Published by admin on 05 Jan 2012 at 05:28 pm
The Gutting of BESE’s LSEA Implementation Policy: The Untold Story of Alliance Defense Fund Involvement
By Barbara Forrest
Let’s begin 2012 by looking back three years to January 13, 2009. That is when the Louisiana Family Forum (LFF) persuaded the Board of Elementary and Secondary Education (BESE) to gut its policy for implementing the 2008 Louisiana Science Education Act (LSEA). The gutted policy was inserted as §2304, “Science Education,” into Bulletin 741 [doc], the Louisiana Handbook for School Administrators, which instructs local school administrators and school boards concerning laws passed by the legislature. How did the LFF accomplish this? Long story short: the LFF showed up at BESE’s January 13, 2009, meeting loaded for bear, bringing their Louisiana College creationist professors — and their attorneys — with them. As a result, BESE stripped from the policy an explicit prohibition against teaching creationism: “Materials that teach creationism or intelligent design or that advance the religious belief that a supernatural being created humankind shall be prohibited for use in science classes.” The very next day, LFF executive director, Rev. Gene Mills, announced, “Louisiana is open for business.” But there is more to this story that has not yet been told.
The untold part of the story concerns the involvement of the Alliance Defense Fund (ADF) — a national Religious Right litigation group headquartered in Scottsdale, Arizona. The ADF describes itself as (1) “a servant organization that provides the resources that will keep the door open for the spread of the Gospel through the legal defense of religious freedom, the sanctity of life, marriage and the family” and (2) “a legal alliance defending the right to hear and speak the Truth through strategy, training, funding, and litigation.” (That’s a reference to religious Truth in case you’re wondering.) In short, when people such as creationists (in Louisiana, that would be the Louisiana Family Forum) can’t get their religious views incorporated into our public institutions, the ADF sues those institutions on their behalf. In the ADF’s view, keeping public institutions secular and free from sectarian advocacy is actually hostility rather than neutrality. The omission of religion from the functions of public entities — such as public school science classrooms, for example — is considered discrimination.
Based on the information below, it doesn’t take a genius to figure out that the ADF was threatening the state of Louisiana with a lawsuit if the LFF didn’t get what it wanted: the removal of the prohibition against teaching creationism from BESE’s policy for implementing the LSEA. Please keep reading. We will explain and provide documentation after some brief background and recapping.
Background on the Alliance Defense Fund
People for the American Way (PFAW) offers a useful profile of the ADF. In addition, in the June 2004 issue of Church & State, Rob Boston of Americans United for Separation of Church and State points out that ADF “was formed [in 1994] by a band of television preachers [including James Dobson of Focus on the Family and Donald Wildmon of the American Family Association] and radio broadcasters to advance the Religious Right’s perspective in the courts.” ADF “has raised millions of dollars for Religious Right legal cases and been active in federal and state lawsuits that seek to blast holes in the wall of separation between church and state.” Boston also points out a more ominous aspect of ADF (hyperlinks added):
At least one ADF project, the Blackstone Fellowship for law students, has ties to the Christian Reconstructionist movement. Reconstructionists are the most extreme manifestation of the Religious Right in America. They advocate a society anchored in ‘biblical law’ and would literally base U.S. law on the legal code of the Old Testament. In their ideal society, offenses like blasphemy, fornication, ‘witchcraft,’ homosexuality, worshipping ‘false gods’ and incorrigible juvenile delinquency would merit the death penalty. In other words, Reconstructionists long to replace America’s secular democracy with a harsh fundamentalist Christian theocracy.
(NOTE: One interesting little factoid is that some Reconstructionists favor stoning as a form of capital punishment.)
In his April 3, 2007, Wall of Separation post, Boston reveals that ADF is funded by “far-right fat cats writing big checks,” having received $21 million in donations in 2006 alone. Among its major donors are “the Edgar and Elsa Prince Foundation, whose vice president, Erik Prince . . . founded the Blackwater USA military-security firm” (hyperlink added). And ADF wants to keep that money rolling in: “The ADF plays hardball. Its lawyers are not above engaging in wild distortions to raise money and whip fundamentalists into a frenzy.”
