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An Odd Sort of "Activism":

"Appeals Court Declares Parenthood Unconstitutional, Group Says," reads an item on CNSNews.com:

A new ruling from the 9th U.S. Circuit Court of Appeals is prompting cries of judicial activism.

On Wednesday the court dismissed a lawsuit brought by California parents who were outraged over a sex survey given to public school students in the first, third and fifth grades.

Among other things, the survey administered by the Palmdale School District asked children if they ever thought about having sex or touching other people's "private parts" and whether they could "stop thinking about having sex."

The parents argued that they — not the public schools — have the sole right "to control the upbringing of their children by introducing them to matters of and relating to sex."

But on Wednesday, a three-judge panel of the 9th Circuit dismissed the case, saying, "There is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children . . . Parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students." . . .

"Anyone who wonders why pro-family organizations like ours have been so concerned about activist courts only has to look at this case," said a spokesman for Focus on the Family. . . .

Carrie Gordon Earll, an issues analyst with Focus on the Family Action, called the ruling "one of the most abhorrent examples of judicial tyranny in American history. . . .

Earll said the court essentially declared parenthood unconstitutional. . . .

The panel's decision is not activism, under any sensible definition of activism. If "activism" has any substantive meaning, then activism is what the plaintiffs were asking the court to do.

The plaintiffs argue that they have a constitutional right to stop the public schools (or to be precise, researchers working with the schools' authorization) from asking their children about sex. That's not in the copy of the Constitution that I have; nor is it in the Court's jurisprudence of parental rights, a rather "activist" creation of the Court's (which incidentally used the same "substantive due process" framework that many conservatives fault the Court for using in the abortion cases). Constitutional parental rights, as the Court has interpreted them, do include the right to send your kids to private school, if you wish. (Such a right should in my view also be recognized under the First Amendment.) But they don't include a constitutional right to send your kids to public school yet block the school from asking the kids about sex.

"Activist," as I've argued before, is a pretty ambiguous term (see also Orin's posts on the subject, and Larry Solum's) — but no definitions of it, other than the purely rhetorical and unsubstantive "judges not adopting the legal rules that I think they should adopt," encompasses what the Ninth Circuit did here. Sometimes "activism" is used to mean "willingness to overturn precedent," but the Ninth Circuit didn't do that. Sometimes it's used to mean "willingness to overturn the judgment of legislators and executive officials," but the Ninth Circuit refused to do that; it's the plaintiffs who sought such a result. Sometimes it's used to mean "willingness to use remedial schemes that aren't traditionally judicial," such as coming up with legislative-looking rules (such as the Miranda principles) or executive-looking supervisory schemes (such as taking over a prison or school system), but the court surely didn't do that. There's nothing "active" about the court's refusal to recognize a new constitutional right that would trump the politically accountable branches' actions.

Perhaps the plaintiffs could fault the court for being unduly passivist — for refusing to take an active role in defending what the plaintiffs see as their legal rights. As it happens, I think that even this would be substantively mistaken, since I don't think that the Constitution ought to be interpreted as securing a right to be free from public schools' talking to your kids about sex. But at least such an argument would acknowledge that the court's alleged failure is undue passivity, not undue assertion of its own power; failure to stand up to what plaintiffs see as executive tyranny, not an example of judicial tyranny; refusal to prevent supposedly unconstitutional encroachments on parenthood, not a declaration of parenthood or parents' actions as being unconstitutional.

I am not defending here what the school did; perhaps its actions were proper and perhaps they were wrong (I express no opinion on that here). But if the plaintiffs don't like what their school district is doing, they should go to the polls and elect a school board that's more to their liking; elect state legislatures that would enact laws banning such actions by the school board; propose such a law by initiative; or otherwise act through the political process. They aren't entitled to have judges impose their will (the parents' and the judges') on the school district. And they certainly shouldn't be unfairly criticizing the judges' actions, and mischaracterizing allegedly excessive passivity as "activism."

UPDATE: Whoa! Now this is shocking. "Reconsider[ing a] position"? Because you've read an argument, of all things? That's just not allowed.

Nick (www):
"Constitutional parental rights, as the Court has interpreted them, do include the right to send your kids to private school, if you wish. (Such a right should in my view also be recognized under the First Amendment.) But they don't include a constitutional right to send your kids to public school yet block the school from asking the kids about sex."

I find this argument to be very unpersuasive because the law requires that you send your child to some sort of school. You're wording suggests that parents are taking advantage of some sort of handout. When in reality, the courts are now forcing an undue financial burden on the parents to send their child to private school if they actually want to be the ones who parent their child.

I think that argument would hold more weight if the governemnt either did not force parents to send their child to school, or there was more competition in schooling (ie vouchers, or some other mechanism that allowed for choice).
11.4.2005 1:18pm
Eugene Volokh (www):
That's a plausible argument in favor of a school choice system, or abolition of compulsory education. I don't think it's a good argument in favor of judges interpreting the Constitution as constraining school districts' choices about what to teach, discuss, or ask. (Among other things, where in the Constitution would you find a distinction between school districts' talking about sex, medical matters, crime, or whatever else?)

But in any event it's no argument at all in favor of calling judicial failure to read the Constitution creatively "judicial activism." You might, as I said, call it "judicial passivism," on the theory that it involves judges' not acting when they should be acting. But activism it ain't.
11.4.2005 1:26pm
Jeremy (mail):
"other than the purely rhetorical and unsubstantive "judges not adopting the legal rules that I think they should adopt,""

It's pretty clear that this rhetorical and unsubstantive definition is the one they're going for..."activist" = "liberal"
11.4.2005 1:28pm
Nunzio (mail):
Maybe they should have argued that having the kids answer these questions was "compelled speech" (see Barnette) or that any answer might incriminate them (see Miranda).

Given what comes out of the Ninth Circuit, though, you couldn't really fault these folks from trying to bring this frivolous suit.
11.4.2005 1:31pm
gfbook (mail):
Agree - if parents are upset they should use the ballot box to make the necessary changes.

However, I find it interesting that if my employer were to call me in her office and ask me any of these questions I might have a pretty good harrasment case while my child can be asked them without any say in the mater.
11.4.2005 1:34pm
Doug Hoffer (mail):
"But on Wednesday, a three-judge panel of the 9th Circuit dismissed the case, saying, "There is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children . . . Parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students."'

Isn't there a fundamental right of parents to decide what their children are subjected to in school? It seems illogical that parents' choices would be limited to pulling children out of school or allowing their children to be exposed to whatever the school district wants.
11.4.2005 1:36pm
Unnamed Co-Conspirator:
gfbook, you may be on to something. Forget injunctions or constitutional issues. Let's put the plaintiffs' bar on this. There's got to be some sort of tort claim hole into which we can hammer this square peg.
11.4.2005 1:41pm
Angus (mail) (www):
One thing that has escaped mention in most coverage of this case is the fact that the school sent around a consent form before conducting the survey, and only questioned the students whose parents had consented.

The consent form was arguably less specific than it should have been, but it did say that the survey was intended to "establish a community baseline mea-
sure of children's exposure to early trauma (for example, violence)," and that it would "identify internal behaviors such as anxiety and depression and external behaviors such as aggression and verbal abuse." The form asked parents to make the following declaration: "I understand answering questions may make my child feel uncomfortable."
11.4.2005 1:41pm
Unnamed Co-Conspirator:
Oh, jeez. It's a CNSNews story? Eugene, are you sure this is real? David Burge, a/k/a Iowahawk, wrote a "story" in 2003 that appeared on CNS News' website, describing the surrender of France (yes, France, the country) to a Texas H.S. marching band and the school's cheerleaders, and I think (without being 100% sure) that it took CNS a little while to i.d. it as satire. Which is not to say that anyone at CNS believed it, of course, but it might lead one to conclude that stories aren't . . . what's that word? oh, yeah . . . read, before being published.
11.4.2005 1:50pm
TJ (mail):
Doug Hoffer

It seems illogical that parents' choices would be limited to pulling children out of school or allowing their children to be exposed to whatever the school district wants.

That's exactly how many feel about school prayer. Funny, that.
11.4.2005 1:51pm
John H (mail) (www):
Yeah, those parents should be working in the legislature, not looking to the constitution. In Massachusetts, we had an "opt-out" law passed which required notification of sexual issues being taught and allowed parents to opt out. David Parker was arrested for not leaving his son's school when he refused to accept that a book given to his son about same-sex parents was a "sexual issue" and was a "family issue" instead. They have so many ways around the opt-out law, but at least there is a law for the courts to go by.

