Posted on 06/17/2006 12:19:17 PM PDT by DeweyCA
If the ACLU happens to sue your small hometown and then demands $1 million dollars for their lawyers, would you call them generous and charitable? Strangely enough, that's exactly what they’ve done to the small town of Dover, Pennsylvania. Following the ACLU and Americans United for Separation of Church and State's (AUSCS) federal trial court victory in Kitzmiller v. Dover Area School Board (M.D.Penn. 2005), the ACLU recently announced it would "generously" demand only $1 million in costs and attorneys fees. Why $1 million you may ask? According to the ACLU’s Eric Rothschild, “We think it’s important that the public record will reflect how much it costs to stop an unconstitutional action.” But a closer look at the public record shows a highly questionable path was taken to “stop” the Dover Area School District’s evolution policy that was at the heart of the controversy.
In October 2004 the Dover Area School Board made national headlines for its controversial evolution policy. It stated: “Students will be made aware of gaps/problems in Darwin’s Theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of the life will not be taught.” The policy also required school administrators to read to students a statement mentioning problems with Darwin's theory and refers students to school library textbooks discussing the theory of intelligent design. Students were permitted to leave the room when the statement was read. Ironically, the policy itself wasn’t favored by such leading proponents of intelligent design as the Discovery Institute, which opposes mandating the topic in public schools and repeatedly urged the Dover board to repeal its policy well before any lawsuit was filed. (For a detailed treatment of the Dover policy and the ensuing trial see the newly released Traipsing into Evolution.)
A group of parents from the community sued the school district, which led to a trial last fall. The trial proceeded poorly for the Dover Board, as two of its members who testified appeared to give contradictory (and possibly false) testimony on facts leading up to the evolution policy's adoption. The trial concluded in October, with a decision not expected for a couple months.
In the meantime, the Dover Area School District held November elections for the School Board. A slate of candidates formed under the name “Dover C.A.R.E.S.,” to challenge incumbent members by campaigning on an anti-intelligent design policy platform. The Dover C.A.R.E.S. coalition campaigned vehemently against the board's flawed evolution policy, and attacked the theory of intelligent design along the same lines as the ACLU and AUSCS. Dover C.A.R.E.S. decried the litigation costs that the board risked, insisting that, by displacing the incumbents, they would heal the divided community.
In light of their opposition to the Dover Board’s evolution policy, the election season brought charges that Dover C.A.R.E.S. was in league with the ACLU and AUSCS. The incumbent Dover Board members sent letters to residents arguing that the Dover C.A.R.E.S. candidates support the ACLU. One of the Dover C.A.R.E.S candidates, Phil Herman, responded, "I’m very angry. We’re not involved with the ACLU. I would like to see [the incumbents] bring out proof that we are."
The Dover C.A.R.E.S. candidates defeated the incumbents who were up for election. The new Board has an 8-1 majority against the old board's evolution policy.
The election of Dover C.A.R.E.S. endangered the plans of the ACLU and AUSCS. Both groups used the calamitous situation in the Dover Area School District to launch a comprehensive attack against scientists, philosophers, academics, and institutions throughout the nation that advocate the emerging scientific theory of intelligent design. They hoped for an authoritative court decision banning discussion of intelligent design in public schools and government, perhaps via a U.S. Supreme Court decision to ban the theory of intelligent design by subsuming it under creationism and its decision of Edwards v. Aguillard (1987).
Dover was never the primary target of the lawsuit, but rather served as a springboard for striking a blow nationwide against the theory of intelligent design. But the election of a new board that opposed its predecessors’ evolution policy threatened the hopes of the national groups. Even if federal trial judge John E. Jones III declared the old board’s evolution policy unconstitutional, the new board could not be counted on to challenge any decision on appeal to the Third Circuit Court of Appeals, let alone the Supreme Court. Furthermore, if the new board were to rescind the old board's evolution policy prior to any ruling by Judge Jones, the case might be settled through a consent decree, which would lack the authoritativeness of a mere federal district court decision. It would also diminish or possibly eliminate any chance of the ACLU or AUSCS's recovery of legal costs and fees from the Dover School District.
