Case-law history of monkey trials

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Introduction

The Discovery Institute's Casey Luskin has written an excellent law-journal article about the case-law history of court cases concerning evolution education. The article is described here and the article itself -- in PDF format -- is here. Casey reviews 21 cases -- some are federal court cases and some are state court cases. Luskin's law-journal article shows that the case-law history of "monkey trials" is far more complex than the oversimplified, ignorant and cocky "you've always lost" and "you lost -- get over it" views of the Darwinists. Luakin shows that the legal position of Darwin critics is much stronger than most people realize -- he shows that the judicial opinions in these cases have many important findings that are in favor of Darwin critics even though the overall decisions were against the Darwin critics. One big fault of the paper is that it fails to show how close Freiler v. Tangipahoa Parish and Selman v. Cobb County came to being reversed on appeal. Also, IMO Luskin's paper should have included Comer v. Texas Education Agency, where a federal district-court judge upheld the right of a public education agency to maintain a policy of neutrality regarding evolution-education issues that are subjects of upcoming public hearings. [link].

Attorney Timothy Sandefur wrote a blog post that was highly critical of Luskin's law-journal article, but I think that Sandefur misses the point that the purpose of Luskin's article is not just advocacy but is also to present an objective overview of the case-law history.

Here I will make some additions and corrections to Luskin's law-review article. Unfortunately, URL links to some of my original references no longer work.
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Overview

The case law on evolution education is getting old. The last Supreme Court decision on evolution education, Edwards v. Aguillard (1987), was over twenty years ago, and the last definitive appeals court decision on evolution education, Freiler v. Tangipahoa Parish (2000), was nearly ten years ago (I am not counting Selman v. Cobb County because that decision was a vacation and remand), and the last federal district court decision, Kitzmiller v. Dover (2005), was 3½ years ago. As for precedential value, Supreme Court decisions of course have the most, federal appeals court decisions have a fair amount, and federal district court decisions have little or none. Why are there no current or very recent cases? Two reasons are: (1) curriculum-setting government bodies have learned how to "lawsuit-proof" criticisms of evolution, and (2) fear of the costs of attorney fee awards to the plaintiffs; because of incredibly tight-fisted taxpayers, this is a problem even where the potential financial burden to the government is negligible. An awful lot has changed since these cases were decided and it is high time to revisit them. It's is really a shame that there are no new cases, because new cases would give an opportunity to apply the many things that have been learned from previous cases.

Kitzmiller v. Dover (2005)

This blog has more posts directly and indirectly related to this case than for any other subject, as is evident from the post label list in the homepage's sidebar (post labels with Kitizmiller and Judge Jones). Luskin is of course highly critical of the Kitzmiller decision. I would like to make here some additions and corrections to what Luskin said about the case.

Casey classified Kitzmiller in the category "cases rejecting the teaching of alternatives evolution," but IMO Kitzmiller belongs in his category "cases rejecting disclaimers regarding the teaching of evolution." The Dover school board's Intelligent Design policy was just a one-minute oral statement -- no alternatives to evolution were actually taught, and the book referred to in the statement, "Of Pandas and People," was not required reading.

IMO the Kitzmiller decision is badly tainted because it is likely that Judge "Jackass" Jones showed a lack of restraint because he knew that his decision was not likely to be appealed because of the changeover in the school board membership. If an appeal had been anticipated, I doubt, for example, that Judge Jones would have copied the opinion's ID-as-science section nearly verbatim from the plaintiffs' opening post-trial brief while ignoring the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs. The often-heard claim that the defendants' arguments were so bad that there was no need to address them does not hold water -- if those arguments were really bad, all the more reason to attack them.

Judge "Jackass" Jones has charged that critics of his Dover decision have no respect for "the rule of law" and "judicial independence."[link] Judge Jones dodged the question of whether ID encourages critical thinking, which was a crucial question in determining whether the Dover ID policy satisfies the Lemon test's requirement of a "secular purpose that is not a sham." [link] He called judges' work "workmanlike," trying to give the false impression that any other judge would have written the same opinion that he did [link] [link] . Judge Jones showed extreme prejudice against intelligent design and the Dover defendants -- regardless of whether or not ID is a religious concept -- by saying in a Dickinson College commencement speech that his Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions:

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Jones said that he got the above "true religion" idea from his undergraduate days at Dickinson College, but the above statement is actually a quote mine that he plagiarized from a book that was published long after he graduated. [link]

Freiler v. Tangipahoa Parish (2000)

This little-known case is especially noteworthy because of how close it came to being overturned by an en banc (full court) appeals court and/or the US Supreme Court. [link]

Luskin wrongly stated that six 5th Circuit federal appeals court judges dissented from the vote to deny an en banc rehearing of Freiler -- the number given in the dissenters'opinion (page 2) is seven. It is hard to tell how many of the judges voted against an en banc rehearing -- the 5th Circuit had 17 authorized seats in 2000 but at least one and maybe tow or three of the seats were vacant [link] when the vote was taken. In any event, the vote was very close.