Currently we are working on changing it an "opt-in" law.
11.4.2005 1:51pm
KeithK (mail):
IMO, the questions asked were clearly inappropriate for seven year olds. While there was a parental consent form, it sounds like it did not give sufficient information for (some) parents to make an informed choice on the matter. That said, this isn't a constitutional question that should be decided by a federal court. Parents can lobby the school board, protest the actions and pressure the local government, not to mention pull their kids out of the school (in favor of private or home schooling). At the very least they should refuse to give consent for anything of this sort in the future. But sue in federal court? No.
11.4.2005 1:53pm
Hans Bader (mail):
If an adult female were asked these very questions, she might sue for sexual harassment, under the precedents of the aggressively pro-plaintiff court that issued this decision (the Ninth Circuit), which has suggested, in opinions by Judge Goodwin and Reinhardt, that it is enough for a harassment claim that a woman is OFFENDED more than a man would be be, even if she was TREATED no differently than her peers. That's quite a stretch of the statutory language of Title VII (and a far more expansive interpretation of sexual harassment law than Supreme Court dicta and 8th and 11th Circuit rulings permit).

Yet this same usually activist Ninth Circuit is quite happy to reject the more modest stretch of the Supreme Court's parental-rights jurisprudence to accommodate these parents.

While the Ninth Circuit's decision isn't necessarily incorrect, it is hypocritical.

(By the way, contrary to what many people seem to think, sexual harassment is not (outside of California and the Ninth Circuit) defined by federal law to include any speech on sexual topics that happens to offend a particular woman more than her male co-workers -- rather, some showing of differential TREATMENT is often required by moderate or conservative appeals courts. Thus, the 2nd, 7th, 8th, 10th, and 11th Circuits have all rejected harassment claims based on hostile work environments resulting from sexual rumors which were equally aimed at both male and female workers. That's more faithful to the plain language of Title VII, which prohibits discrimination, not incivility or offending listeners).
11.4.2005 1:55pm
Per Son:
Isn't there a fundamental right of parents to decide what their children are subjected to in school?

For those who are arguing fundamental rights - that sounds a lot like the langug supporting "activist" decisions. I thought conservatives believe that it ain't fundamental if it ain't in the text.

Additionally, there is no fundamental right to decide what children learn/subjected to in school. Such a right is not supported by any statutes or cases that I have ever heard of. Under no circumstance do parents have total authority of how their children are raised.
11.4.2005 1:58pm
Buck Turgidson (mail):
Ah! Eugene is finally going to his bread-and-butter issues. That's great! I'd much rather see his opinion on this case than on several things that he's been commenting in the past few weeks.

I've stated before--and have seen others express similar sentiment--that "judicial activism" is a simply a court imposing a decision you don't agree with. There is plenty of judicial activism on both sides of ideological divide, especially if you are approaching the hot-button issues from your own ideological position.

When I first saw the case, I thought that the argument was ridiculous (but what do I know--I don't have a law degree, yet). But I did expect cries of judicial activism no matter which way the decision came out. The loons did not disappoint (I actually know some of the characters who participated in the run up to the suit, but not the actual plaintiffs).
11.4.2005 1:59pm
Dean Kimball (mail):
Angus - Great information about the consent form. That seems a vital point. While it seems the form should have specifically mentioned sexuality, the survey was clearly optional.

Doug - I think Eugene and gfbook clearly made the point that the parents do have other recourse - the ballot box and private education.

This issue, and many others, exemplify why I support voucher programs. If schooling is to be compulsory (as it should be), then the parents should have some say as to which school their child attends. However, once chosen, they should lobby the school board for desired changes, not the courts.
11.4.2005 2:00pm
Dean Kimball (mail):
Per Son - To add to your point - parents do have total authority - it is via the route of home schooling or choosing a private school to their liking. Those avenues exist. Parents that opt out of those avenues, accepting the public school system, must deal with the public school system.
11.4.2005 2:05pm
Per Son:
For conduct to be considered sexual harassment, it needs to be objectively unreasonable as well as other elements.

Hans, can you send me some citations to those 9th Crcuit cases. I am not doubting you, but I am curious how they were able to completely sidestep Supreme Court precedent.

Sexual harassment (employment) requires conduct based on a protected class (sex includes male or female); unwelcome; and the conduct must be servere and pervasive; and employer is liable. How is sexual harassment (employment) analogous?
11.4.2005 2:06pm
Arthur (mail):
Does this mean the ninth circuit would also have dismissed the "intelligent design in the public school" now in mid-trial in the Middle Distict of Pennsylvania? Should that Court also have dismissed for lack of parental standing?
11.4.2005 2:08pm
J.. (mail):
To what extent does this show a fissure in the conservative legal movement (and, in part, the conservative movement as a whole)? Does a case like this highlight the difference between, say, Sekulow and Leo? Or, am I reading into things waaaaaay too much?
11.4.2005 2:10pm
BobNelson (mail):
I sincerely hope that EV chose to present the CNSNews.com version of this story to show how bereft of logic and honesty those folks are. There were certainly other, more level-headed versions out there to pick from.

For all those complaining (reliably) about the Ninth Circuit, the parents had the right to opt out. As for the complaint that the permission form did not explicitly mention that any questions would deal with sex, sex is part of mental health. Furthermore, what if the questions were included to help determine the possible influence of SEXUAL ABUSE among the kids. Afterall, the survey was at least partially directed at issues of violence and abuse.
11.4.2005 2:17pm
Connor:
It's important to bear in mind, I think, that this wasn't education, it was research. Under present-day ethical standards, research on human subjects — including the kind of research involved here — requires the informed consent of each participant. Where children are involved, that means the informed consent of the parents.

Where HHS funding is involved, informed consent isn't just an ethical norm, it's a legal requirement. See generally http://www.hhs.gov/ohrp.

To the extent informed consent was legally required and not obtained — and the consent document in question sounds very far from sufficient — the parents should have a cause of action. It's not clear from the article that any such claim was pressed, however.
11.4.2005 2:17pm
hey (mail):
It does seem to most people that this suit was filed incorrectly. It very much looks like a civil case for fraud, based on the inaccuracy or lack of specificity of the survey's consent form. That this case was filed points to the general ignorance amongst the general public and lawyers of exactly what is in the constitution.

This ignorance tends to stem from "liberal" groups pursuing litigation as an alternative to legislation. That conservative groups and what appear to be justifiably angry parents use the same tactic, while understandable, is disappointing in terms of intellectual coherence as well as the degree that even conservative or libertarian groups have been "liberalized".

Sexual harrassment has been argued based on 1 incident if it generates a hostile environment. The repeated questions, it could be argued, represented repeated acts and any response on the part of the school to the responses to the survey could constitute the furthering of a hostile environment. Think of how school kids act based on normal behaviour, the teasing and exclusion, and then apply to everyone being asked these sexual questions. Relative easy argument for hostile environment or reckless disregard. Winning? No idea, but the case isn't all that hard to make and it appears to be dramatically stronger than a constitutional case.
11.4.2005 2:18pm
Rick:
One thing completely overlooked in this discussion is that only in recent times would a school be so deranged as to pass out a sex questionaire. The problem really is that there is no longer a consensus about what should really go on in school.

However, as one of group who is working on founding a religious school I have to give the 9th U.S. Circuit Court of Appeals a hearty thank you very much! There was some debate about whether such a school is necessary. The 9th U.S. Circuit Court of Appeals has removed all doubt.
11.4.2005 2:30pm
Chris Murphy (mail):
Regarding the Ninth Circuit's "liberal" opinions on sexual harassment and sex discrimination in employment, it's important to realize that a number of these cases do not arise under federal law at all. Using California as an example, the federal district courts have diversity jurisdiction over such claims under California state law, which is somewhat more "liberal" than federal law as interpreted by SCOTUS. That may explain why some of the Ninth Circuit opinions in this area may be correct even if inexplicable under SCOTUS precedents.
11.4.2005 2:36pm
Per Son:
Two points:

1) The issue in pennsylvania had to do with children via their parents challenging the school system of violating the first amendment. This case involves a challenge based on a nonexistent constitutional right.

