Opderbeck and Dover

David Opderbeck weighs in with an opinion on the decision in the Kitzmiller v. Dover Area School District case:

This leads to my primary criticism of the Kitzmiller decision. I don’t believe Judge Jones should have ventured a broad definition of “science” in the Kitzmiller case, as though such an exercise necessarily ends the discussion of constitutionality. Under the applicable standards for establishment clause cases, the proper inquiry is into purposes and effects: was the government’s purpose “secular” and was the primary effect of the government’s decision to advance or inhibit religion or to produce an excessive entanglement of government and religion? Whether an idea is labeled “religion” or “science,” in itself, is irrelevant to the constitutional question. “Religion” is a constitutionally proper subject of study in the public schools, provided that the purpose and effect of that study is not sectarian.

Rather than wading into the deep waters of defining “science” over against “religion,” then, Judge Jones should have focused primarily on the purposes of the Dover school board, which clearly were to proselytize for a particular kind of creationism, rather than to explore interdisciplinary approaches to science and religion generally.

I am baffled that anyone who has claimed to have read the decision could possibly apply a clause like “as though such an exercise necessarily ends the discussion of constitutionality” to it. It is manifestly inapplicable to Judge Jones’ decision.

Opderbeck’s primary criticism is much vitiated by what he later endorses as an alternative statement that he would have found acceptable for the decision:

In my view, however, there is a significant qualitative and quantitative difference between giving an issue some consideration and making it the central issue in the case. The court could easily have said something like this, and nothing more than this, on the demarcation issue:

The question of ID theory’s scientific merits, and indeed whether ID theory is properly considered ‘science,’ is hotly disputed by the parties. The court finds, after hearing extensive testimony, that the mainstream scientific community generally does not consider ID theory to be valid science. Combined with the clear overriding religious purposes of the school board members, this finding establishes that there was no valid secular purpose for the school board’s actions and that the proposed curriculum would result in excessive government entanglement with religion.

In this context, the Judge Jones’ effort to define “science” in a broad sense was unnecessary, but not “activist.” In any event, the term “activist judge” generally sheds far more heat than light on the complex nature of the judicial function.

In order to evaluate the defense’s argument that introducing “intelligent design” to students because it was science, Judge Jones had to take up the issue of whether the claim that it was science stood up to scrutiny. So, qualitatively, Opderbeck has no argument: he stipulates above that addressing the “secular purpose” argument was necessary, though he seemingly misses the connection to determining the scientific status of “intelligent design” by saying the discussion of science in the broad sense was unnecessary. One can’t accomplish the one without doing the other, though. Nor was the decision seeking to resolve the “demarcation” question, something that has eluded philosophers of science thus far.

How about the quantitative aspect that remains? One can argue about Opderbeck’s assertion that the “ID is not science” section became the “central” issue; certainly most careful readers of the decision will not find it to be the case. It was the fourth section under consideration of the “endorsement test” and section “r.” under the “purpose inquiry” part of considering the “Lemon test”. It was, though, extensively discussed. Judge Jones had at least two motivations for doing so.

One would be a proximal concern that if the case went before an appeals court, that that court have both the full trial record and the judicial reasoning that set aside the defense’s argument of having a secular purpose in “intelligent design” being science. This is commonly called “appeal-proofing” a decision, and it is a valid endeavor for a judge to engage in it. That the subject happens to offend Opderbeck is not a consideration. Could Judge Jones have responsibly only said what Opderbeck offers above? One would beg to differ; Opderbeck’s formulation of how to deny the defense’s “secular purpose” argument seems to be erroneous. On appeal, Opderbeck’s statement could be attacked as simply being a statement of hearsay and not reflective of the actual trial record, a fault that Judge Jones’ decision does not share.

The second motivation would be to provide a record for other courts that might become involved in similar litigation. This kind of record is best done expansively, laying out the issues with full consideration and clarity. Opderbeck’s preferred text would be next to useless for such a purpose.

But all this pales in comparison to the misdirection that Opderbeck engages in by way of his discussion. Opderbeck introduces his “primary criticism” as being motivated by the general principle that courts should refrain from seeking to determine the content of science courses, that they should limit their “gatekeeping” function to the aspect of determining what evidence is relevant and what testimony can be considered expert and entered into the trial record, and in determining the purpose and effects of governmental agents. But Judge Jones clearly is making inquiry into the nature of “intelligent design” precisely in service of the limited goals Opderbeck himself endorses, and not the one that Opderbeck claims is the basis for his “primary criticism”.