Luskin failed to note that the Supreme Court's three votes in favor of granting certiorari (Scalia, Thomas, and Chief Justice Rehnquist) was just one vote short of the four votes normally required for a grant of certiorari. Luskin also failed to note that Scalia's long opinion (joined by Thomas and Rehnquist) dissenting from the denial of certiorari was unusual -- denials of certiorrari are usually made without comment (the frequency of dissents from denials of certiorari is discussed below). In his dissent, Scalia minced no words -- in addition to Luskin's quotations of Scalia's dissent, Scalia also said,

I would grant certiorari in this case if only to take the opportunity to inter the Lemon test once for all. Even assuming, however, that the Fifth Circuit correctly chose to apply the Lemon test, I believe the manner of its application so erroneous as independently to merit the granting of certiorari, if not summary reversal. (emphasis added)

BTW, it is widely known that Supreme Court's denials of certiorari are normally made without comment, but the frequency of dissents from certiorari is generally not known -- however, I managed to find some statistics on that frequency, though the statistics are old. There are three possible outcomes for dissents from certiorari: (1) the dissenting opinion is first circulating among the justices and if it succeeds in causing a reversal of the denial, the dissent is of course not published; (2) the dissent fails to cause a reversal, and a decision is made to publish the dissent (Scalia's dissent here is an example of this type), and (3) the dissent fails, and a decision is made to withdraw the dissent. Here are the statistics for the period 1971-1981: total number of dissents, 385; dissent fails and is published, 273 (70.9%); dissent fails and is withdrawn, 29 (7.5%); dissent succeeds, 83 (21.6%). [link -- see page 31] That works out to an average of 27.3 published dissents from cert denial per year for the period 1971-1981, or an average of about three per year per justice. However, some of the dissenting opinions may be trivial -- for example, I have seen just a statement from a justice that he is opposed to the death penalty. Dissents from denials of certiorari are discussed in here, for those that are interested.

Selman v. Cobb County(2005/2006)

This blog has a whole post-label group of articles for Selman [link]. Post labels are listed in the sidebar of the homepage.

Casey fails to mention that before vacating and remanding the decision because of missing evidence, the appeals court panel indicated that it was leaning towards reversal even if the missing evidence were found [link] 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." [link] 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.

Luskin's paper says,

Like Hurst [Hurst v. Newman], this case represents a school district being forced to abandon what it believed was a constitutional policy over threats of an ongoing and expensive lawsuit

Casey is just plain wrong here. The Cobb County school district is big and rich, unlike the El Tejon school district of Hurst and the Dover Area school district of Kitzmiller, which are small and poor. Cobb County was getting free legal representation in its appeal and received offers of more free legal assistance. The Cobb County school district's actual and potential legal expenses were much lower than the ~$1 million paid by the Dover Area school district. [link] Furthermore, before vacating and remanding the decision because of missing evidence, the appeals court panel indicated in an oral hearing that it was leaning towards reversal even if the missing evidence were found. The Cobb County school board simply took a dive.

Attorney Edward Sisson's open letter about the Selman decision is also good. The letter's "political insider/outsider" idea appears to be based on Justice O'Connor's "endorsement test" as originally described in her concurring opinion in Lynch v. Donnelly:

The . . . . more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.

Comer v. Texas Education Agency (2008)

As I said in the introduction to this post, IMO Luskin's paper should have included Comer v. Texas Education Agency, where a federal district-court judge upheld the right of a public education agency to maintain a policy of neutrality regarding evolution-education issues that are subjects of upcoming public hearings. [link]. Apparently the decision was not appealed. Unfortunately, this case does not fit into any of the three categories devised by Luskin: (1) Cases upholding the right to teach evolution; (2) Cases rejecting the teaching of alternatives to evolution; and (3) Cases rejecting disclaimers regarding the teaching of evolution. This blog has a post-label group of articles about Chris Comer (post labels are listed in the sidebar of the homepage).

Justiciability of scientific questions concerning evolution

I am not aware of any judicial opinion that has addressed the issue of the justiciability of scientific questions concerning evolution, but I nonetheless consider this to be a very important issue. IMO the courts should declare these questions to be non-justiciable -- many of these questions are like the question of how many angels can dance on the head of a pin. Questions are non-justiciable when there is “a lack of judicially discoverable and manageable standards.” Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004). Also, appellate courts are unsuited for reviewing days or weeks of scientific testimony -- appellate courts are mainly suited for deciding questions about points of law. This blog has several articles about justiciability.
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Is it constitutional to shout "fire" when there's a fire?

Is shouting "fire" in a crowded theatre when there is a fire constitutionally-protected speech? According to the reasoning of the infamous Lemon Test, the answer could be no.

