Friday, November 25, 2005


Taking a Constitutional

Jay D. Wexler, Associate Professor, Boston University School of Law, has had a running battle with Baylor University professor Francis J. Beckwith over the constitutionality of teaching ID in public school science classes. The Panda’s Thumb has an account of a debate they had at the Harvard Federalist Society.
Wexler has an article coming out soon in the Washington University Law Quarterly. A copy of the working paper can be previewed (in pdf format) from The Boston University School of Law Working Paper Series or The Social Science Research Network Electronic Paper Collection.
It appears to be a good article and not just because Wexler agrees with my position often stated on

All this wrangling over whether ID constitutes "religion" may, however, be beside the point. After all, although public schools cannot promote or advance or endorse or teach the truth of any religion, they are perfectly free to teach about religion as much as they want. They can teach about Christianity, about Judaism, about Zoroastrianism, and about Raelianism. Not only can they teach about religion, but they should teach about religion, and they do not teach about religion nearly enough. So, if public schools can teach about religion, why shouldn’t they be able to teach about ID? To some degree they certainly can. For example, if a public school chose to teach about the ID movement in a current affairs class, or about the philosophical claims of ID in a philosophy of science class, or about the truth claims of ID in a comparative religion class, most likely these choices would pose no constitutional problem at all. (p. 9)
Beckwith has attempted to use the case of Edwards v. Aguillard to support the teaching of ID because, according to Beckwith, ID is historically and textually distinguishable from Genesis’s accounts and, therefore, from creation science, and because the Supreme Court in Edwards recognized that teaching scientific alternatives to evolution might be legitimate if there was a secular purpose. Wexler’s discussion of these claims is particularly useful.
Wexler, of course, did not have the benefit of Barbara Forrest’s testimony in the Dover case, showing just that sort of connection between creation science and ID, through the changes made in Of Pandas and People right after the decision in Edwards, but, to Wexler, that is ultimately irrelevant because he believes that that schools are not "barred from teaching any subject or theory that bears some historical connection to religion":

Far from arguing that teaching ID is unconstitutional simply because it has some historical connection to the long-standing controversy over evolution, my argument rather is that under the Supreme Court’s endorsement test, singling out evolution from all the topics in the school curriculum for reform by teaching students a purportedly scientific critique of evolution that has no support within the scientific community will likely be understood by a reasonable observer as continuing the long tradition of trying to reform the school curriculum to promote a religious belief. (p. 12)

This does not mean that Forrest’s efforts were constitutionally wasted, however:

There may be some areas of law in which a party may be able to make small adjustments to its practices to fall outside the letter of a legal prohibition, but constitutional law, and certainly First Amendment law, is not one of them. For better or for worse, the Court has created an Establishment Clause doctrine that requires courts to use common sense to figure out what message the government sends through its actions. ... As the Supreme Court has made clear, one of the most important elements of this context is the practice’s historical background, which in the case of ID, means the entire history of religious opposition to evolution. (p. 12-13)
Wexler just feels that ID’s load was heavy enough to prevent it from crossing the finish line of constitutionality even before Forrest added that brick.

As to whether Edwards would allow ID to be taught if a secular purpose could be advanced, Wexler first notes:

[A] secular purpose is a necessary condition for a policy’s constitutionality, it is not a sufficient one. A statute or regulation or any other form of government action may be unconstitutional, even though it is animated by a secular purpose, if it advances or promotes or endorses religion. ... Second, Edwards clearly demonstrates that, at least in the area of teaching evolution in the public schools, the Court will not accept uncritically the government’s recitation of a secular purpose. Instead, the Court . . . will examine the actual relationship between the means of the policy and the purported secular goal of the policy to test whether that purported secular goal is in fact the real purpose underlying the policy.

Of course, this practice of questioning the truthfulness of legislators when writing statements of legislative intent has been vehemently attacked by Justice Scalia, in his dissent in Edwards and elsewhere. Should Justice Scalia’s view be adopted and extended to its logical conclusion, the only bar on the right of the majority in a legislature to write religious doctrine into law would be the limit of the individual legislator’s imagination in coming up with a pretense of a secular purpose.

