Cobb County Disclaimer Appeal

So what's up? Is it a discrepancy between when the petition was collected and when it was 'officially' presented to the school board?

Is Carnes just a doofus, or is he attempting the 'Big Lie'?

I'll reserve judgment. Perhaps you could get the transcripts of the hearing, Reed?

But, yes, from the Atlanta Journal-Constitution story I've seen, it does appear that one of the judges is trying to spin the evidence one way, against what the evidence itself shows.

Of course, the record doesn't show that spin. Perhaps the judge was merely asking for information, and if so, your post provides it.

But it appears to me he's asking for a fact decision that is contrary to the record at trial. Appellate courts shouldn't do that. In addition to being judicial activism of the worst sort, it's against the rules, and against the canons.

We are trying to get the transcripts of both the trial and the appeal hearing.

Hopefully deliberations may allow the judges to correct their mistakes. Perhaps they may even read the amicus briefs, which help establish the position of the scientific community in this case.

I would be very surprised if Carnes was truely arguing that the political pressure wasn't there even though the petition was menioned in the meetings and in the press because it was't officially submitted until afterwards. (We haven't confirmed when the board received a copy of the petition.)

Appeals judges see errors in evolution sticker ruling By BILL RANKIN The Atlanta Journal-Constitution Published on: 12/15/05 [...] Carnes asserted that Cooper made two major mistakes in crafting his order. First, Carnes said, Cooper indicated that a petition with about 2,300 signatures that called on the board to place a sticker in the textbooks was issued prior to the board's decision in March 2002 to affix the stickers on the textbooks. The petition, Carnes noted, was turned over to the school board six months after it made the decision to place stickers on the schoolbooks.

The Atlanta Journal-Constitution March 29, 2002 New Cobb textbooks teach evolution theory [...] Marjorie Rogers, whose child attends Pine Mountain Middle School, told the board she had collected petitions signed by 2,300 people who are dissatisfied with science texts that espouse "Darwinism, unchallenged." "It is unconstitutional to teach only evolution," she said. "The school board must allow the teaching of both theories of origin."

But it appears to me he's asking for a fact decision that is contrary to the record at trial. Appellate courts shouldn't do that. In addition to being judicial activism of the worst sort, it's against the rules, and against the canons.

First off, the appeal is heard by a panel of at least three judges--more if they're sitting en banc--so Judge Carnes isn't going to decide the appeal all by himself.

Second, if the record before the trial court contains the same info set forth above, then any of the other judges (and their staff of able law clerks) who wants to go the right way on the appeal will ferret it out and distribute it to all the judges involved.

Third, even if the record below does not contain the specific info given above, the plaintiffs or the amici on their side may well have an avenue to present the info to the court. While, ordinarily, it wouldn't be possible to "amend" or "supplement" the record with facts not presented to the court below, the situation may arguably be different here, where (one of the members of) the appellate court has made a big deal out of what's supposedly missing from the record. In requesting an opportunity to supplement the record, therefore, the good guys would--in effect--merely be responding to questions from the court.

The trick, er, legal technique involves supplying the "missing" info along with the motion to amend. Even if the court denies the motion, therefore, the judges will have all seen that--if they were to return the case to the district court judge on this particular narrow and picayune ground--the plaintiffs could easily remedy the situation in the trial court, which would just mean that the whole megillah would eventually arrive back before them again, packaged up even mo' bettah (from a pro-evolution viewpoint).

My sense of it, overall, is that the whole court is unlikely to reverse relying on this narrow ground alone, regardless of what Judge Carnes might or might not want to do.

...and, don't forget, it is quite normal for appellate judges to seize on various points to challenge one party, only to turn around and challenge the opposing party on some other point. The fact that Judge A challenges Party B on point C is thus pretty far from a sure indication of how the judge may eventually vote to dispose of the appeal.

So, while this report--and the digging that has been done in response to Carnes' query--is useful and interesting, it's hardly a reason to panic.

Teaching evolution destroys the Constitution! (??)
I saw this elsewhere. Thought some folks around here might find it interesting. A bizarre argument against science.
I'm fairly certain it's serious.

The Dishonesty, er, I mean Discovery Institute is already spinning madly

"Did the ACLU Lie to the Federal Courts in the Cobb County Evolution Sticker Case?"

http://www.evolutionnews.org/2005/12/did_the_aclu_lie_to_the_federa.html

I should point out that the Judge did not criticize the ACLU lawyers directly, but criticized for relying on "erroneous" information passed to them by the predecessors in the case.

Reminds me of the oral arguments in Tinker. One of the justices, I think it might have been Black, really grilled Tinker's attorney because he misunderstood the facts of the case. He was getting a bit on in years at that point.

I actually see the PT's trackback in "Evolution News & Views". Lets see if it says up.

I got transcripts and the testimony does confirm that the disclaimer was in response to complaints by parents about biology education.

Reed can you elaborate?

According to The Sanity Inspector, Judge Carnes "ordered Bramlett to write Carnes a letter explaining why the ACLU brief did not constitute a 'misrepresentation of facts'". This looks like the opening needed to supply the "missing" information -- that wasn't really missing -- about when the petition first entered the picture.

I saw some quotes from Marjorie Rogers in another article in which she declared that the textbook sections on evolution constituted introducing religion into the classroom because the content offended her religious sensibilities. By her definition, a home economics cookbook that included recipes for pork would be a religious text.

