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My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Monday, April 30, 2007

Law journal "note" slams Selman v. Cobb County decision

Again we have an example of a student's law journal article being called a mere "note" because of snobbery and jealousy in the law profession.

History of the Selman v. Cobb County case: A disclaimer sticker which the Cobb County Board of Education inserted in biology texts said, “Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.” A federal district court judge found the stickers to be unconstitutional, the stickers were consequently removed, and the decision was appealed. The appeals court vacated and remanded the decision because important pieces of evidence -- a public petition and a letter to the board -- were missing. The board of education finally made an out-of-court settlement that included the following provisions: (1) payment of $166,659 for partial reimbursement of the plaintiffs' expenses and (2) a promise that the board would not try to reinstate the stickers in the future. The appeals court panel indicated that it was leaning towards reversing the decision and the lawsuit was no financial hardship for the school district because the school district was quite rich and was receiving or was offered a lot of free legal representation, so it is clear that the board of education took a dive. So far as the courts are concerned, the district court decision is now worthless because it was vacated and the case was then settled out of court.

In an article in Evolution News & Views, Casey Luskin quotes the following from a student "note" in Temple Journal of Science, Technology & Environmental Law:
.
Although the sticker categorized evolution as theory, the court improperly found that this categorization would have the effect of endorsing religion and favoring certain religious viewpoints. Under the Establishment Clause, the government is prohibited from taking "sides" regarding questions of religion. … [T]he sticker made no mention of preferring one religion over another or preferring religion to non-religion. The sticker stated that evolution is a theory, which neither undermines its widely-accepted nature nor contradicts any scholarly definition of evolution . . .

. . . . By finding that presenting evolution as theory rather than fact violated the Lemon Test's effects prong, the court fundamentally created a new precedent making it unconstitutional per se for a school to even suggest that evolution is theoretical.


(Kaitlin DeCrescio, “An Education in Evolution: Silencing Scientific Inquiry in Selman v. Cobb County School District,” 25 Temp. J. Sci. Tech. & Envtl. L. 285, 301-303 (some internal citations may have been removed from the above quotation))

In ruling that the sticker passed the first prong -- called the "purpose prong" -- of the "Lemon" test, the district court opinion said,

. . . after considering the additional arguments and evidence presented by the parties and evaluating the evidence in light of the applicable law, the Court remains convinced that the Sticker at issue serves at last 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. For the foregoing reasons, the Court concludes that the Sticker satisfies the first prong of the Lemon analysis.

As the law journal note said, the judge ruled against the sticker in the analysis of the "effect prong" -- i.e., the second prong -- of the Lemon test, saying that an "informed, reasonable observer" would perceive the stickers as being an endorsement of religion because they have the support of Christian fundies and other creationists:

While the School Board may have considered the request of its constituent and adopted the Sticker for sincere, secular purposes, an informed, reasonable observer would understand the School Board to be endorsing the viewpoint of Christian fundamentalists and creationists that evolution is a problematic theory lacking an adequate foundation. Of course, the amicus brief filed by certain biologists and Georgia scientists indicates that there are some scientists who have questions regarding certain aspects of evolutionary theory, and the informed, reasonable observer would be aware of this also. On the whole, however, the Sticker would appear to advance the religious viewpoint of the Christian fundamentalists and creationists who were vocal during the textbook adoption process regarding then (sic) belief that evolution is a theory, not a fact, which student should critically consider.

The critical language in the Sticker that supports the conclusion that the sticker runs afoul of the Establishment Clause is the statement that "[e]volution is a theory, not a fact, concerning the origin of living things" This statement as (sic) not problematic because of its truth or falsity, although testimony from various witnesses at trial and the amicus brief submitted by the Colorado Citizens for Science, et al, suggest that the statement is not entirely accurate. Rather, the first problem with this language is that there has been a lengthy debate between advocates of evolution and proponents of religious theories of origin specifically concerning whether evolution should be taught as a fact or as a theory, and the School Board appears to have sided with the proponents of religious theories of origin in violation of the Establishment Clause.
(citation omitted)

To repeat, the district court judge ruled against the sticker on the basis that some people perceived the sticker as an endorsement of religion mainly because the sticker had the support of Christian fundies and other creationists. IMO this finding of "guilt by association" is a grotesque misinterpretation of the establishment clause. Also, in the above quote, the judge appears to side with those who believe that evolution should be taught as a fact rather than a theory, so IMO the student note was correct in saying, "By finding that presenting evolution as theory rather than fact violated the Lemon Test's effects prong, the court fundamentally created a new precedent making it unconstitutional per se for a school to even suggest that evolution is theoretical" (the decision is now not officially a "precedent" in the legal sense because it was vacated and the case was then settled out of court).

