within the law as it stood.

    John’s affirmative-action example isn’t a precise parallel, but it’s close. No one at major universities is really interested in “diversity” as such; but they will all claim to be, because Bakke doesn’t let them argue anything else. It’s pathetic, but there it is.

    A better example is abortion. It’s plain that many proposals for restricting abortion in little ways (parental notification, partial-birth-abortion bans, laws prohibiting transporting minors across state lines for abortions; &c.) are promulgated by people who would like to restrict abortion much more than they now can under Roe, and are now doing the best they can, within existing law, to keep the issue alive and keep people thinking about it. The Kitzmiller ruling seems to suggest that if a minor abortion restriction was supported by people who wanted major abortion restrictions, it should be struck down.

    And then the original of this: the ACLU argument I memory-quoted earlier.

  9. Laura(southernxyl) December 27, 2005 at 8:20 pm | | Reply

    I suppose that if a biologist wanted to teach evolution because it’s good science, and as a side-issue thought that if it liberates a few students from their religious beliefs that wouldn’t be a bad thing, a judge should read his mind and decide that he’s mixing church and state and therefore shouldn’t teach evolution.

  10. Richard Nieporent December 27, 2005 at 8:50 pm | | Reply

    I think, actus, that the point was that a law shouldn’t be invalidated just because a judge thought (correctly or otherwise) that the people promulgating it would rather have had something further, but stopped at a certain point, at what they understood to be within the law as it stood.

    Thanks Michelle for explaining it so clearly to actus. He acts awfully dense at times.

  11. actus December 27, 2005 at 9:03 pm | | Reply

    “ID, so far as I can see, is not a “fraud.””

    Oh. What do you see?

    “I think, actus, that the point was that a law shouldn’t be invalidated just because a judge thought (correctly or otherwise) that the people promulgating it would rather have had something further, but stopped at a certain point, at what they understood to be within the law as it stood.”

    And that point is wrong. The intent to teach a religious view is probitive in determining whether a religious view is being taught. They ‘stopped’ at thinking that they could sneak their religious views in via the fraud of ID.

    The problem with the affirmative action example is that discrimination has an intent based test, while the establishment cause has an effects test. And intent is probitive of the effect.

    “The Kitzmiller ruling seems to suggest that if a minor abortion restriction was supported by people who wanted major abortion restrictions, it should be struck down.”

    Read the ruling, it will put your fears to rest. This was not the analogous to the abortion case.

  12. actus December 27, 2005 at 9:55 pm | | Reply

    ” They ‘stopped’ at thinking that they could sneak their religious views in via the fraud of ID.”

    I should add that this is wrong. It is not, however, wrong to impose a burden on abortion that is not an ‘undue burden’ even if those who want to impose an undue burden support the currently debated one.

  13. John Rosenberg December 27, 2005 at 11:56 pm | | Reply

    actus:

    The intent to teach a religious view is probitive in determining whether a religious view is being taught.

    You’re confusing “intent” with “desire.”

    The problem with the affirmative action example is that discrimination has an intent based test, while the establishment cause has an effects test.

    First, I doubt you believe that discrimination has an intent requirement, for that would require you to admit that “disparate impact” is never sufficient to establish the presence of discrimination. Note that the liberal position on voting rights is effects-based, and I haven’t heard you criticizing that here. And second, your recent, confused comments here have defended the judge’s throwing out ID because of his reading of the desire (not even intent) of some school board members.

  14. actus December 28, 2005 at 7:30 am | | Reply

    “You’re confusing “intent” with “desire.””

    Desire is probitive of intent.

    “First, I doubt you believe that discrimination has an intent requirement, for that would require you to admit that “disparate impact” is never sufficient to establish the presence of discrimination.”

    Of course not. There needs to be a supportable inference that the disparate impact was intended. A more obvious disparate impact does tend to make that inferece easier. But thanks for letting me know what I believe.

