You Don’t Trust Creationists With Your Science Education… Here’s Why You Shouldn’t Trust Their Lawyers, Either

April 22, 2009

You Don’t Trust Creationists With Your Science Education… Here’s Why You Shouldn’t Trust Their Lawyers, Either

Okay, some quick background on the issue, taken from NCSE Reports, Mar-Apr 2008.

In 2007, the Institute for Creation Research (ICR) — that’s the headquarters for pure, unadulterated, Henry Morris crazy — moved its headquarters to Dallas, Texas, and requested that the Texas Higher Education Coordination Board (THECB) permit ICR to offer a master’s degree in science education. This request was for a “state Certificate of Authority,” which is somewhat different than “accreditation” (as this story was sometimes reported).

Fortunately for sanity, on April 24, 2008, the THECB unanimously voted to deny ICR’s request. And that should have been the end of it.

Oh no. Late last week, ICR sued the THECB (and, bizarrely, their officers in their individual capacities) in federal court for an injunction requiring THECB to issue the Certificate of Authority and permit ICR to issue Master of Science degrees in science education. The full complaint can be found online, here.

I am a practicing attorney who specializes in civil litigation (like this) and I have a J.D. from Harvard Law School. I am not admitted in Texas — although I have litigated several matters in that state. So I think I am particularly qualified to weigh in on this lawsuit. Obligatory disclaimer: nothing in this blog post constitutes legal advice or an attorney-client relationship; the opinions I express herein are my own and no one else’s. Now, on to the show:

This lawsuit is gloriously insane. From top to bottom, this is exactly the kind of lawsuit you would expect from the kind of minds who think the world is 6,000 years old. I can only highlight just some of the glaring defects in this bizarre lawsuit.

A. The Complaint appears to have been authored by someone with no serious experience in litigating federal cases.

Although the signature block is cut off in the complaint, the ICR’s lawyers are clearly identified in this document. Apparently, the briefs were written by the ICR’s own James J.S. Johnson, whom FindLaw describes as a “family lawyer.” Mr. Johnson is not listed in Martindale-Hubbell (which is where you should go to read peer reviews on anyone you’re thinking of hiring as a lawyer), but he does write some crazy, crazy stuff for ICR’s website. (ICR’s local counsel in Texas seems to be the firm of Adams, Lynch & Loftin, P.C., but they do not appear to be actively involved in the litigation so far.)

I should add that “family law” generally means as “divorce law,” and in general, I would not trust a divorce lawyer to bring a sec. 1983 compliant in federal court, any more than I would feel qualified to represent someone in divorce proceedings. There are very few hard-and-fast specialties in the law (with the exception of people like bankruptcy lawyers, who have their own bar and own courts) — so this isn’t unethical or illegal, but it is very, very weird. If you called me up and asked me to incorporate your business in Delaware or represent you at a custody hearing, I would very politely refer you to one of my colleagues who actually does that sort of work for a living. It’s not like we have a shortage of lawyers in this country or anything. 🙂

With that in mind, the first thing that strikes me about the complaint is the bizarre, blog-like use of bold, italics, underline, large and small caps, different fonts and different font sizes — all in the first two pages. No sensible litigator would file something that looks like this in federal court.

B. Relatedly, the Complaint makes arguments in sections that do not call for argument.

The weirdness continues. The first few paragraphs of any complaint are generally “form” (almost boilerplate) paragraphs. For example: usually, paragraph number 1 will summarize the complaint, and the next few paragraphs will identify the parties and state the basis for jurisdiction in federal court and venue in the court selected. While these things can give rise to litigated issues (i.e., is it permissible for a plaintiff to sue a defendant in a state where she does not reside?), the initial complaint itself is not a legal argument. The complaint is where the plaintiff gets to set forth his view of how the world is and what sorts of injuries he has suffered at the hands of the defendants. You don’t have to argue in your complaint; you can just assert stuff and prove it later.

