Mr
Darrell:
No one has claimed that a Senate
resolution has the force of law, certainly not me. But if your contention
is that a sense of the Senate resolution, and language in a conference committee
report, is never looked to (by courts or administrative agencies) when adopting
regulations or interpreting the law, then your contention is patently false
(except, perhaps, under Justice Scalia’s view of legislative history,
which last I checked had not garnered the support of a majority of the Court).
Yet you repeat once again that in Ohio (and you now add that also in Texas) the claim was made that
the law “required” the teaching of intelligent design (although you
now admit that it was not made by the Discovery Institute, which was your initial
assertion). Whether anyone else made the claim should be easy to verify.
All I asked was for a citation. If there is one, I should very much like to see
it, so that I can assess—so that we can all assess—whether the
claims being made are accurate or not.
Sincerely,
John Eastman
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On
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Sent: Monday, March 15, 2004 8:33
PM
To: [EMAIL PROTECTED]
Subject: Re: NRO Article
I have two responses: First,
no sense of the Senate resolution has the force of law, according to the U.S.
Senate Counsel. U.S.
Senate: Legislation & Records Home > Legislative Process >
Legislation, Laws, and Acts (see "Simple
Resolutions") Any suggestion otherwise is false. This is
well-established law, and I find efforts to fudge the lines
reprehensible. This not a subject for opinion.
Second, Sen. Santorum did not propose this as a sense of the Senate
resolution. He proposed it as a full-blown amendment. Sen. Kennedy
made it clear that the bill was dead if the language remained, and Sen.
Santorum backed down, agreeing to a sense of the Senate resolution
instead. As Sen. Kennedy's office has made clear, he does not endorse the
idea, and had he agreed that the idea deserved to be law, he would not have
demanded it be removed from the bill. If you want a good earful, call
Kennedy's office and ask if they think "problems" with evolution
should be taught. Santorum's protestations are interesting, but
ineffective. The language is not law. The language of the Santorum
amendment is ambiguous to someone who does not understand the code words used
by creationists, and I doubt more than two or three senators realized how the
resolution would be represented. In Ohio, the claim was that the law
required "intelligent design" to be taught. That was repeated,
though not by the Discovery Institute, in several pieces of testimony to the
Texas SBOE this summer.
The Department of Education is forbidden from participating in writing
curricula by tradition and law -- as was the the Commissioner of Education
before ED was established. Congress refrains as well. So the claims
that a sense of the Senate resolution which gets a nice mention in a conference
report are law are false, and continuing efforts to fudge the lines go against
law, tradition and wisdom, in my view.
There may be a court test of this stuff. I'm willing to wager who will
win on the point.
Ed Darrell
Dallas
In a message dated 3/15/2004 10:15:06 PM Central Standard Time,
[EMAIL PROTECTED] writes:
Ed Darrell has made some
specific new claims of fraud below. (at least if done under federal research
aegis). A couple I have been able to review are worth exploring further.
1. Among other false claims made against science by the
campaign against Darwin in the past several years are these: That the No
Child Left Behind law requires "intelligent design" to be taught
(before the Ohio School Board) (the law has no such requirement);
The Conference Report of the NCLB contains language, tracking a “sense of
the Senate” resolution that had been adopted in the Senate 91-8 on June
3, 2001 (CR S6153) that urges: "Where topics are taught that may generate
controversy (such as biological evolution), the curriculum should help students
to understand the full range of scientific views that exist, why such topics
may generate controversy, and how scientific discoveries can profoundly affect
society." If Professor Darrell has a specific citation to the Ohio
School Board depicting whether someone argued that NCLB “requires”
the teaching of intelligent design, I would like to see it. My
understanding is that the argument was simply that NCLB permitted (even
encouraged) the teaching of scientific views that called Darwin’s theory into
question.
2. that a sense of the Senate resolution is as good as
law (it has no force of law);
I am not aware of any claim by The Discovery Institute that the Senate
resolution (or the conference committee report language tracking it) attached
to the NCLB has the "force of law" or that it was legally mandatory.
Their point, which is available at http://www.discovery.org/articleFiles/PDFs/santorumLanguageShouldGuide.pdf,
is that a bipartisan majority of Congress endorsed the importance of teaching
"the full range of scientific views" on evolution, and so states
seeking to adopt the science standards required by the NCLB should take
Congress's view seriously. There is nothing fraudulent or incorrect about this
position.
Again, I don’t think either of these constitute “scholarly
fraud” by the Discovery Institute. Perhaps Professor Darrell has
more to back up his claim.
Sincerely,
John Eastman
Chapman University School of Law