The organization has increased its annual total revenue despite the most severe recession since the Great Depression. Its 2008 IRS 990 form [pdf] shows a total revenue of more than $31 million, which increased to $34,702,917 million by 2010. (See the 2009 and 2010 990s [pdfs].) And get this: ADF president and CEO Alan Sears is a one-percenter. His base pay — without benefits — ballooned from $300,271 in 2008, to $311,864 in 2009, to a whopping $354,016 in 2010. (His subordinates aren’t doing too badly either, according to the 990s.) Trying to turn the United States into a theocracy is clearly more lucrative than defending science education.
The right-wing Alliance Defense Fund is helping Louisiana College, a Southern Baptist institution, start the Paul Pressler School of Law, which will join Liberty University [established by Jerry Falwell], Regent University [established by Pat Robertson] and others in providing politicized training to the next generation of Religious Right lawyers.
We’ll get to the ADF’s involvement in the BESE policy in a moment. First, let’s recall a little more of the January 13, 2009, BESE meeting.
A Brief Recap
Between December 2008 and January 13, 2009, the LFF had already succeeded in getting one statement eliminated from the December 2008 initial draft of BESE’s LSEA policy [pdf, p. 7]: “Religious beliefs shall not be advanced under the guise of encouraging critical thinking.” That statement, which the Louisiana Department of Education (LDoE) staff had included on the advice of the LSEA Advisory Committee [pdf, p. 14] was deleted after Rev. Mills paid the staff a visit. He told the Lafayette Daily Advertiser (1/8/09) that he had discussed the draft with them: “Mills said he’s been discussing the policy language with state education officials and the bill’s legislative sponsors to come up with possible changes.” He expressed to the Advocate (1/9/09) his optimism about getting the draft changed: “Mills said he is cautiously optimistic that talks among department officials, the state board and lawmakers involved in the issue will be productive.”
But getting one statement deleted wasn’t enough for Rev. Mills. He wanted a second statement stripped from the policy — the first sentence in section D.4.d in the January 2009 revised draft [pdf, p. 3]: “Materials that teach creationism or intelligent design or that advance the religious belief that a supernatural being created humankind shall be prohibited for use in science classes.” To get that second statement deleted, Mills had to go to BESE directly. (The LFF wanted BESE to retain the following sentence in D.4.d, which followed the one that Mills wanted deleted: “Evaluations of supplementary materials shall be made without regard to the religious or non-religious beliefs and affiliations of the authors of supplementary materials.” This sentence would have benefited the LFF by allowing the adoption of supplementary materials written by creationist authors. BESE ultimately decided to delete D.4.d in its entirety. The LFF understandably didn’t quibble about this.)
Mills’ getting legislators and BESE members involved in the discussions with LDoE strongly suggests that the LDoE staff were subjected to political pressure. Moreover, the fact that the LFF lawyered up for the January 13, 2009, BESE meeting in order to get the second statement deleted suggests further that the LDoE staff refused to do this, reflecting the professionalism for which the Louisiana Coalition for Science (LCFS) has applauded them.
Geologist Al Melillo, LCFS member Patsye Peebles, and LSU biologist Eric Achberger — all members of the LSEA Advisory Committee that had provided LDoE with guidelines [pdf, pp. 8-13] for the December 2008 draft — testified at the January 13 meeting that D.4.d should remain in the January 2009 revised draft, as did Kevin Carman, Dean of the College of Science at LSU. But their testimony didn’t faze the board. The only people whom BESE members heeded were the creationists, and their heeding took the form of stripping the prohibition against teaching creationism out of the policy, just as Rev. Mills wanted.