In summary, Opderbeck’s “primary criticism” of the Kitzmiller decision seems to be confused as to why the issue was important, arguably wrong concerning the claim that his concern was the “central issue” of the decision, and unappreciative of the purposes for the length of the decision. Are we really sure that the text attributed to Opderbeck was really written by the David Opderbeck who is a professor of law, and not somebody seeking to make him look bad?

Update: There is a next thread where I respond to the latest comment entered in this thread by David Opderbeck.

Wesley R. Elsberry

Falconer. Interdisciplinary researcher: biology and computer science. Data scientist in real estate and econometrics. Blogger. Speaker. Photographer. Husband. Christian. Activist.

11 thoughts on “Opderbeck and Dover

  • 2009/11/30 at 9:36 am

    Wesley, I really don’t understand most of your critique of my essay. To suggest that Judge Jones’ 25-page treatment of whether ID is “science” might not have been central to his opinion is more than a bit odd. Clearly, this discussion was key to the opinion. I think the opinion was seeking to end the “demarcation” question in a broad sense, which is my objection to it. Consider this from the opinion:

    “Accepting for the sake of argument its proponents’, as well as Defendants’ argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum.”

    While I might agree with that conclusion, it has nothing to do with the establishment clause question before the Court. Basic curricular decisions are the province of other branches of government.

    If you read all my S&S posts on Dover carefully, including one that will be forthcoming later this week, I think you’ll see that you’ve misunderstood me, or at least that our areas of disagreement aren’t as large as you might think.

  • 2009/11/30 at 12:11 pm

    Good post. Did you post it to the BioLogos blog?

  • 2009/11/30 at 4:06 pm

    I tried to put up a somewhat lengthy response earlier this morning. Did you get it?

  • 2009/11/30 at 5:39 pm

    I approve comments as I can get to them, which currently does not include weekday working hours. I probably should add a note to the sidebar to that effect.

  • 2009/11/30 at 8:19 pm


    25 pages out of 139 pages (pp.64-89) in the complete decision sounds like there were perhaps some other components to the decision. Nor does a simple page count convey what the logical structure of the decision is. As I mentioned in the post, the consideration of “Is ID science?” was but one part out of four in the “endorsement test” discussion, and one part in eighteen (if my count is correct) in the “Lemon test” discussion. There is a significant difference in rhetorical implication between a component being “key” and a component being “central”. The claim that you made originally, and that I was responding to, was this:

    In my view, however, there is a significant qualitative and quantitative difference between giving an issue some consideration and making it the central issue in the case.

    My understanding of legal decisions is that the better ones explicitly address the various arguments that are made before the court. The section on whether ID is science does address the arguments made before the court, and thus easily does qualify as being a “key” component of the decision. However, there is no indication that the length of the section expounding upon the arguments was elevated to such an extent that it could be reasonably termed “central”. The length of the section dealing with the argument over the scientific status of “intelligent design” reflects no unseemly fixation on the topic by Judge Jones, but rather the investment in time of presentation of precisely those arguments by both the defense and the plaintiffs.

    I think the opinion was seeking to end the “demarcation” question in a broad sense, which is my objection to it. Consider this from the opinion:

    “Accepting for the sake of argument its proponents’, as well as Defendants’ argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum.”

    I think that there is scripture for this: “straining at gnats”. Would it perhaps be clearer if the Dover Area School District had proposed making students aware of the controversy over the authorship of Shakespeare’s plays in the biology classroom? The issue at hand was an asserted secular purpose for teaching a particular concept in a particular class; the fact that the concept does not have a place in that class is surely relevant to deciding that it cannot be held to have a secular purpose. Even if we were to accept your highly uncharitable interpretation, this single sentence out of a 139-page decision fails to support your argument that such a meddling of courts in curriculum content as you fear was “central” to the decision. And I don’t see that the quoted sentence even approaches something that addresses the “demarcation” problem. “Intelligent design” is in no way even close to being a borderline case. Saying that “intelligent design” “does not satisfy the ground rules of science which require testable hypotheses based upon natural explanations” is not an attempt to establish a demarcation criterion. It is noting that a necessary attribute of scientific work is missing from “intelligent design”. Do you see the difference? If not, consider that while testability is necessary to a scientific hypothesis or theory, it is not sufficient to make something part of science. There are plenty of empirically testable concepts that don’t fall under the science umbrella. Troubleshooting plumbing problems is one that even got a mention in an essay by Stephen Jay Gould.