It seems that more often than not, law journal articles and other expert opinions about those two recent cases on evolution education, Selman v. Cobb County and Kitzmiller v. Dover, have found a lot of fault with the decisions. Information and discussions about Selman and expert opinions about Kitzmiller may be found by clicking on the labels below.

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14 Comments:

Anonymous Anonymous said...

Hey Larry,

Rather than piddle aroud with student notes, check out the article by Prof. Stephen Newman of New York Law School in the current issue of Rutgers Journal of Law & Religion (and stop cribbing from Casey).

Tuesday, May 01, 2007 2:59:00 PM  
Anonymous Anonymous said...

Sorry, Larry, I didn't mean to leave an anonymous post. That was me. Peter Irons

Tuesday, May 01, 2007 5:32:00 PM  
Blogger Larry Fafarman said...

>>>>> Rather than piddle aroud with student notes <<<<<<

I would rather read a good student "note" than a bad article written by the chief justice of the supreme court.

One thing that I have learned through my limited legal experience is that even a layperson can become an expert in a narrow area of the law. I notice in reading these articles about evolution-education lawsuits that I can immediately spot these articles' positives and negatives -- I have become an expert on these cases because of the dozens of blog articles that I have written about them. I am not boasting when I say that I have become an expert on these cases -- I would be disparaging myself if I said otherwise after all the blog articles I have written about them.

>>>>> stop cribbing from Casey <<<<<<

I don't "crib" from Casey. I borrow from Casey because (1) it is difficult for me to find these law journal articles on my own because I don't have a good legal search engine like Westlaw and (2) many of these articles require subscriptions or pay-per-view.

Anyway, thanks for the tip. Actually, there are two relevant articles in this journal edition -- this and this. With all these distractions, I'll never get around to finishing "Monkey Girl" (I've read about a third of it -- but to me the most important parts of it). Anyway, nothing now can change the fact that many law journal articles have been very critical of these court decisions.

Tuesday, May 01, 2007 9:09:00 PM  
Anonymous Voice in the Wilderness said...

> One thing that I have learned through my limited legal experience is that even a layperson can become an expert in a narrow area of the law. <

That is no doubt possible but you are not an example.

> I notice in reading these articles about evolution-education lawsuits that I can immediately spot these articles' positives and negatives <

Your prejudices appear immediately, sometimes even before you read the cases.

> I have become an expert on these cases because of the dozens of blog articles that I have written about them. <

Writing about something you know little about will not increase your knowledge of the subject.

Bill Carter was right. You would be a great librarian. That does not require analytical thinking.

> I am not boasting when I say that I have become an expert on these cases <

No. You are being delusional.

Thursday, May 03, 2007 11:58:00 AM  
Anonymous Anonymous said...

> the district court decision is now worthless because it was vacated and the case was then settled out of court. <

"Vacated"? I thought that the school board just dropped the appeal. Was the original finding vacated or are you just demonstrating your ignorance of legal terms?

Friday, May 04, 2007 5:12:00 PM  
Blogger Larry Fafarman said...

>>>>>> "Vacated"? I thought that the school board just dropped the appeal. Was the original finding vacated or are you just demonstrating your ignorance of legal terms? <<<<<<

Couldn't you ask me in a polite way instead of accusing me of being ignorant of legal terms?

The decision was vacated and remanded and the school board then took a dive before the case could be redecided.

For more info about the case, click on "Selman v. Cobb County" in the post label list in the left sidebar.

Friday, May 04, 2007 5:58:00 PM  
Anonymous Anonymous said...

Thank you for the answer.

> Couldn't you ask me in a polite way instead of accusing me of being ignorant of legal terms? <

You reap what you sew. You might be taken more seriously if you went by your own rules and dropped the gratuitous insults that are contained in the majority of your comments. It does not work to your credit.

Friday, May 04, 2007 10:26:00 PM  
Anonymous Pseudonymous said...

< You reap what you sew. >

You wear what you sew.

Saturday, May 05, 2007 12:46:00 AM  
Blogger PiGuy said...

The findings of the court stated that, within the context of scientific discussion, calling evolution a theory ascribes to it a very elevated level of acceptance as, for scientists, theory doesn't carry the same connotation - namely, that theory = opinion - as it does in colloquial conversation. Note that in the linked definition of the word "theory",

http://www.thefreedictionary.com/_
dict.asp?Word=theory

when scientists use the word, they mean entry #1.