The LFF’s lawyering up consisted partly of having attorney John B. Wells and Southern University law professor Michelle R. Ghetti testify at the meeting. Both wanted the D.4.d prohibition removed from the policy. Both are also affiliated with the Alliance Defense Fund (ADF). This is the part of the story that has not been told. The January 13, 2009, BESE meeting showed just how far the LFF would go to get what it wanted.
The ADF Connection
Dedicated to reversing the persecution of Christians by the ACLU and other anti-American organizations, Mr. Wells has allied himself with the Alliance Defense Fund. He has pledged to dedicate hundreds of hours per year to defending religious freedom at no cost to the client. . . . He is prepared to assist in the following:
• Legal attacks on the rights of students and school employees . . . • Violations of the First Amendment rights by the ACLU and other organizations dedicated to religious persecution
(An aside: In a matter unrelated to the LSEA, John Oller, who has been the subject of LCFS posts here, here, and here, is being represented by the ADF, with Wells as his attorney, in Oller’s lawsuit against his employer, the University of Louisiana-Lafayette. The lawsuit concerns personnel issues and has no bearing on the merits [or lack thereof] of creationism, including intelligent design.)
Ghetti, who lists “Legislative Consultant, Louisiana Family Forum” and includes the ADF as a “Professional Membership”on her professional resumé, also includes her ADF affiliation on her (public) university faculty page:
Professor Ghetti is an avid advocate for freedom to practice one’s religion and wrote Louisiana’s Preservation of Religious Freedom Act in 2010. She is an active ally of the Alliance Defense Fund. . . .
Ghetti’s faculty page at the Southern University Law Center lists “Law and Religion” as one of her teaching areas. Her biography page on her personal website says that she “specialize[s] in constitutional law, particularly in the criminal and religion areas.” However, on her resumé she lists no publications — either professional or otherwise — in constitutional law as it pertains to religion (she lists only an unpublished article about the Louisiana Preservation of Religious Freedom Act that is “About to Be Circulated for Publication”), nor do any show up in Lexis-Nexis (an academic database for legal publications). Yet both Ghetti and Wells inserted themselves into the BESE policy issue as experts.
In his testimony before BESE on January 13, 2009, Wells stressed not only his own ADF affiliation, but the ADF’s interest in the content of the draft policy (transcript from audiotape by Barbara Forrest; “uh” deleted; bold added). It’s not hard to figure out what he was getting at:
Mr. Chair and members of the committee, thank you for the opportunity to appear before you today. My name is John Wells. I’m an attorney here in Louisiana. I’m also an allied attorney with Alliance Defense Fund. The Alliance Defense Fund is an organization of constitutional lawyers who do a lot of the type of litigation cases that are potentially being talked about here today. I should tell you that the Alliance Defense Fund is monitoring the situation. We are of the belief that paragraph 4.d, as it is written, actually probably would not pass constitutional muster because the situation’s actually dampening free expression. That the regulations without paragraph 4.d would be fine. . . .
The rules as they appear without 4.d , this first sentence before 4.d appear to give adequate guidance and pass constitutional muster. Now, the Alliance Defense Fund, of course, you know, does provide pro bono services in the event of litigation. So, for example, in some cases, where entities are sued over religious issues, we would provide a defense. . . .
[W]e feel that . . . the first sentence of 4.d would not pass constitutional muster. We would urge you to delete it. . . .
The second issue, probably just as important, is that, as I think the chairman mentioned, Senator Nevers here passed an, an act [the LSEA] that grants certain powers to this organization. [A]s an attorney, I’m familiar with what’s called the ‘delegation doctrine.’ The legislature passes the laws, OK? And an administrative body such as yourself enforce and implement those laws. And if you have a situation where you are putting in a regulation that is not authorized by the law, that in itself could lead to litigation. And that in itself could make the regulations illegal, as well as potentially unconstitutional. . . .
Did you get that, folks? Wells told BESE members that if they left the prohibition against teaching creationism in the draft, they could be sued. Now, let’s stop and think for a moment about what Wells’ comments imply. Who would be interested in suing a state board of education for issuing a prohibition against teaching creationism — a completely legitimate prohibition that is mandated by a host of federal court decisions, including two U.S. Supreme Court rulings? (See here and here.) You got it — the Alliance Defense Fund.
