The ACLU and Legal Fees
Ed Brayton on Apr 22nd 2006
Steven Voigt, writing at RenewAmerica, is complaining about the ACLU being able to collect legal fees when they win a suit against a government agency (you may remember Voigt from my earlier fisking of his terrible 14th amendment arguments). This is nothing new, of course; innumerable voices on the right have been complaining about this for years. Funny, though, they never mention it if the Alliance Defense Fund, the Christian Legal Society, the American Center for Law and Justice or any other religious right legal group does the same thing. When the ACLU successfully sued on behalf of Lamb’s Chapel and were awarded reasonable legal fees, we didn’t hear a word. I guess it’s all just a matter of whose ox is being gored. Along the way, Voigt makes a lot of blatantly false claims on the subject. He writes:
The ACLU’s recent lawsuit against Dover Area School District in Pennsylvania, where the ACLU opposed Dover’s effort to balance its science curriculum with different viewpoints on evolution, is over for the ACLU. For local residents, however, the impact of the litigation has only begun. As a result of the judge’s ruling in favor of the plaintiffs–who were represented by the ACLU, Americans United for Separation of Church and State (”AUSCS”), and a corporate law firm–Dover Township residents will pay $1 million in attorneys’ fees and costs to the plaintiffs’ lawyers.
From the million dollar purse, the two legal organizations and the law firm will first deduct their out-of-pocket expenses, and then the ACLU and the AUSCS will split the remainder as fees, and these fees represent the bulk of the cash.
This is pretty much all false. There were three groups involved, that’s true - the ACLU, AU and the Pepper Hamilton law firm. And $1 million sounds like a lot, until you consider that Pepper Hamilton had 5 attorneys assigned to the case, two of them full partners, plus a number of paralegals, administrative assistants and so forth. The ACLU had one attorney on the case, and AU had two attorneys on it. The hourly billing rate for those attorneys was, bare minimum, $150 an hour and for the partners probably more like $500 an hour.
Will they actually be paid that much for this case? Of course not. But for the 5 Pepper Hamilton attorneys, every hour they spent working on that case was one less hour they could spend working on a case for a paying client (not true for the other attorneys, who are likely paid a salary and don’t bill by the hour). The cost to the law firm in terms of billable hours is enormous. The case took almost exactly one year from the date it was filed to the date the ruling came down.
Taking just the Pepper Hamilton attorneys and assuming an average of $250 per billable hour, if they each worked 40 hours a week that would be $2.6 million in the course of the year. Now, they didn’t all work 40 hours a week the whole time on the case, but some of them did, and some of them ended up some weeks working far more than 40 hours. Even if they averaged only half of that, that’s $1.3 million just in billable hours that the law firm gave up in order to take the case. And I can tell you that Pepper Hamilton paid for a lot more than just the cost of those attorneys. They also paid nearly all of the massive logistical costs.
Think for a moment about some of the ancillary costs involved in preparing such a massive legal effort. The plaintiffs side had 7 expert witnesses. All of them had to prepare an expert report and comment on the reports from the experts on the other side. All of those reports had to be read and annotated, along with all the expert reports from the other side. All of the defense experts had to be deposed at the expense of the plaintiffs, and that expense is significant - they have to pay the travel costs either of the expert or the legal staff and pay for a court reporter as well (which is pretty expensive).
The technology involved in the case was state-of-the-art as well, and that’s expensive to set up and maintain. There were literally hundreds of exhibits in the case, all of which were digitized and put into a database so they could be pulled up in court on demand. They had to pay an IT person to be in the courtroom every minute of the trial to operate that system, plus who knows how many people to build the database.
Add to that the cost of office space, furniture and equipment for this huge staff of attorneys and paralegals. Add to it all of the lodging, travel and other expenses of all the witnesses that testified for our side. They may also have paid those expenses for all of the unpaid consultants on the case like Nick Matzke (I’m not sure if that’s the case). Add all of that up and the actual legal bill for the case was over $2.5 million. They were awarded $1 million, or less than 40% of the total.
Which means that even with what was awarded in legal fees, they won’t even cover the expenses involved for any of the three organizations involved. Pepper Hamilton will almost surely end up writing off a good deal of their expense on it, and that’s fine. No need to feel sorry for them, large firms set aside an annual budget for pro bono work. But bear in mind that they also risked not getting any of those expenses reimbursed at all. They could have lost millions on the case; the only reason they didn’t is because their case was strong.
Likewise for the ACLU and the AU. Demagogues like Voigt make it sound as though they’re getting rich and using cases like this to “build up a war chest” for their “battle against Christianity”. In fact, such cases cost them money no matter how much they might get back in legal fees. I guarantee that even with the small portion of the legal fees they are awarded every year (most of those awards go to the law firms that handle the case) they are a net loser, and probably a significant one, for the ACLU financially. They are able to do it only through donations from individuals and foundations.
Of course, Dover taxpayers also had to pay the fees for the attorneys for the defendant, Dover Area School District, as well.
False. The Thomas More Law Center handled the case for them for free. Voigt could have found that out with a simple Google search, for crying out loud. Then again, does he really care about accuracy? He has a myth to sell here; truth is irrelevant.