However, it was the opinion of the court (eventually - and I think that they got it right) that the intent of the language on the sticker was to use the word "theory" to deliberately invoke entry #6's definition in the minds of the young people when they read. In other words, they believe that the intent of the sticker was not to broaden the students' educations or encourage open-mindedness but, rather, just the opposite - an attempt to sow doubt in what is, in the minds of most rational people, the crown jewel in the CV of the Scientific Method.

That Casey Luskin found a sympathetic voice is not surprising. The fact that people like you and he continue to see only what you want to see is also not surprising. It's human. It's also wrong.

Saturday, May 05, 2007 4:58:00 AM  
Blogger Larry Fafarman said...

iGuy said,

>>>>>> http://www.thefreedictionary.com/_
dict.asp?Word=theory

when scientists use the word, they mean entry #1.

However, it was the opinion of the court (eventually - and I think that they got it right) that the intent of the language on the sticker was to use the word "theory" to deliberately invoke entry #6's definition in the minds of the young people when they read. <<<<<<<

That was the opinion of the court, but the court also said that was not its reason for ruling against the sticker. Here is what the court said,

Due to the manner in which the Sticker refers to evolution as a theory, the sticker also has the effect of undermining evolution education to the benefit of those Cobb County citizens who would prefer that students maintain their religious beliefs regarding the origin of life. As Plaintiffs argue and Dr. Miller, the co-author of the science textbook, testified, the use of "theory" in the Sticker plays on the colloquial or popular understanding of the term and suggests to the informed, reasonable observer that evolution is only a highly questionable "opinion" or a "hunch." The Sticker thus has a great potential to prompt confusion among the students.8 While there may be an educational benefit to students spending time learning the general difference between a theory and a fact as a scientific matter, teachers have less time to teach the substance of evolution. Thus, although evolution is required to be taught in Cobb County classrooms as a technical matter, distracting tangential issues effectively dilute evolution instruction to the benefit of the anti-evolutionists who are motivated to advance their religious beliefs.9

Parents for Truth in Education, participating as Amici Curiae, argue that the Sticker properly references evolution as a theory because prior case law, the dictionary, and other sources do the same See Brief of Parents for Truth in Education 7-9. In this regard, amid note that the Supreme Court referred to evolution as a "theory" in both the Edwards and Epperson decisions and that justice Brennan, concurring in the Edwards decision, cited a dictionary that defined "evolution" as a "theory." Id, at 7 Amici also argue that the Edwards Court implicitly acknowledged that evolution is not a fact by making the statement that "[w]e do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught." Id, at 8 (citing Edwards, 482 U 5, at 593). While the foregoing may be true, the basis for this Court's conclusion that the Sticker violates the effects prong is not that the School Board should not have called evolution a theory or that the School Board should have called evolution a fact. Rather, the distinction of evolution as a theory rather than a fact is the distinction that religiously-motivated individuals have specifically asked school boards to make in the most recent anti-evolution movement, and that was exactly what parents in Cobb County did in this case. By adopting this specific language, even if at the direction of counsel, the Cobb County School Board appears to have sided with these religiously-motivated individuals. Additionally, unlike the Edwards and Epperson Courts, the Sticker does not reference "evolution" as a "scientific theory" or a "prevailing scientific theory," To the contrary, the Sticker appears to purposely leave to question whether evolution is an accepted or established theory in the scientific community, even if evolution is subject to scientific critique.
(emphasis added)

Note the statement in bold: ". . . . the basis for this Court's conclusion that the Sticker violates the effects prong is not that the School Board should not have called evolution a theory or that the School Board should have called evolution a fact. Rather, the distinction of evolution as a theory rather than a fact is the distinction that religiously-motivated individuals have specifically asked school boards to make in the most recent anti-evolution movement, and that was exactly what parents in Cobb County did in this case."

The above interpretation of the meaning of the word "theory" in the sticker is out of context. The sticker was contrasting the words "theory" and "fact" -- it was not, for example, contrasting the terms "strong theory" and "weak theory." The sticker did not say, for example, "Evolution is a weak theory, not a strong theory, regarding the origin of living things." Many words have different meanings and it is unfair to arbitrarily choose a single meaning that is out of context. There is no reason why the range of meanings of "theory" in the sticker cannot be taken as the full range between #1 and #6 in the Free Dictionary. And the Free Dictionary's #6 definition would be more appropriate for the word "hypothesis."

Also, in an oral hearing in the appeals court, Judge Edward Carnes told a plaintiffs' attorney,

"I don't think y'all can contest any of the sentences. It is a theory, not a fact; the book supports that."
-- and --
"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."