The remainder of the article deals at length with Beckwith’s four suggestions for valid secular purposes:

1) to introduce students to an important new body of scholarship;
2) to "enhance and protect the academic freedom of teachers and students" who support ID or disagree with evolution;
3) to erase the perception that the curriculum favors, or endorses, an irreligious point of view; and
4) to maintain neutrality between religious belief and non-belief.

He saves a separate section to specifically discuss one claim by Beckwith: that public school teachers have some limited First Amendment academic freedom rights to teach ID in addition to teaching the prescribed biology curriculum (see pp. 27-31). This may prove particularly important based on the Discovery Institute’s reaction to the Dover trial, that I previously discussed. In an article responding to criticism of the DI by the Thomas More Law Center, the DI revealed the shape of their future strategy for crowbarring ID into public schools:

Mr. Thompson [the President and Chief Counsel of the Thomas More Law Center] recently cited language from a legal guidebook written by Discovery Institute Fellows in 1999 suggesting that it somehow sanctioned Dover's policy on intelligent design. But Mr. Thompson cited the language of the guidebook out of context. The guidebook focused on supporting teachers who wanted to teach about intelligent design, not on the defensibility of requiring teachers to teach about intelligent design. This is a crucial distinction. Indeed, the guidebook clearly states that "to summarize, the safest course is one in which a school board permits [not "requires"] a biology teacher to teach the full range of scientific theories about origins." Discovery Institute's central concern [is] protecting the academic freedom of teachers . . . Nowhere did it suggest that a school board would be on legally safe ground to require unwilling teachers to address intelligent design.
It is pretty clear that, if the DI had its way, it would have individual teachers surreptitiously adding ID to the biology curriculum while the school district and board retained at least superficial (if not credible) deniability. Then the Board would only have to make sure that the teachers it hired were of a mind to take such an opportunity. If I were a biology teacher in a district where evolution is controversial, and didn't have tenure, I’d be reading that section of Wexler’s article very carefully.


Turnabout What?

Thanks to the poster known as "Shane" at the newsgroup for this idea:

A recent article in the Lawrence Journal-World reports on the reaction to a less-than-politic e-mail by Paul Mirecki, chairman of Kansas University’s department of religious studies, who recently announced a new course about Intelligent Design titled "Special Topics in Religion: Intelligent Design, Creationisms and other Religious Mythologies." Reportedly, he said in the e-mail:

The fundies want it all taught in a science class, but this will be a nice slap in their big fat face by teaching it as a religious studies class under the category ‘mythology'.
The article goes on to report that KU’s Provost David Shulenburger said that "he regretted the words used in the e-mail, but he backed the professor and the course, maintaining it would be taught in a professional manner like all other courses."

As Shane pointed out, Shulenburger should have just said that the e-mail was an early fundraising document.

Thursday, November 24, 2005


Careful What You Wish For

It has been the not-so-secret desire of the Intelligent Design crowd to have ID taught in public schools (despite the Discovery Institute’s mealy-mouthed opposition to "mandatory" teaching of ID). Well, Kansas University intends to do just that and guess whose knickers are now in a knot.

KU has announced a new course entitled "Special Topics in Religion: Intelligent Design, Creationisms and other Religious Mythologies." Of course, the Ideologists had in mind throwing some hokum up against the wall in high school biology courses in hopes some will stick, while simultaneously taking time away from the precious little devoted to evolution in public school curricula, not a full academic treatment of ID in all its deficiencies.

Reaction has been predictable, if laughable. An early comment by Kansas State Senator Kay O’Connor (R-Olathe) shows that she never got the memo from the Discovery Institute about the "Designer" not being God and especially not being the God of Christianity:

Why poke a stick in somebody’s eye if you don’t have to? If you’re going to have an intelligent design course and call it mythology, I think in the very least it’s a slap in the face to every Judeo-Christian religion that’s out there.

