Uncommon Descent Serving The Intelligent Design Community

Where Science Fails, Financial Intimidation Wins

December 21, 2006
Constitution, Courts, Evolution, Laws, Legal
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The “science” of evolution can’t withstand even mild criticism so they resort to financial intimidation to win the day.

Cobb county, Georgia, didn’t teach evolution at all in their high schools. A few years ago they decided to start teaching it and placed the following sticker in the textbook:

This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully and critically considered.

The ACLU sued the school district, won in the lower court, the ruling was appealed, and the higher court remanded the case back down to the lower court for a do-over saying the original trial evidence was flawed. Cobb county decided they didn’t have the money to wage the battle over again so they rolled over.

In an agreement announced today, Cobb school officials said they will not order the placement of any “stickers, labels, stamps, inscriptions, or other warnings or disclaimers bearing language substantially similar to that used on the sticker that is the subject of this action.” School officials also agreed not to take other actions that would undermine the teaching of evolution in biology classes.

Text of the agreement.

The “science” of evolution wilts under the mildest of criticism so its heroic defenders resort to legal chicanery to shelter it. Evolution pundits see the Cobb county disposition as a win for science. When “science” has to be shielded from criticism through courtroom theatrics and financial intimidation it’s no win for science. It’s no longer science at that point. It’s indefensible dogma; a sham pretending to be science. This is a sad time for science.

