Thursday, December 22, 2005

Cooper Protests Too Much

Seth Cooper is a former attorney for the Discovery Institute (DI). He makes a brief appearance on page 100 of the Court's decision in the Dover case (citations omitted):

At some point before June 2004, Seth Cooper, an attorney with the Discovery Institute contacted Buckingham and two subsequent calls occurred between the Discovery Institute and Buckingham. Although Buckingham testified that he only sought legal advice which was provided in the phone calls, for which Defendants asserted attorney-client privilege, Buckingham and Cooper discussed the legality of teaching ID and gaps in Darwin's theory. The Discovery Institute forwarded Buckingham a DVD, videotape, and book which he provided to Nilsen to give the science teachers. Late in the 2003-04 school year, Baksa arranged for the science teachers to watch a video from the Discovery Institute entitled “Icons of Evolution” and at a subsequent point, two lawyers from the Discovery Institute made a legal presentation to the Board in executive session.

Buckingham refers to School Board member William Buckingham.

Cooper is not happy about this. In this indignant essay, posted at the DI's blog, Cooper presents his objections. He writes:

The opinion of the federal court judge in Kitzmiller v. Dover Area School Board mischaracterized my role and actions on behalf of Discovery Institute in matters at issue in the case, making it necessary for me to set the record straight.

Sounds serious. It isn't. First, consider Cooper's own version of his contacts with Buckingham:

In the spring of 2004, through an e-mailed newspaper article, I became aware of the controversy in Dover Township, PA, concerning the teaching of evolution. Proceeding to call Dover Board Member William Buckingham, I told him that his Board would run afoul of the First Amendment of the Constitution should it choose to require students to learn about creationism or to censor the teaching of the contemporary version of Darwin's theory or chemical origin of life scenarios. I also made clear to Buckingham that Discovery Institute does not support the mandating of the theory of intelligent design. Although our phone conversations touched upon matters of legality, they also concerned matters of education policy and curriculum that I did not consider privileged. I clearly and unequivocally identified myself as a legal and policy analyst for the Discovery Institute.

In the hopes of persuading Buckingham away from leading the Dover Board on any unconstitutional and unwise course of action concerning the teaching of evolution, I sent Buckingham a DVD titled Icons of Evolution, along with a companion study guide. Those materials do not include arguments for the theory of intelligent design, but instead contain critiques of textbook treatments of the contemporary version of Darwin's theory and the chemical origin of the first life. The content of the materials is in keeping with the U.S. Supreme Court's pronouncement in Edwards v. Aguillard (1987) that public school students may be taught prevailing scientific theories along with “scientific critiques of prevailing scientific theories.” Even so, I never advocated that the material in Icons be given a preferred position in the curriculum or that it even be given “equal time.”

I defy you to find any difference between the Court's description of Cooper's actions and Copper's own description of those same actions.

We should also point out the extreme disingenuousness of arguing that the Icons of Evolution DVD only critiques textbook treatments of evolution but does not make arguments in favor of ID. As the Court discusses explicitly in its decision, ID is based almost entirely on a “contrived dualism” in which evidence against evolution is immediately interpreted as evidence for ID. There is no important distinction between the two.

So where is the mischaracterization? Well, Cooper insists his communications with Buckingham were not privileged. But then, the Court only states that the Defense asserted this privilege, not that the assertion was correct.

More to the point, thorughout his essay Cooper is very concerned that people understand that he advised the Dover Board against their ID policy. He writes:

Also, these references by the Judge leave open the impression that Discovery Institute somehow advised the Dover Board to adopt its ID policy. But that is completely false. The strong suggestions I gave to Buckingham prior to that vote touched upon legal matters, but my recommendations were disharmonious and completely at odds with the ID policy that the Board eventually adopted. Neither I nor anyone at Discovery Institute had any knowledge or role whatsoever in the drafting of the ID policy that the Dover Board adopted.

