This is a brief followup to my previous post. In addition to the numerical error, there was some confusion from my readers about the use of the original expert witness reports. The original expert witness reports, which were timely, covered the seven courses named in the complaint. However, they did not address the as-applied challenges to the individual course rejections, only the facial challenges to the policies. When the plaintiffs finally identified the 41 course rejections they were challenging, they dropped two of the original seven from the list, and then three more after UC objected. This left 33 new courses (not offered by Calvary Chapel), four original courses offered by Calvary Chapel, and one original course not offered by Calvary Chapel. ACSI submitted supplemental reports/affadavits (they submitted them as both types of documents just in case one type was precluded) for all 38 of the courses, this time arguing specifically for the as-applied challenge (and specifically for unreasonableness). The judge rejected the supplemental reports, leaving only the original reports for the 5 remaining courses named in the Complaint.
As I noted, these original reports only addressed the facial policies. The evidence offered in a facial challenge can be used to demonstrate that the policy, on its face, is unreasonable. But once that policy is determined to be reasonable (as was determined in the first partial summary judgment), the evidence offered must demonstrate that the course would not have been rejected by a reasonable person working under the guidelines of the policy. In other words, did the course meet the requirements listed by the policy? That is an entirely different kettle of fish.
So the plaintiffs tried to shoehorn their old evidence into the new standard of review. The problem was, for each course, the evidence they provided failed to demonstrate that they had met the listed requirements for that type of course. For example, one of the requirements for a literature course is that whole works be used as the primary text, not anthologies or short stories. Rather than argue that they met the “whole works” req, ACSI argued that the other courses approved by UC had used texts by the same authors in the anthology ACSI used. This analysis also failed to address whether the works of those authors in the approved courses were whole works or part of anthologies.
Of particular interest to many of my readers is the biology course. Although UC challenged this course based on standing*, the judge declined to address the standing issue for this course (and since it was based on prudential standing, not constitutional standing, the judge could use his discretion on the issue). Dr. Behe, a familiar face to those following creationism, provided the expert report. The portion of his report that ACSI offered up tried to demonstrate that the Christian textbooks met the state BOE standards as well as certain secular textbooks. He did this by analyizing whether a topic was mentioned in the books (even going so far as to include misreperesenting a scientific claim as mentioning a topic, because a teacher could use that as a launching point for further discussion! – though he didn’t quite word it that way, of course). His criteria was merely a mention of the concept, openly admitting “I did not consider how much detail or depth a text went into on a given standard.” See pages 2-3. The problem, aside from using a standard that UC is not obligated to accept, is that doesn’t meet the requirement for content – and Behe acknowledged what that requirement was. Behe cites the requirements on page 17-18:
Certification Categories. Generally, courses that are suitable for satisfying the minimum requirement will fall into one of three categories:
College preparatory courses in biology, chemistry, or physics.
College preparatory courses which may incorporate applications in some other scientific or career-technical subject area, but which nonetheless cover the core concepts that would be expected in one of the three foundational subjects. A few examples could include some courses in marine biology or agricultural biology, which may qualify as providing appropriate content in basic biology; and some advanced courses in earth and space sciences, which may provide suitable coverage of chemistry or physics. These are only examples; other possibilities exist. Hoever, it is emphasized that courses in this second category must cover, with sufficient depth and rigor, the essential material in one of the foundational subjects in order to qualify for “d” certification.
Behe then follows with the following observation: “It seems clear from this description that the university’s prime concern is that the “essential material in one of the foundational subjects” must be covered…” Correct, but Behe neglected to mention the part about “with sufficient depth and rigor” – which he previously admitting not having evaluated. Behe failed to produce evidence that the rejection was unreasonable because he abdicated the discussion of whether the course met the stated requirements.
In a similar vein, ACSI had no evidence for the unreasonableness of other course rejections. The evidence ACSI produced was merely “a thin veneer” quickly destroyed by the judge.
*Allowing myself to get distracted tracking down whether UC objected to the course is the root cause of why I made the numerical error in the previous post.
-Edited for wordpress display issues (stupid indents not working with numbered lists)