April 23, 2009
The ICR Answers All Your Questions!
In the comments section of the post analyzing the Institute for Creation Research’s recent lawsuit against the Texas Higher Education Coordination Board, there’s a significant amount of speculation as to what the ICR really hopes to achieve and how they really view their arguments.
Fortunately for us, the ICR has a new post up at their web site, written by the same lawyer who authored the ICR’s Texas complaint (James J.S. Johnson). It answers all our questions!
First, how does the ICR characterize its own lawsuit?
As a result, college-level science education in Texas is now muzzled by Texas governmental censorship, a situation that interferes with both academic freedom, the right of a school to teach any subject from its own institutional viewpoint; and interstate commerce, the right of a school outside Texas to recruit and teach Texas residents.
Okay, so the ICR is claiming two broad theories of relief (that, in turn, could conceivably be characterized as First Amendment issues): 1) the academic freedom for schools to teach what they see fit; and 2) the commercial freedom of speech to “recruit and teach Texas residents.”
I address the validity of the commercial speech argument in the original post; short version: it’s not a valid cause of action even if every word pled by the ICR is taken as true.
The “academic freedom” argument is even more frivolous, since nothing the THECB has done prevents ICR from “teach[ing] what they see fit.” ICR can teach that 2 + 7 equals 50, or that the sun is a red-bottomed space baboon for all the THECB cares. What they can’t do is teach that 2 + 7 = 50 and then issue a Masters’ Degree in mathematics certifying that their degree meets state academic standards. Because, you know, it doesn’t.
The most charitable way I can describe this claim is as a First Amendment free exercise claim; that is, that the ICR is arguing that the THECB’s guidelines (codified in the Texas Education Code, section 61 et seq.) infringe upon their religious freedom to be creationists.
All I can say is that such a claim has zero chance of surviving under the Supreme Court’s seminal case on the free exercise clause, Employment Division v. Smith, 494 U.S. 872 (1990), which holds that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”
What that means is that so long as the Texas Education Code’s standards for granting certificates of authority to issue degrees is facially neutral and a valid law (which it is), then it wouldn’t matter even if that law actually burdened ICR in fact.
In other words: even if the ICR’s allegations are true — and they are nonsensical at best — they still don’t have a case. In their own words.
More evidence for the proposition I cited in my first post; that the ICR considers its ill-pled commercial speech claim to be its central argument:
I still remember from my boyhood the days of racial segregation in America, and walking past public bathroom doors labeled “Men,” “Women,” and “Colored.” Discrimination was ugly then, and discrimination is just as ugly today.
ICRGS is now the victim of academic (and religious) viewpoint discrimination in the Lone Star State. And because this government-mandated viewpoint ban is now enforced against the content of ICR’s school catalog within the state, this viewpoint discrimination includes censorship-stifling freedom of the press.
The part equating Jim Crow laws to science standards is particularly hilariously misguided. But again, note the text I’ve bolded above: this guy really thinks that the ICR has a prior-restraint claim. (Hint: it doesn’t.)
Is it all a fundraiser and publicity stunt, as some have suggested? Here’s what Johnson says:
Will ICR achieve the same type of victory against the THECB? The laws of the United States and of Texas are there to allow it, and the courts have ruled against the THECB in the recent past when it overstepped its authority against three other Christian schools. But as it was with Zerubbabel, only God can give the outcome He deems best for ICR and for its school. And ICR will honor Him regardless of what that outcome is (Daniel 3:16-18).
That footnote 6, incidentally, refers to HEB Ministries, et al. v. THECB, dealt with explicitly religious degrees and affirmed that the Texas Education Act had the power to regulate secular degrees (which is what the ICR wants to glom on to). It is of absolutely no help to the ICR here.