Thursday, December 15, 2005

Cobb County Evolution Stickers Have Their Day In Court

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!


  1. Thanks very much for the news!

  2. I've linked to you from a post of its own:

  3. Great job. It's difficult to imagine what a "more experienced blogger" could have done better.

    Of course, I may be biased towards your views: We Christians who study science and occasionally understand it are generally regarded with suspicion by others. Surely we must blog together, or we shall certainly all blog separately . . .

    Or something like that.

    What sorts of emotions did you detect from the judges? If you had to guess, what would you guess

  4. [oops]

    If you had to guess, what would you guess they might decide, just on the basis of what you saw and heard?

  5. Thanks for the work , even if you are a Christian Conservative,
    Dean Morrison

  6. Thanks Mr. Inspector.

    It's always a relief to discover (again) that not every conservative Christian is a sucker for the creationist's anti-science shtick.

    God bless.

  7. Thanks all, for the comments.

    I couldn't guess how they'll rule. I suppose that someone will make Judge Carnes aware of his error, if it was in fact an error. I couldn't tell to what extent the rough ride they were giving the ACLU lawyer was actual antagonism or devil's advocacy.

    I guess we'll just have to wait and see.

  8. Thanks for posting a first-hand account. The stories in the "main stream media" always seem to be lacking in details (and aren't usually updated when minor factual errors are made).

    One thing I don't fully understand is why the Cobb County school board only mandated stickers that mentioned evolution and not any other scientific theory. It would be hard to show that the policy was religion-based if there were disclaimers about gravitational theory and germ theory too. With evolution singled out the stickers clearly seem to be a wink to the fundamentalist parents.

    (Also, I like your philosophy: "To believe in things that can't be proved is faith, but to disbelieve in things that have been proved is just obstinance." When I discuss evolution with people who claim that acceptance is the same as atheism, I'll point them to your blog.)

  9. Faith is belief without reason or against reason, not just because something can't be proved. No has proven, or can prove, that humans and monkeys have a common ancestor, but that's the most rational belief based on the evidence, not a matter of faith. Proof is the rule for mathematics and logic, not science.

  10. Peggy

    Evolution got a sticker and no other theory because no members of the school district were complaining about other theories.

    What you call a wink to fundamentalists is correct. What you don't seem to understand is that fundamentalists are voters and have rights like everyone else. Accomodating through the political process is something we are obliged to do in the United States. We can't discriminate against fundamentalists because of their religion.

    The situation was that Cobb County had virtually no evolution in their old textbook. The fundamentalists were content with that. The school board then chose a new textbook which had some 100 pages devoted to evolution in it. By the same "wink" logic you used this could be seen as a wink towards non-fundamentalists. The fundamentalists objected to the textbook change which is their right as voters and school district members. The school board then accomodated their objection with a sticker reminding students that theories are not facts, keep an open mind, and study the material carefully and critically.

    The lower court's decision should be overturned. It was appallingly bad and upheld an unconstitutional exclusion of a segment of the population from the political process because of their religious beliefs.

  11. To predict whether the appeal will succeed, it's first important to understand the original trial court opinion, as the appeal will rise or fall on whether they conclude the original trial judge made an error.

    In that earlier trial, Judge Cooper concluded: “By denigrating evolution, the school board appears to be endorsing the well-known prevailing alternative theory, creationism or variations thereof, even though the sticker does not specifically reference any alternative theories."

    So I suppose if there is an issue about the point above, it rests in whether the lower court could be allowed to connect the dots from all the petitions and school board meetings and the people involved, to what the sticker says literally. He clearly saw christian creationists were behind the sticker campaign. The appeals court will examine whether he went too far in drawing this conclusion.

    Cooper went on to conclude that, "Regardless....., the sticker has already sent a message that the School Board agrees with the beliefs of Christian fundamentalists and creationrsts. The School Board has effectively and improperly entangled itself with religion by appearing to take a position."

    So I suppose the second main issue of the appeal revolves around the question of whether such an entanglement is constitutionally prohibited. It seems like considerable precedent exists that prohibits this kind of entanglement and the appeal has no basis on this level.

    The poster above suggests the original ruling disenfranchises a segment of the population from the political process.

    That's so basally ignorant it even fails the laugh test.

    To extend the theory, the only thing needed by a cult whose main goal is to see that all blue-eyed people never are allowed to procreate beyond their phenotype, is to secure enough votes to ensure their beliefs are carried out by the political establishment.

    here's the lower court ruling:

  12. What's basally ignorant is the modern interpretation of the establishment clause as a right to freedom from religion.

    The poster above obviously subscribes to this ignorance and chooses anonymity in a cowardly attempt to avoid any need in the future to assume ownership of those words. At least that part is understandable.

  13. I'd post this comment on Panda's Thumb but I'm banned there.

    Regarding Carnes' assertion that the petitition timeline was wrong, and assertions that it was indeed correct that it had been submitted to the board in March, not September, I have yet to see anything but a claim by Marjorie Rogers that the petition existed in March. She wasn't "waving it around" at the March board meeting. At that point the petition was no more than a claim, which could have been an empty claim. She didn't actually produce the petition for the record until September. Maybe she didn't actually have the signed petition in March but rather only faith that she could get her church's 2300 members to eventually sign one, and as we all know faith and fact are often indistinguishable from each other for fundamentalists. ;-)

    Thus Carnes is quite correct. The factual evidence for the existence of the petition was given in court as September 2002, not March 2002 when it was no more than hearsay.

    Judge Clarence Thomas' decision remains a bad one in any case. Fundamentalists are protected by the constitution in their right to participate in the political process. The fact that the sticker was championed by a church group should not even be taken into consideration because to do so is to discriminate against this group due to their religious beliefs and THAT IS UNCONSTITUTIONAL. The sticker needs to be considered at face value regardless of who wants it or why. At face value the sticker is not an establishment of religion. No religion is even mentioned in the sticker, unless of course one considers evolution theory to be religion.

  14. anonymous said

    To extend the theory, the only thing needed by a cult whose main goal is to see that all blue-eyed people never are allowed to procreate beyond their phenotype, is to secure enough votes to ensure their beliefs are carried out by the political establishment.

    If this poster knew his asperillus from his elbow he'd realize that his example shouts out ignorance of the constitution.

    The blue-eyed people would be infringing upon a constitutional right to freedom of assembly in limiting with whom they could could procreate.

    Maybe no one ever told anonymous that the freedom to swing my fist ends where his nose begins which is the classic illustration of constitutional freedoms. Thus the constitutional question of the Cobb sticker must include asking whose rights are being infringed by the placement of the sticker. If the answer is no one then the sticker, having been placed there by due process must remain. The ACLU asserted that their client's right to be free from gov't establishment of religion was being infringed by the sticker. That, on the face of it, that the sticker constitutes an establishment of religion when it doesn't remotely mention any facet of any religion is laughable. And that is why the appeal will win.

  15. Any ETA on when a decision is coming?

  16. The court usually does not give any formal notice before handing down a ruling, so they say.


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