Attorney's open letter on Selman v. Cobb County textbook sticker case
Uncommon Descent reported an open letter that Edward Sisson, an attorney, wrote about the Selman v. Cobb County case. Below is a revised copy of an email I sent in response --
Re: Your open letter on Selman v. Cobb County decision --
Ed,
I liked your draft letter on the Selman v. Cobb County case and I would like to add a few comments.
First, I agree with the following excellent points that you made --
(1) The fact that evolution and only evolution is taught shows that the pro-evolution people are the real favored insiders.
(2) Your statement, "It is deeply disturbing that the trial court felt that failure to give the pro-evolution side absolute monopoly control was equal to sending a message to the pro-evolution side that they are 'political outsiders.' "
(3) The plaintiffs in these pro-evolution lawsuits should be required to show that their beliefs about evolution are based on their own independent evaluations of the scientific data as opposed to being based on blind acceptance of the opinions of scientific experts (indeed, in the Kitzmiller v. Dover case, the defendants were expected to have made independent studies, and no less should be required of the plaintiffs).
Now for some of my own observations --
According to the district-court opinion in the Selman case, the plaintiffs' view that they were political outsiders was based on the perception that the school board had "sided" with citizens who had allegedly presented a 2300-signature petition and letter urging adoption of the stickers. However, I just read the "Plaintiffs' Pretrial Brief" of the Selman case and could find no specific mention of the alleged petition! This pretrial brief's only statement that might have referred to this petition was vague mention of a "citizen complaint." The brief said (page 3), "Lindsey Tippins brought the citizen complaint to the Board and expressed concern about the section of science textbooks that taught evolution. Redden Dep. at 23-25." Also, this reference is just to a deposition rather than an exhibit of the "citizen complaint" in the case file. Hence, it may be presumed that the plaintiffs' perception of outsider status at the time this pretrial brief was filed was not partly based on the alleged 2300-signature petition. Also, I feel that what matters is what the plaintiffs knew about the history of the stickers and not what other citizens might have known about that history.
Also, I feel that an effort should be made to make establishment-clause decisions universally applicable, so I am against the idea of decisions being based on the particular conditions of the case, e.g., the motives of the public officials, the motives and perceptions of the local citizens, and the local history of the alleged violation, but that is how the Lemon test works.
Also, when cases are remanded in the California state courts (including the municipal and superior courts), the party that lost in the lower court is given the option of requesting a different judge. I think that this is a good idea because the original judge would of course tend to be biased in favor of his original decision. I wonder why litigants in the federal courts are not given this option.
My blog has the following articles concerning the Selman case --
What happened to the Cobb County textbook sticker case?
"Traipsing into breathtaking inanity" II: analysis of Selman v. Cobb County
Sticker shock -- appeals court ducks textbook sticker case
Close votes in Freiler case show shakiness of Selman and Kitzmiller decisions
Aptly named "Lemon test" sucks
Disclaimer sticker for Selman v. Cobb County opinion
Labels: Selman v. Cobb County
posted by Larry Fafarman | 6/16/2006 06:01:00 PM
6 Comments:
>>>The complaint's only statement that might have referred to this petition was vague mention of a "citizen complaint." The Selman complaint said (page 3), "Lindsey Tippins brought the citizen complaint to the Board and expressed concern about the section of science textbooks that taught evolution. Redden Dep. at 23-25." Also, this reference is just to a deposition rather than an exhibit of the "citizen complaint" in the case file. Hence, it may be presumed that the plaintiffs' perception of outsider status at the time the complaint was filed was not partly based on the alleged 2300-signature petition.<<<
Too bad Larry didn't bother to read the sentence preceding the one he quoted:
The only other citizen to review these books was Marjorie Rogers. She criticized the evolution curriculum and demonstrated her desire to have the school teach creationism. Ex. 42.
