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The battle brewing over California workers' unique right to sue their bosses

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The battle brewing over California workers' unique right to sue their bosses

California workers who believe they have been victims of wage theft or other workplace abuses have for more than two decades relied on a unique state law that lets them sue employers not only for themselves but also for other workers.

Now a battle is shaping up over the law, known as the Private Attorneys General Act, or PAGA. An initiative seeking to replace PAGA will appear on the ballot in California in November, the culmination of long-standing efforts by corporate and industry groups to undo the law.

Two reports released last week offer dueling narratives about whether PAGA helps or hurts workers — marking the opening of a potentially expensive fight over the landmark law that relatively few know about.

Labor researchers say that the ballot measure, if approved, would harm employees, particularly people with low-wage jobs, by taking away their ability to file what are essentially class-action suits against employers that allege labor law violations. The ballot measure also would weaken the state’s already strained system for enforcing workplace laws, the researchers say.

But the business coalition backing the ballot initiative, called the Fair Play and Employer Accountability Act, counters that the labor law has resulted in a proliferation of lawsuits that small businesses and nonprofits have little ability to fight. Workers end up getting less money after a long legal process than if they had filed complaints through state agencies, the initiative’s proponents say.

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Worker advocates have long complained that chronic understaffing at state agencies responsible for investigating employee complaints means that allegations about wage theft and other violations can take years to be resolved. So workers turn to the courts.

Luz Perez Bautista and her mother, Maria de la Luz Bautista-Perez, were among three named plaintiffs who sued Juul Labs Inc. in federal court in 2020 for allegedly misclassifying some 450 campaign staffers working on a ballot measure the company was promoting to allow the sale of electronic cigarettes in San Francisco. The workers were all classified as independent contractors rather than employees, which saddled them with expenses that employees wouldn’t have to pay.

Juul was sued in 2020 by three workers, who alleged they were misclassified as independent contractors rather than employees, using a California law that allows employees to sue companies on behalf of other workers.

(Ted Shaffrey / Associated Press)

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Workers were made to travel long distances between campaign offices without pay, were not given lunch breaks and were terminated abruptly, Perez Bautista said, speaking at a news conference last week to unveil a report by the UCLA Labor Center as well as researchers at advocacy groups PowerSwitch Action, and the Center for Popular Democracy.

Because the workers had signed arbitration agreements, without PAGA they would not have had the legal standing to take Juul and the nonprofit it created for the campaign to court. Through their PAGA claim workers secured a $1.75-million settlement.

“It is important for other workers to see that … you can hold your boss accountable,” Bautista-Perez said at the news conference.

The report argues broadly that eliminating workers’ ability to pursue private lawsuits would leave them more vulnerable to having their wages stolen by employers and other abuses of their rights.

PAGA plays a “vital role” in bringing bad actors into compliance, said Tia Koonse, legal and policy research manager at the UCLA Labor Center.

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Koonse and other authors of the report said the ballot initiative is disingenuously framed as a push to reform PAGA and bolster other enforcement mechanisms.

“By cloaking policies that hurt workers in language that says they’re helping workers, corporations are making it sound like what is down is up,” said Minsu Longiaru, senior staff attorney for PowerSwitch Action.

Other mechanisms to enforce California labor laws are insufficient on their own, including wage claims and whistleblower complaints investigated by state agencies, the report argues, because the sheer number of labor violations dwarfs the state’s capacity to enforce them.

Each year, the $40 million recovered in approximately 30,000 wage claims filed with the state labor commissioner represents roughly 2% of the estimated $2 billion California workers lose to wage theft, according to the report.

An analysis of California Labor & Workforce Development Agency data by the report’s authors found that 91% of PAGA claims allege wage theft, primarily overtime violations and failure to pay for all hours worked, although some involved violations of earned sick leave rights. Other forms of wage theft include paying workers less than minimum wage, denying workers meal breaks or rest periods and requiring employees to finish tasks before or after their shifts.

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The initiative at the center of discussion, the Fair Play and Employer Accountability Act, got the green light to be placed on the November 2024 ballot almost two years ago.

It proposes to remove the law’s powerful private right of action, which empowers workers to file lawsuits against their employers, suing for both back wages and civil penalties on behalf of themselves, other employees and the state of California. Official language for the measure states it would eliminate “employees’ ability to file lawsuits for monetary penalties for state labor law violations.”