2) Hey: can you point to a case where someone was found liable for sexual harassment (hostile work environment) when only one act was committed? If so, was it overturned on appeal?

There are so many sexual harassment myths out there.
11.4.2005 2:41pm
Just Some Guy (mail):
Would your view of the nature of the democratic checks on the school board's actions change if you were an atheist liberal in a 90% fundamentalist Florida school district where the only biology taught to children was "intelligent design"? How about if your children were taught in the 3rd grade that not only is there such a thing as homosexuality, but what homosexual activities consisted of (in detail), and that these acts stemmed from psychological disorder that made their parctitioners inhuman, lusting monsters who would stop at nothing to rape little children?

I get what you're saying about the active/passive court, but seems to me you're relying on the democratic machinations of the state of California a bit much. After all, there are things that, once seen by 9 year-old eyes, cannot be "unseen."
11.4.2005 2:41pm
Cornellian (mail):
Surely everyone knows by now that the term "judicial activism" in popular usage means nothing more than "I don't like the result."

There are narrower meanings of that term which might have some value for analyzing judicial philosphy and you might see attempts at such definitions at, say, a Federalist Society symposium, but to expect a Focus on the Family type group, standing in front of a TV camera, to use the term to mean anything other than they don't like the outcome is hopelessly naive.
11.4.2005 2:42pm
Ghost_of_Solon (mail):
This case is precisely why we have school boards and parent-teacher organizations.

By the reasoning of the plaintiffs, if I have a fundamental right to control the education of my child, I can claim an infringement of that right for school systems that have P.E. requirements, arts requirements, and foreign language requirements if I want my child to be a fat, lazy, and uncultured slob. Hey, it's my kid's education, damnit, and I shouldn't be forced into quitting my job to home-school him or cough up large sums of money to send him to private school. I think I will take on non-Euclidean geometry next...
11.4.2005 2:45pm
Daniel Chapman (mail):
I was just surprised that there could be a discussion of this issue without even MENTIONING Troxel v. Granville. And what was with the "State as Parent" reasoning? (I forget the latin...) There's one legal doctrine I wouldn't mind getting rid of.

There were better methods than litigation, and better arguments than substantive due process... but this decision is still over-the-top. It almost seems like it is trying to eliminate parents from their children's education entirely. This isn't "activism" in the usual sense, but it definitely reaches for a broader holding than was necessary.

If I were a suspicious person, I'd say the judge wanted to reach the intelligent design issue with this case. The arguments seem better suited for a monkey trial than for the facts at hand.
11.4.2005 2:46pm
Per Son:
Daniel: the term is in loco parentis
11.4.2005 2:50pm
Daniel Chapman (mail):
No... That means "In the place of parents." The phrase that was used was "parens patriae." I believe it means "Fatherland as Parent," but maybe someone here can give me a better definition.

And I apologize... now that I went back to the decision in a format that can be text-searched, I find that Troxel was cited. I read it too quickly yesterday.
11.4.2005 2:58pm
Per Son:
Intelligent design is not relevant here. That is a First Amendment issue. Intelligent design is a religious issue, and public schools are not in the business of teaching theology. Different issue entirely.
11.4.2005 3:03pm
Daniel Chapman (mail):
Not really. ID supporters (I'm not one) argue that it is not religion... just an alternative theory to evolution. Couldn't you imagine this decision written word for word with minor changes when a parent sues because they object to what's taught in a science class?

"There is no fundamental right of parents to be the exclusive provider of information regarding scientific matters to their children . . . Parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students."

Like I said... "If I were a suspicious person..." I don't HONESTLY think this is what was going through the judge's mind. I'm just showing what a sweeping decision this is.
11.4.2005 3:09pm
James Madison:
"The plaintiffs argue that they have a constitutional right to stop the public schools (or to be precise, researchers working with the schools' authorization) from asking their children about sex. That's not in the copy of the Constitution that I have;"

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
11.4.2005 3:12pm
Wintermute (www):
FYI, caught Hardball last night as Chris Matthews held to the same argument that political redress through more local government bodies was the way to react to dumb, stealth surveys in a public school. The analytical processes of one of the plaintiff mothers were not good, and her speech was so strident.
11.4.2005 3:13pm
Just Some Guy (mail):
I love how folks are quick to point out that teaching a 9 year-old about sex and the proper attitudes towards sex is not nearly as serious an infringement on "parental rights" as teaching her something other than Darwinian evolution.

Perhaps some parents are more equal than others?

(Not that I'm anxious to see Federal judges stepping into the school boardroom in either case.)
11.4.2005 3:18pm
David Hecht (mail):
IANAL, but it seems to me that there must be some legal precedents dealing with the relationship between parents and children as a privileged one: especially when the children are (as they must be, by definition in this instance, underage) unable to give legal consent without parental involvement.

You have to sign reams of paper every semester your child is in the public school system: permission for this, waiver of that. I really find it hard to believe that the schools make you do all that paperwork if they are constitutionally immune from liability in those cases or any others, such as this one.
11.4.2005 3:24pm
Ken Arromdee (mail):
As for the complaint that the permission form did not explicitly mention that any questions would deal with sex, sex is part of mental health.

Would a reasonable parent look at the consent form and expect that sex would be included? I think the answer is pretty obviously "no". Claiming there was consent based on vague wording that could be stretched to include sex but which most parents wouldn't interpret that way is disingenuous.
11.4.2005 3:24pm
Per Son:
If intelligent design is not theology (which pursuant to the 1st Amendment is not to be taught in schools), what the heck is it?

It is not science, because it is not testable or subject to analytical analysis of any sort. It is religion masquarading as science, because the "irreducible complexity" is said to be created by a designer that has intelligence. A creator, a prime mover, what have you. That sounds a lot like a diety to me.

The ID debate is a 1st Amendment issue, so it is vastly different than this issue.

Lastly, all of these tangential issues aside, EV showed how the term "judicial activism" means nothing, as the plaintiffs are upset that the court was not activist.
11.4.2005 3:32pm
Per Son:
There is liability and there is not liability. The question here was whether there was constitutional right at stake. Many schools require permission slips because state law or regs require them for specific activities. However, there may not necesarily be a common law or constitutional requirement for the forms.

Permission slips also are built in defenses to make cases go away quicker than they would otherwise.
11.4.2005 3:35pm
Houston Lawyer:
I must say that I concur in the result of this opinion. It is almost always a bad result when a school district is sued regardless of who wins. Primarily because of the suits that have been allowed in the past, schools have lost the ability to maintain discipline.

When the public schools in this country were established, there existed a broad consensus about what should be taught and how students were expected to act. That consensus is clearly gone.

We now have two basic warring camps, those who would prefer "Old School" and those who view "Old School" as oppressive of students. I propose that we kill off public schools as a creature of the state entirely. A voucher system could easily provide for funding for each student.

A voucher system would also spare us a large amount of this type of litigation.
11.4.2005 3:41pm
wyoming (mail):
This was not an effort to educate the school children; it was a survey. so, the issue of parents controlling the school board's curriculum decison does not exist. the best leagl theory might be intentional inflictionof mental distress.
11.4.2005 3:41pm
Per Son:
To win an IIED or md claim, you need to show severe damage. Can anyone actually show these kids were severely psychologicaly harmed to the point that they even manifested physical symptoms?
11.4.2005 3:43pm
Radical guy (mail):
Why do I have to establish my fundamental right to pull my kids out? Where, precisely, did the State even get the power to kidnap my kids every day for indoctrination?

Sure, I can go to private school or homeschool, but only if I pay my way or meet State-set criteria.

Would we allow an adult-education "draft" of even one-day-per-year to teach us CPR, or good manners, or how to do our taxes? What makes their power over kids any greater?

I understand the policy arguments about externalities and public goods and whatever, but I still fail to see where the State power ever legitimately began, even though it's been accepted by most for over a century.

I hope that decisions like this lead more people to question the whole darn system.
11.4.2005 3:45pm
Doug Hoffer (mail):
I agree that the case was not an example of judicial activism. It seems apparent that the parents case was weak. I do question the use of the following language:

"Parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students."

