Kitzmiller v Dover: Science and Law

WE found a very good essay at the BeliefNet website titled Science and the Law. It’s by David Opderbeck, a law professor at Seton Hall University School of Law. Here are some excerpts, with bold added by us:

This post will discuss how the law interacts with “science.” The interaction of law and science is a vast and fascinating topic. I can mention here only some brief highlights of a handful of the important issues. As part of this discussion, I’ll offer some thoughts about Judge Jones’ treatment of “science” in the Kitzmiller v. Dover Area School District intelligent design case.

Got your attention? Good. For more on Kitzmiller v. Dover, see: this Wikipedia article. Now let’s read on. This section of Opderbeck’s essay is subtitled The Gatekeeper Function:

One of the most significant ways in which law and science relate is in the use of “expert” testimony. Federal Rule of Evidence (“FRE”) 702 states that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. . . .

Sounds reasonable. Then he gives an example:

For example, in a product liability case, engineering experts might testify as to the soundness of the design of the product at issue, and medical experts might testify as to the nature and extent of the plaintiff’s injuries.

Fine, but who gets to testify about what?

When a party seeks to introduce expert testimony, the court must serve as a “gatekeeper” over what can be presented to the jury. According to FRE 702, when the court exercises this gatekeeper function, it must ensure that “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

Good background. Now we get to what interests us. This next section is subtitled Gatekeeping and Kitzmiller:

Supporters of Judge Jones’ approach in the Kitzmiller case suggest that a similar gatekeeping function is important with respect to public education. Without some demarcation of what can be taught as “science” in the public schools, aren’t we opening the floodgates to the teaching of all sorts of pseudo-science, such as astrology and young earth creationism?

Yes, but is policing junk science a judicial function? We continue:

I think this is a valid concern. For this and other reasons, I personally don’t agree with the “teach the controversy” approach promoted by many ID advocates. If I were to serve on my local school board, I would not vote in favor of introducing ID materials into the science curriculum, primarily because I don’t believe the ID program has generated sufficient results to reach the public schools.

“Sufficient” results? How about zero results? But what about the proper role of the courts?

In my view, however, when the issue is the local public school curriculum, the political level at which such resource allocation decisions should be made ordinarily is that of the local school board, in conversation with the academic community and under the broad oversight of state and national standards-setting bodies. The judicial scientific gatekeeping role usually should relate only to traditional judicial functions, such as what sorts of evidence can be considered by juries.

Fine, but what should be done when a school board is dominated by idiots?

What if a local school board gets a curricular decision “wrong” and there is no improper religious purpose or other illegality? In my view, that concern ordinarily should be addressed through the process of open debate and political action. The reality is that local political bodies sometimes make “bad” decisions that are not unlawful or unconstitutional. … Concerned parents remain free to elect new local officials.

Opderbeck is making sense. But what about Kitzmiller?

In the relatively rare circumstances in which the local political body acts for clearly improper religious purposes (such as the Kitzmiller case …), the courts can remedy those actions under the establishment clause of the first amendment to the Constitution. The primary inquiry in such cases, however, is not to ask if it is “science.”

Okay, maybe we can agree that it’s not the primary inquiry. But was this a problem in Kitzmiller?

This leads to my primary criticism of the Kitzmiller decision. I don’t believe Judge Jones should have ventured a broad definition of “science” in the Kitzmiller case, as though such an exercise necessarily ends the discussion of constitutionality. Under the applicable standards for establishment clause cases, the proper inquiry is into purposes and effects: was the government’s purpose “secular” and was the primary effect of the government’s decision to advance or inhibit religion or to produce an excessive entanglement of government and religion? Whether an idea is labeled “religion” or “science,” in itself, is irrelevant to the constitutional question.

Here we must disagree, because the creationists like to falsely label their doctrines as science, and they also accuse evolution of being a religion. Faced with such fraudulent claims, how is a court supposed to sort it all out — unless it clarifies what’s science and what isn’t? Here’s more:

Rather than wading into the deep waters of defining “science” over against “religion,” then, Judge Jones should have focused primarily on the purposes of the Dover school board, which clearly were to proselytize for a particular kind of creationism, rather than to explore interdisciplinary approaches to science and religion generally.

We agree that such a limited approach might have been sufficient in Dover, given the glaring evidence that the school board was motivated by religious impulses. But still — what if a school board has a religious motive for teaching a purely secular subject, such as geometry? That’s what at least some of them in Dover were claiming to do by mandating the teaching of ID, so this isn’t a simple matter of merely looking at motives.