So it’s very strange to see footnotes beginning to appear in these initial paragraphs that make legal arguments — such as footnote 2 that preemptively argues that it is permissible for ICR’s Graduate School to appear as a plaintiff; footnotes 3 and 4 citing legal authority for ICR’s right to seek injunctive relief; footnote 6 presenting arguments for venue, and so forth. I have literally never seen anyone write a complaint this way. (What one would typically do — what I would do, for example — is to plead that venue is proper in the complaint and save the argument in the event that the defendant challenges venue.) The only explanation I can begin to offer for this is that Mr. Johnson has tried to file these sorts of lawsuits before, had them dismissed on motions to dismiss, and believes that by “pre-empting” argumentation he can avoid such a dismissal in the future. Such a thought process is, to put it charitably, misguided.

C. The central claim in the lawsuit — that the THECB has violated the First Amendment — is absurd.

Next, we get to the gravamen of ICR’s lawsuit:

25. Due to adverse actions of the THECB, … ICRGS is faced with a legal dilemma, with both choices requiring ICRGS to experience unjustly discriminatory consequences:

(a) ICRGS could actively stand on its First Amendment rights and continue to offer its academic programs to Texas residents, and then be (unjustly) prosecuted for offering what the THECB and defendants (acting under color of state law) unjustly characterize as a “fraudulent or substandard” degree program, via legal process that potential [sp] implicates Texas Deceptive Trade Practices — Consumer Protection Act jeopardies [sp] (including prosecution-of-crime jeopardies [sp]; or

(b) alternatively, ICRGS could passively surrender its First Amendment rights and permanently discontinue offer [sp] its academic programs to Texas residents, in order to avoid being (unjustly) prosecuted for offering what the THECB and defendans (acting under color of state law) characterize as a “fraudulent or substandard” degree program, via legal proceedings that potentially implicate Texas Deceptive Trade Practices — Consumer Protection Act jeopardies [sp].

26. In particular, ICRGS has been told, by representatives of THECB (i.e., by the Commissioner, individually and/or via his representatives, under color of state law), that its Texas-based publication, ACTS & FACTS, may not institutionally advertise ICRGS’s “Master of Science in Science Education” program unto Texas residents, if the advertisement indicates any willingness (on ICRGS’s part) to admit Texas residents into its M.S. program, even though ICRGS’s M.S. program has been (and continues to be) offered under California state law via an online (interstate telecommunications-based) format.

[All formatting — including the bold, underline, italics, all capitals, and random use of parenthesis — unchanged from the original. No, seriously.]

There are no words to describe the vacuity of this argument. It is so preposterously stupid that I cannot imagine any second-year law student who has paid the slightest bit of attention in his Con Law class at a seventh-rate law school would make it.

There are, in fact, lots of ways that the government can violate your First Amendment rights. They can shut down your newspaper (“prior restraint”); they can force you to say one set of things but not another (“viewpoint discrimination”); they can force you to swear allegiance to Allah every morning before homeroom (that one violates the “Establishment Clause”); they can prevent you from holding your Nazi rally in a community of Holocaust survivors; and so on. It’s a big list.

But one of the things that almost never violates the First Amendment is when the government decides to restrict advertising. In fact, for a state’s regulation of advertising to violate the First Amendment, it has to be something on the order of the statute at issue in 44 Liquormart, Inc., et al. v. Rhode Island, et al., 517 U.S. 484 (1996). In that case, Rhode Island had a complete ban on any advertisement in the state that mentioned the (correct) price of alcohol for sale in the state, on the theory that advertising lower prices would stimulate more consumption of alcohol, and the state has a ‘compelling interest’ in encouraging its citizens to drink less. That, the Supreme Court held, went too far.

But 44 Liquormart makes clear that the First Amendment protects only “truthful and nonmisleading” advertising, making commercial speech a far less protected area than core free speech. (Imagine if the Supreme Court held that the First Amendment protected only “truthful and nonmisleading” political ads, for example!)

So let’s apply this standard to the THECB. Unlike Rhode Island, the THECB did not prohibit all advertising by ICR; the only thing they prohibited was ICR advertising that they offer a Masters’ Degree in Science Education. Under Texas law, the ICR is not authorized to offer a Masters’ Degree in Science Education. Thus, if ICR were to advertise that it does in fact offer such a degree, that advertising would plainly be non-truthful and highly misleading.

Here’s the kicker: the ICR nowhere alleges that its advertising is truthful and nonmisleading! ICR doesn’t even claim, on face, to have a First Amendment right worth protecting. (And, of course, they don’t have one in actual fact, either.)