This seems counterintuitive to me. Doesn't a parent have the right to remove their child from a class they deem inappropriate? I'll give a (ridiculous) example: David Duke is scheduled to give a speech at the local high school your child attends. Wouldn't a parent have the right to excuse his or her child from attending (and thus "override the determination of public schools as to the information to which their children will be exposed while enrolled as students?"). My point in asking is not to disagree, but to understand.
11.4.2005 3:49pm
Clayton E. Cramer (mail) (www):
Rightly decided--this wasn't judicial activism. I do wish, as others have observed, that the courts were just as willing to tell people like Newdow that if he doesn't want his daughter to say "under God," then he can take her out of public schools.

Yes, I know the situation is not exactly analogous. Newdow's case was based (wrongly) on the establishment clause and this seems to be based on one of those "penumbras and emanations" that liberals love so much when they are being judicially active. Still, the examples given above of what would happen if a school district were teaching that homosexuality was destructive are worthwhile hypotheticals. Liberals wouldn't be making a decision like this one.
11.4.2005 3:50pm
Per Son:
Radical:

Do you see no difference between children and adults?

Many state constitutions have public education enshrined in the text.
11.4.2005 3:54pm
BobNelson (mail):

Would a reasonable parent look at the consent form and expect that sex would be included? I think the answer is pretty obviously "no". Claiming there was consent based on vague wording that could be stretched to include sex but which most parents wouldn't interpret that way is disingenuous.


Speaking of disingenous, why are you ignoring my second point that a survey in part focused on "violence and abuse" might delve into issues of sex abuse?

Personally, I would assume ANY serious academic survey of children would involve issues typical of developmental studies and sex could certainly be one of those.
11.4.2005 3:56pm
Michelle Dulak Thomson (mail):
The last graf of the opinion:

In summary, we hold that there is no free-standing fundamental right of parents to "control the upbringing of theor children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs" and that the asserted right is not encompassed by any other fundamental right. In doing so, we do not quarrel with the parents' right to inform and advise their children about the subject of sex as they see fit. We conclude only that the parents are possessed of no constitutional right to prevent the public schools from providing information on that subject to their students in any forum or manner they select. We further hold that a psychological survey is a reasonable state action pursuant to legitimate educational as well as health and welfare interests of the state. Accordingly, the parent-appellants have failed to state a federal claim upon which relief may be granted. The decision of the district court is affirmed.

IANAL either, but I don't see anything in there suggesting that the court wouldn't have ruled exactly the same way were there no permission slips; it reads rather as though the court held that a school can put whatever it likes before students of any age with or without parental approval. Am I right?
11.4.2005 3:57pm
Clayton E. Cramer (mail) (www):

If intelligent design is not theology (which pursuant to the 1st Amendment is not to be taught in schools), what the heck is it?
It is, at this point, a collection of serious critiques of evolutionary theory advanced by scientists with significant publication histories in their fields. There's a microbiology professor at the University of Idaho, for example, who has raised some questions about whether evolutionary theory can explain some of the facts.

It is not science, because it is not testable or subject to analytical analysis of any sort.
By this definition, macroevolution (the evolution of divisions such as kingdom, phylum, class, order, and family) isn't science, either. It isn't testable because of a rather serious deficiency of time to test.

I'm not quite sure what "analytical analysis" is. Is that something that you do to a "theoretical theory" or a "enormous bigness"?

It is religion masquarading as science, because the "irreducible complexity" is said to be created by a designer that has intelligence. A creator, a prime mover, what have you. That sounds a lot like a diety to me.
I suppose the designer could be an alien scientist, although I don't think any of the ID advocates would suggest that. (Scientology meets ID--that could be entertaining!) The questions that ID asks about evolutionary theory are legitimate questions. ID isn't Creation Science (which I always found to combine the worst aspects of ignorance and delusion).
11.4.2005 3:58pm
Per Son:
Analytical analysis seems to make sense to me. You could philosophically analize something, or you can apply an analytical approach.

Michelle: you are incorrect. Look at the language -
"We conclude only that the parents are possessed of no constitutional right to prevent the public schools from providing information on that subject to their students in any forum or manner they select. We further hold that a psychological survey is a reasonable state action pursuant to legitimate educational as well as health and welfare interests of the state. Accordingly, the parent-appellants have failed to state a federal claim upon which relief may be granted. The decision of the district court is affirmed."

First, it onyl refers to a constitutional right.

Second, the survey passed rational basis review. That limits what can be taught.
11.4.2005 4:08pm
Per Son:
Macroevolution can be examined on a genetic level and see how genes and alleles change over species - exploring genetic drift and the like.

ID avoids serious scientific inquiry by stating that "because thangs are kompilercated, they must have been designed."
11.4.2005 4:12pm
Clayton E. Cramer (mail) (www):

IANAL either, but I don't see anything in there suggesting that the court wouldn't have ruled exactly the same way were there no permission slips; it reads rather as though the court held that a school can put whatever it likes before students of any age with or without parental approval. Am I right?
That's how I read it, although I'm sure that Judge Reinhardt would disagree--especially if the school were having Intelligent Design speakers come and talk to the science classes, or someone promoting abstinence.
11.4.2005 4:13pm
Michelle Dulak Thomson (mail):
Per Son,

What I meant was that whether the parents gave consent or not seems to be immaterial to the holding; that there were "permission slips" doesn't even come into it. It would appear from that graf that a school could ask first-graders about what they do with their "private parts," without parental consent, so long as it could be argued that the information would be useful; and parents' only recourse would be to replace the damn school board (easier said than done, even over something like this, and anyway you have to wait till the next election), or take your kids out of the school and pay whatever considerable cost in time and/or money it would take to school them another way.
11.4.2005 4:21pm
Bulgaroktonos (mail):
You don't really need to establish that ID is decent science for it to be permissable under the First Amendment, you just to establish that it is not religious.

I don't think it makes sense to catagorize ID as theology, since it doesn't attempt to explain anything about the divine or the religious experience. Instead, it seems more like philosophy, especially old style natural philosophy, paired with a little bit of modern science. You might think it's terrible science, but that's for the school boards of the country to figure out, not the courts.
11.4.2005 4:24pm
Per Son:
Michelle,

I could be wrong, but it appears to me that the school would be in trouble if they ignore permission slips. The permission slips may arguably create a right that does not normally exist in their absense - whether that is a constitutional right - I would not know.
11.4.2005 4:26pm
Per Son:
Old style natural philosophy dealt with a creator. In my book (which may be wrong), an intelligent Creator of the universe, species, etc. is pretty close to theology. Heck, the father of ID is essentially William Paley - a theologian.
11.4.2005 4:29pm
Clayton E. Cramer (mail) (www):
Per Son writes:

Macroevolution can be examined on a genetic level and see how genes and alleles change over species - exploring genetic drift and the like.
That doesn't make it testable, however. Your choice of word, by the way.


ID avoids serious scientific inquiry by stating that "because thangs are kompilercated, they must have been designed."
Demonstrating that your knowledge of ID is limited to reading anti-ID arguments. The argument isn't that cells are complicated, but that complex components such as the flagellum require at least 25 different mutations to happen before the cell gets any benefit from any of the mutations.

There's no intrinsic reason to think that these mutations couldn't have happened--but if a particular mutation gives no advantage, there's no reason to assume that a mutation (which is necessarily rare) is going to become widespread in the gene pool. The chances that 25 completely different mutations (each of which is likely to be a one time act) will all just happen to end up in a particular member of the species--and thus provide the competitive advantage of a flagellum--well, that's getting pretty implausible.

Now, there is a counterargument that at least some of the components that make up a flagellum may serve other cellular functions as well, and thus provide some competitive advantage even before the other 24 mutations happen. That's a legitimate scientific response to a legitimate scientific criticism, but unless you can provide some pretty compelling evidence that most or at least many of those other components provide a competitive advantage that will cause that mutation to become disproportionately represented in the gene pool, it is still a remarkable run of luck for a cell to end up with a working flagellum.
11.4.2005 4:29pm
Per Son:
All of my ID knowledge comes from a lecture given by Prof. Behe, not exactly an anti-ID figure.
11.4.2005 4:32pm
Clayton E. Cramer (mail) (www):

All of my ID knowledge comes from a lecture given by Prof. Behe, not exactly an anti-ID figure.
In that case you either weren't paying attention, or you have a remarkable inability to understand what Behe (and other scientists) are saying. Boiling down Behe's argument to "because thangs are kompilercated, they must have been designed" is dishonest. It is equivalent to the "Creation Scientist" who claims that evolutionists believe we are descended from chimpanzees.
11.4.2005 4:35pm
Bottomfish (mail):
It doesn't really matter that the survey was "voluntary." I'm sure that the kids who participated in the survey talked about it with the kids who didn't, even if teachers told them not to. So the issue of "consent" is merely pedantic. We all know that children possess a lively curiosity about sex even if they sense, as has been the case for a long time, that it is a forbidden topic. Many people will say that it should not be a forbidden topic. Even so, that's just their opinion. What is allowed to go on in the public schools seems to me unarguably to be a political question and beyond the reach of Federal courts.
11.4.2005 4:38pm
Clayton E. Cramer (mail) (www):

Second, the survey passed rational basis review. That limits what can be taught.
Other than Romer and Lawrence (both of which involve homosexuality), how many examples can you give of any legislative action failing rational basis review?