Ah, now Opderbeck gets to what’s been bothering us:

This analysis, of course, begs one of the big questions in the ID debate: is ID inherently entangled with religious purposes? Should efforts to introduce ID into the public school science curriculum always be met with skepticism under the establishment clause?

Exactly! If ID is nothing more than creationism in a crude disguise, and creationism has already been ruled upon by the Supreme Court, then the case is simple — regardless of the school board’s motives.

Opderbeck seems to reluctantly recognize this point:

The looming presence of this question is one of the key reasons I don’t believe Judge Jones played the role of “activist judge” in Kitzmiller, even though I am critical of the opinion. The question whether ID, like “creation science,” is inherently religiously motivated, is a live concern, and was extensively briefed and argued to the court by both sides. In order to address the question of religious motivation, the court could not have avoided some consideration of the essential nature of ID theory.

We’ve quoted more than enough from the article. It’s well worth your time to click over there to read it all for yourself.

For whatever the world may think of it, the Curmudgeon Rule for such cases is as follows: Because the court is constitutionally obligated to prevent a state from promoting religion, the court must know, and may have to determine at trial: (1) if the subject in question is religious. If not, no problem, but if it is, then: (2) the court must determine whether it’s an innocent survey course, or whether the subject’s presentation amounts to a violation of the establishment clause. It’s for the second prong of the Curmudgeon Rule that the school board’s motives become important, and then the Lemon test can take over.

The Curmudgeon’s approach takes care of our side issue — if a subject matter is entirely secular, such as geometry, then the school board’s motivation for teaching it is irrelevant. You may be thinking that this situation probably never arises, because no one ever challenges geometry under the First Amendment. But it isn’t irrelevant. When you think about it, this is precisely the loophole that ID hopes to exploit by disguising their brand of creationism as science.

Copyright © 2009. The Sensuous Curmudgeon. All rights reserved.

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7 responses to “Kitzmiller v Dover: Science and Law

  1. Opderbeck’s article was interesting but, leave it to a law professor to take such a convoluted course that leaves more questions than answers. If I understand him, Opderbeck seems to think Judge Jones came up with the right verdict but for the wrong reasons or, at least, by using unnecessary testimony.

    What bothers me is that Opderbeck keeps referring to “ID theory” as if it was the same thing as the theory of evolution. He says he will be having another post: What, then, should we make of the link between ID theory and religion? I’ll address this in my next post. I’ll also offer my views about ID theory as a form of “natural theology.”

  2. I tried to post a comment to the original article, but it seems that I’m banned at the BeliefNet website. This is what I would have posted:

    The court must know what science is; it’s not an irrelevant issue. For example, suppose someone sues a school district, claiming that it’s violating the establishment clause by teaching astronomy. That’s not a First Amendment case, so it will be dismissed on motion by the school board — but only because the court understands that astronomy is science, not religion. No inquiry into the motives of the school board is necessary here, and it wouldn’t matter if they had a religious purpose. Teaching astronomy doesn’t violate the establishment clause.

    Thus, the determination (“Does this state action involve religion?”) is a necessary preliminary step in such cases. This isn’t a trivial matter, because intelligent design poses as an entirely secular topic — as secular as astronomy — so the court has to deal with this initial issue in order to know if it’s dealing with an establishment clause case.

    That’s why the history and nature of ID can’t be avoided. Once it’s demonstrated that ID is merely jazzed-up creationism, then the court can deal with the case, using the applicable Lemon test.

  3. What bothers me is that Opderbeck keeps referring to “ID theory” as if it was the same thing as the theory of evolution.

    That’s because he’s one of those self-described “thoughtful evangelical Christians” (i.e.: ID creationist.)

  4. I guess Mr. Opderbeck thinks “ID theory” is a legitimate theory, but that everybody is doin it wrong. But for cryin out loud, that article I linked in my previous comment reads like he never read the Wedge document, for cryin out loud. “Thoughtful evangelical Christians” (i.e. gullible).

  5. How much simpler could it have been. Panda’s was originally written with the word “creation”. That is religion – end of story.

    Next topic.

  6. What about this line of reasoning:

    If ID is not science, then what is it?

    It isn’t art, it isn’t history, it isn’t athletics.

    The defendants in this case did claim that it was science, so the court was obligated to consider that claim.

    I don’t know what would happen if the defendants were to claim that it was politics.

  7. TomS asks: “What about this line of reasoning: If ID is not science, then what is it?”

    That’s not a question for the court in an establishment clause case. What matters is whether it’s religion. If it’s not, there’s no case.