Kitzmiller: the Disastrous Motion for Summary Judgment

Allow students to bring up the questions in class. Also do what’s going on now,

Alabama, Minnesota, Missouri, Pennsylvania, South Carolina, and Texas all require in their science standards that students “critically analyze key aspects of evolutionary theory.” In addition, Louisiana and Mississippi have legislation allowing teachers and students to discuss scientific evidence critical of evolution.

Creation, Evolution, and Intelligent Design in Public Schools

And Dembski basically laid out the strategy with some humor:

Let me suggest a different approach to such science standards: since there is no controversy over evolution (so we are told), let students explain why evolutionary theory is one of the few areas in science where no such controversy exists. Thus we might have science standards such as the following:

  • Students can explain in detail how evolutionary theory explains the Cambrian Explosion.
  • Students can describe the changes in genes and embryological development by which complex biological structures such as the human eye evolved.
  • Students can delineate the lines of evidence by which evolutionary theory has decisively refuted intelligent design. etc.

Frankly, I’d be delighted with such science standards. If students actually met them, they would know that evolutionary theory is bankrupt and that ID is a live scientific option. But of course, don’t expect the other side to adopt such standards. To maintain their monopoly over science education, they need to suppress anything that might suggest there’s another game in town.

No, they weren’t. Their best tack, if they thought the litigation would have bad consequences for ID, would have been to ask permission to file an amicus brief in which they would inform the Court of the DI’s work, indicate that the DI did not support teaching ID in high school, and ask the Court to tread very carefully – point out that the Board might see ID as a mere mask for creationism, and might have impermissible motives, but argue that these are the Board’s motives and should not be imputed to the ID movement.

The LAST thing one would ever want to do would be to sign on as experts for people whom one doesn’t trust and doesn’t agree with. No amount of DI apologetic can change the fact that the DI got on board with this fully; that the DI had promoted the idea that ID should be a part of school curricula; and that the DI then changed its mind, pulled three experts, and thus created the worst possible situation for itself, which it then bitterly complained about and blamed on everyone but the primary guilty party: itself.

The same amicus approach might be done in any number of scenarios. I have had amicus participation at the trial court level when I represented private landowners who, though not parties to a fight between government agencies, had interests which we were trying to prevent the court from “accidentally” adjudicating in the course of settling an inter-agency fight, for example.


Maybe that would have been their best tack and they didn’t do it.

It doesn’t mean they liked what the Dover school board was going about its business.

But, really I don’t care about legal issues that much because if there is a Designer, and the Designer is the Christian God, what mere-mortals say in court cases doesn’t really count for much in the grander scheme of things. Let the Darwinists win all the court cases they want, but if there is a Judgement Day (a REAL judgement day) before the Creator, all this is moot. And, ironically, if as atheist Will Provine believed, the human race will go extinct, then all this is moot too!

You can reject my characterization of what the Discovery Institute felt, that’s fine.

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No, but five of them signing on as experts DOES mean they liked what the Dover school board was doing.

Of course it’s fine. The point is that it’s also correct. We do well when we judge intent from behavior rather than from protestations of sincere intent.


Unfortunately, some of what stcordova says about this is exactly right, though not for the reasons he likely thinks it is. The weird “academic freedom” bills which are designed to create cover for fundamentalist schoolteachers which he references are a case of somebody having had a very clever idea indeed. The problem is that while the intent behind them is absolutely anti-First Amendment, they are framed so as to be facially neutral. Two problems are thus created:

(1) When reviewing legislation from a legitimate, fully-legislative body like a state legislature (as compared to a quasi-legislative body like a school board), courts will rarely examine actual intent of the lawmakers and will often stop at the official statements of purpose in the legislation, and
(2) Because the legislation is not facially unconstitutional, the only challenges that can be mounted are “as-applied” challenges. A student really needs to secretly tape-record his classes, and only THEN can the challenge begin. But the challenge is not to the Act – it’s to the implementation of that Act by that individual teacher. This means that you need a mosquito fleet of civil rights lawyers to chase down all of the constitutional scofflaws who use laws like this to claim a justification for teaching nonsense in science class.