Of course that's Reinhardt's goal, I'm sure--to make sure that parents can't object to the schools propagandizing about homosexuality. "Teaching tolerance" (or at least, that's how it will be phrased) will certainly pass rational basis review for Judge Reinhardt.
11.4.2005 4:38pm
Per Son:
To use a southern expression, Behe put a lot of perfume on the pig. Of course his explanation was fancy schmancy, but in the end I stand by what I said it was boiled down to.
11.4.2005 4:39pm
Per Son:
You are quite the conspiracy theorist, Clayton. With you, everything comes back to homosexuality.
11.4.2005 4:42pm
Clayton E. Cramer (mail) (www):
Per Son:

Of course his explanation was fancy schmancy, but in the end I stand by what I said it was boiled down to.
You have a future as a politician.
11.4.2005 4:43pm
Per Son:
I'll take that as a compliment.
11.4.2005 4:44pm
Per Son:
Cleburne v. Cleburne failed rational basis review. I admit that it is a much easier standard to meet than strict scrutiny, but it fails in cases not having to do with homosexuality.
11.4.2005 4:47pm
B. B.:
I suppose the designer could be an alien scientist, although I don't think any of the ID advocates would suggest that.

It could also be a Flying Spaghetti Monster, creating the species with a touch of his noodly appendage.

I'm sick of seeing "judicial activist" used at all anymore. The sad part is some people I know would still think this decision is activist. I think the reason it has degenerated to meaning "not the result I wanted" is because so few people understand what the law and the Constitution actually say. They get their information from Focus on the Family, or PFAW, or some other group and just parrot whatever those groups told them, instead of then going and reading the decision and trying to understand what our laws actually say and why the decision is what it is.

To be sure, judicial activism still exists, but now when it actually happens people are desensitized to the term, just as people tend to roll their eyes instinctively when someone plays the "race card", even though there certainly are cases where it is validly invoked.
11.4.2005 4:47pm
Public_Defender:
One of the few things liberals have done right PR-wise in recent years is to defuse the word "activist." Many onservatives had been using it the way Professor Volokh described (to mean "any opinion we don't like").

Liberals started to use the word to describe conservative judges who intentionally push the court in a conservative direction.

Ideally, "activist" should be a neutral description for a judge who intentionally pushes the law in a certain direction. That can be good or bad, depending on whether you think that is a good direction. Justice Thomas is perhaps the most "activist" justice on the U.S. Supreme Court. Is that bad? That depends on whether you think Thomas is right.

But back to my point. By agressively using the word "activist" to describe conservatives, liberals have taken some punch out of the word.
11.4.2005 4:49pm
labrat:
Behe admits that "the necessity for a 'scientific' theory to be falsifiable is disputed." which strongly suggests ID is not a "theory" since a theory by definition is a testable hypothesis. http://www2.ncseweb.org/kvd/experts/behe.pdf

I'd rather test and retest a theory, prove it wrong, and then come up with a new theory, as opposed to throwing my hands up at someone and saying "just because my experiment cannot be empirically tested to be proven wrong or right doesn't mean it isn't spiffy". Try and get something published with that tagline and see how far it gets you in Nature or Science.
11.4.2005 4:50pm
MCO:
If there is no fundamental right being infringed in the first place, why is the rational basis test relevant? Did I miss the part of the Constitution that says Congress shall only pass rational laws?
11.4.2005 4:53pm
Adam (mail):
Other than Romer and Lawrence (both of which involve homosexuality), how many examples can you give of any legislative action failing rational basis review?

Cleburne. Dept of Agriculture v Moreno. Eisenstadt v. Baird.
11.4.2005 4:53pm
Per Son:
MCO:

That is for another day. All of the Justices believe in the concepts of strict scrutiny and rational basis review.
11.4.2005 4:56pm
gwangung (mail):
Ah, Mr. Cramer....I think you are a much sharper and knoledgeable lawyer than you are a biologist.... Otherwise, you'd be much more aware of the dozens of research articles published every year that are exploring the mechanisms of speciation (i.e., macroevolution).
11.4.2005 5:08pm
Appellate Junkie (mail):
I'm a little surprised that Volokh is reading CNS over his own blog, however unwieldy it gets at times.

Belated hat-tip to Taimyoboi, who post the news here yesterday.
11.4.2005 5:17pm
MCO:
Per Son-

It's been a long time since Con Law, but I thought one had to first demonstrate an infringement of a cognizable right under the 14th amendment before the law in question would be reviewed. Then, depending on whether or not plaintiff is a memeber of a "suspect class" or the target of invidious discrimination, the standard of review would be (1) rational basis (e.g. white male optometrist), (2) intermediate scrutiny (e.g. woman alleging sex discrimination), or (3) strict scruting (e.g. african-american alleging racial discrimination).

Here, however, the judge seems to be saying there is no infringement in the first place. As he wrote, "Parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students." I would have thought that would answer the question.

He could have conceded that such a right exists and then done the standard analysis, but he does not seem to have done so.
11.4.2005 5:22pm
Clayton E. Cramer (mail) (www):

Ah, Mr. Cramer....I think you are a much sharper and knoledgeable lawyer than you are a biologist.... Otherwise, you'd be much more aware of the dozens of research articles published every year that are exploring the mechanisms of speciation (i.e., macroevolution).
I specifically asked for kingdom, phylum, class, order, and family, because these are the big ones. Wolf to dog or any of a number of species of desert cat to domesticated cat isn't so startling or shocking of a change. When you get up to the phlyum level--well, that's pretty dramatic, and I can see why a bit more than just some arm-waving and: "Yeah, we haven't found any transitional fossils, but we will!"
11.4.2005 5:31pm
Clayton E. Cramer (mail) (www):

I'd rather test and retest a theory, prove it wrong, and then come up with a new theory, as opposed to throwing my hands up at someone and saying "just because my experiment cannot be empirically tested to be proven wrong or right doesn't mean it isn't spiffy". Try and get something published with that tagline and see how far it gets you in Nature or Science.
You don't need a completely workable alternative, testable theory to criticize flaws in an existing theory. By the time Darwin published _Origin of Species_, biologists and natural philosophers had been scratching their heads for a good twenty years, recognizing that Genesis wasn't a sufficient scientific explanation. But just because the new theories were flawed didn't prevent legitimate scientists from poking holes in the accepted ideas.

Similarly, classical physics didn't all disappear because a fully formed and testable theory knocked it out of the running. Serious discussions about the problems with "ether," about the nature of light (Einstein's use of Planck's quantum theory to explain photoelectric effect), all nibbled away at the edges of the existing theory. Some of these were simply critiques and interesting ideas--with actual testability having to wait for decades--and yet the theories were still considered legitimate for discussion--even in schools.
11.4.2005 5:41pm
Hunter (mail):
IANAL, but as I understand it, fundamental rights are rights that are supra-constitutional, i.e., they were not included in the Constitution because the framers thought them so obvious that they did not need to be spelled out. I have read other decisions that refer to the fundamental right of parents "to direct the education and upbringing of their children." I can't give cites or even tell you what jurisdiction that was in, but it seems pretty obvious to me that even though it may take a village to raise a child, the village doesn't have the right to raise that child in a way the parents would find offensive. I would argue that, by ripping away at this fundamental right (note that it is now non-exclusive), the 9th Circuit is being activist.
11.4.2005 5:44pm
The General:
If we're going to have judges that make it up as we go along, no wonder people like the parents in this case expect the court to invent new rights for them, too. After all, courts invented the right to contraception, abortion and gay sodomy, which aren't in the constitution either.