If this seems out of the ordinary, it is. In nearly all lawsuits, litigants pay only the fees for their own attorneys, regardless who prevails. This is known as the “American Rule.” One exception to the American Rule is where the plaintiffs’ attorneys recover their fees from the defendant under a fee shifting statute, 42 U.S.C. §1988, which Congress ratified in 1976.
The ACLU and like-minded groups have abused 42 U.S.C. §1988 to perpetuate endless lawsuits, such as the Dover lawsuit, against religion.
Ah, this is what I love about the attempts by ID advocates to claim that ID is not religion - their followers always spill the beans. Here Voigt admits that the Dover case was a case “against religion”; I’m sure the DI would rather he say “against the robust research program of intelligent design theory”, but you see, Voigt has been listening to the wrong DI face and he’s not quite up to speed on the preferred terminology.
Using this statute, the ACLU has been accumulating a war chest of cash to fund ongoing and future attacks against communities and schools that display crosses, post the Ten Commandments, set up nativity scenes, permit moments of silence, or allow public prayer. In the crosshairs of the barrage of litigation are groups such as the Boy Scouts of America and the American Legion–but also tiny libraries, schools, and small municipalities that are typically funded by local taxes and do not have the resources to fend off the high-priced lawyers who sweep in on behalf of the ACLU and similar left-wing groups.
As noted above, this notion that they use such cases to “accumulate a war chest” is absurd. First, they only get any award at all when they win a case. If the case is settled, as most are, they get nothing. And most of those awards go to the law firms that volunteer to take the case. The ACLU, in the end, almost certainly loses money on such litigation.
Now this is where Voigt goes pretty much completely off the deep end. He argues that 42 U.S.C. 1988 should apply only in cases involving racial discrimination. His reasoning is highly absurd and factually incorrect:
The ACLU’s and the AUSCS’s use of 42 U.S.C. §1988 to reap their attorneys’ fees from defendants in religion lawsuits is certainly creative. Actually, however, lawmakers never intended, or anticipated, that the statute would be used in this way.
42 U.S.C. §1988 followed the landmark Civil Rights Act, ratified in 1964, which Congress passed to combat racial injustice. The 1964 Civil Rights Act included limited legal remedies, which primarily consisted of injunctive relief–i.e., a court order that the particular conduct must cease.
Twelve years after the Civil Rights Act, Congress ratified and the president signed into law 42 U.S.C. §1988. This statute strengthened the remedies available under the 1964 Civil Rights Act and, among other things, provided judges with the discretion to award attorneys’ fees to plaintiffs who prevail with civil rights claims. With this statute, Congress empowered low-income individuals who are more likely to suffer from discrimination with the means to obtain quality legal representation, because it provided additional pecuniary incentives for lawyers to accept meritorious cases….
Because 42 U.S.C. § 1988 followed and strengthened the Civil Rights Act of 1964, to understand lawmakers’ intent behind this legislation, we must look to the 1964 act. Upon doing so, the purpose of the statute becomes clear. Congress and the president intended for such civil rights legislation to combat racial discrimination.
This is an incredibly easy claim to disprove. All one has to do is look at the actual text of 42 U.S.C. 1988. It says:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.
Do you notice anything about that text? How about the fact that it specifically mentions that it applies not only to the 1964 Civil Rights Act - the one that focused primarily on racial discrimination - but also to several statutes regarding
religious freedom. In fact, if you look at the whole history of modifications of that particular chapter of the US Code regarding the Civil Rights Act, you’ll see that it includes multiple statutes passed by Congress that specifically involved religion cases against the government as well as many provisions that had nothing to do with ending racial discrimination. Voigt is simply wrong when he claims that because this statute modified the Civil Rights Act that therefore it applies only to racial discrimination cases - and the truth is right there in the text of the statute he’s discussing.
Equally as important is the fact that this statute is a good idea. The only reason that people like Voigt don’t like it is because it is used in cases they disagree with. As noted above, you never hear them complain when the same law allows the ADF or the ACLJ to collect legal fees in cases they win. And the important thing to bear in mind here is that this only happens if they win - only if the government is found to have overstepped its constitutional boundaries do they even get a mimimal award to cover the expenses they incurred in taking such a case.
And if the government has acted unconstitutionally, why should the folks trying to stop them have to bear the costs of making them stop? That cost should be borne by the government. This provides a crucial check on abuse, as the Supreme Court noted in Owen v City of Independence:
The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights…. [Since] it is the public at large which enjoys the benefits of the government’s activities, and it is the public at large which is ultimately responsible for its administration…it is fairer to allocate any resulting financial loss to the inevitable costs of government borne by all the taxpayers, than to allow its impact to be felt solely by those whose rights…have been violated.
But the only time we hear complaints is when their side loses a case. When, for example, a school district unconstitutionally refuses to rent their facilities to a religious group, as it did in Lamb’s Chapel, why should Lamb’s Chapel have had to pay the millions of dollars it took to fight that case all the way to the Supreme Court and get a ruling that struck down the school’s policy? Removing such cases from the reversal of fees policy would make it prohibitively expensive for anyone to challenge any government agency when they are acting in an unconstitutional manner. And people like Voigt should keep in mind that such cases often cut the other way as well.