So, there’s relatively little a school board can do, but a legislature can do incalculable damage to science education.

I have always hoped that somewhere there are a few teachers who use the “teach the controversy” method to show kids that sometimes when there is no scientific controversy, people will try to make nonsense sound science-y in order to generate the appearance of a scientific controversy. ID DOES provide a good opportunity to explain to kids why science is what it is, and why non-scientific approaches like ID may philosophically appeal to people’s prejudices, but cannot be a part of science.


I’m pretty sure the DI only started to get cold feet after the plaintiffs experts were deposed.

That is, after they realised the plaintiffs were not total idiots.


That is quite possible. The court filings may shed some light there, but depositions themselves are not matters on the docket, so I’ll have to do a bit of digging to tell you if the timetable is consistent with that. If I can figure it out, I’ll let you know.

Well, that could be part of it. Ken Miller was deposed on May 25. The brouhaha over separate deposition counsel for the experts started on May 31, counsel flew to Campbell’s deposition only to have the defense announce that it had fired him on June 2, Dembski was fired June 10, and Meyer quit June 13.

By the way, I discovered that I had missed some of the exhibits to the Motion for Summary Judgment – they had been separately docketed, which is a bit weird. They are now up at the original link – including the inartfully named “MSJExhibits5andahalf,” which resulted from these being docketed out of order and me being lazy…


No, we might have students learn how evolution actually works, instead of subjecting them to straw-man versions.


I thought all of the science teachers at Dover refused to cooperate with the school board directive to read their ID-friendly statements in class. Can anybody address this?

I thought it was the science teachers refusal to cooperate that led to the statement from the school board being read in science classes by school board members themselves while the teachers quietly watched.

I believe that’s right. I think the statement was read by an administrator, rather than by a member of the board.

The best course for the DI is to fool teachers first, then focus on fooling school boards. The advantage to fooling teachers is that their deliberations about how to teach are not a matter of public record and are not likely to find their way into the press, so motives to subvert the First Amendment are less likely to be explicit and detectable. And if you fool the teachers first, you can get THEM to advocate curriculum changes, and the board members will not only have a bunch of questionable, oleaginous outsiders from the DI pushing for these changes, but also people whose credibility is known or, at least, assumed.

This shouldn’t be that hard, in small districts. In larger districts, science teachers are often specialists to some extent – here in Seattle, my 14-year-old learns from a teacher who spent years as a researcher in biology. Somebody like that is going to be hard to trick. But the DI could certainly fool some of the non-specialists who simply get roped into teaching biology when they’re not busy teaching PE (which, in this context, does not mean “punctuated equilibria”).

You want, when you have no honest case to make, to go for soft targets. People who are in the position of teaching science but who themselves are not science-literate would be the very best such targets. If you try to do it top-down, you get clowns like Bill Buckingham who do not realize that if you’re going to try to subvert the constitution, you probably shouldn’t say so in public.


Do you have any opinions on why Bill Buckingham was never indicted for perjury?

Perjury is, I am told (I never practiced criminal law, but I do know people who do), rather hard to win a conviction on. The trickiest bit is the willfulness of the perjury. Giving false testimony is not a crime itself, because there can be reasons other than dishonesty. You could be mistaken. You could have misunderstood the question. You could have forgotten. You could have been impaired when testifying. So perjury cases tend to focus on willfulness, where subjective motive must be inferred from surrounding circumstances.

Buckingham appears to have been addicted to pain meds at the time, so there’s possible impairment. He seems to have interpreted the question as to whether he knew where the money for the books came from as meaning “do you know who gave exactly how much money to it.” That is probably a willful misinterpretation, given after the fact to avoid the inference of lying, but a jury might be dumb enough to buy it.

Materiality is also an element – and one to be determined by the jury. I think it’s clear that Buckingham’s misstatements were material, because they bore upon motive. But here’s the funny thing. His motive in hiding the fact was much more telling than his motive in raising the money. He seems to have naively thought that the fact that a collection was taken up at his church was an extremely damning fact. It really wasn’t. The fact that it happened at church arguably doesn’t support the inference of a religious motive at all, and even if it does, it supports it very weakly (heck, most school districts would be delighted if people were to take up a collection for schoolbooks at their Sunday services!). But the fact that Buckingham thought this was important enough to LIE about – THAT spoke loud and clear, 200-decibel-siren-style, of Buckingham’s intention to conceal his religious motivations.