    While I might agree with that conclusion, it has nothing to do with the establishment clause question before the Court.

    David, you noted “secular purpose” in your proposed replacement text. It is baffling to me how you can be apparently cognizant of the need for the decision to address the defense’s claims to have a secular purpose in teaching that “intelligent design” is science, but steadfastly argue that the actual decision process to deny their argument should have been skipped, and only a bare assertion that they didn’t have one be included in the decision. And the quoted sentence you gave directly addresses one possible way in which a secular purpose could be claimed.

    If you read all my S&S posts on Dover carefully, including one that will be forthcoming later this week, I think you’ll see that you’ve misunderstood me, or at least that our areas of disagreement aren’t as large as you might think.

    I’ve seen and read two such posts (1 and 2). Do I have the complete set there?

    Myself, I was introduced personally to the IDC movement’s reliance upon deception and gaming the system by my participation in the 1997 “Naturalism, Theism, and the Scientific Enterprise” conference held in Austin, TX. I still have the “Call for Papers” in my files. There was no mention there of “intelligent design”. It offered that scholars on both sides of the issue would meet in a balanced, scholarly conference. It lied by both commission and omission. We critics were a definite minority. My presentation was at the end of the first morning’s talks, and I fielded thirty minutes worth of fairly hostile questions. Phillip Johnson thanked the critics for showing up; our mere presence would help “legitimate the question”. That arrogance made a lasting impression upon me. The antievolution movement has been founded upon a basis of deception ever since the 1968 Epperson v. Arkansas decision. I haven’t had to deal with a change of heart over the IDC movement, since I was convinced quite a long time ago that it was a religious movement whose by-product was to tarnish the Christian faith.

    So I appreciate that you have more recently come to a critical view of the IDC movement and are in agreement with many points made by Judge Jones. But I still feel compelled to point out that you appear to be in error in your stated continuing “primary criticism” of the decision.

  • 2009/12/01 at 2:13 am

    By the way, David, you should correct the first S&S column; the trial and decision in Tennessee v. Scopes occurred in 1925, not 1926.

    I don’t think that “intelligent design” was “reduced to” a tool in the culture wars. That is all it has ever been. The pattern from the 1968 Epperson decision onward has been for the antievolution movement to progressively obscure its religious origins and continuing intent by progressively using subsets of the antievolution arguments of the version just previous. “Intelligent design” is just a label for such a subset, one that eschews mentioning the age of the earth and flood geology, but which incorporates the same arguments previously made on such things as stepwise evolution of systems (“what good is half a wing?” for Duane Gish becomes “what good is half a clotting system?” for Mike Behe) and arguments from improbability (witness the exchange between Henry Morris and William Dembski over the provenance of improbability arguments). All of “intelligent design” is simply borrowed and made-over material from earlier forms of religious antievolution. There is no IDC scholarly plane that has been sullied by the plebes; the principals behind pushing the IDC agenda have been the ones who have clearly communicated their support for old-fashioned religion all along. The primary problem in the Kitzmiller dust-up was that the Thomas More Law Center actually believed the incredible stream of propaganda flowing from the Discovery Institute, that evolution was a “theory in crisis” and that Darwinism was on its last legs, in the midst of being toppled by the scientific discoveries of a new generation of scientists, and that if only they could put those folks on the witness stand it would all go their way in court. Instead, in spring of 2005 the DI’s Bruce Chapman specifically requested that the five DI fellows originally signed up for expert witness gigs at trial withdraw from the case; three of them did so, leaving only Michael Behe and a confused Scott Minnich as bona fide “intelligent design” experts to show up — and make the plaintiffs’ case that much stronger.

  • 2009/12/01 at 10:10 am

    Wesley, I have one more post coming, more on theological issues.

    On the Kitzmiller opinion itself, if you don’t think the “demarcation” question was central to the opinion, you’re just misreading it. I’ve made a living for more than twenty years reading judicial opinions. That certainly doesn’t mean I always get it right, but counting the “parts” of the opinion as you’re trying to do here surely isn’t helpful.