Backers emphasize it also offers replacement provisions that would bolster state agency enforcement of workplace rules.

Replacement provisions include doubling penalties for employers “willfully” violating labor law, requiring 100% of monetary penalties to be awarded to harmed employees (rather than the current division of 25% to the employee and 75% to the state of California), and requiring that the state provide employers with resources to help with coming into compliance.

“Today’s PAGA system is completely broken and does not work well for employees or employers,” said Jennifer Barrera, president of the California Chamber of Commerce, in announcing a report released last week by backers of the ballot initiative, called the Fix PAGA coalition.

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Barrera said that because one employee can sue on behalf of others, it allows lawyers to stack charges and extract high penalties from employers with few barriers because PAGA claims don’t require the same type of notification and certification of workers allegedly affected that a class-action suit would require.

“The statutory framework of PAGA is what creates the abuse,” she said in an interview.

Barry Jardini, executive director of the California Disability Services Assn., said that members of the trade group, many of which are nonprofits reliant on state or federal funding, are increasingly burdened by PAGA claims. He said 20 of some 85 members who responded to a recent survey said they dealt with PAGA claims in 2023.

Jardini said that disability service businesses have struggled to provide true “responsibility-free” 10-minute rest breaks in accordance with labor laws because often workers “can’t just walk away” from clients especially if they are out and about instead of at home. He said employers have looked for creative solutions, such as paying employees extra for working through breaks or tacking on breaks at the beginnings or ends of shifts rather than the middle, but these fixes aren’t legal substitutes for rest breaks workers are entitled to.

“We run into a bit of a legal rock and a hard place,” he said. “We do have a conflict with the law in terms of some of our services. Once that becomes known, it’s relatively easy for an attorney to try to solicit a client that works in this industry that is maybe ripe for PAGA claims.”

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The claims sap resources and lead to program closures because “providers with very thin margins are using up their reserves on settling these claims,” Jardini said. “Other times providers are unable to give wage increases to their staff. And at the end of the day it impacts people with disabilities.”

Some disagree that there is rampant of abuse of PAGA. UCLA Labor Center researchers published a report in February 2020 finding no evidence that PAGA unleashed a flood of frivolous litigation, as its detractors complain, and that it had demonstrably enhanced Labor Code compliance among employers.

In response to criticisms outlined by the recent UCLA Labor Center report, Kathy Fairbanks, a spokesperson for the coalition, pointed to findings in the coalition’s report, which argues that PAGA is too slow to resolve claims, leaves workers with little compensation, and enriches lawyers while saddling businesses with costly suits.

Fairbanks said that workers get about one-third of the compensation and that PAGA cases take twice as long compared with cases adjudicated by state agencies. That is because “lawyers take massive fees and are getting rich while workers get very little,” Fairbanks said.

Lorena Gonzalez Fletcher, head of the powerful California Labor Federation, agreed that PAGA is at times abused by “unscrupulous attorneys,” but said repealing the law is not a solution.

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“There’s massive wage theft that goes unaccounted for, and to take away this tool from the tool box would be damaging to workers and a gift for corporate America,” said Gonzalez, who formerly served as a state assembly member known for writing labor-friendly legislation.

If approved by voters, the ballot measure “would leave workers with dwindling opportunities to enforce labor law.”

Gonzalez said it is well understood that state labor agencies are subject to short staffing and ebbs and flows of political desire to take on major cases. Although it’s not ideal to have to rely on private attorneys to help enforce the law, PAGA provides an important avenue for enforcement, she said.

The initiative doesn’t mandate or otherwise clear the way for increased funding for enforcement agencies, Gonzalez said.

To suggest the business lobby, through the ballot initiative, is asking for changes that will actually improve labor law enforcement “doesn’t pass the smell test,” she said.

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Backers of the ballot initiative are open to working on a legislative compromise to avert a costly battle, spokesperson Fairbanks said. But any sort of deal would have to be reached before the end of June — the deadline to pull measures off the November ballot. The Fix PAGA coalition reports having banked some $15 million in campaign contributions so far.

Business groups have sought to shrink PAGA’s reach in state and federal courts with limited success in recent years.