The Lemon Test, which is used in establishment clause cases, is usually divided up into (1) a "purpose prong" -- The government's action must have a secular legislative purpose, and (2) an "effect prong" -- The government's action must not have the primary effect of either advancing or inhibiting religion. The Lemon test originally had a third prong, the "entanglement prong," i.e., the government action must not result in excessive "entanglement" with religion, but this prong is now usually or often incorporated into the "effect" prong.

Under a freedom-of-speech counterpart of the Lemon Test, which I will call the Lime Test, a court could rule that it is unconstitutional to shout "fire" in a crowded theatre when there actually is a fire. Here is how:

Warning people to escape a fire is a legitimate purpose that is "not a sham," and hence shouting "fire" in a crowded theatre when there is a fire passes the Lime Test's "purpose prong." However, the effect of shouting fire might be people getting hurt in a stampede for the exits, so shouting "fire" in a crowded theatre when there is a fire fails the Lime Test's "effect prong" and hence is unconstitutional.
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This is exactly the line of reasoning that was used in deciding the Selman v. Cobb County evolution disclaimer textbook sticker case. Judge "Blooper" Cooper decided that the stickers' purposes of (1) fostering critical thinking and (2) reducing offense to the fundies are "secular purposes that are not a sham," and therefore ruled that the stickers passed the Lemon Test's purpose prong. However, the judge ruled that the public perceived the stickers as endorsing religion and therefore ruled that the stickers failed the effect prong and were therefore unconstitutional. The problem here is that the rigid Lemon Test is divided up into two separate, independent "prongs," and so the judge could not consider whether those two secular purposes -- fostering critical thinking and reducing offense to the fundies -- outweighed the public perception of endorsement of religion, a perception that should not carry much weight because it basically concerns only a right to "not be offended" and which therefore should have been outweighed by the "critical thinking" factor, especially considering that criticisms of evolution were not taught or even specifically mentioned. The "reducing offense to the fundies" factor might be considered to be a tradeoff between offending fundies and offending non-fundies, but the fact that only evolution was actually taught greatly favored the non-fundies to begin with. In contrast, since a court would not actually use the hypothetical "Lime Test" in deciding the "shouting fire" case, a court would be free to decide that the purpose of warning people to escape a fire outweighs the risk that people could get hurt in a stampede for the exits. The Lemon Test is a kind of a double jeopardy -- if you don't get stabbed by one prong, you could get stabbed by the other. I guess that's why they are called "prongs."

In the Kitzmiller v. Dover decision, Judge "Jackass" Jones did not express any opinions at all about whether the ID statement encouraged critical thinking or reduced offense to the fundies.

The courts have been very inconsistent and hypocritical about the issue of fostering critical thinking in the public schools. The goal of fostering critical thinking in schools was treated as a compelling state interest in deciding ACSI v. Stearns, the case concerning UC accreditation of fundy high school courses and textbooks, but was given short shrift in Selman v. Cobb County and no shrift at all in Kitzmiller v. Dover.
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What really happened in Dover and Cobb County

THE REAL DONUT

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The Donut as hallucinated by Judge "Jackass" Jones (Kitzmiller v. Dover) and Judge "Cuckoo" Cooper (Selman v. Cobb County)

As you go through life, my friend,
whatever may be your goal,
keep your eye upon the donut,
and not upon the hole.

This poem, known as "The Optimist's Creed," has different versions. Here is another:

Twixt optimist and pessimist,
the difference is quite droll,
the optimist sees the donut,
the pessimist sees the hole.

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Ironically, in both the Kitzmiller v. Dover and Selman v. Cobb County cases, the school boards -- far from trying to undermine evolution education -- had actually greatly strengthened it by adopting biology textbooks that emphasized evolution. To compensate for the adoption of strongly pro-Darwinist textbooks, the school boards adopted very brief evolution disclaimer statements -- oral in the case of Dover, a textbook sticker in the case of Cobb County -- as a sop to fundies and others who were opposed to Darwinism. In addition, the Dover school board provided ID books that were not required reading. These reasonable actions by the Dover school board are what Judge "Jackass" Jones called "breathtaking inanity."

A news article about the oral appeals court hearing in Selman said:
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Cobb County appealed and was represented by Ernest Linwood Gunn IV, who opened arguments by directly assailing Cooper's ruling that religion was entangled with the stickers.

He pointed out that, under the county's old curriculum, Cobb barred courses teaching evolution in elementary and middle schools and allowed them only as electives in high school. Thus, he argued, the school board actually had taken pro-evolution action by using a new textbook that taught evolution.

"If they wanted to restrict the teaching of evolution, they would have done nothing," said Gunn.

He conceded that media attention and public controversy surrounding the decision to use the new textbooks spurred the sticker placement, a move meant to be sensitive to the concerns of Cobb parents who objected to the book's lessons on evolution.

The courts needed to view the evolution disclaimers in context and not in isolation.