To paraphrase the last paragraph. If you want abortion to be legal or if you want gay marriage to be recognized by the state, elect politicians who will do that, or do it by initiative, but don't demand that the courts impose these POLICY PREFERENCES by fiat. How is that any different?
11.4.2005 5:50pm
Clayton E. Cramer (mail) (www):

I can't give cites or even tell you what jurisdiction that was in, but it seems pretty obvious to me that even though it may take a village to raise a child, the village doesn't have the right to raise that child in a way the parents would find offensive.
Reinhardt distinguished Meyers and Pierce (the two cases you are probably thinking about) because in both cases, individuals were not even free to make decisions to educate their children privately. Meyers prohibiting even privately educating elementary school kids in foreign languages; Pierce prohibited parochial schools. Reinhardt's decision says that you are perfectly free to take your children (but not your tax dollars) out of the public schools if you don't like it.

I'm offended by Reinhardt's decision, although I think it is probably legally correct. It would be really cool if the courts would actually follow the same logic if the schools did something that offended liberal sensibilities, but I think we can count on the lawyers finding some way to distinguish the cases so that they can promote homosexuality in liberal controlled public schools, but in the 5% or so of public schools the left doesn't operate, they can't teach Intelligent Design, because it might offend.

Remember that the reason that segregation persisted as long as it did is because the segregationists had the money, and if there is something that money will buy, it is the best lawyers.
11.4.2005 5:51pm
Nikolai:
Clayton, "serious discussions" in modern science take place in research institutions and peer-reviewed literature. Intelligent Design creationism has yet to make a single discovery or to test it hypotheses; Behe declared on the witness stand just a few days ago that it wasn't worth his time to put his theology to the test. IDC is purely a religiously motivated critique of productive and well-grounded biology. It has the same scientific standing as reincarnation or the healing power of crystals--it simply has a much better funded public relations department.

I apologize for contributing to an off-topic thread, but being confronted with the obliviousness of creationism drastically lowers my opinion of the regular Conspiracy commenters.
11.4.2005 5:54pm
Clayton E. Cramer (mail) (www):

Clayton, "serious discussions" in modern science take place in research institutions and peer-reviewed literature.
Are you going to tell me that no criticism of an existing scientific orthodoxy has ever been kept outside the doors of the academy for the wrong reasons? Let's see, there's Semmelweis's theory of childbed fever infection. Savante Arrhenius barely received his doctorate, because his ion theory was not well-received. I'm sure that we can come up with a number of other examples.

That doesn't mean that every criticism or crackpot idea out there is correct, or needs to be treated seriously. But one of the best signs of how scared the establishment is can be found in the recent actions of the University of Idaho prohibiting professors in the science classes from discussing ID. I rather doubt that anyone feels a need to suppress discussion of the healing powers of crystals in medical schools, or to tell physics professors to stop talking about the wonderful capability of pyramids to keep razors sharp.


Intelligent Design creationism has yet to make a single discovery or to test it hypotheses; Behe declared on the witness stand just a few days ago that it wasn't worth his time to put his theology to the test.
Care to tell me the exact statement he made? I rather doubt it was phrased quite that way. (I am becoming a bit irritated with the dishonest method that some commenters here are characterizing Behe's claims.)


IDC is purely a religiously motivated critique of productive and well-grounded biology. It has the same scientific standing as reincarnation or the healing power of crystals--it simply has a much better funded public relations department.
Your opinion. Isn't it odd that Behe isn't alone among real scientists, working in their fields of specialization, who have some misgivings about evolution as it is now taught?


I apologize for contributing to an off-topic thread, but being confronted with the obliviousness of creationism drastically lowers my opinion of the regular Conspiracy commenters.
My opinion of the commenters has never been very high.
11.4.2005 6:11pm
mbeadles (mail):
"Parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students."

I'm quite OK with this statement. My question is:

Does it apply to the Michael Newdow? If not, why not?
11.4.2005 6:22pm
Brooks Lyman (mail):
Perhaps out in 9th Circuit-land, one's local elected School Board or School Committee has the power to straighten out things like this, but here in the People's Republic of Massachusetts, we have something called Education Reform, one of those legislative attempts to fix one problem that created a whole bunch of others. In the matter at hand, the elected School Committee has no power over the curriculum (which I assume, based on some local experiences, would also mean surveys such as the one referred to).

The curriculum is in the hands of the school administration; the School Committee can hire and fire the School Superintendent and the Business Manager and approve the budget - that's about it.

The typical School Committee is not about to fire the Superintendent every time the school district pulls a stunt like this, and trying to get the Great and General Court (the legislature) to change the law is nearly impossible. It gets a bit frustrating, to put it mildly....

This is particularly true in view of the previous comments about private schools and vouchers (or, more to the point, the lack thereof.) With no vouchers, and with the cost of private school tuition being what it is in most instances, parents have no practical choice, whatever their "rights", other than to send their kids to the public schools. Under the circumstances, I have to say that I can certainly understand why parents would hope for a little "conservative" activism from the courts, and why they would attempt to use such means to influence their local schools.

Brooks Lyman
11.4.2005 6:26pm
Per Son:
I will say this for the third time. Religion in school cases implicate the First Amendment. The Newdow case is about the First Amendment - what it allows and what it prohibits.
11.4.2005 6:27pm
Hunter (mail):
To get back on-topic, one of the definitions of "judicial activism" that I have not seen mentioned here is judges substituting their own opinions for the law. If there is a fundamental right of parents to direct the education and upbringing of their children, which Reinhardt seems to imply by stating it is non-exclusive, what legal authority did Reinhardt rely on to determine that "There is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children"? (That's not a rhetorical question; I haven't read the decision, so I don't know the answer.) If he significantly weakened an established fundamental right without any legislative, constitutional, or precedential basis, then that is the height of judicial activism.
11.4.2005 6:36pm
Nikolai:
Clayton, I would refer you to page 105 of one of the transcripts of Behe's cross-examination at Dover. He describes an experiment that would falsify his theological critique of evolutionary biology, and recommends that productive biologists perform it to test his theories. He announces that he will not perform the experiment himself beause he is persuaded by his own theoretical musings that the experiment would fail, "So, no, I don't do that in order to spend my time on other things."

I think it's fair to characterize his position as being that it's not worth his time to test his own theory. I also have a healthy disregard for an academic who insists that his own theories, on the far fringes of his field, completely overturn an enormous body of productive science--but refuses to test the ideas. His claims are extraordinary, and his burden is enormous. He hasn't even attempted to shoulder it in a professional manner.

I recommend following the trial closely; the local ACLU chapter has done an excellent job of collecting the transcripts and summarizing (subjectively) the daily proceedings. Among the many developments have been statements establishing that IDC was developed explicitly to evade the Aguilar position on "creation science" as an Establishment Clause violation.

You argue that not all valid ideas are welcome in orthodox science. That's certainly true; an excellent example is the latest Nobel winner in medicine, whose theories on the causes of stomach ulcers were at one time widely derided. (I think so, at least, from the articles I've read.) But not all ideas outside of orthodoxy are worthy of being called science. How do we distinguish between junk science and unpopular real science? Scientific philosophers have many tests, such as falsifiability (something that IDC, relying on a God of the Gaps, notoriously fails).

But we don't have to go that far. No one is seriously proposing that IDC research be censored, merely that it is at best foolish and at worst unconstitutional to present it in public schools. High school students, as a general rule, study the foundations of science, the well-proven and basic principles and laws. Evolutionary biology fits there, while creationism does not. IDC has failed so utterly at the academic and scientific level that there is no justification for presenting it in public schools other than a desire to confront evolution itself--and so far, every test case has shown the underlying motive to be a religious doctrine masquerading as "sound science."

You argue, in essence, that IDC could still come out of left field with significant discoveries or a legitimate contribution to science. I won't argue, because I agree. But it hasn't. What, then, is the justification for propping it up for students who haven't learned enough science to distinguish legitimate theories from junk science? If IDC wants to be taken seriously, then organizations like the Discovery Institute and marginal scientists like Behe need to spend more time and money on laboratories and experiments, and less on lawyers and PR firms.

