What happened to the Cobb County textbook sticker case?
The appeal of the Selman v. Cobb County evolution-disclaimer textbook sticker decision has been almost completely overshadowed by the Kitzmiller v. Dover circus and the ensuing controversy. It has now been five months since the oral hearings in the Selman appeal were held, and nobody ( well, almost nobody) is wondering why the decision has not been released yet. There was also a very long delay in holding the appeals hearings -- the district court's decision was released on January 2005 -- so it has already been sixteen months since the case was decided in the district court.
Here is some information about the case and the appeal --
Background of case and summary of district-court decision
Information about the appeal itself is here, here, here, and here.
At the oral hearing in the appeals court, the judges were very critical of the lower court's decision. Appeals Judge Ed Carnes said that the three-sentence disclaimer seemed to him to be "literally accurate" and told the attorney representing the opponents of the stickers, "Your difficulty is that you've got to take something that actually is reflective of the content of this textbook you like so much, and say it violates the First Amendment." Judge Frank Hull questioned how the district-court judge could have found the sticker's language misleading to biology students when there was no evidence to support that view. There was also a big controversy over the district court's finding that a public petition and a citizen's letter pressured the Cobb County school board into adding the stickers to the textbooks. The letter could not be found, there was confusion over whether the petition was submitted before or after the stickers were adopted, and the petition was not entered into the evidence. I don't know if the controversies over this letter and petition were ever resolved.
It would be a real shame if the ruling on the constitutionality of the textbook stickers hinged on just this letter and petition. This is another good reason why it is long past time to drive a stake through the evil heart of the aptly-named "Lemon test, " which has been falling out of favor but which is still widely used to decide establishment clause cases (including the Dover and Cobb County cases). Supreme Court Justice Antonin Scalia likened the Lemon test to "some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried" ( see Scalia quotes under the heading, "On the Establishment Clause"). The bloodsucking Lemon test "sucks" in more ways than one.
A reversal of the Selman decision, which appears to be a strong possibility, would put another big dent in Kitzmiller v. Dover, to add to the long list of existing dents (see "Traipsing into breathtaking inanity" on this blog). Dover relied heavily on Selman, which is named 15 times in the Dover opinion (I say "named" rather than "cited" because some single citations name a court case more than once).
I predict that if Selman is reversed, which now appears to be a very strong possibility, similar textbook stickers will start appearing all over the country, maybe even in the Dover Area school district, right under the nose of Judge Jones, bearding the lion in his den (his Dover decision said nothing about textbook stickers).
Here is some information about the case and the appeal --
Background of case and summary of district-court decision
Information about the appeal itself is here, here, here, and here.
At the oral hearing in the appeals court, the judges were very critical of the lower court's decision. Appeals Judge Ed Carnes said that the three-sentence disclaimer seemed to him to be "literally accurate" and told the attorney representing the opponents of the stickers, "Your difficulty is that you've got to take something that actually is reflective of the content of this textbook you like so much, and say it violates the First Amendment." Judge Frank Hull questioned how the district-court judge could have found the sticker's language misleading to biology students when there was no evidence to support that view. There was also a big controversy over the district court's finding that a public petition and a citizen's letter pressured the Cobb County school board into adding the stickers to the textbooks. The letter could not be found, there was confusion over whether the petition was submitted before or after the stickers were adopted, and the petition was not entered into the evidence. I don't know if the controversies over this letter and petition were ever resolved.
It would be a real shame if the ruling on the constitutionality of the textbook stickers hinged on just this letter and petition. This is another good reason why it is long past time to drive a stake through the evil heart of the aptly-named "Lemon test, " which has been falling out of favor but which is still widely used to decide establishment clause cases (including the Dover and Cobb County cases). Supreme Court Justice Antonin Scalia likened the Lemon test to "some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried" ( see Scalia quotes under the heading, "On the Establishment Clause"). The bloodsucking Lemon test "sucks" in more ways than one.
A reversal of the Selman decision, which appears to be a strong possibility, would put another big dent in Kitzmiller v. Dover, to add to the long list of existing dents (see "Traipsing into breathtaking inanity" on this blog). Dover relied heavily on Selman, which is named 15 times in the Dover opinion (I say "named" rather than "cited" because some single citations name a court case more than once).
I predict that if Selman is reversed, which now appears to be a very strong possibility, similar textbook stickers will start appearing all over the country, maybe even in the Dover Area school district, right under the nose of Judge Jones, bearding the lion in his den (his Dover decision said nothing about textbook stickers).
Labels: Selman v. Cobb County
posted by Larry Fafarman | 5/14/2006 11:59:00 AM
11 Comments:
Colin said ( 5/14/2006 03:04:35 PM )--
>>>>>I don't think that the delay between the DCT judgment and the oral arguments before the Circuit was all that long. I do agree that it's been a while since those arguments, though, and I would have expected a decision by now. But I know from experience that a five-month delay isn't unusual; some cases don't get opinions for a year or more, even when the issues are clear. I hope we see a decision soon.<<<<<
Here is all I know about the timeline of Selman -- the information on the appeals briefs came from an NCSE webpage, http://www2.ncseweb.org/selman/
The district court released its decision in Jan. 2005.