Often the passage of time is needed to provide the perspective to see things clearly.
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Twilight of the age of monkey trials

The legendary Scopes trial of 1925 started it all. Now it appears that the age of monkey trials is coming to an end. A Panda's Thumb article quoted the following from a World Magazine cover story article that discussed a new textbook titled "Explore Evolution" --
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COVER STORY ARTICLE | “When the base cracks” July 21, 2007

Teach the controversy

Two years after Intelligent Design advocates lost a key court battle, some biology classrooms and ID supporters are finding a balanced approach to evolution that—so far—is lawsuit-proof | Mark Bergin

[…]

Explore Evolution: The Arguments for and Against Neo-Darwinism (Hill House Publishers, 2007) does not address alternative theories of origins but succinctly lays out the scientific strengths and weaknesses of the most critical elements of Darwinism.

Explore Evolution encapsulates a “teach the controversy” paradigm that the Discovery Institute has advocated for the better part of the past decade. Over that time, the institute has advised school boards against the inclusion of Intelligent Design in their science standards . . . .

. . . the Dover lawsuit also highlighted the effectiveness of the Discovery Institute’s approach. State school boards in Pennsylvania, South Carolina, New Mexico, and Minnesota along with local boards in Wisconsin and Louisiana have adopted science standards that encourage critical analysis of Darwinian Theory. To date, not a single lawsuit has challenged such standards.

“This is an approach that if I were a Darwinist I would be particularly frightened of,” said John West, associate director of the Discovery Institute’s Center for Science and Culture. “The policy that we’ve recommended turns out to be the precise common-ground approach we said it would be. It reduces the decibel level; you don’t get sued; you get good education; and the Darwinists don’t have a leg to stand on.” (emphasis added)

What would put a further damper on monkey trials would be the passage of Congressional bills to bar plaintiffs' attorney fee awards in establishment clause lawsuits (I would greatly prefer a law that would cap fee awards in both establishment clause and free exercise clause lawsuits). Such a bill passed the House by a large margin in the last Congress but the Senate companion bill was never voted on by the committee. The bills have been re-introduced this year; the Senate version, S 415, now has 18 sponsors plus one sponsor, and the House version, H.R. 725, has 59 co-sponsors plus one sponsor. Enactment of these bills into law would be the coup de grace to the "Dover trap".

Furthermore, the two big recent monkey trial decisions, Kitzmiller v. Dover and Selman v. Cobb County , turned out to be duds. The Dover decision is just a district court decision of a single judge and furthermore this decision was completely discredited by the revelation that the opinion's ID-as-science section was ghostwritten by the ACLU. The Cobb County decision was vacated and remanded by the appeals court because of missing evidence and was then settled out of court when the school board took a dive. Now there is just ACSI v. Stearns, which does not involve public K-12 schools -- it is a lawsuit by fundy schools against the University of California.
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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:
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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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My comment on Reasonable Kansans blog

I posted a long comment on the Reasonable Kansans blog and I think it is worth linking to here. The topics are the establishment clause, the Dover and Cobb County cases, and the "Monkey Girl" book.

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Absurd expert witness reports prepared for Selman v. Cobb County retrial

As previously reported, the Cobb County Board of Education shamelessly copped out and caved in by settling out of court with the plaintiffs in the Selman v. Cobb County case. However, three expert witness reports supporting the plaintiffs had already been prepared for a possible retrial. After the out-of-court settlement, the National Center for Science Education posted summaries of these reports and the reports themselves. Two of these reports were pretty bad, but the third, by Brian Alters, takes the cake. Here is NCSE's summary of Alters' report:

In his statement (PDF), Alters (a member of NCSE's board of directors) summarized, "The effect of the Sticker Policy will be to: (1) engender student misconceptions about evolution and the nature of science, (2) require science teachers to use poor pedagogy, (3) require science teachers to disregard findings of the scientific community, (4) require science teachers to disregard recommendations of their national professional science teacher associations, (5) contradict teachers' professional preparation and professional development, and (6) improperly prepare students for postsecondary science education at secular schools." (quote taken from page 3 of the report)

LOL. This guy really has a vivid imagination. That is "zealous advocacy" with a vengeance. Try to imagine that the following little evolution disclaimer could do all those things:

This textbook contains material on evolution. 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.

Alters forgot to mention that the stickers would also destroy the international technological competitiveness of the USA. Anyway, none of Alters' six above points has anything to do with the question of whether the sticker was constitutional. There is no constitutional separation of bad science education and state.

One would think that the NCSE would have quit while they were ahead rather than cause themselves unnecessary embarrassment by posting this drivel.

Alters was also an expert witness in the Kitzmiller v. Dover case, so I checked his expert witness report in that trial for similarities to his report for the Selman case. Sure enough, page 2 of his Kitzmiller report has a list of points identical to the list above except that the first point above is absent.