Filed in The Bench
Well reasoned argument. I, however, look at it from a different paradigm. Instead of arguing that both the ACLU and the Religious Right should be able to utilize 42 USC 1988 and sure educational institutions over this nonsense, I believe its abused by both sides of the debate.
As a libertarian, I am no fan of religious docrine forced into public discourse — however, I am even more vehemently against the forceful stripping stripping of control from locally elected school boards and the fleecing of my tax dollars. Whether or not the ACLU and law firms should be able to seek recompense for their case work is a moot point. These lawsuits are frivolous to begin with.
So long as readily accepted theory on eveolution is presented in a science classroom, I don’t care if a school board also wants to teach that Bozo the Clown created the universe. AS a parent of a child in that school district, I don’t need the ACLU to to squander my tax dollars to defeat the school board I elected into office. If I don’t like what the school board is doing, I vote them out, move my child or both. Personal responsibility trumps these relatively menial issues such as “God” in the Pledge of Allegiance, use of the Ten Commandements, or ID in the science classroom.
This post brilliantly documents the hypocrisy of the Right with regards to funding of these lawsuits, but a little perspective please. Enough already. Just my opinion — thanks.
I think you have an anachronistic definition of “frivolous”. In legal terms, a suit is only considered frivolous if it has no chance of winning. In this case, however, legal fees can only be awarded if the case is won. Unless you want to argue that individual citizens should have to shell out millions of their own dollars in order to prevent the government from taking unconstitutional actions in all cases, then you are only applying a subjective standard that says they shouldn’t have to shoulder that burden unless you disagree with them on the case.
I think we have two very different perspectives. Just because I believe a case has merit does not mean its worth fighting. I’m just saying it isn’t worth the millions of dollars being poured into it.
The ACLU makes it possible for common citizens to have a voice against well funded opposition — I think we both agree.
However, is the stripping of millions of taxpayer dollars to right the alleged wrong of ID worth the resulting harm? I don’t think so. We can agree to disagree.
School boards have enough of a problem trying to balance intellectual honesty with public opinion. Seems to me we’re holding school boards to a higher standard than elected politicians. We don’t sue governors and state legislatures for passing laws allowing ID to be considered by school boards, so we shouldn’t be surprised when some school boards actually try to honestly respond to their constiuents. Sue the state not the chool boards — pass laws, don’t strip communities of needed funsing to educate our children.
In short, don’t be so idealistic to feel that every wrong decision by a school board is worth suing over — that black and white thinking is what turns people off to libertarian ideals.
But you’re missing the point completely. The issue is not whether the ACLU should sue in every case in which they sue. I fully agree that sometimes they file suits that aren’t worth filing. But the issue of this post is whether they, and any other plaintiff, can ask for legal fees to be awarded when they win a case. There are only two possible answers to that - yes, they should (which means across the board) or no, they shouldn’t (which means across the board). The answer cannot be “only if I agree with the case”. The law doesn’t work that way.
Fair enough. Perhaps my soapboxing is off-point and I apologize.
I just couldn’t resist commenting on this post where, in my humble opinion, such fine details of which well-funded machine gets to recoup from another is irrelevant in the scheme of things where regular folks get the shaft either way.
When one considers that a pluralistic liberal democracy requires an educated public, and the ostensible purpose of free public education is to accomplish this mission, then it hardly seems frivolous (or use any adjective one likes) to make sure school boards don’t go on an agenda that purposively attempts to defeat that mission. Teaching ID is not harmless nor much ado about nothing. It injects religion into science and corrupts the entire notion of science in the minds of impressionable adolescents. That is hardly innocent or inconsequential. And any school board that is this corrupt needs exposing, and by that exposure tells other school boards, “take this route at your financial peril.” The precedent establishes a norm so that the process in Dover, for example, need not be repeated in every school district at substantially greater expense to correct every errant board. Indeed, the “cost” is less than nominal, despite its punitive effect, because the cost is not nominal to Dover. The cost of a million dollars may seem substantial to Dover, but its effect is far more economical than repeating this suit in every school district. School boards in other districts will think twice before beginning the same agenda in their districts. In this light, a million dollars is even less than paltry.
Your argument requires I accept the premise that there such a thing as “free public education.” The very phrase is oxymoronic.
It also assumes that libertarian hypocrisy is less a sin than a conservative one. Who are you to tell me what I teach my children? If a community, through its elected officials, wants to teach its children ID — so be it. There is no overriding constitutional issue here. The constitution provides for freedom of religion, not from it.
While I prefer that evolution be taught to my children free from the influence of ID pseudo-science, you lose the higher ethical, legal, and moral high ground when you assume your views are superior to those of others.
Lastly, your argument is that “impressionable adolescents” cannot handle multiple viewpoints — how shortsighted.
What exactly are you fearful of that these misguided youth are going to do as a result of being poisoned by ID?
How arrogant to say the cost to Dover is nominal. Tell that to the parents in Dover who didn’t have a dog in this fight, but nonetheless lost — big! It flies in the face of civil liberty to say that the loss of money in that school district is worthwhile collateral damage.
Purple Think wrote:
I know this wasn’t addressed to me, but I’m going to respond to it anyway. I don’t think Stephen’s argument requires that you accept the premise of “free public education”. I think it only requires that you accept that A) we do have a public education system (whether we should have or not is an entirely different question) and B) because the public schools are government-run and because the government makes attendance compulsory, the Constitution prohibits the government from teaching certain things, most obviously from endorsing religious viewpoints. The courts have (correctly) ruled that the public schools cannot endorse any religion or religious viewpoint without violating the establishment clause.