Wells was telling board members, in his oh-so-deferential-to-BESE way, two things: (1) If they left D.4.d in, the policy could be considered unconstitutional and they could be sued for “dampening” someone’s free expression. Whose free expression would supposedly be “dampened” if the prohibition against teaching creationism stayed in the draft? That’s right — teachers who want to express themselves by teaching creationism in public schools. So, by leaving D.4.d in the policy draft, not only could (make that would) BESE be sued, but the ADF would do the suing. (2) If, on the other hand, BESE took D.4.d. out as the LFF wanted and someone else sued BESE (apparently under the assumption that pro-science people would sue), the ADF would then consider providing pro bono legal defense to BESE. Wells’ comments were not made off-the-cuff. He had clearly entered the meeting prepared with what can reasonably be considered the threat of a lawsuit against the state of Louisiana.
Ghetti also testified at the January 13 meeting, citing to BESE members her supposed expertise in constitutional law concerning religion. She, too, brought up the ADF, as well as a new name: Mike Johnson (J. Michael Johnson), the Shreveport attorney who has been named founding dean of the Pressler Law School (if Louisiana College can ever get it off the ground). (Aside: Among members of Pressler’s “National Board of Reference” are . . . wait for it . . . ADF CEO Alan Sears, faux historian David Barton, Left Behind co-author Tim LaHaye, Family Research Council president Tony Perkins, LFF operative Darrell White, and other such luminaries.) Prior to accepting this position, Johnson was “Senior Legal Counsel and a national media spokesman” for the ADF (see Johnson’s Pressler Law School bio [pdf]). Here is the relevant excerpt of Ghetti’s BESE testimony (Forrest transcript; “uh” deleted; bold added; probable wording in red):
My name is Michelle Ghetti, and I am a law professor at Southern University, where I’ve been now for, for nineteen years. . . . I am also an attorney, a litigator. I’m also a member of the Louisiana Law Institute and an expert on both ethics and constitutional law and religion. I’ve taught constitutional law courses now for nineteen years and have recently in the last few years taught the law and religion course. I think, to my knowledge, I was the only legal expert that testified before the legislature on this particular act. . . .
One thing I wanted to mention [indecipherable] so I don’t forget . . . Mike Johnson, who is an attorney with the Alliance Defense Fund and has represented governmental committees as well as individuals throughout this state and the Fifth Circuit [Court of Appeals] on issues such as this, has given a legal [opinion] on this particular bill, and he asked that I and . . . Mr. Wells, who’s with the ADF, to give you a copy of that to [make part of the record].
If you’ve hung in this far, persistent readers, you will now be rewarded with a copy of Johnson’s legal opinion, which was communicated in a letter [pdf] that Wells handed out to state board members — written on ADF letterhead and signed “ALLIANCE DEFENSE FUND, J. Michael Johnson, Senior Legal Counsel.” Note that Johnson refers to possible litigation in the very first paragraph:
This correspondence is being submitted to you by the Alliance Defense Fund (‘ADF’) to express our concerns over the legality of the proposed regulations that have been promulgated in accordance with . . . the ‘Louisiana Science Education Act.’ The proposed regulations, ‘Science Education, §2304,’ contain some problematic language that could subject the state to unnecessary First Amendment litigation.