If ID is science, Senator, why would criticism of it be a poke in the eye to Judeo-Christians? (The esteemed Senator might also explain which religions have aspects of both Judaism and Christianity that are not Christian denominations. But that is a bit of foolishness for another day.)

Naturally, the Senator is ignorant of the academic usage of "mythology" (not her only failing when it comes to academics, I suspect) and is no doubt offended by the "common usage" meaning of the term as something false and superstitious. All I can say to the senator is: think Joseph Campbell.

All this would be merely amusing if the fangs behind ID’s smile weren’t coming out. Threats to the funding of KU are already circulating and Sen. O’Connor, after noting that anything was possible in the Legislature, said:

If they press forward in this area and continue to kick sand, the ultimate will be a negative of some sort. I don’t know what the negative will be ... You can’t kick sand in someone’s face and then expect a positive. And that’s what this is -- a sand-kicking contest..

If the Senator wants to destroy the reputation and the reality of a great university, she could not have chosen a better way to set about it. Rational conservatives who are interested in a free marketplace of ideas had better wake up to the viper they have clasped to their bosom.

Tuesday, November 22, 2005


What Would Thomas Do?

Some more musings about the Thomas More Law Center:

A number of questions arise as to whether the Dover School Board was informed of all the fine print involved, such as the possibility of the District having to pay $1,000,000 or more in legal fees in the legal challenge that was almost certain to follow the board’s action. Also, was the board given a reasonable estimate of the chances in the lawsuit (though it apparently was told something along those lines by their own lawyer)? There is a certain duty upon an attorney to protect a client from its own folly, no matter how much you'd like them, for your own reasons, to play the fool.

Perhaps the most interesting question is what the Law Center was really after and what did they tell the board about it? If the Law Center intended to win this case under present law, there is serious question of the competency of its investigation and/or its appreciation of the facts and the law in the case.

If they wanted to bring a test case to change the law (in hopes, say, that Justice Scalia's dissent in Edwards v. Aguillard would be adopted) did they tell the board this? If so, that opens the individual board members up to potential personal liability for the legal fees.

The board members are only protected from liability for their actions if they are acting in good faith in the interests of the school district. Using the district as a guinea pig, and potentially forcing it to incur significant liability, in order to advance the board members' own religious and political interests (as their testimony makes painfully clear) is, in my book, as much a misuse of the district's resources as it would be to have district employees use district supplies to build houses for the board.

If the Law Center hoped to make new law but didn't tell the board that or didn't tell them of their potential personal liability if things went wrong, they were committing malpractice, at least, if not outright fraud.

Wednesday, November 16, 2005


Meet the Fockers, Part Deux

The charges between the Thomas More Law Center and the Discovery Institute over the Dover case continue to fly (though considering what each side is aiming at, the flights are dangerously close to negative altitude). Rounds one and two were previously discussed.

The latest round concerns the surprise attempt by one of the outgoing Board members, David Napierskie, to get the Board to drop the policy that brought on the lawsuit. The President and Chief Counsel of the Thomas More Center, Richard Thompson, is now claiming that Mr. Napierskie may have been pushed into the attempt by the Discovery Institute. Napierskie agreed that he had talked to representatives from the Institute but said they didn't influence his decision. Maybe Thompson’s extensive experience with the personal honesty of the outgoing board members is what leads him to doubt that.

In any case, Napierskie says he had a local attorney, Andrew Shaw, prepare a legal analysis that -- surprise, surprise! -- opined that there was "a substantial risk that the judge would rule against the board". Shaw apparently suggested that certain actions might make the case moot, ending the matter and freeing the board from the possibility of having to pay the plaintiff’s legal fees. For reasons I already addressed here and here, the likelihood is that virtually nothing short of an agreement to settle by the plaintiffs would moot the case.

