Some Thoughts on the Cobb County Disclaimer Stickers Decision
by Lenny Flank
In going through the text of the judge's decision to ban the Cobb County, Georgia stickers, I found some points that could be potentially interesting and useful precedent in Dover, as well. OK, actually they are legal precedents that will kill ID's "teach the controversy" strategy. Completely and utterly.
The text of the judge's decision is a pdf file at:
(the PDF is a scan of the printed decision, and alas it is loaded with typos and OCR errors--I've tried to correct all of these.)
Some interesting points in the decision:
The judge has killed the "disclaimer stickers" on several different and independent lines of reasoning, any ONE of which, all by itself, would be enough to kill it on "establishment clause" grounds, and all of which, together, make it virtually impossible for the fundies to win any appeal of this case. But it is interesting that these lines of reasoning also apply to the "teach the controversy" being pushed by the intelligent design advocates in Dover.
Beginning on page 35 of the judge's decision, we find:
"There is no evidence in this ease that the School Board included the statement in the Sticker that "evolution is a theory, not a fact" to promote or advance religion. Indeed, the testimony of the School Board members and the documents in the record all indicate that the School Board relied on counsel to draft language for the sticker that would pass constitutional muster. Thus, the presence of this language does not change the Court's opinion that the Sticker survives the purpose prong of the Lemon analysis. Still, the informed, reasonable would perceive the School Board to be aligning itself with proponents of religious theories of origin."
This is important. Discovery Institute and other intelligent design creationists makes lots of noise about how their viewpoint is all "science" and has no religious aim or purpose. In the Freiler v Tangipahoa case in Louisiana, which also involved a "disclaimer sticker", the stated purpose of the law as written also claimed to be secular and without any religious aim or purpose. The law specifically stated that its purpose was to "encourage critical thinking". The judge in that case, however, concluded that the stated purpose of the law was, in his words, "a sham", and that "the primary effect of the disclaimer is to protect and maintain a particular religious viewpoint, namely belief in the Biblical version of creation. (US Circuit Court, Freiler v Tangipahoa, 1999) This evaluation of the stated legislative purpose of a creationism law was also shared by the Supreme Court, which stated, in its Aguillard decision, "While the Court is normally deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham." (Edwards v Aguillard, 1987) In ruling that the Louisiana equal-time law did in fact have a religious purpose, the Supreme Court in effect concluded that the stated purpose of the law was "a sham". But in the Cobb decision, the judge expands upon and strengthens this conclusion, by pointing out that *even if* it is accepted that the stated purpose of the law was not just a "sham" and is really and totally true and EVEN IF IT HAS NO EXPLICIT RELIGIOUS PURPOSE, it STILL fails the Lemon test if it has the EFFECT of advancing religion.
This has application to the Dover case as well as any future case the IDers might bring (since the history of ID/creationism is nothing more than a search for some wording in the law that will pass Constitutional muster). Even if a court in Dover were to rule that the DI's "teach the controversy" policy had a secular aim and was NOT intended to be religious in nature (as the DI argues), it would STILL fail the Lemon test if a reasonable informed person would conclude that it aligned itself with "proponents of religious theories of origin". As we have seen, ID proponents speak openly at every available opportunity about their "religious theories of origin" and how ID supports them. And, as the Cobb judge ruled, that is enough right there to kill it as unconstitutional. No matter how hard they try, the ID/creationists will NEVER find a suitable legal language or wording in any proposed law that will allow them to do exactly what the Constitution says they CANNOT do --- use public school classrooms to advance their religious beliefs by pretending those religious beleifs are really "science".
In the next paragraph, we find another independent criteria for finding the stickers unconstitutional, and it too applies directly to the Dover "teach the controversy" strategy:
"The Sticker also has the effect of implicitly bolstering alternative religious theories of origin by suggesting that evolution is a problematic theory even in the field of science. In this regard, the Sticker states, in part, that "evolution is a theory, not a fact, concerning the origin of living things" that should be "approached with an open mind, studied carefully, and critically considered." This characterization of evolution might be appropriate in other contexts, such as in an elective course on theories of origin or a religious text. However, the evidence in the record and the testimony from witnesses with science backgrounds, including the co- author of one of the textbooks into which the Sticker was placed and Defendants' own witness, Dr Stickel, reflect that evolution is more than a theory of origin in the context of science. To the contrary, evolution is the dominant scientific theory of origin accepted by the majority of scientists. While evolution is subject to criticism, particularly with respect to the mechanism by which it occurred, this Sticker misleads students regarding the significance and value of evolution in the scientific community for the benefit of the religious alternatives. 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."