One might assume the new board's first item of business would be to rescind the old board's evolution policy. Not so. During their first meeting on December 5th, former Dover Board member David Napierski proposed a resolution to rescind the old board’s evolution policy (prior to any court ruling). Acting as a private citizen, Napierski procured the opinion of an attorney, who said that a vote to rescind the evolution policy could stave off a courtroom defeat and significantly reduce or eliminate legal costs and fees. Yet the new board rejected Napierski’s proposal to rescind the old policy.
What's more, one of the new board members, Bryan Rehm, was both a Dover C.A.R.E.S. candidate and a plaintiff represented by the ACLU and AUSCS in Kitzmiller.
Why would the new board keep in place the evolution policy it once so ardently opposed? The School District’s suit brought national attention and ridicule to the community, and the testimony of the former board members exacerbated the situation. A likely forthcoming decision by Judge Jones would overrule both the board and the theory of intelligent design. By rescinding the old board's evolution policy prior to a court ruling, the new board might have curtailed legal costs and fees incurred by a victorious ACLU and AUSCS. But the new board accepted a likely stinging defeat in court, with painful legal bills attached.
It is now three months following the Dover Area School District’s courtroom defeat and the ACLU, AUSCS, and the new board members have some tough questions to answer. The groups’ ostensibly charitable demands for $1 million in costs and attorneys’ fees (rather than the original $2 million) needs to be explained in greater detail than has henceforth been granted. Dover Board member Rehm hasn’t returned phone calls or answered e-mails.
With a $1 million reimbursement from the Dover School District, and their ongoing public relations campaign to pose as generous compromisers in this struggle, the ACLU and AUSCS are playing up their achievement to the broader American public, over three quarters of which want intelligent design taught alongside Darwinism in schools. In the words of ACLU’s Eric Rothschild following their victory in Dover: "Are we a little bit famous now? Yes, and it’s amazing."
Editor's note: Correction - The Dover Board considered rescinding the evolution policy at the December 5th meeting; Board member Bryan Rehm did not participate in the consideration.
Joe Manzari is a research assistant with the American Enterprise Institute. Seth Cooper is an attorney and former law & policy analyst with the Discovery Institute.
The science establishment was not responsible for the Inquisition.
Empty threats.
That took place in heavily Republican York county--
Santorum -Rep. (Incumb.) 88,557 65 %
Klink -Dem. 45,553 34 %
--http://www.cnn.com/ELECTION/2000/results/PA/S.county.2.html
_____________________________________
Dover is in York County, which supported George W. Bush in the last two presidential elections. According to unofficial vote totals for 2004, Bush received 114,621 votes and John Kerry received 63,628 votes."
--http://www.epodunk.com/cgi-bin/politicalInfo.php?locIndex=275620
The operative phrase in 1988(b) is "prevailing party". A moot case has no prevailing party.
Thanks for the ping!
To: everyoneBoy, I'd hate to have a handle like "everyone". Think of the ping spam I'd be getting! :-)
They are self-evidently ridiculous viewpoints from the standpoint of reason and evidence. This isn't.ID mastermind Behe said (in the Dover trial) that Astrology would be scientific under his revised definition, so I dunno about them being "self-evidently ridiculous". That is, unless ID also is "self-evidently ridiculous" as science (my take on it).
Right, that's the operative phrase. In the absence of a final decision on the merits, it's not always clear-cut that you have a prevailing party. There have been some cases solely about legal fees in situations where someone files a civil rights case and the other side promptly does what is being demanded, so there's no case left to try. The plaintiff's (possibly ACLU) lawyers still want to get paid, saying that but for them, the "abuses" would have continued. Some cases hold that no fees are appropriate in such situations.
There is language in such cases that to be a prevailing party, there has to be some court action in your favor -- perhaps a court-approved settlement or at least some kind of court-ordered relief. I think those are employment discrimination cases. They may not apply here; I really don't know. It's all a bit murky.
But here, after a six-week trial, and after it's been shown that the school board had lied about important issues (motivation, source of funds for their Pandas book, maybe some other stuff), and after both sides have put on their entire case and rested, I doubt that one side could avoid paying legal fees just by dropping the behavior that triggered the suit in the first place. I don't think there's any case about legal fees in that situation.