Which brings us to this quote from Thompson:

The case was tried with the assumption that regardless of who won or lost an appellate court and maybe ultimately the (U.S.) Supreme Court would take a look at it and change the law. If they don't appeal, what they've done is short-circuit the entire legal strategy that was put in place by the Thomas More Law Center.
But if this is so important to Thompson and the TMLC, why did he already say:

The only issue that is out there is what happens if the case is lost and the ACLU says, 'OK, pay our attorney fees. We don't pay the ACLU's attorney fees.
Basically Thompson wants the board to keep its hands off his grand plan (never mind what any objective observer might have thought of it when the evidence was going in) but, should things turn out badly, the board is supposed to foot the bill. One thing I would expect of my lawyers is that they would be at least somewhat more concerned about my financial well-being than their "legal strategy". But, hey, maybe that’s just me.

Which brings me back to the title of one of my earlier posts. The school board, district and, ultimately, the taxpayers of Dover were seduced by the Thomas More Law Center. Then they were abandoned when their champions rode off to tilt with their own windmills.

But that doesn’t mean everybody in Dover won’t still get . . .

Sunday, November 13, 2005


Fallout of the Fallout II

Just a P.S. as to the previous discussion on the impact of the election defeat of the pro-Intelligent Design members of the Dover Area School Board on the case pending in Federal Court:
Judge Jones has been quoted as saying that the election results will have "zero" impact on his ruling. While that probably refers more to any thought that the election bears on the legitimacy of the prior Board's actions, Jones cannot be unaware of the question of whether the case will become moot.
He also is quoted as follows:
We'll go through a lot of drafts to make sure we got it right. I welcome the opportunity to write this decision. I've been given the opportunity to preside over one of the most important trials [on the] First Amendment and the Establishment Clause.
It certainly does not sound like he has any intent to "duck" a historic decision by a procedural ruling on mootness.
More worrying for the Discovery Institute, which wants the Judge to make a narrow ruling, it doesn't sound like he is going to be content to just make the easy call (given the testimony of the board memebers) that, whatever noises they were making, the real intent of the Board was to further religion. To really make this "one of the most important" First Amendment cases, Judge Jones will have to get into what the relationship really is between ID and religion -- just what the DI doesn't want.

Saturday, November 12, 2005


Fallout of the Fallout

Well, we are now four days beyond the school board election in Dover Pennsylvania, in which the proponents of introducing Intelligent Design to students in biology classes were ousted by the voters, though by a narrow margin. Still, neither the Discovery Institute nor the Thomas More Law Center web sites have even mentioned the election. William Dembski’s blog, Uncommon Dissent, has only a bare paragraph from a news story and a link. (Though that may change without notice -- see the saga of Dembski and the deposition transcript of Jeffrey Shallit at Dispatches from the Culture Wars for November 11th and 12th.)

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. [1] 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.
. ___

[1] A leading case with facts close to those in Dover is: City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982)

Thursday, November 10, 2005


The (Sour) Milk of Human Kindness

I'd like to say to the good citizens of Dover: if there is a disaster in your area, don't turn to God, you just rejected Him from your city.

And don't wonder why He hasn't helped you when problems begin, if they begin. I'm not saying they will, but if they do, just remember, you just voted God out of your city. And if that's the case, don't ask for His help because he might not be there.
Who, you may ask, is so intimate with the mind of the Author of the Universe as to be able to relay His political wishes when it comes to school board elections?

Need a hint? Well, he is an expert in international affairs, specializing in the proper approach to negotiations with South American heads of state.

That’s right! I am speaking of that font of Christian charity and love who, when he is not wishing hurricanes and earthquakes on cities that allow gays to put up rainbow flags, is recommending the assassination of foreign officials: Pat Robertson.

Perhaps the Discovery Institute can remind Robertson that "the Designer" isn’t God . . . for Constitutional purposes, at least.
But for the very best take on this sorry episode, wander over to Paul Myers' blog Pharyngula for this translation of Robertson:
[I]f you don't cough up, well, Lew here might have a little accident with your car, or your house, or your little girl. And then Mr. Big wouldn't be able to do nothin' for you. He doesn't mean nothing by it, he likes you, see, but if you don't show him a little respect, you can't expect him to trouble himself with your worries, OK? Me and Vinnie'll be by tomorrow, and you will have that little donation ready.