This too is important. The judge is ruling that the simple act of implying or stating that evolution is a substandard theory or in some sort of crisis or is "problematic", is misleading about the scientific value and significance of evolution, and when such "denigration" is done for the purpose of benefiting "religious alternatives"-- EVEN IF THAT ALTERNATIVE IS NOT SPECIFICALLY REFERENCED, then it is illegal.
The sole and only POINT of "teach the controversy", of course, is to denigrate evolution as "problematic" (indeed, "teach the controversy" itself consists solely of telling students about all these putative "problems"), and mislead people about its significance and value, all to the benefit of a religious alternative. That, too, is enough right there to kill it as unconstitutional.
A few paragraphs later, we find a third independent reason for killing the disclaimer stickers that also applies directly to the "teach the controversy":
"In addition to the foregoing, the Sticker targets only evolution to be approached with an open mind, carefully studied, and critically considered without explaining why it is the only theory being isolated as such. The School Board members convincingly testified at trial that they believed all scientific theories should be critically considered, and they also stated that they singled out evolution because it was the topic causing the controversy at the time. The Court finds the School Board's explanation to be rational and does not declare the Sticker to violate the purpose prong of Lemon However, because the administration suggested alternative language that did not place the emphasis so heavily on evolution, albeit after the Board adopted the Sticker, the message communicated to the informed, reasonable observer is that the School Board believes there is some problem peculiar to evolution. In light of the historical opposition to evolution by Christian fundamentalists and creationists in Cobb County and throughout the Nation, the informed, reasonable observer would infer the School Board's problem with evolution to be that evolution does not acknowledge a creator."
This is the strongest argument against the "teach the controversy", and will probably be the one cited when it is killed in court. The sticker singles out ONLY EVOLUTION for criticism and "critical thinking", for the simple reason that evolution, and not other areas of science, are the historical targets of religious opposition. The "teach the controversy" strategy also targets evolution, and ONLY evolution, specifically. And ID rhetoric makes it crystal clear that the source of this targeted opposition to evolution is that it "does not acknowledge a creator" (or designer, or whatever else they want to call it). This, too, is enough all by itself to kill the "teach the controversy" tactic.
Further on in the decision, we find:
"Due to the manner in which the Sticker refers to evolution as a theory, the Sticker also has the effect of undermining evolution education to the benefit of those Cobb County citizens who would prefer that students maintain their religious beliefs regarding the origin of life. As Plaintiffs argue and Dr Miller, the co-author of the science textbook, testified, the use of "theory" in the Sticker plays on the colloquial or popular understanding of the term and suggests to the informed, reasonable observer that evolution is only a highly questionable "opinion" or a "hunch ". The Sticker thus has a great potential to prompt confusion among the students. While there may be an educational benefit to students spending time learning the general difference between a theory and a fact as a scientific matter, teachers have less time to teach the substance of evolution. Thus, although evolution is required to be taught in Cobb County classrooms as a technical matter, distracting tangential issues effectively dilute evolution instruction to the benefit of the anti- evolutionists who are motivated to advance their religious beliefs."
While this reasoning doesn't impact directly onto Dover and "teach the controversy", it does so indirectly. In essence, the court is ruling that the sticker's inaccurate statement about "just a theory" requires teachers to use up class time to explain why "just a theory" is inaccurate, thus "diluting evolution instruction". I think the same reasoning can be applied to all the "criticisms of evolution" that the IDers want to have taught --- NONE of these "criticisms" is accepted as valid science by anyone in the scientific community. They are all inaccurate and have no recognized place in science, and therefore requiring them to be taught would just dilute the teaching of evolution by using up class time to explain that they are inaccurate (to the benefit of the anti-evolutionists and their religious beliefs).
The final line of reasoning against the disclaimer stickers also can be applied to the "teach the controversy" argument:
"Defendants persuasively argue that the Sticker in this case does not explicitly reference any alternative theory of origin, religious or otherwise. Nor does the Sticker explicitly urge students to consider alternative theories of origin or remind them that they have the right to maintain their home teachings regarding the origin of fife. Nevertheless, the Sticker here disavows the endorsement of evolution, a scientific theory, and contains an implicit religious message advanced by Christian fundamentalists and creationists, which is discernible after one considers the historical context of the statement that evolution is a theory and not a fact. The informed, reasonable observer is deemed aware of this historical context."