    ” Note that the liberal position on voting rights is effects-based, and I haven’t heard you criticizing that here.”

    Some things are effects based. Because we don’t want disparate effects in voting, for instance, even if innocent.

    “And second, your recent, confused comments here have defended the judge’s throwing out ID because of his reading of the desire (not even intent) of some school board members.”

    Read the opinion. They’re not allowed to endorse religion. And that means they can’t loudly and proudly proclaim that they are seeking ways to promote their religious views and have found one in the hoax of ID.

  15. John Rosenberg December 28, 2005 at 11:17 am | | Reply

    Desire is probitive [probative] of intent.

    Maybe. Maybe not. Not, when someone says “I’d like to do A, but that’s illegal so I’ll do B, which is legal.” You’re defending the judge saying B was illegal because their desire was to do A.

    (And you’re guilty of that, even if Prof. Alschuler’s characterization of the opinion was wrong.)

    There needs to be a supportable inference that the disparate impact was intended.

    Oh, really? So you’ve read Griggs v. Duke Power Co., the mother of “disparate impact,” and you disagree with Chief Justice Burger, who held that intent is not necessary, even by inference.

    Burger could hardly have been more clear about this:

    The Court of Appeals held that the Company had adopted the diploma and test requirements without any “intention to discriminate against Negro employees.” 420 F.2d, at 1232. We do not suggest that either the District Court or the Court of Appeals erred in examining the employer’s intent; but good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to measuring job capability

    I’m glad to hear you think Burger and all subsequent cases that relied on the intent-less standard sanctified in Griggs were wrong.

    I’m happy to see that you also agree with the Supreme Court in Mobile v. Bolden that “Racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation,” and not with the Congress that overturned that case in the Voting Rights Act of 1965, which eliminated the “intent” requirement.

    I never knew you were so perceptive.

  16. actus December 29, 2005 at 4:04 pm | | Reply

    “You’re defending the judge saying B was illegal because their desire was to do A.

    (And you’re guilty of that, even if Prof. Alschuler’s characterization of the opinion was wrong.)”

    If its illegal to do B with the desire to do A, then yes. In this case, its illegal to teach ID with a desire that kids get some ole time religion.

    “So you’ve read Griggs v. Duke Power Co.”

    No. Just 14th amendment cases, since we’re talkign about government action.

    I did say that in election cases we look to effects.

  17. Chetly Zarko December 29, 2005 at 7:47 pm | | Reply

    So, Actus, are you saying that we should hold the government to a lower standard than private entities? Any time a conclusion gives power and leeway to government, and takes the same from private entities, the conclusion should be suspect. That is, in Griggs, a private discrimination case, the plaintiff need only prove disparate impact with no intent; but that in 14th Amendment cases where the government discriminates there must be proof of “intent to discriminate” as well?

    I don’t think GM and the corporate green briefing parties would be too pleased with that outcome, then again, that’s precisely what the effect of Grutter was, which they are allegedly so happy with.

    I’ve always argued that the current case law leads to a dichotomy between the way civil rights law is interpreted for governmental actors and non-governmental ones. What’s surprising is that (big) business has bought into it hook, line, and sinker. I wonder if they believe it, or just don’t want the political consequences of pointing it out.

  18. actus December 30, 2005 at 6:03 am | | Reply

    “So, Actus, are you saying that we should hold the government to a lower standard than private entities?”

    Higher you mean.

    And I think there are other factors at work when we talk about ‘the government’ such as federalism.

    “I don’t think GM and the corporate green briefing parties would be too pleased with that outcome, then again, that’s precisely what the effect of Grutter was, which they are allegedly so happy with.”

    Isn’t that what they briefed for? why are you better at determining what they want than you?

    “I’ve always argued that the current case law leads to a dichotomy between the way civil rights law is interpreted for governmental actors and non-governmental ones.”

    They are based on different sources ( the commerce clause and the 14th amendment) and there are other factors at play rather than just private/government, like the federalism I mentioned.

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