Saturday, November 12, 2005
Fallout of the Fallout
Considering its expertise in the area of spin and its opposition to the Dover School Board’s approach, this silence on the part of the Discovery institute is puzzling. A quick peek at the Thomas More web site shows that it is much less sophisticated on the public relations end of ID than Da Boyz From Seattle and the Center’s silence may just be due to a simple loss for words.
Be that as it may, just what does the change in the Board bode for the case?
The question that arises immediately is what will happen if the new School Board decides to rescind the policy and end any mention of ID in 9th grade biology classes. Does that render the case moot? The short answer is: "probably not completely".
First, some quick background:
Federal Courts are deemed to be restricted, by Article III, Section 2 of the Constitution, to "cases or controversies". Unlike state courts, the Federal Courts are not permitted to issue "advisory decisions", anticipating cases that may arise, but must only entertain real controversies between real parties. If, during the course of a case, circumstances should arise that end the controversy, such as a settlement between the parties, the court may not continue with the case just out of a desire to render a final determination.
On the other hand, the courts are not required to play the fool. Defendants may not short-circuit the judicial process simply by announcing that they will no longer do what the plaintiffs complained of, render the case moot and free themselves to resume the conduct once the case is dismissed. The test of whether subsequent circumstances have rendered a case moot is said to be a "stringent" one.  It must be absolutely clear that the wrongful action could not reasonably be expected to recur. By the very nature of the political process, where a change every bit as profound as the one that just happened in Dover may be no further away than the next election, a strong argument can be made that any reversal of the policy may itself be reversed in very foreseeable circumstances.
The trial court judge will have considerable discretion in determining what counts as 'not reasonably expected to recur'. In addition, as a practical matter, the stage the case is in will affect the court’s decision in these matters. If the election had taken place shortly after the complaint was filed and the policy was reversed right away, before any great effort had been expended or expense incurred, the court would probably have been much more receptive to an argument that the case had been mooted than it will be now. On just a human level it is hard to believe that Judge Jones, after having sat through all that testimony, will be quick to give up his chance to render a famous and influential decision. All things considered, I would be incredibly surprised if this case ends with a ruling that it is moot.
Naturally, should Judge Jones rule in favor of the plaintiffs, it seems likely that the new Board will not pursue any appeal. Those in favor of good science education may feel unsatisfied if a decision from a higher court (or even the Supreme Court) is not forthcoming. But the Dover case may still do major damage to the ID Movement by scaring off other boards that may be thinking of anything similar. The prospect of paying the opponent’s huge legal fees, the negative publicity that will likely be generated and the prospective political fallout may be enough to serve as a deterrent to future attempts to overtly put ID in science classes. On the down side, this may just encourage the sub rosa means the Discovery Institute has been hinting at: "encouraging" teachers (including, perhaps, hiring only those teachers who don’t need much encouraging) to bring up ID "on their own" while the school board remains "neutral".
A completely different set of possibilities open up if Judge Jones rules in favor of the policy, including the possibility of a settlement that would permanently bar the Dover School District (but only that district) from installing ID programs in exchange for the release of the District from liability for the plaintiff’s legal fees.
But we should leave a few unmet bridges uncrossed.
 A leading case with facts close to those in Dover is: City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982)