False; the constitution provides for both. The free exercise clause guarantees freedom of religion, the establishment clause guarantees freedom from religion - that is, freedom from the imposition of someone else’s religion. Because public schools are government-controlled and funded by our tax dollars, they are forbidden from teaching and endorsing religious positions - and whether the “community” wants them to do so or not simply isn’t relevant. If a given policy violates the establishment clause, it doesn’t matter whether 99.9% of a given community is for it or not. If 99% of the people in a school district wanted the schools to teach that the Quran is the divinely inspired revelation of the one true God, Allah, this would violate the establishment clause and it simply doesn’t matter that only 1% of the community doesn’t like it. The whole point of having the Bill of Rights is to put those matters outside the reach of a legislative majority.
Now, one could argue that the teaching of ID does not amount to an establishment clause violation, but you haven’t bothered to do so and, frankly, I think Judge Jones’ ruling in the Dover case pretty much nailed that coffin shut once and for all. Given the precedents on the subject, his ruling was a simple and air tight application of the law. There simply is no doubt that ID is substantially identical to “creation science” and that it is little more than an attempt to smuggle in a religious creation myth under a thin veneer of scientific-sounding language. The evidence produced in the Dover trial supporting that position was extremely compelling and, I would argue, virtually unassailable. When the very book that ID advocates recommend as the first ID textbook uses the same definition, word for word, of “intelligent design” as it used for “creation”, that really is game, set and match on that issue.
This is utter nonsense. The core premise of even bothering with education is that some views, some claims, are superior to other claims. We teach heliocentricity rather than geocentricity because the former is superior to- that is, it has a much higher truth value than - the latter. We teach that the holocaust killed 6 million Jews and at least hundreds of thousands of other persecuted groups (gays, gypsies, etc) rather than teaching holocaust denial because the former is superior, by any rational criteria, than the latter. Every single choice made over what to teach in school is done on the basis of which one is superior - that is, which one is better supported by the evidence and hence more likely to be true and accurate. Your argument is postmodern relativism at its most silly.
I don’t think anyone said they couldn’t handle multiple viewpoints. But are you willing to apply this reasoning across the board? If so, we’re pretty much going to abandon any pretense of teaching what is true and valid. We would have to teach flat earthism in earth science classes, geocentrism in astronomy classes, “Christian Science” as an alternative to the germ theory of disease in health classes, and so forth. In history, must we then also teach the claims of southern nationalists who claim that slavery was a benign institution made up of strong and loving relationships between slaves and masters? After all, we wouldn’t want to be “shortsighted” in thinking that students can’t “handle multiple viewpoints”.
Are we to teach that the earth is 4.55 billion years old, as the evidence strongly supports, but also that it is 6000 years old as biblical literalists believe? But wait, that doesn’t exhaust all of the possibilities. The Hindus believe that the world is eternal but has gone through innumerable cycles and that humans have been around for hundreds of millions of years. I guess we have to teach all of them. And if you’re going to teach any of those alternatives, you certainly can’t take a position on which one is true and which one is false. Of course, there’s only so many hours in the day and we barely have time to cover even the basics of all of these ideas as it is; if we’re going to also then require that all of the alternative viewpoints be taught along with it, it simply isn’t possible to do without pretty much destroying any hope of a comprehensive education.
I’m fearful that it will only compound the already-serious problem we have with the public’s understanding of how science actually operates. It will subvert the teaching of real science and replace all of the scientific criteria by which we determine what is likely to be true and replace it with a well-conceived PR campaign guided by slick hucksters using the tools of marketing rather than earning their place in the classroom by doing actual scientific research. It will send the message that the truth doesn’t matter as long as you can dress up a religious mythology in a veneer of truthiness. We have enough of a problem with the public’s understanding of science as it is. If we allow this dishonest PR campaign to succeed in gaining a place in science classrooms despite having produced absolutely nothing in terms of actual scientific achievement - no coherent model or theory, no original research that might support such a model or theory, nothing but dishonest attempts to distort the evidence for evolution - we will do grave damage to our children’s already weak ability to understand how science operates. It’s hard to imagine a worse idea pedagogically.
The blame for that cost lies with the school board that adopted an unconstitutional policy and insisted on continuing with it even when their own legal counsel and the primary ID organization told them that they were going to lose the case and end up having to pay. Stephen’s point was not that the loss of money isn’t bad for the Dover community, but that at least that loss may prevent other school boards from making the same mistake. And that’s a perfectly reasonable point.
Thank you for the debate. I continue to learn from these posts.
Regarding “free public education,” my point is that it is paid for by local tax dollars and thus certainly not free. A local population is “purchasing” their education through tax dollars and thus should have choice over how their service is rendered. That choice manifests itself in local elected of officials charged with representing their constituency.
A) We have a public education system, true. However that public education system is directed by the “public” of a locality. We do not have a federal education system for this very reason. If the sole purpose of local boards of education were to appropriate tax dollars, we wouldn’t need PhDs as superintendents — we’d only need business managers. Truth is, we need a certain degree of autonomy in choice of curriculum and pedagogy – the constitution demands it.