Tuesday, November 08, 2005


As You Sow . . .

The results are still unofficial but the candidates from Citizens Actively Reviewing Educational Strategies (CARES) appear to have swept the eight seats available on the Dover Area School Board in the November 8th election, according to The York Dispatch. s
Alan Bonsell, the president of the Board at the time of the adoption of the policy on Intelligent Design and one of ID's stronger supporters on the Board, was among the incumbents who lost. Most of his testimony in the Federal District Court case can be found at this page of the Talk Origins Archive.
Needless to say, it couldn't have happened to more deserving candidates.

Saturday, November 05, 2005


Seduced, Abandoned, But Still Getting . . .

More charges (you should pardon the expression) are flying between the Discovery Institute and the Thomas More Law Center about who did the most damage to the Intelligent Design cause in Judge John E. Jones III’s courtroom. The President and Chief Counsel of the Thomas More Center, Richard Thompson, has already complained about the Discovery Institute’s "Intelligent Design in Public School Science Curricula" leading the Dover School Board down the primrose path , only to have the DI leave the Board twisting in the wind when the DI expert witnesses "withdrew" when it was too late to get new ones.

Now the DI has fired back [replacement link], claiming that the DI’s legal guidebook "focused on supporting teachers who wanted to teach about intelligent design, not on the defensibility of requiring teachers to teach about intelligent design". It is certainly true that "Intelligent Design in Public School Science Curricula" makes the rather bizarre argument that individual teachers can teach ID based on their First Amendment guarantee of free speech and argues that "the safest course is one in which a school board permits a biology teacher to teach the full range of scientific theories about origins". But the guide also says:

The freedom of school boards to determine what can be included in their curricula is a long-established prerogative. No Supreme Court decision about biological origins has questioned this freedom. In fact, the Court has upheld the principle that a school board has the right to decide what subjects will be taught in its schools, and within broad limits, how those subjects are to be taught.
So the DI’s rather strange advice was for school boards to abrogate their duty to control the curriculum and to insure the quality of instruction by "encouraging" individual teachers to exercise their political right of speech inside the classrooms. One can only assume that the DI is angry that people like William Buckingham aren’t bright enough to get the "Nudge, nudge, wink, wink, know what I mean?" The More Center, on the other hand, may have a different agenda altogether.
As to the non-participation of Stephen Meyer, William Dembski, and John Angus Campbell as expert witnesses for the Board, the DI insists they were "dismissed" because they "refused to proceed without legal counsel to protect them". Frankly, in over 25 years of practicing law, I have never before heard of an expert witness wanting representation apart from the attorney that hired him and I cannot think of any (reasonable) reason that an expert would need to be legally "protected" with the possible exception of fear of perjury charges.

Maybe there is design in the universe. After all, I was praying that this would get uglier . . .

The Eclecticness of Non-Existent Words

If you are in the mood . . . and if you never are, I feel sorry for you . . . there is a wonderful little site called The Science Creative Quarterly that is "not technically a ‘quarterly,’ was once a ‘fortnightly’ . . ., but now has evolved (or dare we say intelligently designed) into a daily."

It aims to be "different, creative, charming and yet informative" and, as far as I've seen, it is succeeding. You might want to check out "Mother Goose and the Scientific Peer Review Process" by David Ng for starters.

Tuesday, November 01, 2005


Wanted: A Better Class of Politicians

I hope no one has been waiting around for my recommendation before reading Mike Argento’s continuing commentary on the Dover School Board trial. The whole staff at the York Daily Record have been providing excellent coverage (Pulitzer, anyone?) of the Intelligent Design trial but Mr. Argento has been flat out funny as well as perceptive.
Today’s commentary on the continuing demolition of the board members (current puddle of sweat: Alan Bonsell) is no exception. Now that Judge John E. Jones III’s tolerance for perjury in his courtroom may be wearing thin, leading him to personally question Mr. Bonsell closely about his prior statements under oath (not a good sign for Mr. Bonsell), Mr. Argento was inspired to lament:

. . . it's really a sad day for America when public officials can no longer lie convincingly enough to get it past a federal judge.