Comments
dopderbeck I can hardly believe you bothered to try defending your analogy of contracts and treaties. That was so badly flawed it almost made me question whether you'd ever read the constitution. Treaties must be ratified by Congress, a point you missed twice now. Do you need me to quote the constitution for you? It's an important point as it demonstrates the checks and balances built into the constitution and illustrates what Judge Cooper didn't do when he legislated from the bench a law prohibiting criticism of evolution in any Cobb County school. Common law doesn't override statutory law. Disputes under contract common law should be the jurisdiction of state courts. Cooper retained jurisdiction because he didn't want a court that might dispute his opinion to get involved. That was improper. Cooper's appropriate jurisprudence ended where the constitution ends and in this case that's the establisment clause, a violation of which was plaintiffs' cause of action. I wonder if Cooper ever actually read the constitution. A federal judge is just a lawyer who knew a senator. Too bad there's no competency test for federal judges. They should be required to take one every three years like renewing a driver's license. If there were such a test I suspect Cooper would fail it and he'd have to fall back on earning a living through his miraculous passing of the bar exam in the distant past in whatever state was unlucky enough to have given him a license to practice law. The bottom line here is the Cobb County school board wanted to put this to bed in the least costly manner possible. To accomplish that they entered into a consent agreement which gave up legislative authority of future legislators which they have absolutely no authority to do. Adding insult to injury Cooper happily accepted this disposition, almost certainly knowing at least some of the terms were bogus, and in an effort to enforce the unenforceable ruled that only his court could hold future jurisdiction over the consent contract. Cooper should be impeached. DaveScot
December 22, 2006
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It would thus appear, that amongst all the other flaws in Cooper’s order, is that his court has no jurisdiction in enforcing common law of contracts in the State of Georgia (or anywhere else for that matter). , Um, no, that would not be correct. Federal courts can enforce common law contracts under diversity jurisdiction, and further can enforce settlement agreements incorporated into federal court orders even if the parties are non-diverse. That's pretty well settled law. You're misreading Eerie, BTW. There is no general federal common law. There is, however, federal common law in areas in which federal courts have original jurisdiction, such as admiralty, antitrust, copyright, patent, etc. In fact, on the same day that it decided Eerie, the Court issued another decision based on fedearl common law. Further, under the Supreme Court's holding in Clearfield Trust, federal courts can make common law where there is a particular "federal competence" to do so. Of course, state courts also make common law, which isn't properly called "legislating from the bench," and state courts also sometimes make what is effectively federal common law. (Interesting article here.) This isn’t General Motors (a corporate entity), the school board doesn’t have treaty powers, treaties must be ratified by congress, states can’t enter into treaties, and a consent agreement isn’t a treaty. But of course a corporation is simply a "person" for purposes of the right to sue and be sued, and can have "heirs, successors and assigns" like a natural person; and treaties are contracts which can bind successors in interest, just like any other contract, including a settlement agreement . That part is not novel; it's as old as the law of contracts. There's no need to overstate things here. It's a bad Consent Order, without adding all this other stuff.dopderbeck
December 21, 2006
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dopderbeck U.S. Federal Judges can make common law? Maybe you can point me to the bit in the constitution authorizing this. In the meantime, read this: Erie Railroad Co. v. Tompkins
Therefore, the Court felt it was time to overrule the doctrine of Swift as an unconstitutional extension of its own powers. Swift had stolen powers reserved to the states in violation of the Tenth Amendment - nothing in the Constitution of the United States permits the U.S. Congress to empower federal courts to create their own common law - and had denied state residents the equal protection of the laws, but not under the Fourteenth Amendment because the Fourteenth Amendment at that time only applied to states and not the federal courts. Therefore, the federal court was required to apply the law of whichever state it was sitting in, as though it were a state court of that state. Of course, this was a very difficult decision for the Court because overruling Swift meant that a huge number of opinions by the lower federal courts were no longer valid law.
"There is no federal general common law"
Because Swift v. Tyson unfairly allowed the result of litigation conducted in state court under state common law to differ materially if the suit were litigated under general law principles in federal court, it allowed "grave discrimination" and encouraged "forum shopping," which had grown up in response to the Swift rule. Instead of promoting uniformity, the general law approach produced the opposite. Except as provided by the Constitution and Acts of Congress, state law applies. There is no federal general common law because no clause in the Constitution confers such a power on federal courts.
It would thus appear, that amongst all the other flaws in Cooper's order, is that his court has no jurisdiction in enforcing common law of contracts in the State of Georgia (or anywhere else for that matter). DaveScot
December 21, 2006
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dopderbeck This isn't General Motors (a corporate entity), the school board doesn't have treaty powers, treaties must be ratified by congress, states can't enter into treaties, and a consent agreement isn't a treaty. Try again. In the meantime, read this: Impeachment of Federal JudgesDaveScot
December 21, 2006
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If George W. Bush signs a consent agreement that prohibits any presidential successor from doing something you’re going to sit there and tell me its binding on all future presidents? That’s nonsense. Yes. It's called a "treaty." Presidents do it all the time. Treaties are, fundamentally, contracts. There's nothing unusual about a settlement agreement binding successors, assigns, etc. You couldn't settle a case otherwise. Say General Motors settles a product liability case involving a recall of defective tires. GM can't get out of that deal by incorporating a new subsidiary and claiming the sub isn't bound by the settlement. That’s called legislating from the bench. Legislating from the bench is, I think, one of those terms that often sheds more heat than light. Judges can legitimately make common law, for example. What judges shouldn't do is contravene the clear intention of the legislature. I don't think that happened in the Cobb County settlement. There isn't any legislation that would prohibit a judge from accepting a settlment agreement; in fact, the rules of federal procedure specifically authorize judges to do so. But this is a quibble. We agree, fundamentally, that this particular Consent Order is very bad.dopderbeck
December 21, 2006
