Unaffiliated Attorney Regrets End of Lawsuit

Attorney Regrets Georgia School Boards Decision to Settle With Darwinists

Ah, the newsoids…

Recently the Cobb County School Board settled the lawsuit and agreed not to edit materials on evolution in school textbooks. But Brian Fahling, senior litigation counsel at the American Family Association Center for Law & Policy (AFA Law Center), says he wishes the board had chosen to stay the course and fight to keep the stickers.

Because Selman v. Cobb County was settled on Dec. 19th, one now sees various groups taking the moment to do a little profile-raising, though they had nothing to do with the case, and, as in the linked newsoid, are simply making a lot of noise without understanding what the state of things was. Here we have one Brian Fahling of the American Family Association Center for Law and Policy saying that he “regrets” the Cobb County School Board’s decision to settle the case. The further text indicates all the usual culture-war stances.

So, what does Fahling show no interest in addressing? Plenty.

The original trial did not have testimony from expert witnesses. Ken Miller testified as a fact witness, as he was an author of the textbook to which the stickers were being applied. This time around, there was a change in plaintiffs’s legal team, with some of the veterans of the Kitzmiller case being on the team (Eric Rothschild of Pepper Hamilton and Richard Katskee of Americans United being prominent in that group). What they argued for, and got, was the opportunity to re-open discovery and use expert witnesses in what would be, essentially, doing the whole trial over. The experts for the plaintiffs this time around would be Ken Miller, Eugenie Scott of NCSE, and Brian Alters. [Links added to expert reports online.] That’s two of the Kitzmiller expert witnesses plus Scott. The experts prepared and presented their expert witness reports. It was in the knowledge of those expert reports and the altered legal landscape following Kitzmiller that the defense made its decision to settle.

Fahling had this to say about the school board:

Fahling acknowledges that a number of factors can influence a school district’s decision to cave in to pro-Darwinist pressure in a situation like this, including fiscal considerations and even “just a weariness that sets in,” along with concerns over the fact that taxpayer dollars are having to be spent to defend the district’s position.

Many times, he contends, school officials begin to ask themselves why they don’t “just fold up the tent and go home,” and that, unfortunately, is what happened in the case of the Cobb County School Board’s decision to settle.

Well, one good reason to “fold up the tent and go home” not considered by Fahling would be the realization that they were going to lose any further litigation. But not looking at the expert reports or examining the briefs from the case makes it simple to say that the Cobb County School Board simply showed a lack of will.

Why would Fahling say such a thing? We know that in the case of the Thomas More Law Center, that group spent several years propositioning school boards around the country to adopt the “intelligent design” supplemental textbook, Of Pandas and People, whereupon TMLC would defend them in the following inevitable lawsuit. TMLC was looking for an opportunity to raise their profile, and finally got it in late 2004 in the form of the Kitzmiller v. Dover Area School District case. The religious right legal advocacy field is getting crowded, and it looks like these groups have to keep letting the base know that they are the one true group defending the usual social religious conservative concerns, antievolution among them.

From there, things go way downhill.

“Of course, I think that it’s a disservice to the community overall,” the AFA Law Center spokesman observes. “Evolution stands out alone as the only area of science that is absolutely cordoned off from any criticism,” he says; “there is a great wall around it and they simply do not admit any dissenting voices.”

Hello? Earth to Fahling… sure, there is criticism. On the one hand, there is the informed criticism that occurs within the scientific community and via the scientific method. Evolutionary science is an active and changing field of study, not a static set of concepts from long ago. Within the past fifty years, one has seen various different views on the process of evolutionary change being proposed and tested: transposons, endosymbiosis, punctuated equilibria, kin selection, evo-devo, and more. Some of these have withstood testing and criticism and have taken a place in the textbooks for high school biology. Others are still being argued, still working toward convincing the scientific community that they represent a real advance in our understanding. On the other hand, though, there is the uninformed criticism of evolution denial, the same old bogus antievolution arguments that go back decades or centuries. The only reason that these long-rebutted arguments get mentioned is because of the socio-political movement that continues to push these falsehoods. The only reason these folks mention “criticism of evolution” is to attempt to insert the bogus uninformed criticism that can only mislead students rather than the actual informed criticism representing state-of-the-art evolutionary science.

However, Fahling points out, “that [wall] is beginning to crumble a little bit, because inside the camp of Darwin, there is tremendous dissent.” So, even though he feels the Cobb County case is further evidence of the “oppressive” attitude the academic community has toward opponents of Darwinian evolution, the pro-family attorney says evolutionary theory is “in tatters” right now.

TMLC certainly believed exactly that sort of thing, and gave it their best shot in Kitzmiller v. Dover Area School District, naming the leading “intelligent design” creationism advocates as their experts, and doing their best over 40 days of trial to make that case. They lost. Have things gotten better for uninformed criticism over the past year, such that Fahling could have some rational basis for his claims? I haven’t seen it.

And that is one reason why Fahling feels the Cobb County School Board’s settlement is by no means a death knell for intelligent design theory in schools. Nor should the Georgia district’s decision discourage others, he insists, from standing up for the idea that evolution ought to be subjected to critical examination in the classroom.

When “critical examination” is simply socio-political code for “let’s see how many of the old-time religious evolution denial arguments we can manage to squeeze into the science curriculum”, folks end up telling the country that they are standing up for telling kids known falsehoods.

Hat tip to Glenn Branch.

Wesley R. Elsberry

Falconer. Interdisciplinary researcher: biology and computer science. Photographer. Husband. Christian. Activist.