I blame the public schools. I mean, just look at some of the bozos in charge of them.
It don’t get better than that.


Seduced and Abandoned . . . Redux

I’m with Ken Miller: "I’m really enjoying this."

The Thomas More Center, seeming to sense the iceberg looming out of the darkness ahead of the good ship Dover [1], may be practicing its lifeboat drills . . . err . . . preparing its exit strategy from its role as defender of Intelligent Design in public schools.

It seems that all is not well in Designland. At a forum titled "Science Wars" sponsored by the American Enterprise Institute, the Chief Counsel of the Thomas More Law Center, Richard Thompson, who has been leading the defense of the Dover Pennsylvania School Board in the suit claiming that its policy to introduce ID to biology students is unconstitutional, had the following to say about the Big Kahuna of the movement, the Discovery Institute:

They wrote a book, titled "Intelligent Design in Public School Science Curricula." The conclusion of that book was that, um:

"Moreover, as the previous discussion demonstrates, school boards have the authority to permit, and even encourage, teaching about design theory as an alternative to Darwinian evolution -- and this includes the use of textbooks such as Of Pandas and People that present evidence for the theory of intelligent design." ...and I could go further. But, you had Discovery Institute people actually encouraging the teaching of intelligent design in public school systems. Now, whether they wanted the school boards to teach intelligent design or mention it, certainly when you start putting it in writing, that writing does have consequences.

In fact, several of the members, including Steve Meyer, agreed to be expert witnesses, also prepared expert witness reports, then all at once decided that they weren't going to become expert witnesses, at a time after the closure of the time we could add new expert witnesses. So it did have a strategic impact on the way we could present the case, cause they backed out, when the court no longer allowed us to add new expert witnesses, which we could have done.

Now, Stephen Meyer, you know, wanted his attorney there, we said because he was an officer of the Discovery Institute, he certainly could have his attorney there. But the other experts wanted to have attorneys, that they were going to consult with, as objections were made, and not with us. And no other expert that was in the Dover case, and I'm talking about the plaintiffs, had any attorney representing them.

So that caused us some concern about exactly where was the heart of the Discovery Institute. Was it really something of a tactical decision, was it this strategy that they've been using, in I guess Ohio and other places, where they've pushed school boards to go in with intelligent design, and as soon as there's a controversy, they back off with a compromise. And I think what was victimized by this strategy was the Dover school board, because we could not present the expert testimony we thought we could present.

Basically, the More Center is finally catching up to the Discovery Institute in the blame game. The DI has been preparing the way for laying any bad result in the case at the doorstep of the Board and, by extension, the More Center. The More Center now appears to be ramping up a charge of cowardliness or even Quislingism against the DI. We can only hope it gets better as time goes on.
Of course, the More Center can’t convincingly play the naïf in this drama. No matter what private advice the DI gave the Board leading up to the lawsuit, it was publicly on record within days of the commencement of the action as opposing the Board’s policy and recommending its withdrawal. The More Center lawyers were certainly on notice that the DI might be less than enthusiastic participants. And it shouldn’t have taken any particular legal acumen to see that the parade of board members they were obliged to put on the stand would wind up embarrassed, at least, if not indicted for perjury. And yet, the More Center lawyers apparently encouraged the Board in its pursuit of its policy. [2]
The last-minute withdrawals of DI witnesses was dirty pool but, as the saw goes: ‘Lie down with dogs, get up with fleas.’
[1] I was toying with comparing this affair to stressed-out rats eating their young like they were pizzas . . . but, to my surprise, I do have some shame left.
[2] William Buckingham testified that it was the self-same Richard Thompson who was the one who recommended Of Pandas and People to him as a textbook on ID.

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