But there is nothing in the decision that says otherwise. In fact, the nature of the advice Cooper chose to give is totally irrelevant to any point the Court was making.

The statement from page 100 of the decision, given above, comes near the beginning of a long section in which the Court is reconstructing, based on the testimony and exhibits presented at trial, the actions of various Board members. The goal of this reconstruction was to determine whether the Board's ID policy had any legitimate secular purpose. Such a determination is necessary in applying the relevant precedents to cases of this sort.

The issue in the quoted passage was Buckingham's actions, not Cooper's. The Court was making the point that in seeking outside advice regarding the ID policy, Buckingham contacted only two organizations: The Discovery Institute and The Thomas More Law Center. Both of these groups have clear religious goals, and both were contacted in the hopes of receiving legal, not scientific advice. The significance of this becomes clear later, when the Judge summarizes his conclusions:

We initially note that the Supreme Court has instructed that while courts are
“normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.” Although as noted Defendants have consistently asserted that the ID Policy was enacted for the secular purposes of improving science education and encouraging students to exercise critical thinking skills, the Board took none of the steps that school officials would take if these stated goals had truly been their objective. The Board consulted no scientific materials. The Board contacted no scientists or scientific organizations. The Board failed to consider the views of the District’s science teachers. The Board relied solely on legal advice from two organizations with demonstrably religious, cultural, and legal missions, the Discovery Institute and the TMLC. Moreover, Defendants’ asserted secular purpose of improving science education is belied by the fact that most if not all of the Board members who voted in favor of the biology curriculum change conceded that they still do not know, nor have they ever known, precisely what ID is. To assert a secular purpose against this backdrop is ludicrous. (Emphasis added.) (p. 130-131)

Elsewhere in his essay, Cooper writes:

I take strong exception to the Judge's characterization of Discovery Institute--a secular public-policy think-tank and emphatically not a party to the lawsuit--as a culturally religious organization.

This is laughable, of course. At no point does the Court imply in any way that the Discovery Institute was a party to the lawsuit. And anyone who knows the history of the Discovery Institute knows perfectly well that they are hardly a secular think-tank. But just in case you're not aware of the DI's history, I would direct you to pages 28 and 68 of the decision, where the Court supplies ample justification for referring to the religious mission of the DI.

In fairness to Cooper, he is right that the Discovery Institute has spent the last few months distancing itself as much as possible from the Dover School Board. They know a budding legal fiasco when they see one. But his embarrassment over advising the losing side does not constitute a mischaracterization on the part of the Court.


At 10:10 PM, Blogger Ed Darrell said...

Cooper should be concerned. At no point did he inform the Dover school board officials that it woudl be inadvisable to pass the doctrine, at no point did he advise them they would lose in court, and at no time did he make it crystal clear that he was not acting as an attorny urging them to pass the policy that got them into trouble.

He screwed up. De Wolf screwed up in his law review article for the University of Utah.

Both of them will probably avoid any reprimand from their respective state bars, but it's not because they were clearly on the side of the ethical canons they have sworn to uphold. Their advice was atrocious, wrong, and without due consideration for how it might be perceived to non-lawyers.

Beckwith isn't a lawyer, and has never taken a legal ethics exam. He's scot free for giving bad legal advice, so long as he has made it clear that he's not an attorney.

Whenever I'm approached at parties, I tell people that free legal advice is worth every penny they pay. Thompson, Cooper and De Wolf have given object lessons in the truth of that statement.

At 1:03 PM, Anonymous Anonymous said...

Does it really matter what Cooper's intentions were? Beginning on p. 93 of the judgement, as you pointed out, is a long (more than 20 p.) description of the actions of a couple of board members (Buckingham and Bonsell) clearly desperate to inject religion into the science classroom. So desperate, in fact, that Buckingham took up a collection at church for funds to purchase the "Pandas" book and laundered it through Bonsell's father. So even if Cooper had no involvement whatsoever, there was clearly intent to violate the Establishment Clause and the judge's ruling would have been the same.


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