In June 2022, the U.S. Supreme Court, considering the California case Viking River Cruises Inc. vs. Moriana, ruled that PAGA violated the rights of employers and that the claims of other employees would have to be dismissed because the employee sent to arbitration would no longer have standing to pursue that litigation.

But in a concurring opinion, it also affirmed that interpretation of PAGA was a matter of state, not federal, law and in effect kicked the matter back to California.

State appellate courts consistently have held that PAGA claims by workers cannot be forced into arbitration because they are brought as if the individual is operating on the state’s behalf.

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In July 2023, the California Supreme Court rejected an argument by Uber that sought to limit the ability of its drivers to take employment-related disputes to court, unanimously determining that a driver could not sign away the right to represent their peers in a lawsuit.

The decision didn’t end the debate, however, with other cases bouncing around the courts.

A federal appeals court, citing the Uber case, ruled Feb. 12 that a PAGA suit against Lowe’s Home Centers for allegedly underpaying workers who took sick leave could stand.

Judge William Fletcher wrote in the ruling that a state court “has the authority to correct a misinterpretation of that state’s law by a federal court,” including the U.S. Supreme Court.

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From Heisman Trophy to SUV, O.J. Simpson property auction approved to pay off civil claims

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From Heisman Trophy to SUV, O.J. Simpson property auction approved to pay off civil claims

O.J. Simpson’s Heisman Trophy, golf clubs, high-end sports utility vehicle and even his driver’s license will soon be sold to pay off a debt the infamous football star carried beyond his own death.

A Nevada probate judge agreed Friday to a proposal by legal representatives of Simpson’s estate to auction “unique and high-profile” personal property, according to attorney’s representing the estate. It is not clear how much money the auction will raise, but it is intended to help pay a portion of a civil claim by the family of murder victim Ron Goldman.

Thomas Grover, who represents Simpson estate attorney Malcolm LaVergne, said the estate was already “beginning the process to auction the items soon.”

The action comes a day after Fred Goldman, father of slain waiter Ron Goldman, filed a creditor claim in Clark County District Court for $117 million against Simpson’s estate.

Michaelle Rafferty, lead attorney for Goldman, said there were no objections from the Goldman family over the auction.

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“Our hope is that Mr. LaVergne will use very reputable auction houses and that those funds will come back to the estate,” Rafferty said Friday afternoon.

Both sides are expected back in court next month.

Ron Goldman’s family won a wrongful death civil case against Simpson in 1997, which found him liable for the murders of Goldman and Simpson’s ex-wife Nicole Brown Simpson. The family was initially awarded $8.5 million in compensatory damages.

The jury later awarded $25 million in punitive damages to be split between Nicole Brown Simpson and Goldman family members.

The civil victories came after Simpson’s famous acquittal in the double murder criminal case, known as the “Trial of the Century,” in October 1995.

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The 76-year-old Simpson died in April of prostate cancer.

Fred Goldman and daughter Kim lamented that “true accountability has ended” with Simpson’s death. However, Fred Goldman continued pursuing civil collections.

LaVergne was, at first, hostile to the idea of paying off the civil judgment, telling the Las Vegas Review Journal in an interview two days after Simpson’s passing that the Goldman family would “get zero, nothing.” “I will do everything in my capacity as the executor or personal representative to try and ensure that they get nothing,” he said.

LaVergne mellowed, however, and vowed in an interview with The Times to “handle this thing in a calm and dispassionate manner.”

LaVergne’s retraction did not surprise Rafferty.

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“The situation changes dramatically with a death,” she said. “Mr. LaVergne was representing his client personally, and now it’s about the estate, proceedings and addressing creditors.”

Court documents from 2015 show the family has received about $132,000 of the total liability.

The $117 million claim includes three renewed judgments against Simpson from 2015, 2016 and 2022 along with interest. Statutory interest alone from June 3, 2022, to July 25, 2024, accounted for an additional $20.7 million. Goldman is also claiming a daily amount of accrued interest of at least $16,638.73.

It’s unknown what type of memorabilia or possessions remain on Simpson’s property.

Rafferty said she had not received an inventory from LaVergne and does not know ultimately how much the Goldman family will collect.

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She said LaVergne was obligated to give notice about the intended auction houses, assets and opening bid prices.