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Cobb County plaintiffs charged that "theory not fact" statement endorses religion

In preparing for a now-canceled new trial in the defunct Selman v. Cobb County case (the judge granted a motion for a new trial), the plaintiffs made the incredible charge that the textbook sticker's statement that "evolution is a theory, not a fact" constitutes a government endorsement of religion. An expert report written for the new trial attempted to back up the charge by giving a history of the use of this "theory not fact" concept by creationists dating back to William Jennings Bryan, the volunteer prosecutor in the 1925 Scopes trial. Such a farfetched, paranoid presumption of guilt by association has possibly been unapproached in American courts since the Salem witch trials. I think that it is time for the men in white coats to come for some of these Darwinists.

This "theory not fact" charge was possibly a factor in stampeding the Cobb County board of education into copping out and caving in. However, there was really little cause for concern. In the appeals court oral hearings, the judges did not seem to have much sympathy for this charge -- for example, Appeals Judge Edward Carnes told an attorney representing the plaintiff/appellees,

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

Judge Carnes also told the attorney,

"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 of the hearing 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.

I wish I could get a complete transcript of the oral hearing -- it must have really been something. LOL

BTW, the vote to appeal the case was 5-2. What was the vote to settle the case out of court? I haven't seen that yet.

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Unchallenged Alabama state evolution-disclaimer textbook stickers

I was astonished to learn that for many years Alabama has had unchallenged and mostly unnoticed evolution-disclaimer stickers in biology textbooks statewide! How come these stickers have apparently never been challenged in court? Are the ACLU and the Americans United for Separation of Church and State unable to find a single "mascot" (Kitzmiller and Selman are examples of "mascots") in the whole state of Alabama?

In fact, some of the language in Cobb County's stickers was identical to that of Alabama's latest stickers, which end with --

Instructional materials chosen to implement the content standards within this course of study should be approached with an open mind, studied carefully, and critically considered.

For comparison, the Cobb County stickers ended with --

This material should be approached with an open mind, studied carefully and critically considered.

Alabama filed a joint amicus brief with Texas in the appeal of Selman v. Cobb County because the district court decision in that lawsuit threatened Alabama's own textbook stickers. The brief says,

INTEREST OF AMICI CURIAE

. . . Since 1996, the State of Alabama has affixed stickers concerning the theory of evolution to the fronts of biology textbooks used in public schools. The current sticker, approved by the State Board of Education, reads as follows:

- - - - - - - - - - -

Whether or not controlling, it is clear that any ruling concerning the constitutionality of Cobb County's textbook sticker will have an important bearing on the validity of Alabama's sticker.

There have been major lawsuits against evolution disclaimers in local school districts: Kitzmiller v. Dover (oral disclaimer), Selman v. Cobb County (textbook sticker disclaimer), and Freiler v. Tangipahoa Parish (oral disclaimer). Are the Darwinists afraid to sue a whole state over an evolution disclaimer? The Darwinists were not afraid to sue states over a law banning the teaching of evolution in public schools (Epperson v. Arkansas) and over laws requiring equal treatment of evolution and creation science in the public schools (Edwards v. Aguillard and McLean v. Arkansas Board of Education).

Merry Christmas, everyone.

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Is The Great Cobb County Cop-Out binding in perpetuity?

The answer to that question is: maybe.

The Great Cobb County Cop-Out would cease to be perpetually binding if and when a Congressional bill titled “The Federal Consent Decree Fairness Act”, S 489, becomes law:

The Federal Consent Decree Fairness Act (S. 489) would permit state and local governments that enter into a consent decree in federal court to file a motion seeking to modify or vacate the decree within four years, or upon the expiration of the term of office of the highest elected state or local official who authorized the consent decree, whichever comes sooner (school desegregation consent decrees would be specifically exempted.) . . . .

Because the legislation calls for its retroactive application, S. 489 would apply to existing consent decrees, no matter when they were agreed to.

S 489 picked up 26 co-sponsors (in addition to the sponsor), which is nothing to sneeze at. Details about the bill are here.

Because the plaintiffs in Selman v. Cobb County had already requested a brand-new trial, they would not be in much of a position to complain if they get one if the board of education re-instates the textbook stickers.

S 489 is also discussed here.

S 489 has drawbacks, but there’s got to be some way to prevent nervous Nellie public officials from forever tying the hands of their successors.

The consent agreement says,

(3) This Order is binding on the Cobb County Board of Education and its officers and members in perpetuity, notwithstanding any changes to the Board's membership that may result from future elections, appointments, vacancies, or other changes to the Board or its composition.

(4) This Court reserves jurisdiction to enforce this Order. In the event that Defendants fail to comply with this order, Plaintiffs, the American Civil Liberties Union of Georgia, or Americans United for Separation of Church and State may file a motion with this Court seeking enforcement of the Order. Defendants are deemed to have submitted irrevocably to the jurisdiction and venue of this Court, and to have waived any objection thereto, for any proceeding to enforce this Order.

The last item above, the right to object to any proceeding to enforce the consent agreement, is probably not waivable.

