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.