B) Government makes attendance compulsory, but not to a specific school system.
Freedom from the imposition of one’s religion is different than freedom from religion. If we were to eliminate all educational elements that have their foundation in religious culture, there wouldn’t be very much left. If you accept the simple inclusion of ID is imposing religion, then you must also accept a musical study of Bach is imposing religion. Likewise, you must also forego the entire study of European medieval history. While science is certainly a more definitive area of study, I hear no cries of persecution from those subjected to alternatives to the Big Bang Theory, volcanic meteorological theory, or the countless theories that attempt to quantify human behavior. Don’t believe for a second that many alternative scientific theories have been and perhaps always will be influenced by one’s personal belief system – religious and otherwise.
Your passage on the inclusion of all possible theories and beliefs is ludicrous. Of course I do not advocate that, and nor do the proponents of ID. My point is that local boards of education should have the choice to include and exclude what they see fit, so long as by doing so they balance local sensibilities with the prevailing scientific theory.
The core premise of even bothering with education is that some views, some claims, are superior to other claims.
I entirely agree. Nobody disputes heliocentricity. No school dismissing the holocaust would ever gain accreditation. These are red herrings in this debate. To believe these things is to dismiss their competing point of view. This is not so with ID. ID and evolution are not mutually exclusive. And so, there is no risk to the pursuit of truth as you state so long as they are both presented.
Your fear that the simple inclusion of ID will subvert the teaching of real science may or may not be valid. Fast Food restaurants on every corner may or may not be leading to obesity. Smoking may or may not kill you. All of these are choices we make as autonomous human beings. Do you propose outlawing McDonald’s? Even more on point, should schools be forbidden by federal courts from entering into agreements with Coke or Pepsi? Isn’t your child’s physical ill-health a more irreversible attribute you would like to protect? Okay, perhaps a compromise. Maybe we allow the federal government to mandate that if you have a Coke machine, you also must have a fruit juice machine?
Bottom line, the feds have no business mandating such a ridiculous thing – whether or not it promotes health. Local governments should respond to local sensibilities. And that may very well result in Coke machines alongside juice machines. It may also result in ID alongside evolution – same thing.
You characterize ID proponents as hucksters. Maybe so. Define huckster. You continue down that path and sooner or later, as courts have begun rewriting the constitution to meet prevailing public opinion, so will they begin to impose education curriculum nationally.
The blame rests on the school board? Really? Who pays the price? Not the school board – the taxpayers do. I do. You do. Our children do. And for what? We protected them from learning that such a thing as ID exists. So what.
“f you accept the simple inclusion of ID is imposing religion, then you must also accept a musical study of Bach is imposing religion.”
No, we don’t. Please remember that your assertion of something doesn’t make it fact.
” Likewise, you must also forego the entire study of European medieval history.”
No, we don’t. Now, teaching, say, Renaissance history from the viewpoint that it’s the story of the tragic displacement of the One True Church from its rightful position of dominance would be, for obvious reasons.
Forcing some one to sing “God is my refuge, my strength.” is not as bad as proposing the evolution began through an intelligent designer? Okay…
Good thing ID isn’t mutually exclusive with evolution like your example is with accepted truth.
PurpleThink wrote:
Nonsense. The Constitution says not a single word about education, much less demanding autonomy in curriculum and pedagogy. It is, quite literally, silent on the question. But it’s not silent on the question of government endorsement of religion, regardless of whether such endorsement takes place in a school, a courthouse or a public park. At the very least, such autonomy must be constrained by the Constitution itself. With the application of the first amendment to states and localities through the 14th amendment, the schools are prohibited from endorsing religion. That is the reality whether one likes it or not.
More nonsense. No one is saying, nor has anyone ever said, that the schools can’t teach about any religious person. The fact that Bach was inspired by his religion to make music does not make his music a religious claim or idea that can be endorsed or rejected. By the same token, no one has ever suggested that schools cannot teach about the influence of religion throughout history. Indeed, it is impossible not to address religion as a matter of history. What the school cannot do, however, is endorse the claims of any religion. Your counter examples simply are not analogous.
I love the emotionally charged language here. Who exactly has engaged in “cries of percecution” in this context? The only ones who do that I am aware of are the creationists. And what alternatives are there out there being taught in those areas? There have been attempts to teach alternatives to big bang cosmology, it was part of that “creation science” curriculum in Arkansas and Louisiana that required the teaching of the explicitly religious claim that the universe is only a few thousand years old. It was greeted with the same legal challenge and the Court rightly ruled that you cannot teach that in schools either. I know of no alternatives to “volcanic meteorology theory”, or even what that theory might be, so I have no idea where or from whom we should expect to hear “cries of persecution”. The fact is that evolution has been continually under attack as part of the school curriculum for nearly a century now and the “alternatives” to evolution have consistently been purely religious in nature. ID is no exception as the testimony and evidence in the Dover trial proved beyond any reasonable doubt.