Again, I apologize for feeding an off-topic fire, but no one seems to mind.
11.4.2005 6:49pm
Appellate Junkie (mail):

In the matter at hand, the elected School Committee has no power over the curriculum (which I assume, based on some local experiences, would also mean surveys such as the one referred to).


The survey wasn't curriculum in the conventional sense.

For those who haven't read the decision, here's my summary of the context:

In conjunction with a few academic/research organizations, the school district sought to establish some community baseline measures of the levels of trauma, anxiety, depression, etc. within the local elementary-school population. This effort was part of a broader undertaking to create programs that would help children overcome those issues that might impede learning while in school.

The parents were sent a single-page explanation of what was going on and a second page, which asked for them to consent to their children taking these psych. evaluations. There were three batteries of tests, all of which are standardized and used in other contexts; ten of the questions touched on sex to one degree or another, but this was not spelled out in the consent form.

The consent form required, among other things, the parents to acknowledge that the survey may make their children "feel uncomfortable."

As has been described here, the federal courts rejected the complaint (for want of a federal claim upon which relief could be granted). The court did so without prejudice to raising certain claims in state court.

Honestly, I found the whole decision rather unremarkable. (Well, the court could have been a little more careful in summarizing the holding, given that it was bound to make the news.)
11.4.2005 7:34pm
billb:
Flagella: A thread-jacking thought experiment.

Consider the humble euglena, a flagellate. Doubtless more than a million years in existence. Doubles its numbers about once every 15 hours. Starting with a single member that give about 10^(10^8) (1 followed by a hundred-million zeros) possible divisions from a single "parent" in a million years. Now clearly not all cell lines live for a million years, nor do all branches of a given cell line live for that entire period. But if, on average, half of all cells don't make it to the end of the 15 hour period (a 50% mortality rate), that only halves this number.

This number is obscenely large--much greater than the number of atoms in the universe, but smaller than the number of possible chess games (estimated at 10^(10^50)). It's so large as to be beyond ordinary comprehension (i.e. comparing it to the number of chess games doesn't really help us with it's scale).

Your argument, Clayton, is that in something like 10^(10^8) cell divisions, there's not enough randomness for 25 mutations to come together in the proto-euglena for a flagellum to form? How can you take this seriously? If the odds of these mutations individually are one in a million, that's enough for the flagellum to have developed independently 10^(2/3*10^6) times (note, that means that these mutations are probably somewhat less likely that one in a million). Which is stupendously often! And that's assuming all 25 mutations happen at once! If we assmue as you do that some of them don't harm the health of the proto-euglena, then some of these mutations will happen and be passed on from generation to generation increasing the possibility that one round of cell division will lead to going from 24 to 25 required mutations.

I'm a bit incredulous that you promote the position that it is more likely that an intelligent designer some how poked or prodded the system when it is clearly not in need of poking or prodding much less that the flagellum had to be designed out of whole biological cloth.

When it comes to uni-cellular (and less advanced forms of) life, a million years is an incredibly long time. Life has been at it (on this planet at least) for, as best as we can tell, 4200 times more than this! The thing about life is that it's incredibly good a reinforcing positive change over long periods of time, and we human beings are woefully bad at really comprehending the time scales involved.
11.4.2005 8:14pm
Clayton E. Cramer (mail) (www):

Clayton, I would refer you to page 105 of one of the transcripts of Behe's cross-examination at Dover. He describes an experiment that would falsify his theological critique of evolutionary biology, and recommends that productive biologists perform it to test his theories. He announces that he will not perform the experiment himself beause he is persuaded by his own theoretical musings that the experiment would fail, "So, no, I don't do that in order to spend my time on other things."

I think it's fair to characterize his position as being that it's not worth his time to test his own theory. I also have a healthy disregard for an academic who insists that his own theories, on the far fringes of his field, completely overturn an enormous body of productive science--but refuses to test the ideas. His claims are extraordinary, and his burden is enormous. He hasn't even attempted to shoulder it in a professional manner.
You might want to read the several pages before page 105, where Behe describes how a scientist named Barry Hall invested twenty years into attempting what might be called a simplified form of the experiment--and gave up. Even with 20 years--which represents hundreds of thousands of generations--Barry Hall couldn't even get one step of the evolutionary process.

You are upset that Behe isn't prepared to invest essentially half or more of his life to an experiment to disprove ID, and that someone else has tried--and it failed.
11.4.2005 11:10pm
Clayton E. Cramer (mail) (www):

Now clearly not all cell lines live for a million years, nor do all branches of a given cell line live for that entire period.
And here's one of the holes in your argument based on the math. Yeah, if there were no limits to reproduction and sufficient food, I've read a single breeding female lab rat could cover the Earth with her offspring in a few years. I don't know what the survival rate is for euglena, but I know that exponential growth curves and living creatures don't usually work that well in the real world.

I notice in the transcripts provided by another High Priest of the Cult that during Behe's testimony, he mentioned that a couple of years is sufficient for a hundred thousand generations of bacteria--and a scientist named Barry Hall spent twenty years trying to demonstrate evolutionary development of a particular organelle--and failed.

I will again mention something that everyone knows--the vast majority of mutations are fatal. (Think of what happens when a cosmic ray turns a protein replicator from something that produces a useful enzyme into something that just sits there.) The odds are distinctly against useful mutations. In some cases, a bad mutation survives because it carries some other useful results. (Obvious example: sickle cell anemia.)

A useful mutation that provides a clear advantage is going to be a great win; a mutation that is simply neutral (as with many of the flagellum components) is just going to stick around in the gene pool. But remember that if you have one cell line that gets this mutation, each time that you add another mutation that has to happen in that cell line, you are combining two unlikely mutations.

Let's assume that each of these mutations of the 25 required is one in a million. What are the chances that the second mutation happens in one of the cell lines that had the first mutation? Remember that these are independent events. If I remember combinatorics right (and it has been a few years), you multiply the odds: one in a trillion (10^6 * 10^6). Now the third one in a million mutation? That's 10^6 * 10^6 * 10^6 or one in 1,000,000,000,000,000,000. We've got 22 more of these to go, or (10^6)^25. That's a really big number. Do you still have gobs of confidence?

Finally, there's one more interesting aspect to all this. We used to assume that life was at least a billion years old. No problem, the planet is more than four billion years old--lots of time for all sorts of random events to lead to something as complex as life. I've seen the claim of fossil cells that are 3.6 billion years old. Life evolved from completely random processes and was common enough that it left a fossil trace in less than a billion years?
11.4.2005 11:28pm
dew:
Sorry to respond to an off-topic post, but...
Brooks Lyman: "In the matter at hand, the elected School Committee [in MA] has no power over the curriculum (which I assume, based on some local experiences, would also mean surveys such as the one referred to)."

I think this complaint understates the power of MA school committees. A MA school committee sets district policies and goals (MGL ch 71 sec. 37), so they could presumably regulate or ban surveys like this. MA school committees must also approve textbooks and other parts of the curriculum. Whether a school committee chooses to regulate, and whether the administration is willing to follow a policy are different matters that have more to do with politics and personalities than state law.

Now back to the main thread, something about Judge Reinhardt intelligently designing Flying Spaghetti Monsters.
11.5.2005 12:16am
randal (mail):
Let's not debate biology on this blog. None of you have a clue what you're talking about.

The people who point out that it's worth investigating potential problems with the Theory of Evolution are correct. It's worth investigating potential problems with any scientific Theory.

But what's totally obvious to everyone is that pushing ID into public schools is 100% evangelical Christian. Every single Theory taught in grade-school science classes has potential problems. There's no pressure whatsoever to preface every science lesson with a disclaimer. Only this one, because of the religions implications.

The scientific factoids are irrelevant. ID is simply not ready for prime-time grade-school science, as is true with every other nascent, fringe hypothesis. The only reason to teach it is religious indoctrination, so go home.
11.5.2005 12:47am
billb:
Twenty years? Pish-posh. One scientist couldn't direct the work of evolution to make an organelle, and I'm supposed to get my panties in a twist? No one said it was easy. That's why nature takes its sweet time. One billion years is stupendously long--staggeringly so (especially if you're single-celled and living in an ocean).

Just because we don't have the answers to everything everywhere, we don't have to stick our heads in the sand or throw up our hands and say, "It's soooooo complex. The Designers must have done it."