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Ungrateful Cobb County school board stabbed its law firm in the back

I have learned that the law firm that represented the wimpy Cobb County board of education in Selman v. Cobb County generously represented the board for free in the appellate phase of the case. An attorney from the law firm succeeded in getting the case remanded to the district court on terms very favorable to the board. Yet the board decided to throw his free work out the window by copping out and caving in to the plaintiffs. Furthermore, the board spurned other offers of free legal help. The least that the board should do now is compensate the law firm for the value of its appellate services that the board wasted by copping out.

Also, the school district could have easily afforded an attorney fees award to the plaintiffs if the board eventually lost the case in court. Cobb County has a population of about 660,000, dwarfing the 22-23,000 (2000 census) population of the Dover Area school district, which paid $1 million in attorney fees to the plaintiffs in Kitzmiller v. Dover.

A news article reported,

Last May, the appellate court sent the case back to the lower court for more fact finding and did away with the lower court ruling. It was back to square one. Failing a settlement, a new trial was a possibility, setting the legal meters running again. The school district's bill for attorneys fees reached $276,402 [total for both plaintiffs' and defendants' attorney fees] and would have gone higher -- by as much as $100,000 -- if the school system's legal firm, Brock Clay, had not taken on the appeal of the case in U.S. District Circuit Court for free.[correction -- "district" is extraneous -- it is just the circuit court of appeals. District court is the lower court].

Over four years, the school system paid the Marietta law firm $109,743 to defend its decision to attach stickers to the biology textbooks. In the settlement agreement U.S. District Judge Clarence Cooper signed Tuesday, the board agreed to pay another $166,659 toward attorneys fees of the five parents who sued the district . . . .

Linwood Gunn, an attorney with Brock Clay who represented the district in the case, said the $166,659 is about one third of the plaintiff's legal fees, which were close to $500,000.

Legal fees were a factor in the board's decision to appeal. "If we hadn't appealed Judge Cooper's decision, the board would have owed some $200,000 in plaintiff's attorneys fees," Gunn said.

But Gunn said the primary reason the school board decided to press its case had more far-reaching implications. "We felt Judge Cooper's order was incorrect. If the order was allowed to stand, it would have restricted the school board's ability to set its own curriculum, and school boards' across the state. We didn't feel like we could live with that order."

Gunn said the board's goal was not to return the stickers to the textbooks. "That was never our objective," he said.

Gunn said his firm handled the appeals case without charge because the firm felt that Cooper's ruling would set a negative precedent for Cobb and other school districts in Georgia.

"We felt it was worthwhile to do an appeal. We felt we had a good chance of success and didn't want the lower court's opinion to stand. We felt it was bad law. The Cobb County School District has been a long-standing client of ours and felt it was an important case to take to the next level." . . . .

The school board rebuffed other offers of help with legal expenses and legal expertise from around the country. The Scottsdale, Ariz.-based Alliance Defense Fund, a powerful Christian legal group, was among those that offered help.

Also, Selman v. Cobb County was considered to be an important test case and a lot of people were counting on Cobb County to hang in there. Probably other jurisdictions wanted to adopt similar stickers but were waiting for the outcome of the Cobb County case. The states of Alabama and Texas and others submitted amicus briefs in support of the school district. The Cobb County board of education should have recognized that it was not just representing itself but was also representing a lot of entities and people outside the school district. Cobb County's cop-out pulled the rug out from under a lot of people.

In vacating the decision and remanding the case, the appeals court said,

In remanding for additional evidentiary inquiry and new findings, we leave it to the district court whether to start with an entirely clean slate and a completely new trial or to supplement, clarify, and flesh out the evidence that it has heard in the four days of bench trial already conducted. (page 34)

On what basis could the plaintiffs have won again in the District Court? The missing evidence that was the basis of the original decision and the reason for the remand was not likely to be found. And what about a completely new trial? Intelligent Design and the book Of Pandas and People were the big issues in the Kitzmiller v. Dover decision, but neither ID nor the book were mentioned on the Cobb County textbook stickers.

Lists of articles and court documents about the case are here, here, and here (this is a list of articles as well as a timeline). Other articles are here, here, here, and here. The board's cop-out is discussed on Uncommon Descent, with readers' comments.

BTW, I cannot understand why remanded cases in the federal courts are automatically reassigned to the judges who originally decided them. A judge is of course likely to try to justify his/her original decision. In the California courts, the party that lost the original decision has the option of requesting that the remanded case be assigned to a different judge. Also, another difference between the federal courts and the California courts is that in the latter the parties have the right to a one-time "peremptory challenge" of a judge selected at random.

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Cobb County cops out, caves in to Darwinists

Many readers here are by now aware that the wimpy Cobb County board of education has settled out-of-court with the Darwinists in the Selman v. Cobb County evolution-disclaimer textbook sticker case. This is a terrible disappointment to many because the school board had a lot going for it. The appeals court had vacated the decision and remanded the case back to the district court because of missing evidence which appeared to be unlikely to be found, and in oral hearings the appeals judges appeared to indicate that they would reverse the decision even if the missing evidence were found. I think that it was foolish and irresponsible of the board of education to give up so easily.