So there we have it: in the opening paragraph, Johnson hits BESE with the prospect of litigation that only the ADF, representing creationists, would have any interest in initiating. ADF’s message is that BESE could be sued for prohibiting something that the federal courts have already — unambiguously — declared unconstitutional, i.e., the teaching of creationism. By this time, you are surely curious as to what kind of contorted, Alice-through-the-looking-glass reasoning that Johnson and the ADF are using here. So here it is:
ADF’s “chief concern” with D.4.d is “the undue emphasis” that the prohibition against teaching creationism “places upon particular viewpoints that may be regarded as ‘religious’.” (Note the scare quotes around “religious.” Sounds like an attempt to deny that creationism is a religious viewpoint, doesn’t it?) Their rationale is that by explicitly prohibiting the teaching of creationism, BESE would be “improperly expand[ing] the lawful intent” of the LSEA. (Sounds like an attempt to deny that the LSEA is a creationist law, doesn’t it?) Leaving D.4.d in the policy would “likely subject the Board to a costly legal challenge” (read: a costly challenge if ADF sues BESE). Here is a clarification of what Johnson and the ADF were saying: “We don’t want a statement about creationism in this policy because the LSEA is not a creationist law!”
Someone should have sent that memo to LSEA sponsor Senator Ben Nevers before he explained the reason for the LSEA to a reporter when he introduced it in 2008 (emphasis added): “They [the Louisiana Family Forum] believe that scientific data related to creationism should be discussed when dealing with Darwin’s theory. This [bill] would allow the discussion of scientific facts.” Nevers also testified at the January 13 meeting — staying on script this time (Forrest transcript):
I think that by inserting this language [into the policy], I think you circumvent the intent of the legislation, and I think it should be removed. If you notice, the legislation never mentions creationism or intelligent design, that it simply states that we want science taught in our classrooms and that we want our students to be able to critically think, observe, and ask questions about science-related items.
But let’s get back to the Johnson/ADF letter. Immediately after trying to deny the religious intent of the LSEA, Johnson, citing several U.S. Supreme Court rulings, warns board members about hostility towards religion (who said this was about religion?):
Establishment Clause jurisprudence requires neutrality and forbids hostility towards religion, even in the public school context. As the Supreme Court has often explained, the Establishment Clause ‘requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary.’ . . . (Establishment Clause forbids government action with an effect that ‘inhibits religion’). . . . (government is not permitted to show ‘hostility toward religion’). . . .
So, to clarify: ADF was telling BESE (when you threaten litigation, you’re telling, not asking) to remove the prohibition against teaching creationism from its LSEA implementation policy because (1) the LSEA is not about religion and (2) if it stayed in, the LSEA policy prohibiting the teaching of creationism would be hostile to religion. (In Logic 101 — which usually includes critical thinking skills — that is known as a contradiction.)
Having begun with a stick, Johnson closed with a carrot. Note the finely nuanced understatement in the first sentence (emphasis added):
ADF is keenly interested in the Louisiana Science Education Act and its goal of promoting critical thinking skills, logical analysis, and open and objective discussion of scientific theories. If regulations are adopted that are more consistent with the intent of the Legislature as set forth in [the] Act, and as articulated in the testimony of its authors and supporters during the debates on the House and Senate floors [NOTE: there were no debates on the House and Senate floors], ADF would consider offering its pro bono assistance in defense of the law should it face any legal challenge.
The game plan here is pretty clear: having sanitized the language of the LSEA itself — thereby implementing the Discovery Institute’s post-Kitzmiller strategy, the LFF — and, needless to say, the Discovery Institute — did not want BESE screwing things up by adopting a policy that bluntly exposed the LSEA as the creationist law that it is. If the LSEA implementation policy contained a prohibition against creationism, the policy would indict the law. Couldn’t let that happen, now could they? So the best way to prevent that was to let BESE know that the ADF was ready to sue if the LFF didn’t get what it wanted. And if board members cooperated by removing D.4.d, — which, as it turned out, they unanimously did — ADF might, just might, represent the state in court for free if it got sued by angry science defenders. Or, if ADF just didn’t feel like showing up in court, the taxpayers could pick up the tab.
Having hung in this far, persistent readers, here again — for your information and edification — is the link to the Johnson/ADF letter. You can savor it at your leisure, now knowing— as the late Paul Harvey used to say — “the rest of the story” of how the LFF managed to get the LSEA policy gutted. Happy New Year.