Also, the local newspaper printed the day after the Board Meeting an article that clearly stated that Mrs. Rogers had presented the petition in question to the Board.
W. Kevin Vicklund said ( 6/17/2006 09:16:41 AM ) --
>>>>>it may be presumed that the plaintiffs' perception of outsider status at the time the complaint was filed was not partly based on the alleged 2300-signature petition.<<<
Too bad Larry didn't bother to read the sentence preceding the one he quoted:
The only other citizen to review these books was Marjorie Rogers. She criticized the evolution curriculum and demonstrated her desire to have the school teach creationism. Ex. 42.<<<<<<
So where does that preceding sentence mention the 2300-signature petition?
And why do people always assume that I did not bother to read something? I did read that sentence that you quoted.
By the way, the document I cited was not the plaintiffs' complaint, but was the "Plaintiffs' Pretrial Brief." The title of the National Center for Science Education's pdf file labeled it a "complaint," though the NCSE's link to the file called it by its correct title, "Plaintiffs' Pretrial Brief." The absence of explicit mention of the petition in this document now appears to be even more glaring, because a pretrial brief would be expected to go into more detail than a complaint.
This 2300-signature petition was a very important part of the plaintiffs' claim that the school board sided with citizens who supported the textbook stickers. So why wasn't this petition explicitly mentioned in the plaintiffs' pretrial brief ?
>>>>>>Also, the local newspaper printed the day after the Board Meeting an article that clearly stated that Mrs. Rogers had presented the petition in question to the Board.<<<<<
The appeals court did not accept that newspaper article as sufficient evidence about the petition.
> So where does that preceding sentence mention the 2300-signature petition? <
Why should it? You missed his point as usual.
> And why do people always assume that I did not bother to read something? <
Because you have admitted to not even reading items that you cite, or even ones you link to.
> I did read that sentence that you quoted. <
And missed its significance.
> The absence of explicit mention of the petition in this document now appears to be even more glaring <
Have we established that a copy of this document even existed?
> The appeals court did not accept that newspaper article as sufficient evidence about the petition. <
Newspapers print rumors. At times a fact accidently gets through but I wouldn't count on it.
Oh ye of little memory, pay attention to the bolded parts of what you wrote.
>>>According to the district-court opinion in the Selman case, the plaintiffs' view that they were political outsiders was based on the perception that the school board had "sided" with citizens who had allegedly presented a 2300-signature petition and letter urging adoption of the stickers. However, I just read the "Plaintiffs' Pretrial Brief" of the Selman case and could find no specific mention of the alleged petition! This pretrial brief's only statement that might have referred to this petition was vague mention of a "citizen complaint." The brief said (page 3), "Lindsey Tippins brought the citizen complaint to the Board and expressed concern about the section of science textbooks that taught evolution. Redden Dep. at 23-25." Also, this reference is just to a deposition rather than an exhibit of the "citizen complaint" in the case file. Hence, it may be presumed that the plaintiffs' perception of outsider status at the time this pretrial brief was filed was not partly based on the alleged 2300-signature petition.<<<
And let's look again at the last sentence of page 2 of the pre-trial brief:
The only other citizen to review these books was Marjorie Rogers. She criticized the evolution curriculum and demonstrated her desire to have the school teach creationism. Ex. 42.
You falsely claimed that the citizen complaint was only in a deposition and not in an exhibit. I showed you to be wrong on that account. Second, you speculated that the vague mention to a citizen complaint might be in reference to the petition AND the letter. This is almost certainly true. According to her own testimony, Marjorie Rogers delivered a letter, which was produced to the circuit court (though the defense claims that it wasn't originally an exhibit) and a petition, which has since been lost, to the Board at or prior to the Board Meeting in question. The local newspaper reported this the next day. Therefore, the reasonable observer would have known about the existence of the petition.
It is pretty clear that the citizen complaint from Marjorie Rogers is the letter in question. In fact, on page 19 of the pre-trial brief, a number of quotes from Ex. 42 are given, revealing that it is in fact the letter in question.