In essence, what the court is saying is that even if the actual language of the law doesn't directly reference any specific alternative theory or religious viewpoint, if the "historical context" of the law indicates that it is based on particular religious wishes, then it is unconstitutional. This issue was also raised by the Supreme Court, " "There is a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution (10). It was this link that concerned the Court in Epperson v. Arkansas, 393 U.S. 97 (1968), which also involved a facial challenge to a statute regulating the teaching of evolution. In that case, the Court reviewed an Arkansas statute that made it unlawful for an instructor to teach evolution or to use a textbook that referred to this scientific theory. Although the Arkansas antievolution law did not explicitly state its predominate religious purpose, the Court could not ignore that "the statute was a product of the upsurge of 'fundamentalist' religious fervor" that has long viewed this particular scientific theory as contradicting the literal interpretation of the Bible. Id., at 98, 106-107 (11). After reviewing the history of antievolution statutes, the Court determined that "there can be no doubt that the motivation for the [Arkansas] law was the same [as other anti-evolution statutes]: to suppress the teaching of a theory which, it was thought, 'denied' the divine creation of man." Id., at 109. The Court found that there can be no legitimate state interest in protecting particular religions from scientific views "distasteful to them," id., at 107 (citation omitted), and concluded "that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma," id., at 106." )Edwards v Aguillard)
The DI's "teach the controversy" rhetoric doesn't mention any alternative theories or religious views (all of those already having been ruled illegal to teach on church/state grounds), but the historical context of "teach the controversy" is crushingly clear to anyone -- it is just the latest in a long string of attempts by fundies in general and Discovery Institute in particular, to blot out the teaching of evolution because it conflicts with their religious views. This is especially clear after considering the previous (religious) objections to "scientific materialism" and "darwinism" that Dembski, Behe and Johnson have been writing about publicly for years. This too, all by itself, is enough to kill "teach the controversy" as unconstitutional.
So, in order to win in Dover, the "teach the controversy" advocates will have to demonstrate that (1) "teaching the controversy" does not have the EFFECT of advancing religion even if it does NOT have that explicit aim, (2) "teaching the controversy" does NOT denigrate evolution in favor of any religious view, even if that religious view is NOT explicitly stated, (3) "teaching the controversy" does NOT single out evolution specifically because of religious objections that evolution allegedly denies a creator (or "designer"), (4) "teaching the controversy" does NOT take time away from the effective teaching of evolution by forcing teachers to spend time on "criticisms" that are not recognized as scientific or substantive, *AND* that (5) "teaching the controversy" does NOT have a readily viewable historical context as religious opposition to the idea of evolution. (All of this assumes that the judge buys the DI's argument in the first place that ID is "science" and isn't about religion at all, and the judge doesn't simply conclude, as the Freiler judge did, that the DI's entire argument is just "a sham" to hide their religious goals.)
In my view, there is simply no way that the Dover advocates (or anyone else) will be able to get over all five of those hurdles. I doubt they can get over ANY of them. Yet only *one* of them is enough, all by itself, to kill the IDers.
And making things even easier, the Dover School Board members have obliged us by making statements to the press such as:
"If the Bible is right, God created us. If God did it, it's history and also science". -- Dover School Board member John Rowand (Washington Post, Dec 26, 2004, p A01)
"Our country was founded on Christianity and our children should be taught as such." -- Board Member William Buckingham (Washington Post, Dec 26, 2004, p A01)
"Nearly 2000 years ago, someone died on the cross for us. Shouldn't we have the courage to stand up for him?" -- Board Member William Buckingham (New York Times, Jan 16, 2005)
In the irony of all ironies, the Dover School Board selected as the legal representative to argue its case (that the policy is all about science and has nothing at all whatsoever to do with religion or Christianity) in court, the Thomas More Law Center, which lists as its Mission "Defending the Religious Freedom of Christians". A letter I sent to the Law Center asking why they were involved with the Dover case if, as they argue, it is a scientific issue and not one of religion or Christianity, has so far gone unanswered.
Pardon the pun, but they haven't got a prayer of winning.
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