The Cobb County school district filed its opening appeals brief in April 2005, and Selman et al. filed an answering brief in June 2005 -- this brief was dated June 1 but I don't know exactly when it was filed. I presume that Cobb County was allowed one reply brief, which I presume was filed no later than August 2005. BTW, in the appeal, Selman et al. had 5-6 attorneys of record and Cobb County had 2. Of course, being named an attorney of record is not an indication of level of participation, but I just want to point out again that the Dover plaintiffs had at least 5 attorneys in the courtroom on every day of a six-week trial.
Oral hearings, which are optional at the discretion of the court, were held in December. I presume that the reason for the big delay between the last brief (presumably filed no later than August) and the oral hearings was to give the judges time to digest the material in the briefs, so the judges should have already been well up to speed on the case by December. So I feel that the big problem here is the combination of the two delays -- the delay before and the delay after the oral hearings. It has been about 9 months since the last brief was filed.
Chris Hyland said --
>>>>>>If we taught students properly about the scientific method, we wouldn't need to have these lawsuits at all.<<<<<<<
And the connection of that statement to the Dover and Cobb County lawsuits is -- ?
Are you saying that evolution theory is so unscientific that just properly teaching the scientific method to students would be sufficient to cause them to reject the theory? I'll drink to that.
Chris Hyland said ( 5/17/2006 12:23:57 AM ) --
>>>>>No, it's just that then they'll know that all scientific theories should be approached with an open mind, studied carefully, and critically considered. Then there would be no need for disclaimers, hence no lawsuits.<<<<<<
Well, some people have proposed exactly that -- a textbook sticker that says, "all scientific theories should be approached with an open mind, studied carefully, and critically considered." There have been complaints about evolution theory being "singled out" for criticism, but if evolution theory has a uniquely high questionability among the scientific theories that are taught in high schools, then maybe evolution theory deserves to be singled out.
I feel that there are two categories of establishment clause violations. The first and the worst kind are those violations that force people to reveal their religious beliefs or pretend to have religious beliefs that they don't have. School prayer falls into this category -- even when students have the option of being excused from school prayer, they are forced to reveal their religious views when they choose this option. The other, lesser kind of establishment clause violations are those where people are not required to reveal their religious views but where some people are made to feel like "outsiders" because of a government endorsement of religion (the "endorsement test" -- devised by Justice O'Connor -- concerns this kind of violation). I feel that the Cobb County textbook stickers definitely do not fall into either category -- these stickers are not government endorsements of religion because they neither say anything religious nor contain religious symbols, and carrying around a textbook with this sticker says nothing about a student's religious beliefs. The ID statement that was read to the Dover students might fall into the first category because students were given the option of leaving the room when the statement was read -- however, here too the statement was not overtly religious and there were no religious symbols. Carried to their logical conclusions, The Dover and Cobb County decisions can be interpreted as meaning that any criticism of Darwinism in public-school science classrooms is unconstitutional.
...if evolution theory has a uniquely high questionability among the scientific theories that are taught in high schools, then maybe evolution theory deserves to be singled out.
And if it did, it would be. Unfortunately for your side, the only "questionability" arises because a percentage of Christians believe it conflicts with their religion.
but if evolution theory has a uniquely high questionability among the scientific theories that are taught in high schools, then maybe evolution theory deserves to be singled out.
Any idea why everyone is singling this one out Larry? Because evolution is not highly questionable. Only provincial religious theories on the creation of everything are singled out because:
A) they aren't science
B) they are wrong
C) it pisses off creationists and that is a worthwhile pastime.
P.S. How come you never post on my blog? I'll let you write an entry if you'll post some comments first.
I google "cobb sticker" about once a month to see if there's any news.
Chris Hyland said ( 5/17/2006 02:20:46 PM ) --
>>>>> In any case the theory as I understand it does not have a uniqely questionable status among theories.<<<<<<
The Talkorigins website has a list of several hundred "creationist claims" at http://www.talkorigins.org/indexcc/list.html It appears that most of the claims are scientific or pseudoscientific in nature. Even if only a tiny fraction of these claims have some scientific validity, that would add up to a lot of arguably valid questions about evolution.
I would say that evolution theory raises far more questions than any other scientific theory that is typically taught in high school.
>>>>>if the intent of singleing out evolution can be proved to be to make science more palitable to certain religious views, does this not count an an establishment clause violation?<<<<<
It depends. Even Judge Clarence Cooper, who ruled against the Cobb County textbook stickers in Selman v. Cobb County, ruled that making science more palatable to certain religious views was a legitimate secular purpose in this case -- from http://www.talkorigins.org/faqs/cobb/selman-v-cobb.html ----
"....... the Constitution does not require the government to "show a callous indifference to religious groups." Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 96 L.Ed. 954 (1952). As the Fifth Circuit stated in Freiler, "local school boards need not turn a blind eye to the concerns of students and parents troubled by the teaching of evolution in public classrooms." 185 F.3d at 346.
