It was a near thing, but I was able to attend the hearings at the Federal 11th Circuit Court of Appeals in Atlanta--along with a goodly chunk of Cobb residents. I couldn't have live-blogged it, since no electronic devices are permitted in the courtroom. (I'm just glad I remembered to pick up my cellphone on the way out!)
Anyway, what follows is an intel dump from my handwritten notes. I would much rather have had a more knowledgeable blogger in my place, I'll tell you that. I have no legal background, and so can provide little insight along those lines. I'm not even a particularly good note taker, this many years out of school. And chances are that you won't read this news here first. In fact, if you're searching for succinct, hard news, look here. But, I did hear some things that I haven't seen elsewhere, so maybe you will too.
I found a seat near the back, and stuffed my parka under the bench. I was in my regular work clothes, and looked like a tossed salad compared to the sleek lawyers and legal students in their crisp black suits all around me. The proceedings began at five past nine.
Mr. Gunn, the attorney for the Cobb County school board, began his argument. Surprisingly, to me at least, he was repeatedly interrupted by the three judges, Judge Carnes mostly. I couldn't follow the legalese, sorry, so I won't try to reproduce it.
But I did grasp that Mr. Gunn insisted that the infamous "evolution is a theory not a fact" stickers were not the whole policy. He appealed to the judges to consider all the public pressure the board--which is elected, btw--was under when drafting their policy. The idea of using the disclaimer sticker came up when they were trying to sort through all the demands of their clamorous constituents.
Judge Carnes brought up the famous Lemon test prongs, in objection.
Gunn said that the board had all along been trying to improve science teaching in Cobb, while being sensitive to the parents' and students' religious sensibilities. The sticker stood for "openness and tolerance".
Judge Pryor asked, why put stickers on this textbook? Meaning the biology book that the Cobb board had chosen for use in the curriculum. Dunn answered that they weren't singling it out, but were guided by a curriculum-wide policy. He said, incredibly to me, that science teachers taught science in a dogmatic way, and the sticker would help keep the students' minds open. I silently suppressed a gag. Besides, he said, the board tried to pick the best textbook.
The ACLU lawyer, Mr. Bramlett (as I recently found out) came to the lectern, and was interrupted even more than Dunn was. He got no further than "May it please the court--" before Judge Carnes laid into him over some factual errors in the brief. One of the creationist parents who wrote a letter of protest to the board did not write it before the stickers went in the books. And a 2300 signature petition was presented six months after the stickers went in. Apparently these errors were made in the original lower court case, which this ACLU lawyer did not participate in, but were carried over into the current federal case. Carnes was bothered by the discrepancies, and pressed Mr. Bramlett: So who came up with the idea for the stickers? Bramlett fumfuhed and tried to get back onto the meta-theme: the stickers were an endorsement of religion in the classroom. There was some back and forth regarding the McCreary ruling, which you're on your own in interpreting, sorry.
Judge Carnes then seemed to get into some devil's advocate roleplaying. He said that the stickers are technically accurate, so what's the problem? Mr. Bramlett said that evolution was singled out for this disclaimer, from religiously grounded motives. The judges and Bramlett shared a chuckle when they all agreed on what an excellent textbook it was, and the crowd laughed, too.
Bramlett gamely stuck to his argument: A reasonable observer would objectively conclude that the school board wanted to prejudice students against evolution, by putting the stickers in. Judge Pryor asked, wasn't the board right to choose this accurate and excellent text, though? And Carnes asked, why separate the sticker from the rest of the school board's policy?
Sidebar: This was a bit of background that I had been unaware of so far. Cobb had apparently gone from under-representing evolution in its classrooms, to providing a fuller treatment while putting these disclaimers in to placate the fundamentalist parents. So, big surprise: the policy was a garden variety government consensus monster. A little something for everyone, that wound up pleasing no one.
Sidebar #2: At one point the ACLU lawyer got his tang tongueled up and referred to the stickers saying that evolution was "a fact, not a theory".
Bramlett tried to expound on foundational theory, that all science is provisional until proven wrong, and evolution is no different from any other science in that regard. But he was interrupted by the third judge, Judge Hull. She noted that the lower court ruled that the stickers were intended to mislead. How, she asked, was this opinion supported from the evidence in this case? Bramlett, who wasn't the original lawyer, hazarded a guess, but Hull told him to stick to the case at hand.
Judge Carnes mentioned that someone's testimony in the first case said that the stickers made no practical difference. There was the same amount of science/religion discussion in class before and after the stickers were put in. Also, he noted that Cobb went from no evolution instruction to evolution instruction with a sticker.
Bramlett then invoked the Georgia constitution, saying that the lower court found that the stickers violated it. Carnes responded with a profession of awareness of how "very sensitive" it would be for the federal court to strike down the lower court's constitutionally grounded opinion. Or something like that, since sorry I couldn't really follow the statement. Kind of hard to hear in the back, too.
Mr. Gunn came back up for his closing argument for the school board. He insisted that there was nothing religious about the school board's actions. Judge Pryor cracked a legal funny about the school board wanting the federal court to invoke the state constitution in case of a reversal, but not in case the lower ruling is upheld. Seemed funny to the rest of the crowd, at least...
Gunn insisted again that the stickers merely "harmonized" religious beliefs and science, that the school board did not violate the "no establishment" clause. He mentioned how the school board was accused of misusing the word "theory", which spurred some comment from the bench. Gunn mentioned some Intelligent Design cases, and said that Cobb's policy was nowhere near as restrictive as those. And besides, the stickers had had no effect, so far as religious proselytizing went.
Judge Hull cited a statement from the earlier case that the sticker is intentionally prejudicial against science and towards religion. Gunn tried to deflect the thrust of the charge, saying that if confused students were evidence of religion in the classroom, then his high school math class must have been very religious indeed.
Things wrapped up when Judge Carnes called the ACLU lawyer back up to the lectern and very cordially bawled him out for the factual errors in the ACLU's brief. Carnes understood that Bramlett didn't put those errors in the original brief in the lower court case. But Bramlett did have access to "the blue brief", whatever that means, and Carnes didn't appreciate having to take brainpower away from his own duties to sort out a faulty timeline of events, which should have been fixed before it got to him. He ordered Bramlett to write Carnes a letter explaining why the ACLU brief did not constitute a "misrepresentation of facts".
And that was it. They didn't say when they would rule, though some news reports said it could take several months.
UPDATE: Welcome to readers of The Pandas Thumb, The Commissar, and Red State Rabble. If you are nervous about being at the website of a conservative Christian, you needn't be. I have always despised creationism. It's like I always say, To believe in things that can't be proved is faith, but to disbelieve in things that have been proved is just obstinance.
UPDATE II: Reed Cartwright over at The Panda's Thumb very kindly bumped my link in a comment up into its own post, and also got his team working on some fact-checking. They say that Judge Carnes is wrong about the timeline in the ACLU's brief being defective.
I will publish any such factual updates and clarifications as come my way. As I said, I'm no expert.
UPDATE III: Like for instance, I just learned that I got the ACLU lawyer's name wrong. I've changed it throughout.
UPDATE IV: *sigh* ditto for the Cobb School Board Attorney... I've got a ways to go to get proficient at this citizen journalist thing!