“We’ll look it over and we’ll have two weeks to object,” she said.

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After 57 years of open seating, is Southwest changing its brand?

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After 57 years of open seating, is Southwest changing its brand?

Jim Kingsley of Orange County, who recently flew Southwest on a two-leg journey from Minneapolis to Los Angeles, likened the budget-friendly airline to In-N-Out Burger.

Both brands are affordable, consistent and more simplistic compared with competitors, Kingsley said.

“They’re not trying to offer all the things everybody else offers,” he said, “but they get the quality right and it’s a good value.”

Change, however, is in the air.

Southwest, which since its founding nearly 60 years ago has positioned itself in the cutthroat airline industry as an easygoing, egalitarian option, upended that guiding ethos this week with word that it would get rid of its famous first-come, first-seated policy in favor of traditional assigned seats and a premium class option. They will also offer overnight, red-eye flights in five markets including Los Angeles.

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Experts say the changes, especially the switch to assigned seating, are a smart move and will appeal to many as the company tries to stabilize its precarious finances that included a 46% drop in profits in the second quarter from a year earlier to $367 million. But it remains to be seen whether Southwest will pay an intangible cost in making the moves: Will it be able to hold on to its quirky identity or will it put off loyal customers, and in doing so, become just another airline?

“You’re going to hear nostalgia about this, but I think it’s very logical and probably something the company should have done years ago,” said Duane Pfennigwerth, a global airlines analyst at Evercore.

“In many markets away from core Southwest markets, we think open seating is a boarding process that many people avoid,” he said.

That is all well and good, but “I didn’t ask for these changes,” Kingsley said. “Cost and quality is what I care about.”

Open seating has its pros and cons, Kingsley said, though he’s generally a fan. On his trip to Los Angeles, his group wasn’t able to get seats all together. But he likes that preferred seats are available on a first-come, first-served basis, instead of being offered for a high price.

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Eighty percent of Southwest customers and 86% of potential customers prefer an assigned seat, the airline said in a statement.

“By moving to an assigned seating model, Southwest expects to broaden its appeal and attract more flying from its current and future customers,” the airline said.

An even bigger draw of Southwest, according to Kingsley, is its policy of including two free checked bags per ticket. This perk often makes Southwest a better bargain, especially for longer trips or bigger groups, he said.

The free bags are a big deal to customers, experts said, and contribute to the airline’s consumer-friendly brand. The airline hasn’t indicated they plan to change their bag policy.

“Southwest has always had a really good, positive vibe,” said Alan Fyall, chair of Tourism Marketing at the University of Central Florida’s College of Hospitality. “It’s free bags, good prices and point-to-point routes. That’s what they stand for and that’s what people love about them.”

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Southwest’s change to assigned seating doesn’t mean they’re no longer a budget-friendly airline, Fyall said, but it does differentiate them from the lowest-cost, lowest-amenity options such as Frontier and Spirit.

The move will also require Southwest to update all or a portion of its fleet to include first-class seats. Currently, all seats on a Southwest flight are identical. Fyall said it’s worth the investment.

It’s an appropriate time for Southwest to make adjustments, said Chris Hydock, an assistant professor at Tulane University’s Freeman School of Business.

“They’ve not been profitable the last couple of quarters and they’ve had some activist investor pressure to increase their revenue,” he said.

Costs such as wages and maintenance have risen across the airline industry even as travel increased after the pandemic. Southwest saw a net loss of $231 million in the first quarter of 2024. Wall Street analysts estimate that assigned, premium seating could boost revenue by $2 billion per year.

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“This is one of the options where they could potentially increase their revenue and do something that a lot of consumers have a strong preference for anyway,” Hydock said.

For Southwest’s changes to pay off, it has to stick to its roots when it comes to its culture and brand, experts and travelers agreed.

“I love Southwest being different,” Kingsley said. “If they’re trying to be like the other airlines, I think they’re shooting themselves in the foot.”

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Column: 99 years after the Scopes 'monkey trial,' religious fundamentalism still infects our schools

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Column: 99 years after the Scopes 'monkey trial,' religious fundamentalism still infects our schools

Almost a century has passed since a Tennessee schoolteacher was found guilty of teaching evolution to his students. We’ve come a long way since that happened on July 21, 1925. Haven’t we?