So, oddly enough, the argument might be made that it wasn’t material – that it was too unimportant to form a part of the decision. The discovery that Buckingham had misled the lawyers and the Court, however, was a bombshell, and was itself HIGHLY material. He just shouldn’t have done it. Even if a person had no moral scruples – and it is very clear that Buckingham and his allies indeed had no moral scruples, forcing their fundamentalist beliefs down the children’s throats just because they thought they could get away with it – it would be unwise because the consequences of getting caught would be much worse than the consequences of telling the truth.


No doubt.

I remember a New York Times interview with Buckingham where he was asked what he thought of Judge Jones’ statements that he had lied about the source of the money. Buckingham doubled-down and said something to the effect that if Jones had indeed called him a liar, then Jones was the liar. Buckingham didn’t sound very repentant.

Many Christian talk radio programs (such as American Family Radio) lambasted Judge Jones after the decision but to my knowledge never said a peep about the perjury issues. I was horrified while listening to such programs while driving.


Yeah, he was a pretty awful character all around. And the DI knew this, I am sure, when they signed on – five of them, which is quite a huge slate of experts in a civil case – to help him out. They whipped him up by sending him more creationist literature, they helped him cover up the fact that he had been speaking in so many words about “creationism” by advising him to start talking about ID instead, and they piled in to defend the case.

It does appear that the DI was not terribly consistent. There were some statements from them early on of a rather ambiguous character, where they made it clear that they were completely on board with the motives – which they of course knew were improper – but not completely on board with the strategy for how to defend it. Squaring that with their behavior requires not only understanding that the DI was profoundly dishonest (shocker, that) but also that the DI was deeply incompetent.

But that particular sauce – dishonesty merged with incompetence so completely, into a single creamy sort of consistency such that one can no longer separate the particles of dishonesty from the particles of incompetence – has been served with everything the DI does for decades now. Take Darwin’s Doubt. Some of the mis-citations might just be Stephen Meyer not being able to read a paper and understand what it says. Some of the horrid reasoning might just be Stephen Meyer not being a clear thinker. But some of these things cannot be chalked up JUST to incompetence. And sometimes the dishonesty is so obvious that the failure of competence – the failure to be able to express a dishonest statement in terms that make the dishonesty less obvious – really comes to the fore. The question is seldom whether the DI is dishonest OR incompetent. The question is more a matter of placement on a spectrum: for any given DI product, is this one which is more dishonest (e.g., Darwin’s Doubt) with incompetence mixed in, or one which is more incompetent (e.g., Foresight, by Marcos Eberlin) with dishonesty mixed in?


Isn’t it more likely that the DI started to get cold feet after they themselves were deposed?

Case in point: The “new land speed record” for quote mining:

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Yes mere-mortals have a lot to say in court! This country is based on a Constitution that also guarantees freedom FROM Religion. No religious body or ideology gets to tell their fairy tales to our children in science class. Federal Court has deems ID to be creationism. ID is not science, it is religion. And can’t be part of any public schools science curriculum. And to my knowledge, it isn’t in any public school in America.


Apart from the ones who testified at trial, I don’t think they were deposed. However, the DI might well have had some idea of what was happening at fact-witness depositions, and that might have foreshadowed doom.

Why do I have the feeling that we are only a post or two from a mention of a lake of fire? That does tend to be the outcome of a lot of discussions, despite the fact that I am often assured that ID has nothing to do with religion.

I’m sure that nobody but the DI people know how they felt about any of this. What they’ve said doesn’t square with the facts, so all we can really know is that the DI’s own account of its feelings is unreliable. No shocker there; that’s why they’re called the Dishonesty Institute. So what did they actually think, and what were they trying to do? One is better off judging motive from actions than from the statements of someone known to be untrustworthy.