The school board was probably correct to conclude that they couldn't escape liability by dropping the ID stuff at that late date. Besides, even dropping the ID nonsense wouldn't have ended the case. The plaintiffs wanted a permanent injunction, not just a temporary fix. The school board literally couldn't have ended the case by themselves, unless they consented to such an injunction, and then -- of course -- there would have been a prevailing party.
However, if the Discovery Institute wants to blame the whole mess on the ACLU and the new school board, it won't be the first time they've twisted things around. In fact, I'd be amazed if they ever told the truth about anything.
The Inquisition was an idea of the science establishment?
That's part of the "creationist history" which will replace regular history once the theocrats have finished destroying science in schools.
LOL... Yeah, because all the evidence of evolution isn't published far and wide in the literature, available for anyone who wants to look. Of course, that requires intellectual honesty and curiosity, so you can count the creationists out.
They've threatened to give it to Ann Coulter if we reveal their existence to the general population.
LOL... That's a pretty good plan: If you want something from being taken seriously, let the harpy, drag-queen looking woman go on and on about it. No one sure to take it seriously then.
Simply withdrawing the policy would not have mooted the case. They were seeking injunctive relief, which would have continued, post-policy change, and there is a theory in the law (the specifics escape me, now) that essentially says that a state party can't defeat the "case and controversy" requirement by withdrawing the unconstitutional act. It's considered moot, but capable of being repeated, and, therefore, a controversy does exist.
Right. That's what I was talking about. The Supreme Court killed the so-called "catalyst theory" a few years ago. Napierski is saying that the board could have possibly saved the town a million bucks by changing the ID policy immediately and motioning to dismiss the case before it was decided. I've no idea whether the district court or the appeals court would have bought it, but the board should have tried (that's the accusation at least).
Not a threat . . . just a prediction.
Just curious: can a judge refuse to allow the defendent to make it right before judgement in a situation where they could turn around and reinstate the policy a week later?
Of what?
Curious, is it not, that the Discovery Institute's spin-masters place no blame on the original school board. They (the original board) were in a position, all along, to reverse their policy, and had they done so shortly after the suit got filed, they very well might have avoided liability for the other side's legal fees.
But they didn't even consider such a course of conduct. Why? Because -- like the Blues Brothers -- they were on a mission from God. So they stayed the course, all the way through that tragic joke of a trial, while their lies were exposed, and their experts were shown to be fools, and they stayed with it right up through the election where they all lost, and never once did they make any moves to drop the whole insane business of pushing creationism into the science classes -- a policy which they themselves had initiated.
So the new school board gets elected after the trial ends, and shortly before the final decision is rendered [Dover boots board], and the Discovery Institute tries to blame the new board for the district's getting stuck with legal fees. Surely, even the severely retarded can see the madness of this argument.
I doubt very much that the case would have become moot, even if the board had dropped their policy. But I'm not certain of this. It's tricky stuff. Anyway, the original board were too crazy to entertain such a notion.
"corrupt" to implement a policy that one believes to be constitutional, just because courts have said otherwise?
Would you bend over for everything the lunatic courts say?
I'm sure glad your type wasn't predominant at the time of the American Revolution, pal.
They knew it was un-Constitutional, or they wouldn't have felt compelled to hide their true intentions.
If they honestly believed the policy they were implementing would pass Constitutional muster, they would have been proud to reveal it. Instead, they used denials, lies and subterfuge. Their actions tell us all we need to know - hiding speaks to a guilty heart.
And as for comparing this to the American Revolution, that's just silly. The Founding Fathers never had to lie. They had the courage of their convictions, and they knew they were right. The Founders didn't have to lie to sneak independence through while steadfastly deny they were doing it.
I'm always disappointed at the number of Freepers who are willing to excuse, or overlook, lying. Just so long as the lies are in the service of a political goal you like, right?
How generous of them. Just to let every other little town know what they will face if they dare to take a stand for something. ACLU will make money and bankrupt small communities and by the threat of this happening hope to make other small communities capitulate without the bother of legal action. And even if other communities don't back down, just who wins financially?
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