As for the petition, the original strategy of the plaintiffs may have focused more on the letter than the petition. The court may have decided the petition was moreimportant than originally thought, or the strategy of the paintiffs may have evolved during the coure of the trial, as happened with Dover. On page 23, the brief notes in a footnote a 2,000 signature petition, but the exact timeframe for it is not given. It does appear that the petition might have been delivered after the decision to adopt the disclaimer. This might be a second petition, or it might not have been established at the time of the brief exactly when it as distributed, or the timeline may have been garbled. Regardless, thefact that at least 2,000 citizens signed the petition strongly supports the claim that the community regarded the policy as an endorsement, and/or that it had the effect of advancing religion.
Clearly, the remand needs to establish exactly what happened when. I still don't foresee the sticker and policy passing muster in court, provided that there is competence on the part of the plaintiff's lawyers.
W. Kevin Vicklund said ( 6/18/2006 10:03:48 PM ) --
>>>>>>It is pretty clear that the citizen complaint from Marjorie Rogers is the letter in question. In fact, on page 19 of the pre-trial brief, a number of quotes from Ex. 42 are given, revealing that it is in fact the letter in question.<<<<<<
I never claimed that the plaintiffs' pretrial brief did not discuss Ms. Rogers' support for the disclaimer sticker.
>>>>>>As for the petition, the original strategy of the plaintiffs may have focused more on the letter than the petition.<<<<<
LOL Why? The alleged petition is far more important than the letter, because the alleged petition was supposed to represent the views of 2300 people and also because of the effort required to gather 2300 signatures.
>>>>>>>On page 23, the brief notes in a footnote a 2,000 signature petition, but the exact timeframe for it is not given.<<<<<<<
The exact timeframe is given. The sentence that references this footnote says,
After the adoption of the disclaimer, many citizens, organizations, churches, and academics contacted the School board to praise it for its decision to open the classroom to creationism and intelligent design. (emphasis added)
The appeals court did not dispute the existence of this second petition. An NCSE article on the appeals court's decision to remand the case says,
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 Cobb County, Georgia, 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." (emphasis added)
>>>>>Clearly, the remand needs to establish exactly what happened when.<<<<<<
I think that is not enough. A failure that can never be corrected is that the plaintiffs' pretrial brief does not mention the alleged 2,300-signature petition which supposedly preceded the adoption of the stickers.
>>>>>>> I still don't foresee the sticker and policy passing muster in court, provided that there is competence on the part of the plaintiff's lawyers. <<<<<<
On the contrary, I think that the plaintiffs' case is in very bad shape now. In the oral hearings of the appeals court, the judges indicated that they were leaning towards reversal for reasons that had nothing to do with the worthless petition.
> The alleged petition is far more important than the letter <
Not at all. From a legal standpoint it is nearly meaningless.
> because the alleged petition was supposed to represent the views of 2300 people <
An even larger majority once believed, as you do, that the Earth is flat.
> and also because of the effort required to gather 2300 signatures. <
How about the effort required to dig 2300 latrines? It is equally irrelevant.
> The exact timeframe is given. The sentence that references this footnote says,
After the adoption of the disclaimer, many citizens, organizations, churches, and academics contacted the School board to praise it for its decision to open the classroom to creationism and intelligent design. (emphasis added)<
This does not give an exact timeframe. What are you babbling about?
> A failure that can never be corrected is that the plaintiffs' pretrial brief does not mention the alleged 2,300-signature petition which supposedly preceded the adoption of the stickers. <
What is the legal value of the petition? It appears that it is meaningless.
> In the oral hearings of the appeals court, the judges indicated that they were leaning towards reversal for reasons that had nothing to do with the worthless petition. <
The reason may be political pressure by fundamentalist rednecks. It may just show a lack of integrity on the part of these judges.
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