D. The Complaint essentially concedes that the ICR has failed to exhaust its administrative remedies, and thus should be dismissed.

The strangeness continues. The section dealing with exhaustion of administrative remedies is basically an “own goal.” This will require a little more law school 101, so bear with me.

When you have an “administrative” remedy, generally, the rule requires you to “exhaust” those remedies before suing someone in federal court. What this means is that before you can sue a government agency, you have to follow the agency’s internal policies and procedures to resolve your grievance in full. If you go through the whole process and they haven’t fixed things, then — and only then — can you sue.

It’s not difficult to see the reasons behind this policy; as with decisions encouraging arbitration, mediation, and other forms of ADR (alternative dispute resolution), we’ve made a general social judgment that it’s better to work things out outside the courts than run around suing people when you can be assured that a reasonably formal and fair process exists to redress your grievances out of court. It’s not perfect — sometimes very poor people are literally “exhausted” out of pursuing meritorious claims — but generally speaking, it works.

So it will not surprise you at all to learn that ICR has not exhausted its administrative remedies. The section attempting to justify their failure to exhaust those remedies — paragraphs 29 through 35 — are nonsensical. Essentially, despite admitting that their administrative appeal is pending, ICR claims that it is required to bring suit now because of statute of limitations grounds.

This is insane for at least two reasons. First, the statute of limitations begins to run when your cause of action “accrues.” (Statutes of limitations generally exist to prevent you from sitting on your rights for years and then surprising someone way down the line long after the injury occurred.) If you are pursuing an administrative remedy, the law is clear that either a) the cause of action has not yet accrued and/or b) the statute of limitations is equitably tolled during the pendency of the administrative review process. This is common sense: you don’t preclude someone from bringing a claim if they’ve acted consistently with that claim and followed the appropriate procedures.

Secondly, this statute of limitations argument makes no sense in that earlier in the same complaint, ICR alleges that the injury they are suffering is “ongoing.” (It would have to be; otherwise, you can’t get an injunction.) If the harm is “ongoing,” then the statute of limitations — except in certain limited circumstances, like copyright law — hasn’t begin to run.

So the bottom line is that the Complaint itself gives a judge a good reason to dismiss it (for failure to exhaust). Again — as with part (B) above, no sensible lawyer would argue these issues in their Complaint. You would file the Complaint, let the other side move to dismiss, and then raise these points in opposition. Here, ICR’s lawyers have helpfully flagged another easy reason for the federal judge to dismiss their lawsuit outright.

E. The remedy sought in the Complaint is nonsensical.

ICR seeks an “injunction” in their Complaint. As the name might suggest, an injunction generally prohibits someone from doing something. If you are dumping trash on my lawn, for example, I might be able to get an injunction prohibiting you from dumping any more trash on my lawn. Dumping the trash is the behavior I’m seeking to “enjoin” you from doing. But, by and large, I cannot get an “injunction” requiring you, personally, to go pick up the trash. (I can get damages that will pay for someone to clean up my lawn, and in some cases I can get a “mandatory” or “permanent” injunction to force you to comply with prior procedures.) But for the most part, injunctions force you to not do things, not to affirmatively correct things.

You see where this is going.

ICR’s requested injunction (this is part A of “Relief Requested,” on page 63 of the Complaint) is as follows:

Such injunctive relief should include provisions that require THECB’s Commissioner, individually and in his individual capacity as the CEO of the THECB, to mitigate and undo the defendants’ discriminatory actions by promptly approving and granting ICRGS a Certificate of Authority to grant Master of Science degrees in Science Education, with optional minors in Biology, Geology, Astro-geophysics, and General Science.

[italics and bold italics in original]

This is simply not an injunction. It might be characterizable as a request for a writ of mandamus, but of course ICR hasn’t pled it that way. It’s yet another sign that the person writing this complaint has no idea what they’re doing.

I’ve omitted ~100 “factual” paragraphs (because this writeup is already nearing 2,500 words) from the middle because I’m critiquing this from a legal perspective. But rest assured: those paragraphs are equally demented.

The bottom line is that there is literally no way this complaint survives a motion to dismiss.

ADDENDUM: The madness continues! Part 2 of this story analyzes the recent press release put out by the ICR’s lawyer, James J.S. Johnson, and considers some of the issues raised in the comments below.

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