Tuesday, October 27, 2009

The Endorsement Test and the "God's Eye Point of View"

In November 2004 the board of the Dover Area School District of Pennsylvania formulated and promulgated a policy that required Dover High School ninth grade biology teachers to read in class a series of brief paragraphs:
The Pennsylvania Academic Standards require students to learn about Darwin's Theory of Evolution and eventually to take a standardized test of which evolution is a part.

Because Darwin's Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

Intelligent Design is an explanation of the origin of life that differs from Darwin's view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.

The policy never took effect. Soon after the school board’s action, several parents of Dover school children, assisted by attorneys from the American Civil Liberties Union of Pennsylvania, brought suit against the school district. These citizens argued that the policy violated the establishment clause of the Constitution’s First Amendment. Federal Districtt Court Judge E. Jones, III, agreed, and ruled in their favor.

Regardless of where one may stand on the court’s ruling, it is clear that the Dover disclaimer is poorly worded and pedagogically weak. (1) It implies that Darwinism is a theory about “the origin of life.” But that is at best misleading if it is referring to biological evolution, which concerns how living things that already exist change over time. (2) Its claim that evolution is “not a fact” is inconsistent with the school board’s call for it students to “keep an open mind.” The board cannot say that evolution is not a fact and at the same time suggest to students that they should have an open mind on the subject, since having an open mind requires that they critically consider the possibility that evolution is a fact.

As for Judge Jones’ opinion in Kitzmiller v. Dover (2005), there is an ironic aspect of it that to my knowledge no one has drawn attention. It has to do with the judge’s application of what has come to be kown as “the endorsement test.” First proposed by Justice Sandra Day O’Connor in Lynch v. Donnely (1984), the test stipulates that if a government action creates a perception that it is either endorsing or disfavoring a religion, the action is unconstitutional. The concern of this test is whether the disputed activity suggests "a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." However, who counts as a “nonadherent” has seemed to change. In Lynch Justice O’Connor suggests that nonadherents are “ordinary citizens,” actual flesh and blood human beings, who are the recipients of the government’s message. In a subsequent case, Wallace v. Jaffre (1985), she proposes a type of “reasonable person standard,” suggesting that the nonadherent is an objective observer fully informed of all the facts: “The relevant issue is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools.” Thus, a law may pass or fail the endorsement test depending on who (or what) counts as a nonadherent.

After offering a survey of the history of the endorsement test and how it developed over time, Judge Jones moves on to “ascertain whether the ID Policy `in fact conveys a message of endorsement or disapproval’ of religion, with the reasonable, objective observer being the hypothetical construct to consider this issue.” Accepting Justice O’Conner’s more abstract definition of a “reasonable, objective observer” (or ROO) from her Wallace opinion, Judge Jones defines the ROO for the purposes of the Dover policy as one “who knows the policy’s language, origins, and legislative history, as well as the history of the community and the broader social and historical context in which the policy arose.”

Judge Jones then offers an extensive presentation of what the ROO would know in order for the ROO to conclude that the Dover policy violates the endorsement test. Although the judge does conclude that an ROO would see the Dover policy as establishing religion, it is a deeper, more philosophical, question that I wish to draw your attention to here: What precisely is a rational, objective observer (or ROO), and why is it apparently so useful to jurists?

The ROO is a sort of person who, if he really existed, would exhibit ideal epistemological excellence. He would not be limited by biases, prejudices, or ignorance. His reasoning powers would not only be functioning properly, but the environment in which he would issue his judgment would contribute to, rather than, interfere with this judgment. And it would be a judgment that could never be wrong, for not only would he not have any internal or external impediments or limitations, he would have inerrant knowledge of all the relevant facts—e.g., legislative history, policy’s cultural context—required to make a just ruling. The ROO, of course, is a hypothetical construct and not a real person. But yet, its explanatory power depends on the judge taking the finite, ordinary, and limited abilities, powers, and knowledge that human beings possess and suggesting to his readers a hypothetical person who possesses perfect versions of these attributes. These perfections, apparently, are not the deliverances of direct empirical observation, since there is no person on earth who possesses or has possessed these attributes at their highest levels. Oddly enough, this exercise of predicating perfected attributes of the ROO is similar to how St. Thomas, in Summa Contra Gentiles, suggests Christians ought to predicate the attributes of God.: “Inasmuch as every perfection of the creature may be found in God, although in another and a more excellent way, it follows that whatever names absolutely denote perfection without defect, are predicated of God and of other beings, as for instance, 'goodness,' 'wisdom,' 'being,' and the like.” And even more strangely, the ROO would seemingly possess what the philosopher Hilary Putnam calls a “God’s Eye point of view”: “One of these perspectives is the perspective of metaphysical realism. On this perspective, the world consists of some fixed totality of mind-independent objects. There is exactly one true and complete description of `the way the world is.’… I shall call this perspective the externalist perspective, because its favorite point of view is a God’s Eye point of view.” Thus, in order to expunge the divine, or at least allusions to Him, from the public schools, Judge Jones requires the divine’s assistance, or at least the assistance of a hypothetical deity. So it is only with the help of “God” that a judge may banish God from a corner of public life. It does not get more ironic than that.
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*This blog entry is excerpted and adapted from a 16,000-word article, “How to Be An Anti-Intelligent Design Advocate,” that will appear in the St. Thomas Journal of Law & Public Policy 4.1 (2010)

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