Sticker shock -- appeals court ducks textbook sticker case
Basically, the district court's decision was vacated and remanded because of uncertainties about the evidence, but it is strange that it took the appeals court more than five months after the oral hearings to reach that determination. It has now been more than sixteen months since the district court decision. It just looks like procrastination to me. The National Center for Science Education's summary of the appellate decision said --
What primarily concerned the appeals court about the district court's decision was the evidence introduced at trial concerning the adoption of the stickers by the school board. The plaintiffs alleged, and the district court agreed, that a letter and a petition organized by a local creationist parent, Marjorie Rogers, affected the school board's decision to require the stickers. But, the appeals court states, "The evidence in the record before us does not establish that the Rogers letter was submitted to the board before it adopted the sticker. And the only petition in the record that resembles the one the court described came well after the board's action."
On Dec. 22, a week after the oral hearings, an attorney for the plaintiffs/appellees submitted a big 127-page report that said that there were two petitions -- one by Rogers, with more than 2,300 signatures delivered to the school board before the books were purchased, and a smaller petition delivered after the sticker plan was implemented. So it is apparent that great efforts to resolve these uncertainties about the letter and the petition failed during the appeal, and there is no reason to believe that the district court will do any better at resolving these uncertainties. It may very well be that these uncertainties will never be resolved. However, I am optimistic that the decision will eventually be reversed. The burden of proof is on the plaintiffs to show that the school board was unduly influenced by religiously-motivated citizens, and if the plaintiffs are not able to come up with enough evidence to show that, then it seems that the defendants should automatically win. Even if the plaintiffs can show that, they may lose anyway, because the appeals judges appeared to be leaning towards reversal for other reasons. Also, as I said, it is disturbing that so much importance has been attached to a single letter from a single citizen, Rogers.
Actually, according to my analysis of the district court's opinion, the letter and the petition should not even have been issues at all. In the "purpose" prong analysis, the district court's opinion said --
...the Court does not rely on communications from these individuals, who apparently sought to advance religion, to determine whether the School Board itself sought to endorse or advance religion when it voted to place the Sticker in science textbooks. See Adler, 206 F.3d at 1086.(stating that courts should not discern legislative purpose from letters written by community members to school officials).
However, the district court's opinion said the opposite in the "effect" prong analysis. A more detailed discussion is in my analysis of the district court's opinion.
Also, the appellate opinion made a mistake when it said, "We intend no holding on any of the legal premises that may have shaped the district court’s conclusions on the three Lemon prongs." Actually, only two, not three, Lemon prongs were analyzed in the district court opinion. There was originally a third prong, the "entanglement" prong, but that has largely been incorporated into the "effect" prong.
A few other points --
I overlooked the following important statements in the district court decision (I made these points on my own, but until now had no precedents to back them up) --
Unlike the disclaimer in the Freiler case, the Sticker in this case does not contain a reference to religion in general, any particular religion, or any religious theory. This weighs heavily in favor of upholding the Sticker as constitutional. See Adler, 206 F.3d at 1083 ("For the most part, statutes which the Supreme Court has invalidated for lack of secular purpose have openly favored religion or demonstrated a religious purpose on their face."). Moreover, the Sticker here does not explicitly mention any alternative theories of origin.
Over on Panda's Thumb, Reed Cartwright wrote of the remand, "this gives the trial judge the opportunity to apply the ruling in Kitzmiller to Selman." LOL The irony that Cartwright seems to have missed is that Selman was named 15 times in the Kitzmiller opinion. So what should this mutual judicial backscratching be called? Judicial circularity? Judicial inbreeding? Judicial incest? How about "the blind leading the blind"? Anyway, if anything, the uncertainty over Selman puts a dent in Kitzmiller which will become much bigger if Selman is reversed.
The Discovery Institute's take on the decision was grossly overoptimistic in places. For example, DI started out by saying, "The U.S. Court of Appeals for the Eleventh Circuit has thrown out the trial court decision ruling that evolution disclaimers on science textbooks were unconstitutional." Correction: the trial court decision was just "remanded" -- "thrown out" is too strong a term. DI then tones down by saying that the three-judge panel "stopped short of deciding the constitutionality of the stickers, and instead sent the case back to the trial court judge with instructions to hold more evidentiary hearings on the issue." In the next paragraph, DI goes back to being overoptimistic again.
Of course, I was somewhat disappointed by the decision because the appeals judges appeared to be leaning towards reversal.
A related article is "Aptly named 'Lemon test' sucks".
Labels: Selman v. Cobb County