"Here, the School Board did not implement other recommendations, such a (sic) making theories of origin that posit the existence of a creator or supreme being a part of the curriculum or obtaining specially-printed textbooks from publishers that omit materials that some would consider "objectionable." Instead, the School Board adopted a sticker that is not openly religious but served to put students, parents, and teachers on notice that evolution would be taught in a manner that is inclusive rather than exclusive. The School Board sought to show consideration for their constituents' personal beliefs regarding the origin of life while still maintaining a posture of neutrality towards religion. The School Board's decision to adopt the Sticker was undisputably influenced by sectarian interests, but the Constitution forbids only a purpose to endorse or advance religion. Wallace, 472 U.S. at 56, King, 331 F.3d at 1278, Bown, 112 F.3d at 1469. Here, even Plaintiffs concede that "[t]he intention of the Board was to accommodate parents who held a belief contrary to evolution," Plaintiffs' Amended Findings of Fact and Conclusions of Law 36, and the law clearly holds that mere accommodation of religion is insufficient to render the Sticker unconstitutional. See Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 144, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987) (stating that the Supreme Court "has long recognized that the government may accommodate religious practice and that it may do so without violating the Establishment Clause), Lynch 465 U.S. at 673 (stating that the Constitution "affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any"); cf. Smith v. Board of Sch. Comm'rs, 827 F.2d 684, 691 (11th Cir.1987) (stating that mere accommodation of religion is not sufficient to violate the primary effect prong of the Lemon analysis).
"..... the Court remains convinced that the Sticker at issue serves at last (sic) two secular purposes. First, the Sticker fosters critical thinking by encouraging students to learn about evolution and to make their own assessment regarding its merit. Second, by presenting evolution in a manner that is not unnecessarily hostile, the sticker reduces offense to students and parents whose beliefs may conflict with the teaching of evolution." (emphasis added)
Here is just my own general opinion about establishment clause violations --
The challenged thing should either say something religious or contain a religious symbol. The Cobb County textbook stickers did not even come close. The Dover ID statement that was read to students arguably had religious connotations because the word "design" implies the existence of a supernatural "designer." I feel that something should not be held to be religious just because it is supported or accepted by large numbers of people for religious reasons -- that is just guilt-by-association. So far as I know, the Dover and Cobb County decisions represent the first times in American judicial history that things that are not overtly religious were nonetheless held to be government endorsements of religion.
More of my views on this issue were posted on this thread on Wednesday, May 17, 2006 11:35:37 AM
DaveScot wrote --
>>>>I google "cobb sticker" about once a month to see if there's any news. <<<<
If there is any news, I guarantee that we will all hear about it very quickly.
"cobb sticker" is really not a very effective search entry -- it mostly brings up old news about the district-court case. I often include the word "appeal" and sometimes even the name of one of the judges, Ed Carnes.
The Los Angeles Times predicted that the decision would be released a few weeks after the oral hearings in December. LOL
Larry thinks the Holocaust never happened. Father of ID Phil Johnson thinks HIV doesn't cause AIDS. Marshall Hall is a creationist and geocentrist.
People who actively oppose evolution tend to be some pretty dumb people.
Well, the verdict is in and the answer is: redo the trial. The court remanded it back to the district court. Here's a link to the decision. Or lack thereof.
Note: I haven't yet read it.
Okay, I've read it now. The basics:
1) Some of the evidence central to the district court decision mysteriously disappeared
2) Despite the honest efforts of plaintiffs and defense, this evidence was not recovered
3) As result, the Circuit Court decided that they could not properly review the trial opinion
4) They therefore VACATED and REMANDED the decision back to the district court. Note: this is not a reversal - in this instance, it is an order to retry the case.
5) In REMANDING, they told the trial court to retry the case on the evidence. It gave the district court the discretion to admit new evidence. In essence, the district court can declare a new trial.
6) The Circuit Court suggested a number of questions that the new trial should attempt to address.
7) The Circuit Court made explicit that they had not made any judgement on any finding of fact and that nothing in the order should be construed as an indication of how they would rule on a future appeal. From the order (this is essentially the first paragraph of the conclusion):
>>>In vacating the district court’s judgment and remanding the case for additional proceedings, we want to make it clear that we do not intend to make any implicit rulings on any of the legal issues that arise from the facts once they are found on remand. We intend no holding on any of the legal premises that may have shaped the district court’s conclusions on the three Lemon prongs. Mindful that in this area factual context is everything, we simply choose not to attempt to decide this case based on a less than a complete record on appeal or fewer than all the facts.<<<
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