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dopderbeck Excuse me for asking but how can "contract law" bind elected officials not yet elected? If George W. Bush signs a consent agreement that prohibits any presidential successor from doing something you're going to sit there and tell me its binding on all future presidents? That's nonsense. What is unusual and troubling is that this court purports to enjoin the actions of a future duly elected school board concerning any speech that “disparages” the theory of evolution. That’s an extraordinary prior restraint, and probably is itself unconstitutional under the first amendment’s free speech clause. It's not unusual but you bet it's "troubling". Judge Cooper effectively made a law (and a punishment for breaking it) that prohibits future elected officials from doing something. That's called legislating from the bench. What we need are some legislators and executives to tell these activist judges to go fly a kite. The judiciary is powerless without consent from the legislature and enforcement by the executive. These are the checks and balances behind the tricameral form of our gov't. When one branch exceeds its authority, upsetting the balance of power, it's up to the others to assert themselves to check the usurper. If the usurper refuses to back down it's a constitutional crisis. Judges routinely approve such consent orders without much substantive review. When they approve of unenforceable nonsense like this they should be impeached for incompetence. DaveScot
December 21, 2006
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[...] UD: Where Science Fails, Financial Intimidation Wins has another view of the Cobb county sticker case. Behind all the indignant shouting from the Darwin/science groups, the plain fact is that dissent is being suppressed. The “science” of evolution wilts under the mildest of criticism so its heroic defenders resort to legal chicanery to shelter it. Evolution pundits see the Cobb county disposition as a win for science. When “science” has to be shielded from criticism through courtroom theatrics and financial intimidation it’s no win for science. It’s no longer science at that point. It’s indefensible dogma; a sham pretending to be science. This is a sad time for science. [...]Darwiniana » Cobb county case
December 21, 2006
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Ok, though I think this is a very bad Consent Order, I can't pick up on the "legislating from the bench" theme. It's a Consent order as part of a settlement. Judges routinely approve such consent orders without much substantive review. The school board is just as culpable for agreeing to it. I'm curious whether the membership of the school board changed while the case was on appeal. I also want to clarify that I don't adhere to the "constitutional crisis" line of thinking. There are, I believe, serious problems with certain lines of U.S. constitutional jurisprudence, including establishment clause jurisprudence. However, I don't think it's warranted or wise to use "crisis" rhetoric. Re: the court retaining jurisdiction to enforce the order -- that in itself is appropriate and standard. It isn't a usurpation of the executive function. A court's orders are enforceable by the court through contempt sanctions. The reason a court expressly retains jurisdiction over a consent order that is entered as part of a settlement is that a settlement is also a contract between the settling parties. Contracts are enforceable under state contract law. When the court retains jurisdiction, it makes clear that an action for enforcement is to be had in the court that entered the original order, not through a separate action in state court. Nothing unusual there. What is unusual and troubling is that this court purports to enjoin the actions of a future duly elected school board concerning any speech that "disparages" the theory of evolution. That's an extraordinary prior restraint, and probably is itself unconstitutional under the first amendment's free speech clause.dopderbeck
December 21, 2006
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I am not a fan of the ruling as I do not see how you can interpret that sticker as a government endorsement of religion. The only reasoning I can think of is that there is a long history of confrontation with Darwinism from conservative Christians, there is not at this moment a credible scientific controversy over Darwinism, so it is safe to say that this criticism is primarily if not solely religiously motivated by conservative Christians. Now one may think that is indeed the truth, but any responsible citizen has to admit that is frightingly loose reasoning from a court.jmcd
December 21, 2006
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dopderbeck Interestingly, aside from an attempt to muzzle in perpetuity a duly elected legislative body the judge also seems to be usurping the enforcement powers of the executive branch; The trial court retains perpetual jurisdiction to enforce these provisions. If the school board had any cajones they'd tell Cooper to go fly a kite, put the stickers back, and see if Cooper can convince Governor Perdue to call out the state militia to enforce his ruling. This is of course presuming Judge Cooper doesn't have a private police force under his command. A constitutional crisis is brewing, David. The judiciary is overstepping its bounds.DaveScot
December 21, 2006
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dopderbeck Welcome to the world of legislation from the bench. Please leave all ballots and other forms of government by and for the people at the door as you enter then sit down, shut up, and do as you're told.DaveScot
December 21, 2006
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The Consent Order settling this case is particularly disturbing because of the gag order it imposes. For example, paragraph 2(a) of the order enjoins the school board and its agents, employees, and successors from "making any disclaimers regarding evolution orally, in writing, or by any other means." Paragraph 3 of the Order states that it is binding on the school board "and its officers and members in perpetuity, notwithstanding any changes to the Board's membership that may result from further elections, appointments, vacancies, or other changes to the Board or its composition." The trial court retains perpetual jurisdiction to enforce these provisions. If this broad language is interpreted literally, depending on what "disclaimers" means in Paragraph 2(a), no teacher in Cobb County can ever criticize the theory of evolution in any way, nor can the citizens of Cobb County vote to adopt a policy that would allow teachers to criticize the theory of evolution in any way, even in a philosophy or history class. Regardless of what one thinks about ID generally, this particular settlement is a victory neither for science nor democracy.dopderbeck
December 21, 2006
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The stickers were a government establishment of religion. Isn't it made clear by the text of the sticker?DaveScot
December 21, 2006
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I don't see what was wrong with the stickers. What if it said the same about any other theory? Did ACLU argue it was implying ID? And if so, does ID equal state endorsement of a religion?Collin
December 21, 2006
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What is not reported in the press is that it is possible the influx of affluent pro-ID families and their influence in Cobb county sent the SAT scores into record territory for Georgia. The stickers were evidence the parents were deeply interested in their children's education. It was because of the public schools in Cobb county that affluent and educated pro-ID families were flocking there. In fact, since the sticker's introduction, the SAT scores went up. Thus it's hard to prove criticism of Darwinism affects a childs ability to think and learn.scordova
December 21, 2006
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But DaveScot, wasn't that the main point in "Kitzmiller v. The Dover SB"? That being if you want to challenge evolution you had better have deep pockets (filled with $$$, of course). And with an established history of judicial anti-ID bias already against them, it makes that financial intimidation a likely reality. I need to get elected to a school board...Joseph
December 21, 2006
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Check this out regarding the ACLU: http://www.amazon.com/gp/reader/0805440453/ref=sib_fs_top/002-1107273-5978401?ie=UTF8&p=S00J&checkSum=ldFnOBz7oMUfpBQvyzDcYwTsDZCpFMAdtlrbK6F%2BJBg%3D#reader-linkEkstasis
December 21, 2006
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