A press release of the Cobb County board of education said,

“We are very pleased to reach this agreement and end the lawsuit,” said Cobb County Board of Education Chair Dr. Teresa Plenge. “After the 11th Circuit Court vacated the decision, we faced the distraction and expense of starting all over with more legal actions and another trial. . . "

“Appealing the lower court ruling was the right decision by the school board because that ruling was incorrect,” said Dr. Plenge. “The Board maintains that the stickers were constitutional, but, at the same time, the Board clearly sees the need to put this divisive issue behind us."

These politicians make themselves look very foolish by saying that conclusions of lawsuits over controversial issues put the issues "behind us." Kitzmiller v. Dover is not behind us a full year after the decision -- it is as controversial as ever. Roe v. Wade is certainly not "behind us."

I am especially surprised and disturbed that the board agreed to pay legal fees to the plaintiffs:

In a separate agreement, the District has agreed to pay $166,659, which represents a portion of the plaintiff’s legal fees.

The board was in the driver's seat and should have insisted on no payment of legal fees.

The one consolation here is that this case will have even less precedential value than the Kitzmiller v. Dover case. In fact, the precedential value of Selman v. Cobb County is now zilch -- the district court's decision is now null and void because it was vacated by the appeals court.

The response from the Americans United for Separation of Church and State is here. A timeline of the case and a list of articles is here. The Discovery Institute has a list of articles here.

Here is a list of some of this blog's articles about the 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

Attorney's open letter on Selman v. Cobb County textbook sticker case (particularly recommended)

The "Dover Trap" Myth

To find other articles in this blog that discuss or mention the case, just enter "Cobb" or "Selman" in the blog-search window in the top border of the blog screen (you must be scrolled to the very top to see the window).

I may later add some more observations in the comments section of this article.

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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

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Close votes in Freiler case show shakiness of Selman and Kitzmiller decisions

A highly significant evolution-disclaimer case that preceded the Selman and Kitzmiller cases, Freiler v. Tangipahoa Parish Board of Education, 185 F. 3d 337 (5th Cir 1999), cert. denied, 530 US 1251 (2000), is virtually unknown today. However, the history of the Freiler case shows how shaky the Selman and Kitzmiller decisions really are. Despite the fact that the Freiler evolution disclaimer -- unlike the Selman and Kitzmiller disclaimers -- actually expressly mentions something religious, i.e., the Bible, the Freiler case fell just single votes short of being granted either an appellate rehearing en banc or certiorari (a rehearing en banc is a rehearing by all the judges of a court, except that 11-judge panels are used in the 9th circuit, and a grant of certiorari is acceptance for review by the Supreme Court). The overconfident Darwinists do not realize how close the Freiler decision came to being reversed.

A petition for a rehearing en banc of Freiler got seven yes votes from the 5th circuit appellate judges, just one vote short of the majority needed to grant the rehearing. The vote was so close that the 3-judge panel that decided the case did not dare report the actual tally. I determined from the records of service of 5th circuit appellate judges that there were 14 such judges in regular active service in 2000, so the vote was evenly split and there was no majority. A rehearing en banc is seldom granted. Also, the seven judges who voted yes submitted a long dissenting opinion. Furthermore, the Supreme Court fell just one vote short of the four votes needed to grant certiorari, and in a very rare action, Justice Scalia, joined by Justice Thomas, wrote a long dissenting opinion against the denial of certiorari -- normally denials of certiorari are made without comment. And Scalia did not mince words -- he said, "I would grant certiorari in this case if only to take the opportunity to inter the Lemon test once for all. Even assuming, however, that the Fifth Circuit correctly chose to apply the Lemon test, I believe the manner of its application so erroneous as independently to merit the granting of certiorari, if not summary reversal." These close votes and the accompanying dissenting opinions could be indications of how courts would vote in similar cases. The vote splits and dissenting opinions in court decisions are often considered to be of critical importance, as in Supreme Court abortion cases. The Kitzmiller decision will never be directly reviewed by a higher court, so speculation on how a higher court might rule on this case is moot, but the Selman case is still very much alive.

The Freiler case was cited six times in the Kitzmiller opinion (the name appeared eight times, but in two places the name appeared twice in one citation) and about seven times in the Selman opinion.

The disclaimer in the Freiler case was provided by the following resolution that was adopted in 1994 by the Tangipahoa Parish School Board:

Whenever, in classes of elementary or high school, the scientific theory of evolution is to be presented, whether from textbook, workbook, pamphlet, other written material, or oral presentation the following statement shall be quoted immediately before the unit of study begins as a disclaimer from endorsement of such [evolution] theory.

It is hereby recognized by the Tangipahoa Parish Board of Education, that the lesson to be presented, regarding the origin of life and matter, is known as the Scientific Theory of Evolution and should be presented to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation or any other concept.