You may not advocate that, but if you take your argument seriously, you would have to. If you’re going to make the argument for presenting this alternative on the basis of this claim that it’s important to “balance local sensibilities”, or on the even broader “kids can handle multiple options” argument, then your rationale defends each and every one of those other alternatives equally well. The fact that you don’t want to apply that rationale in every situation in which it applies only shows that what you’re engaging in is not a serious argument but mere special pleading. Every single one of those alternatives that I mentioned has all of the same attributes that ID has - a few credentialed people who accept the position, a portion of the public that believes them, even claims of being unfairly shunned by “the establishment” intent on covering up the Truth (trademark pending). And your argument is that school boards should “balance local sensibilities” with the prevailing consensus. So tell me again why that doesn’t apply just as well to geocentrism, flat earthism, holocaust denial or Christian Scientism? What distinguishes ID from any of those?
Wanna bet? Geocentricity, in fact, has been growing in adherents over the last couple decades, particularly among Calvinists. The Austin-American Statesman, in fact, had an article about geocentrism just this morning. They even have a genuine astrophysicist, Gerardus Bouw, on their side. And to add some additional irony, they make many of the very same arguments that IDist make about evolution, including the claim of being “silenced” by the “Copernican priesthood” and the claim that, by undermining the validity of the Bible as properly understood, heliocentrism has led to a breakdown of morality. You could take some of the writings of the geocentrists, replace “Galileo” with “Darwin” and they would fit right in on any ID webpage.
But why? The arguments you’ve made for allowing ID to be included apply just as well here. What if the local community includes a lot of holocaust deniers? I bet there are a few communities in the deep south where that might be true. You’ve already said that schools should “balance local sensibilities” with prevailing theories. Your arguments defend the inclusion of holocaust denial just as well as they defend inclusion of ID.
Well, whether they are mutually exclusive or not depends on who you’re talking to, and that’s part of the reason why it has no place in science curricula - there is no ID model that can be compared with evolution. If you ask Michael Behe, ID is compatible with evolution….kind of. He demands that God be given a divine assist somehow, but he won’t say how, or when, or where. If you ask Phillip Johnson, ID is absolutely incompatible with evolution. If you ask Paul Nelson, evolution cannot be true in any sense whatsoever because the Earth is only 6000 years old. Likewise Nancy Pearsey. Dembski goes back and forth depending on which side of his mouth he’s talking out of at any given moment, but he says ID isn’t even compatible with theistic evolution, much less with evolution itself. ID might be compatible with evolution or it might not, and we can’t really know because - and this is important - there is no ID theory. There is only a set of bad arguments against evolution, all of them borrowed directly from good ol’ creationism, but dressed up to sound kind of science-y.
Jesus H. Christ on a popsicle stick, did you type that with a straight face? Do you actually think that you’ve made a valid analogy? Seriously, you can’t possibly believe those two things are analogous. You might as well have said, “Your claim might be true or it might not. Here’s another claim that might be true or it might not, your mother might be a whore or she might not. Do you propose that your mother is a whore?” Just staggering. You have managed to come up with the single dumbest argument I’ve heard in a long time - and given the fact that I deal regularly with people who think that the whole world was drowned by God in a global flood, that’s quite an accomplishment. It’s not often that someone says something that literally leaves my jaw agape that anyone could have written something so inane, but that one did it.
Wow. Personal attacks. Very nice.
1) The constitution is silent on education. Thanks for making my point. Thus, Constitutionally it’s left to the states. Point won.
2) So schools can teach about religious people, religious movements, religious influences, but cannot state that anything regarding religion has a chance of being accurate. That goes against the very heart of civil liberty. You’re really beginning to reach on the whole establishment of religion thing.
3) Emotionally charged language? I admit some dramatic license, but left your mother out of the debate. Sounds like you’re letting your emotional outrage regarding a century of attack on evolution clod you judgment on the current debate. So now we see your motivation. Anything that hints towards a religious lineage will be dismissed out of hand.
4) If local school board members are elected with a mandate to include that Hindus have a competing view with evolution, this is different because you are exploring one to the detriment of the other.
5) Good info on heliocentricity. Show me a population large enough to mandate this be a part of a science curriculum and we’ll talk.
6) Mutual exclusivity is in the eye of the beholder. Thank you. You make my point. So long as prevailing theories are presented as the status quo and as readily accepted by the scientific community, your problem is….?
7) Now to the argument you dismiss out of hand. If you continued the quotation, the analogy leads to the conclusion that you must believe anything that can be harmful to the development of individuals should be governed from the federal bench – even if they have alternatives, even if more healthful options are presented, even if my mother is a whore. Jesus H. Christ on a popsicle stick, too bad you are incapable of keeping from ad hominem attacks.
I’m assuming you feel threatened personally which wasn’t my intent. I’ll conclude by saying it was a fun debate until now. Thank you for your time. I will respond no further.
1) The constitution is silent on education. Thanks for making my point. Thus, Constitutionally it’s left to the states. Point won.
And the states are bound by the establishment clause through the equal protection clause. The silence on education does not absolvee the staes of recognized Constitutional proscriptions.
2) So schools can teach about religious people, religious movements, religious influences, but cannot state that anything regarding religion has a chance of being accurate.
No, no, no, a thousand times no. That isn’t what he’s saying. Is the Catholic Church a real and actual organization? Yes. Did it actually engage in several Crusades throughout the Middle Ages? Yes. Is it true that Jesus is a part of Holy Trinity, both Man and God, not separate, but one? A public school cannot take a position on such a question!