No, not really.

The Christian fundamentalism that begat the state law that John Scopes violated has not gone away. It regularly resurfaces in American politics, including today, when efforts to ban or dilute the teaching of evolution and other scientific concepts are part and parcel of a nationwide book-banning campaign, augmented by an effort to whitewash the teaching of American history.

I knew that education was in danger from the source that has always hampered it—religious fanaticism.

— Clarence Darrow, on why he took on the defense of John Scopes at the ‘monkey trial’

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The trial in Dayton, Tenn., that supposedly placed evolution in the dock is seen as a touchstone of the recurrent battle between science and revelation. It is and it isn’t. But the battle is very real.

Let’s take a look.

The Scopes trial was one of the first, if not the very first, to be dubbed “the trial of the century.”

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And why not? It pitted the fundamentalist William Jennings Bryan — three-time Democratic presidential candidate, former congressman and secretary of State, once labeled “the great commoner” for his faith in the judgment of ordinary people, but at 65 showing the effects of age — against Clarence Darrow, the most storied defense counsel of his time.

The case has retained its hold on the popular imagination chiefly thanks to “Inherit the Wind,” an inescapably dramatic reconstruction — actually a caricature — of the trial that premiered in 1955, when the play was written as a hooded critique of McCarthyism.

Most people probably know it from the 1960 film version, which starred Frederic March, Spencer Tracy and Gene Kelly as the characters meant to portray Bryan, Darrow and H.L. Mencken, the acerbic Baltimore newspaperman whose coverage of the trial is a genuine landmark of American journalism.

What all this means is that the actual case has become encrusted by myth over the ensuing decades.

One persistent myth is that the anti-evolution law and the trial arose from a focused groundswell of religious fanaticism in Tennessee. In fact, they could be said to have occurred — to repurpose a phrase usually employed to describe how Britain acquired her empire — in “a fit of absence of mind.”

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The Legislature passed the measure idly as a meaningless gift to its drafter, John W. Butler, a lay preacher who hadn’t passed any other bill. (The bill “did not amount to a row of pins; let him have it,” a legislator commented, according to Ray Ginger’s definitive 1958 book about the case, “Six Days or Forever?”)

No one bothered to organize an opposition. There was no legislative debate. The lawmakers assumed that Gov. Austin Peay would simply veto the bill. The president of the University of Tennessee disdained it, but kept mum because he didn’t want the issue to complicate a plan for university funding then before the Legislature.

Peay signed the bill, asserting that it was an innocuous law that wouldn’t interfere with anything being taught in the state’s schools. The law “probably … will never be applied,” he said. Bryan, who approved of the law as a symbolic statement of religious principle, had advised legislators to leave out any penalty for violation, lest it be declared unconstitutional.

The lawmakers, however, made it a misdemeanor punishable by a fine for any teacher in the public schools “to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man had descended from a lower order of animal.”

Scopes’ arrest and trial proceeded in similarly desultory manner. Scopes, a school football coach and science teacher filling in for an ailing biology teacher, assigned the students to read a textbook that included evolution. He wasn’t a local and didn’t intend to set down roots in Dayton, but his parents were socialists and agnostics, so when a local group sought to bring a test case, he agreed to be the defendant.

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The play and movie of “Inherit the Wind” portray the townspeople as religious fanatics, except for a couple of courageous individuals. In fact, they were models of tolerance. Even Mencken, who came to Dayton expecting to find a squalid backwater, instead discovered “a country town full of charm and even beauty.”

Dayton’s civic boosters paid little attention to the profound issues ostensibly at play in the courthouse; they saw the trial as a sort of economic development project, a tool for attracting new residents and businesses to compete with the big city nearby, Chattanooga. They couldn’t have been happier when Bryan signed on as the chief prosecutor and a local group solicited Darrow for the defense.

“I knew that education was in danger from the source that has always hampered it — religious fanaticism,” Darrow wrote in his autobiography. “My only object was to focus the attention of the country on the programme of Mr. Bryan and the other fundamentalists in America.” He wasn’t blind to how the case was being presented in the press: “As a farce instead of a tragedy.” But he judged the press publicity to be priceless.