Finally, odds of 1 in 10^150 (=(10^6)^25) don't bother me in the least in the face of 10^(10^8) chances to get it right (the location of the parenthesis makes all the difference in this one).
11.5.2005 12:57am
randal (mail):
And as a preemtive rebuttal - no, you can't shape public school curriculum guided by a religious motive.

You can't bias reading assignments towards books like The Chronicles of Narnia. You can't do bible translations in foreign-language classes. You can't limit your Comparative Religions studies to fundamentalist Christian sects. And you can't bias science classes towards theories that comport with your religious views.

All of those areas of study are legitimate. But intentionally tilting the curriculum towards your preferred religion, well, tilts the curriculum towards your preferred religion. That's illegal.
11.5.2005 1:10am
Bruce Hayden (mail) (www):
I am not happy with putting all the power in the hands of school boards. Sure, they are elected, but I have seen many times in which they were captive of the educrats. How do they do that? By having elections at odd times, in which they can mobilize the teachers and their supporters.

Of course, that is one reason that my daughter has been in private school since kindergarden.
11.5.2005 11:01am
Bruce Hayden (mail) (www):
I think that Clayton's point is being missed. ID is called religion. It isn't. No more really than segregation was. Yes, it is pushed by people who are religious, but so was segregation (though how they could rationalize it with the teachings of Jesus, I don't know).

But since it is pushed by religious types (many of whom might prefer creationism, but can't push that for obvious reasons), it is likely that at least some school districts in this country will ultimately try to teach it as an adjunct to evolution, etc. (there are also ID arguments as to the relationship of physical constants). And when they do, I suspect that a rational basis can be found there just as easily as it was found in this case. And, in the end, misleadingly calling it religion, isn't going to work.

Personally, I can intellectually applaud the decision, but emotionally, I am still quite bothered at the idea that the schools should be making this sort of decisions. And I also feel that the misleading nature of the permission slips should have negated their effect. The parents' discomfort would seem to stem from the fact that they signed on to something a lot more benign than they got.
11.5.2005 11:11am
Bruce Hayden (mail) (www):
randal

I would argue that school curicula are based on religious motivations all the times. The difference is that the religious motivations are not Christain religious motivations. But a lot of the environmental sensitivity training I see in schools is as close to mother earth worship as ID is to Christianity. It is just a religion that you may agree with more.
11.5.2005 11:15am
Per Son:
Bruce:

Huh? What is mother earth worship?

Just because something is a virtue or value in and out of a religious context does not make it religious or religion. Similarity to a religious message (killing is bad or respect your parents) does not make it a religious statement or message. The bottom line with ID is the requirement that one believe in an intelligent creator, and that is where the religion comes in to play.
11.5.2005 11:51am
Radical guy:
Per Son -

Yes, I see how children and adults are different, in many respects, but I'm not sure whether we are different regarding the State's power to draft us. Where is the affirmative right to COMPULSORY "education" of children?

I know that many State constitutions refer to free public education -- but does that textually create a right to force the kids, or just empower the State to OFFER free schools?

Further, even if children are made draft-able by State constitutions, I don't see how children are any different from adults relative to our FEDERAL constitutional right against involuntary servitude. Let's say that the State decides to take all kids at birth, to be held until 18 as wards of the State. Are the limits on that (a) purely in the political branches, but nothing judicial/constitutional, or (b) judicial/constitutional?

If the latter, than what is the source of that limit? And what is the content of that judicially enofrceable limit? Could schools be year round, 7-7, just allowing me to have the kids overnight?

Prof. V - any interest in elaborating on whether/how compulsory education itself is constitutional? This thread seems headed in other directions.
11.5.2005 1:25pm
Clayton E. Cramer (mail) (www):

Huh? What is mother earth worship?
Someone who hasn't been in, or had kids in, a California public school, recently, I guess.
11.5.2005 1:44pm
Bruce Hayden (mail) (www):
Historically, possibly Gaea, the goddess of the earth, who bore and married Uranus and became the mother of the Titans and the Cyclopes. Some synonyms are: earth mother, Gaea, Gaia, Ge, Great Mother, Magna Mater, mother goddess, Tellus, Terra.

But I probably meant Mother Nature, with synonyms: Dame Nature, Great Mother, Natura, Nature. Worship of such goes back for millenia. For example, in "The Goddess--I, Introduction and History":
In Neo-pagan Witchcraft the Goddess is the very essence or central figure of the Craft and worship. She is the Great Mother, representing the fertility which brings forth all life; as Mother Nature she is the living biosphere of both the planets and the forces of the elements; she has roles of both creator and destroyer; she is the Queen of Heaven; and she is the moon. She possesses magical powers and is emotion, intuition and psychic faculty.

On a somewhat similar vein, in "A Tribute to Hinduism":
Hinduism has always been an environmentally sensitive philosophy. No religion, perhaps, lays as much emphasis on environmental ethics as Hinduism. The Mahabharata, Ramayana, Vedas, Upanishads, Bhagavad Gita, Puranas and Smriti contain the earliest messages for preservation of environment and ecological balance. Nature, or Earth, has never been considered a hostile element to be conquered or dominated. In fact, man is forbidden from exploiting nature. He is taught to live in harmony with nature and recognize that divinity prevails in all elements, including plants and animals. The rishis of the past have always had a great respect for nature. Theirs was not a superstitious primitive theology. They perceived that all material manifestations are a shadow of the spiritual. The Bhagavad Gita advises us not to try to change the environment, improve it, or wrestle with it. If it seems hostile at times tolerate it. Ecology is an inherent part of a spiritual world view in Hinduism.
11.5.2005 2:10pm
Per Son:
How does mother earth worship, wiccan, what have you, have anything to do with sensitivity training and the like?

Is it actually being taught? Please provide cites Mr. Cramer of how Mother Earth worship is bein pushed in public schools.
11.5.2005 2:15pm
Bruce Hayden (mail) (www):
per son,

How about showing that teaching ID is pushing Christianity? Same diff to me. Actually, I think ecological sensitivity, as taught in a lot of schools today pushes the bases of Wiccan, etc. a lot harder than ID does Christianity.
11.5.2005 8:59pm
Per Son:
I never made the connection between ID and Christianity. Rather, ID pushes the belief in a deity (and never gave a religion).

My evidence is the concept of ID itslef - intelligent design requires an intelligwent designer - a creator - a god of some sort. There's your proof.

As far as ecological sensitivity, how does care about the environment, or environmentalism, automatically mean Wiccan? I never knew Teddy Roosevelt was a Wiccan (especially given that Wiccan was created in the 1950s). They cross over religious and secuklar boundries.

Teaching kids that it is bad to pollute, kill off species, and be a steward of the natural world are hardly only Wiccan religious concepts.

There are some concepts that are shared by religious doctrine that are not neceisarily religious. As such, teaching those concepts is not teaching religion. (e.g. killing is bad, respect your parents, do unto others, love your neighbor, etc.). On the otherhand, values and concepts such as "honor the Sabbath" are undoubtably religious and should not be taught in a public school setting.

My point is that ID pushes a nonhuman, supernatural creator.
11.6.2005 10:40am
corngrower:
Per son

Enviromenatlism is a religion. I can give you a dozens of examples of how 'science' promotes a cause with no basis in fact. How bout the spotted owl? Or old growth forests in general? Global cooling? That theory took less than 10 years to be extinct and come up with in contrast, global warming Remember BST? Given to cows to increase milk production. The cows dying was the best case scenerio. Mutant kids the worst case. Guess what, no cows dead from BST, and no mutant kids. This is a small sampling of the schools teaching something based on faith only, (religion?)

But back to the post. Three judges just wrote, that constitutionaly parents dont have rights as to what our children are subjected to in school. 1st; The permission slip for this was vague at best. I had a similar permission form sent home. I called the principal to e- mail the 'syllabus' to me. He declined, stating that I was welcome to come in and read it. I asked if I could take a copy home for my wife to read. No. Why? Well this could be considered to be controversial, and we really dont want this information to get out into the comunnity. Why? The parents of the 1 or two parents that come in to read the items cant stop us, but the entire community would.

If I take my kid out of school because I disagree, why cant those small handful of parents jerk their kids and find a school that practices whaterever religon they believe in? After all there is a small mostly unread, portion of the contitution that states 'congress shall make no law prohibiting the free expression of religion'.
How can SCOTUS forbid prayer at a football game? Isn't SCOTUS congress?
11.7.2005 11:07am