4) If local school board members are elected with a mandate to include that Hindus have a competing view with evolution, this is different because you are exploring one to the detriment of the other.
How can you decide at what point a religiously-based argument is being promoted to the detriment of others? Who decides which gets to be presented and which doesn’t, and why? If the voters gave a madate to include the Hindu perpective to the detriment of the Christian, under your argument why is it wrong?
5) Good info on heliocentricity. Show me a population large enough to mandate this be a part of a science curriculum and we’ll talk.
Why is this now a necessary requirement? ID clearly doesn’t have one, but yet it’s able to advance these claims with impunity? Even in Dover, after getting fed up with the hijinks of the prior board, the local populace kicked them out. It’s happened in Kansas as well, before, and could again, to the State Board. The point is that if we’re going to include anything in a science curriculum, let it be actual science, not what the majority feels in a happy, squishy way is science, irrespective of the examined evidence.
PurpleThink wrote:
No, point not won. You ignored, rather conveniently, the fact that the first amendment still applies to all state and local government actions through the 14th amendment doctrine of incorporation. Public schools may not endorse religious claims, period. If ID is a religious claim - and you’ve made not the slightest attempt to deny that it is - then it cannot be taught. And that is exactly what Judge Jones ruled.
Not in the slightest. Of course schools can teach about the role religion played in history. For instance, take the Inquisition. It’s okay to teach that the Church used its political power to squash what it deemed to be heresy. It’s not okay to teach, for example, that the Jews killed Christ and therefore the Church was right to pass laws that took their property away. There’s an obvious difference there.
I don’t have any emotional outrage. It is a fact, whether you like it or not, that the modern ID movement is just the latest phase of a century-long attempt by conservative Christian groups to attack evolutionary theory. There is one and only one reason for that attack - they perceive, wrongly in my view, that evolution undermines their faith. Interestingly, that’s the very same reason why the geocentrists - you know, the ones you falsely claimed don’t exist - attack heliocentrism. The funny thing here is that you claim that I dismiss ID “out of hand” because of some emotional need, yet you haven’t even attempted to engage a single argument I’ve made about ID. You haven’t attempted to dispute the many reasons I’ve offered for why ID is merely a continuation of creation science under a new name. You haven’t attempted to dispute any of the findings in the Dover trial. You haven’t attempted to dispute my argument that there is no actual ID theory upon which one could determine whether it is or isn’t compatible with evolution. But you still claim that I’m the one dismissing it “out of hand”. This is called “projection”, I’m afraid.
This isn’t even a coherent thought.
What difference does that make? Are you really going to take the position that what should be taught in schools is solely a question of political power? Should we just put the school curriculum up for a vote? Is it okay for one school district to teach, for example, that gay people are evil and possessed by Satan as long as they’ve got the votes to get it passed? How about if one school district is predominately Muslim, can they get together and teach the Quran as the holy word of Allah and demand that everyone pray 5 times a day toward Mecca? Actually, since you claim (falsely) that the Constitution doesn’t apply at all here, you would have to agree that this is possible and that the courts are powerless to stop them. But you’re wrong about the applicability of the Constitution, just as you’ve been wrong about virtually everything else. If ID is inherently religious, it cannot be taught in public schools - period. This is the absolutely clear and logical result of a series of precedents going back nearly 70 years. They aren’t going away. Reality just isn’t going to budge to make your position more coherent.
I already explained my problem with it. You ignored it. It’s not only bad pedagogy and bad philosophy to present religious alternatives to valid and well supported scientific theories, it’s unconstitutional.
I didn’t say anything about your mother. I said you might as well have made that argument about my mother. Reading comprehension is so taken for granted. But no, you’re just plain wrong to think that I believe that anything harmful to the development of individuals should be governed from the Federal bench. It’s a Federal bench issue because ID is a religious claim and the schools are forbidden to endorse it. I’ve already explained that and your only response was the idiotic “that would mean we couldn’t discuss medieval Europe” argument. You’re still wrong about what the Constitution says and you’re still wrong about the religious nature of ID.
Like most people who throw around the term ad hominem casually, you clearly don’t know what it actually means. I have not made any ad hominem arguments. An ad hominem is a logical fallacy that argues against the truth of a proposition by pointing to an irrelevant personal characteristic of the person making the argument. I’ve done no such thing. Laughing derisively at the stupidity of the argument you made - and make no mistake, it was astonishingly stupid - is not an ad hominem. If I’d said, “That argument is false because you have bad breath”, that would be an ad hominem. But I didn’t say anything like that. I said that the argument is false because the analogy was ridiculously wide of the mark. You literally based the analogy solely on the claim that it might or might not be true, then said, “Here’s something totally unrelated that might or might not be true. So do you defend this too?” If you can’t see why that’s an idiotic argument, I’m afraid I can’t help you any further. But trust me, it was breathtaking in its sheer stupidity. And no, that’s not an ad hominem, it’s a conclusion.
LOL. Why on earth would you assume that I feel “threatened personally”? On what possible basis could I feel threatened? Do you imagine that I’m afraid you’re going to beat me up? I know this is the sort of thing that you have to tell yourself when you’re making ridiculous arguments and can’t defend them logically, but it makes you look even more silly than you already did.