It is further recognized by the Board of Education that it is the basic right and privilege of each student to form his/her own opinion or maintain beliefs taught by parents on this very important matter of the origin of life and matter. Students are urged to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion. (emphasis added)

The last sentence above, which urges students to question ideas that are based on religion, can hardly be considered to be an endorsement of religion. In fact, it is the opposite.

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Disclaimer sticker for Selman v. Cobb County opinion

The following disclaimer sticker should be attached to all copies of Vol. 390 of the 2nd Edition of the Federal Supplement:

This book contains material on a court decision about Cobb County evolution-disclaimer textbook stickers. This decision is a theory, not a fact, regarding the existence of a petition and a letter that are the basis for the decision. This material should be approached with an open mind, studied carefully, and critically considered.

--------------------------

Approved by Federal Appeals Court of the 11th Circuit, May 25, 2006

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Sticker shock -- appeals court ducks textbook sticker case

Speak of the devil ! It was less than a week ago that I wrote an analysis of the Selman v. Cobb County textbook sticker case, whose appellate decision had been held up for more than five months since the oral hearings, and now the decision has just been released! The opinion begins with the candid words, "This is the Cobb County, Georgia evolution sticker case," as though everyone is familiar with the 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".

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"Traipsing into breathtaking inanity" II: analysis of Selman v. Cobb County

While waiting for release of the appeals court's decision in the Selman v. Cobb County evolution-disclaimer textbook stickers case, I decided to occupy myself by writing an analysis of the district court's opinion.

Background material for this post is given in "What happened to the Cobb County textbook sticker case?" and "Aptly named 'Lemon test' sucks" on this blog.

The Selman opinion made the following statement in the "purpose" prong analysis --

Evidence in the record suggests that the idea of placing a sticker in the textbooks originated with parents who opposed the presentation of only evolution in science classrooms and sought to have other theories, including creation theories, included in the curriculum. Namely, Marjorie Rogers wrote a letter to the School Board over two weeks before the adoption of the Sticker recommending, among other things, that the School Board place a disclaimer in each book. Moreover, Ms. Rogers and over 2,300 other Cobb County citizens submitted a petition to the School Board also asking the School Board to place a statement at the beginning of the text that warned that the material on evolution was not factual. There is no dispute that a large number of Cobb County citizens opposed the teaching of evolution in a rigid fashion, and it is clear to the Court that many of these citizens were motivated by their religious beliefs. However, 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). (emphasis added)

Note that the court 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." I think that this statement is good (though as shown below, this statement was unfortunately contradicted in the effect prong analysis), but it is was wrong to assume that the petition's signers were motivated by religion -- some people may have signed the petition for non-religious reasons (a lot depends on how the petition was worded). Anyway, the judge ruled that the textbook stickers passed the "purpose" prong of the Lemon test.

The opinion made the following statement in the "effect" prong analysis --

....... 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.

So there it is -- the sole reason why it was unconstitutional for the school board to adopt the language of the textbook stickers is that religiously-motivated individuals asked the board to do it! The judge even conceded that the statement that evolution is a theory and not a fact does not inherently violate the effect prong of the Lemon test. The court held that the reason why the statement violates the effect prong is that a lot of people support that statement for religious reasons. In the oral hearings at the appeals court, Judge Carnes told an attorney something like, "I don't think y'all can contest any of the sentences [of the textbook stickers]. It's a theory and not a fact -- the book supports that."

Also, the "purpose" and "effect" prong analyses are glaringly inconsistent: the purpose prong analysis says that the "Court does not rely on communications from these individuals" (i.e., citizens who supported the stickers by means of a petition and a letter submitted to the board) and cited precedent in support of that position, but the effect prong analysis says that the Court did rely on communications from these individuals. Also, it is very disturbing that such great importance is attached to a single letter from just one citizen, Marjorie Rogers, even though that citizen was apparently an activist. Also, controversies over the following matters have apparently still not been settled: 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. Information about these controversies is here, here, here, and here.

Also, the opinion says, "the Cobb County School Board appears to have sided with these religious-motivated individuals," but there is no evidence to support that conclusion. In fact, in the "purpose" prong analysis, the opinion said, "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 Selman decision, in ruling that a particular thing that does not mention anything connected to religion and that contains no religious symbols is nonetheless a government endorsement of religion, is arbitrary in the extreme. Such a decision must be unique in the annals of establishment clause jurisprudence. Even in the Dover lawsuit, the ID statement that was read to the students arguably had a religious connotation because the word "design" implies the existence of a supernatural "designer."

Despite these excesses of the Selman decision, the Darwinists of course will not concede that the court went too far. In fact, the Darwinists filed an amicus brief urging the court to rule against the defendants.

BTW, the title "Traipsing into breathtaking inanity" is a combination of words used in the Kitzmiller v. Dover opinion. This title was inspired by the title of the Discovery Institute's new book, "Traipsing into Evolution."

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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).

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