    Moreover, if you’re correct, and the “demarcation” portion of the opinion wasn’t central to the opinion, then it seems to me that you should agree with my ultimate conclusion. After all, central my point is that a relatively lengthy and involved effort to define “science” wasn’t necessary to the establishment clause analysis. When you argue that the “demarcation” portion wasn’t central, and then argue at length about how good and important that part of the opinion was, you contradict yourself.

    In any event, I suspect that when you read my third post in the series (I think it will come up later this week), you’ll agree substantially with it. Our areas of agreement on this, I think, are larger than our areas of disagreement. I think you’re mistaking me for an ID advocate, which I’m not (though I was at one point). Nevertheless, I have some overriding concerns about which governmental institutions should be involved in demarcation questions, as well as concerns about freedom of speech and religious liberty, that give me significant pause about the Kitzimiller opinion and about the nature of the public debate on this issue. We may disagree on how those questions factor into the equation, but I hope that provides a basis for conversation, rather than for attack (particularly the sort of ad hominem with which you opened this conversation…).

  • 2009/12/01 at 1:54 pm

    I have disagreed with Opderbeck’s article at “Science and the Sacred,” but in part I’d like to agree (as I also did previously) with him that the court went too far in determining what “science is.”

    Take this from Jones’ decision:

    This revolution entailed the rejection of the appeal to authority, and by extension, revelation, in favor of empirical evidence. (5:28 (Pennock)). Since that time period, science has been a discipline in which testability, rather than any ecclesiastical authority or philosophical coherence, has been the measure of a scientific idea’s worth. (9:21-22 (Haught ); 1:63 (Miller)). In deliberately omitting theological or “ultimate” explanations for the existence or characteristics of the natural world, science does not consider issues of “meaning” and “purpose” in the world. (9:21 (Haught); 1:64, 87 (Miller)). While supernatural explanations may be important and have merit, they are not part of science. (3:103 (Miller); 9:19-20 (Haught)).

    How does rejecting “revelation” entail a blanket rejection of “supernatural explanations”? After all, Darwin took Paley’s “supernatural explanation” seriously, because it can be stated in a testable form (Paley rightly faulted evolutionary ideas for not being testable). Yet Jones seemingly is relying upon the idea that supernatural ideas cannot even hypothetically be part of science.

    Practically, I realize that we think we can generally dismiss supernatural explanations, but this “a priori” rejection today is actually a posteriori, much like perpetual motion machines are ignored because they’ve failed so regularly in the past.

    Oddly, though, Opderbeck seems to reject the idea that science doesn’t provide “ultimate” explanations:

    “Science” and “religion” use different methodological tools and varying rules of discourse, but both disciplines inquire into the same ultimate reality.

    True, he’s not explicitly stating there that science provides “ultimate explanations,” yet what else could he mean, when he claims that both religion and science inquire into the “same ultimate reality”? If that’s true at all, the fact that religion deals primarily with “ultimate explanations” must be a part of it. And yet, science is about what works, not about “ultimate explanations,” which are the realm of religion and of some philosophies (for and about which I don’t care).

    Opderbeck appears to be objecting to Jones’ decision mostly due to his largely incorrect notion that science and religion make similar inquiries into the world. And in that he is certainly wrong–perhaps not with respect to all religions, but certainly regarding typical Western religions.

    Glen Davidson

  • 2009/12/01 at 1:55 pm

    What was central to Opderbeck’s argument was he wanted the judge to have issued a kinder, gentler ruling, leaving the door open for the chance of gaining ID a legal standing as “science.”

    Judge Jones was asked in an interview how he was qualified to rule on what was science. He promptly responded, “Because we deal with it in the courtroom every day.”

    Was Intelligent Design science? No. The plaintiffs said it was not. The defense said it was. Judge Jones ruled for the plaintiffs based on testimony and (abundant) evidence.

    Judge Jones was under no obligation to candy-coat his ruling, nor to use the ambiguous logic Opderbeck employs for a hopeful “re-take” on ID. A judge can’t rule “maybe” as Opederbeck advocates.

    Remember, Judge Jones was ruling on law. Opderbeck was arguing on morality.

  • 2009/12/07 at 4:29 pm

    In several presentations that Judge Jones has made since his decision in the Dover case, he has stated that both sides requested that he rule on whether ID was science. So I would ask Mr. Opderbeck, what was the judge supposed to do when both sides requested such a ruling?

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