Also, a news report said,

Judge Ed Carnes, one of the panel members, said the three-sentence disclaimer seemed to him to be "literally accurate." Judge Carnes also chided the lower court for getting "some of the key facts" wrong. Another panelist, Judge Bill Pryor, agreed with Judge Carnes, saying the lower court relied on facts that "are just contradicted by the record." The final panelist, Judge Frank Hull, questioned how the federal district court could have found the sticker's language misleading to biology students when there was no evidence to support that view.

So it appears that the appeals panel was leaning towards reversing the decision (they vacated and remanded it instead). That is one of the reasons why I've been saying that it looks like the school board took a dive when it settled out of court.

>>>>>> In other words, they believe that the intent of the sticker was not to broaden the students' educations or encourage open-mindedness but, rather, just the opposite - an attempt to sow doubt in what is, in the minds of most rational people, the crown jewel in the CV of the Scientific Method. <<<<<<

Well, what could be more encouraging of open-mindedness than sowing doubt about the "crown jewel" of the Scientific Method? Also, I am wondering what you mean by CV -- I looked up some meanings of this acronym but none seemed to fit the context.

>>>>> That Casey Luskin found a sympathetic voice is not surprising. The fact that people like you and he continue to see only what you want to see is also not surprising. <<<<<

We are finding a lot of sympathetic voices. An awful lot of law journal articles are highly critical of the Kitzmiller and Selman decisions.

Saturday, May 05, 2007 7:34:00 AM  
Blogger Larry Fafarman said...

Sorry, that should have been PiGuy, not iGuy.

Saturday, May 05, 2007 7:37:00 AM  
Blogger PiGuy said...

No problem, arry. :)

CV = Cirricula Vitae. Loosely, a body of work.

And after reading your response several times, it seems that this statement...

"To the contrary, the Sticker appears to purposely leave to question whether evolution is an accepted or established theory in the scientific community, even if evolution is subject to scientific critique"

...actually supports my assertion, regardless of the ruling, that the purpose of the sticker was to attempt to cast doubt in the minds of those who, like you and I, don't know what scientists mean when they sue the word "theory". To that end, it served its purpose.

I'd be curious to know how many, exactly, how many articles constitute "An awful lot...", as in "An awful lotof law journal articles are highly critical of the Kitzmiller and Selman decisions."

Wednesday, May 09, 2007 4:43:00 PM  
Blogger Larry Fafarman said...

PiGuy said,

>>>>> No problem, arry. :) <<<<<

Well, at least I had the courtesy to apologize for omitting the first letter. ;-}

>>>>> CV = Cirricula Vitae. Loosely, a body of work. <<<<<<

That was one of the possible definitions I saw, but it didn't seem to fit. That CV is usually sort of a type of professional resume`.

>>>> And after reading your response several times, it seems that this statement...

"To the contrary, the Sticker appears to purposely leave to question whether evolution is an accepted or established theory in the scientific community, even if evolution is subject to scientific critique" <<<<<<

It is not clear who you are quoting here -- are you quoting the Selman v. Cobb County opinion, the law journal article, or Casey Luskin? You are certainly not quoting me.

>>>>> ...actually supports my assertion, regardless of the ruling, that the purpose of the sticker was to attempt to cast doubt in the minds of those who, like you and I, don't know what scientists mean when they sue the word "theory". <<<<<

That is why I suggested that such a sticker include a scientific definition of the word "theory." These judges have just been banning these evolution disclaimers outright rather than prescribing changes that would make the disclaimers acceptable to them.

>>>>> I'd be curious to know how many, exactly, how many articles constitute "An awful lot...", as in "An awful lot of law journal articles are highly critical of the Kitzmiller and Selman decisions." <<<<<<

It is impossible to make a count because there are different levels of approval and disapproval of the decisions. For example, consider the ID-as-science ruling of the Kitzmiller opinion, which was only part of the opinion though regarded by many as the opinion's centerpiece. Different reviewers have held that this ruling was unnecessary, or that it should not have been made (anti-ID Jay Wexler holds this view), or that its conclusions are right or that its conclusions are wrong. Details about these articles may be seen by clicking on the label "Expert opinions about Kitzmiller" in the home page's sidebar or elsewhere.

Wednesday, May 09, 2007 9:43:00 PM  
Anonymous Pseudonymous said...

"An awful lot of law journal articles are highly critical of the Kitzmiller and Selman decisions."

They must be a pretty awful lot, all right. Pheeuw!

Thursday, May 10, 2007 12:57:00 AM  

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