The press and and the local establishment had diametrically opposed visions of what the trial was about. The former saw it as a fight to protect from rubes the theory of evolution, specifically that humans descended from lower orders of primate, hence the enduring nickname of the “monkey trial.” For the judge and jury, it was about a defendant’s violation of a law written in plain English.

The trial’s elevated position in American culture derives from two sources: Mencken’s coverage for the Baltimore Sun, and “Inherit the Wind.” Notwithstanding his praise for Dayton’s “charm,” Mencken scorned its residents as “yokels,” “morons” and “ignoramuses,” trapped by their “simian imbecility” into swallowing Bryan’s “theologic bilge.”

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The play and movie turned a couple of courtroom exchanges into moments of high drama, notably Darrow’s calling Bryan to the witness stand to testify to the truth of the Bible, and Bryan’s humiliation at his hands.

In truth, that exchange was a late-innings sideshow of no significance to the case. Scopes was plainly guilty of violating the law and his conviction preordained. But it was overturned on a technicality (the judge had fined him $100, more than was authorized by state law), leaving nothing for the pro-evolution camp to bring to an appellate court. The whole thing fizzled away.

The idea that despite Scopes’ conviction, the trial was a defeat for fundamentalism, lived on. Scopes was one of its adherents. “I believe that the Dayton trial marked the beginning of the decline of fundamentalism,” he said in a 1965 interview. “I feel that restrictive legislation on academic freedom is forever a thing of the past, … that the Dayton trial had some part in bringing to birth this new era.”

That was untrue then, or now. When the late biologist and science historian Stephen Jay Gould quoted that interview in a 1981 essay, fundamentalist politics were again on the rise. Gould observed that Jerry Falwell had taken up the mountebank’s mission of William Jennings Bryan.

It was harder then to exclude evolution from the class curriculum entirely, Gould wrote, but its enemies had turned to demanding “‘equal time’ for evolution and for old-time religion masquerading under the self-contradictory title of ‘scientific creationism.’”

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For the evangelical right, Gould noted, “creationism is a mere stalking horse … in a political program that would ban abortion, erase the political and social gains of women … and reinstitute all the jingoism and distrust of learning that prepares a nation for demagoguery.”

And here we are again. Measures banning the teaching of evolution outright have not lately been passed or introduced at the state level. But those that advocate teaching the “strengths and weaknesses” of scientific hypotheses are common — language that seems innocuous, but that educators know opens the door to undermining pupils’ understanding of science.

In some red states, legislators have tried to bootstrap regulations aimed at narrowing scientific teaching onto laws suppressing discussions of race and gender in the classrooms and stripping books touching those topics from school libraries and public libraries.

The most ringing rejection of creationism as a public school topic was sounded in 2005 by a federal judge in Pennsylvania, who ruled that “intelligent design” — creationism by another name — “cannot uncouple itself from its creationist, and thus religious, antecedents” and therefore is unconstitutional as a topic in public schools. Yet only last year, a bill to allow “intelligent design” to be taught in the state’s public schools was overwhelmingly passed by the state Senate. (It died in a House committee.)

Oklahoma’s reactionary state superintendent of education, Ryan Walters, recently mandated that the Bible should be taught in all K-12 schools, and that a physical copy be present in every classroom, along with the Ten Commandments, the Declaration of Independence and the Constitution. “These documents are mandatory for the holistic education of students in Oklahoma,” he ordered.

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It’s clear that these sorts of policies are broadly unpopular across much of the nation: In last year’s state and local elections, ibook-banners and other candidates preaching a distorted vision of “parents’ rights” to undermine educational standards were soundly defeated.

That doesn’t seem to matter to the culture warriors who have expanded their attacks on race and gender teaching to science itself. They’re playing a long game. They conceal their intentions with vague language in laws that force teachers to question whether something they say in class will bring prosecutors to the schoolhouse door.

Gould detected the subtext of these campaigns. So did Mencken, who had Bryan’s number. Crushed by his losses in three presidential campaigns in 1896, 1900 and 1908, Mencken wrote, Bryan had launched a new campaign of cheap religiosity.

“This old buzzard,” Mencken wrote, “having failed to raise the mob against its rulers, now prepares to raise it against its teachers.” Bryan understood instinctively that the way to turn American society from a democracy to a theocracy was to start by destroying its schools. His heirs, right up to the present day, know it too.

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