As promised, I will respond no further to your arguments. Let me respond to your attacks.
I know damn well what ad hominem means. Answering an argument by calling the argument dumb and “you can’t possibly…” is ad hominem — the law school definition not withstanding. Please talk down to me some more.
I think you make good arguments. Any rational person would see you are emotionally charged about this and very knowledgable. A good combination for what you do. I learned some things and that was my intent. Thank you.
No, you obviously still don’t know what ad hominem means. Calling an argument dumb is not an ad hominem argument. Saying an argument is false because you drink too much would be an ad hominem. Calling an argument dumb is a conclusion, especially when I’ve also explained why it was dumb.
Yes, you did. As I said, thank you.
I wonder if Purple Think would care to address the junk science of ID?
Can’t defend it as science — trying to defend it as an argument that establishes nothing so sinister as a state religion. Looking through the posts above, I think I lost. No need to respond Ed, you win. At least I lost to one that obviously knows what he’s talking about.
Can’t defend it as science
Right, and you wouldn’t honestly be able to. It is not science it is religion. Teaching it as science would be just the same as the points that Ed was making (geocentrism, Holocaust Denial. etc..). Its not a question of what someone wants to teach, it’s a question of what is fact. Schools are supposed to educate not indoctrinate.
Like most people who throw around the term ad hominem casually, you clearly don’t know what it actually means. I have not made any ad hominem arguments. An ad hominem is a logical fallacy that argues against the truth of a proposition by pointing to an irrelevant personal characteristic of the person making the argument. I’ve done no such thing. Laughing derisively at the stupidity of the argument you made - and make no mistake, it was astonishingly stupid - is not an ad hominem.
I always thought abuse was a form of argument ad hominem.
Wikipedia says for ad hominem, under usage:
But then, I hear all the Wikipedia editors are bedwetters, so …
Ed, I’ve been reading this and your other blog for quite a long time. Generally I enjoy the skillful way you pick apart an argument. However, in PurpleThink’s defense, I also misunderstood what you were doing with the “mother is a whore” thing. My eyes came to a full stop and went back over the sentence again carefully because — as cleverly snarky as you often are — you’re not generally one to make comments about other people’s moms… at least, not from what I’ve read. On the second read, I saw that you were attributing the statement to a hypothetical and that it was your mom being called a name. Still, I thought it was an odd choice.
It’s your blog of course. So… whatever.
Returning to lurk mode.
Ed Brayton: April 22nd, 2006 at 7:55 pm
If ID is a religious claim - and you’ve made not the slightest attempt to deny that it is - then it cannot be taught.
I came over here from Dispatches. Interesting discussion. You are correct, of course, but I do have one minor quibble. I do believe that you are being a little too restrictive here. ID could be taught, if it was part of, for example, a comparative religion course.
There are two problems. One, people pushing the teaching of ID/creationism in public schools want it to be taught in science classes and it is clear beyond peradventure that there is no evidence for ID/creationism, and the ID/creationists have not endeavered to obtain any evidence for it.
Two, in areas of the US in which ID/Creationism might be taught in a comparative religion course, people in more than a few of those areas have made it abundantly clear that they would want ID/creationism, along with their religion to be taught as “Truth”–whatever that means. So it would really be proselytizing in disguise.
BTW, how did this discussion get away from the subject matter of the post: the award of legal fees to the prevailing party in the Dover case?
You know an argument has played out all its possible usefulness when it degenerates into disputes over the meaning of “ad hominem.”
You know an argument has played out all its possible usefulness when it degenerates into disputes over the meaning of “ad hominem.”
Yeah, but it sure was fun to watch.
Someone release the lions while I go get the popcorn.
:^)
Agree with Jody — it was good fun — well most of it.
http://www.purplethink.com/epinion/ID.asp
I was just waiting for purplethink to mention Nazis. Ed, as always, I really enjoyed the well reasoned post.
Is theat an update to Godwin’s Law? Or perhaps the form Godwin’s Law takes for scholarly discussion forums?
I enjoyed reading this a lot and think that the argument was well made. However I believe one problem for the modern world is that there are a lot of people who would take the arguments initally proposed by PurpleThink without further thought. This is a major issue for education and society in that people are not taught how to think properlly fo themselves and rely on “an authority”, whatever that is, without following a debate through properly.
PurpleThink argues that majority rule should trump the rights of citizens. While in some cases that may be commendable, in the U.S. we call them “rights” because they are not to be trumped, even by a majority. Allowing the majority to steamroll over minority rights is called “tyranny,” according to James Madison.
The local school board has control over the budget and curriculum; however, that power does not include a right to promulgate religious doctrine (even were there no one there to complain).
Unless PurpleThink has some other, less expensive and just-as-effective method to protect the rights of a person against the tyranny of elected idiots, having the ACLU help stop the tyranny is the cheapest method, and most effective.
Yes, you do need the ACLU to use your tax dollars to keep them legal. There appears no other way to do it (I’m keeping violence off the table, of course).
PurpleThink.com> Looking through the posts above, I think I lost. No need to respond Ed, you win. At least I lost to one that obviously knows what he’s talking about.
In spite of the argument PurpleThink.com made having little merit, that concessionary post wins my respect. Not many people would be capable of making it.