Thanks for the panda-lanche, folks!

Going by what I've read here (btw, I live in the ATL, and we hear none of this on the local news), Judge Carnes definitely sounds like he's not judging on merits, but rather his own leanings. That is extremely frustrating. Does it matter? Should we assume that in any medium to large sized case there will be a couple of judges who will make political or personal decisions?

Of particular interest is the quote from AP via DI:

"I don't think y'all can contest any of the sentences," Carnes said to an attorney for parents who sued challenging the stickers during a hearing on the case. "It is a theory, not a fact; the book supports that."

If that is not a clear example of failure to understand the argument, I don't know what is.

The board's lawyers are arguing that, since Cobb County used to not teach evolution at all, the current textbooks+disclaimer policy is actually a step up from their previous standards. Therefore, they actually voted to improve education regardless of whether the disclaimer corrupts biology education or not.

— Reed A. Cartwright

Here's a succinct write-up of the proceedings, from the Fulton County Daily Report, a legal newspaper.

MH says:

> I saw this elsewhere. Thought some folks around here might find it interesting. A bizarre argument against science.

Wow. That's quite a set of convoluted arguements. Theistic evolutionists "claim to be Christians"--nice. I guess there are actually pretty few Christians in this country--in which case, why do we make so many accomodations for them?

> There are additional "Fictions" being hurled by evolutionists against creationism

At least they admit that what's being hurled by evolutionists aren't really fictions at all, but are only called fictions.

Carnes conceded the point, but responded that evolution -- which he described as a "collection of theories, speculations and hypotheses" -- was far less settled than the "theories of gravity, relativity, and Galilean heliocentrism, whatever that is." (Cooper had cited those theories as evidence that evolutionary theory was singled out for particular suspicion.)

So how do we get the corect timelien infront of the judges?

Ok, I've just changed my mind. I think the stickers are a good thing. Our world and society are changing so fast that I think it is important to hash these things out in the light of day. Go ahead, put in your stickers, let the occasional christian teacher talk about it. Even for all the talk of bad teachers, remember that they do, by and large come from the intelligent, educated class so some, if not many of them will be sane and educated. Those parents grew up in a world where there were factory and farm jobs that could support a family and so they could believe anything they wanted but now, magical thinking will not get you a place in society and, inasmuch as we care about our society as a whole, I think we owe it to those kids to let their parents' mistaken beliefs play out under the light of reason. They can't hire 100% creationist teachers without severely relaxing the standards that teachers need to meet. In the end, these ideas are going through their death throes and to finally kill them we need to expose them to the light.

Judge Carnes said that the words on the sticker are "technically accurate." Here is part of what the sticker states: "Evolution is a theory, not a fact." I disagree. It's a fact that a cluster of cells that were on earth between 3.5 billion and 4 billion years ago evolved through reproduction into elephants. One can find some of the relevant data at Talkorigins or in books on biology such as Ernst Mayr's What Evolution Is. Scientists are learning more details about the specific kinds of events that resulted in cells evolving into elephants. For instance, we are learning more about gene duplications. But cells evolved through reproduction into elephants. Moreover, at least the vast majority, if not all, of the specific kinds of events that resulted in cells evolving into elephants are quite well-understood. These kinds of events include mitosis, lateral transfer, sexual reproduction (including meiosis/genetic recombination and fertilization), genetic drift, mutations and some organisms having produced the number of offspring that they produced. Also, the choices of some organisms contributed to their offspring having the traits that they had, for instance, my parents chose to reproduce with each other.

Carnes also said: "From nonlife to life is the greatest gap in scientific theory. There is less evidence supporting it than there is for other theories. It sounds to me like evolution is more vulnerable and deserves more critical thinking..."

No person knows exactly which series of events resulted in the first cell(s) being on earth. But that one does not know which series of events resulted in the occurrence of a particular does not enable one to determine that one does not know whether a subsequent event occurred. For instance, I don't know which series of events resulted in the onset of the matter and space that is the known universe, but I know that a particular person gave birth to me. In fact, I know that the proximate cause of my existence was a particular person giving birth to me.

Also, from nonlife to life is not "the greatest gap in scientific theory." We are making progress on this issue. For instance, here are links to articles on work being done on the issue:

http://www.scripps.edu/news/press/100704.html

http://news.bbc.co.uk/1/hi/sci/tech/217054.stm

In an earlier thread, Matt Brauer posted a link to this good review of some of the work that is being done on abiogenesis:

http://biology.plosjournals.org/archive/1545-7885/3/11/pdf/10.1371_journal.pbio.0030396-S.pdf

The greatest gap in scientific theory is which series of events resulted in the onset of the matter and space that is the known universe.

> Update:
> I think that I need to detail the board's main argument in the appeal,
> since it may get little press. The board's lawyers are arguing that, since
> Cobb County used to not teach evolution at all, the current
> textbooks+disclaimer policy is actually a step up from their
> previous standards. Therefore, they actually voted to improve education
> regardless of whether the disclaimer corrupts biology education or not.

Well sure. That's the DI's current "teach the controversy" strategy. Make sure there's good evolution education in there, then appeal to fairness. They've used it effectively in Ohio, and they're determined to do the same across the country. From the description of The Sanity Inspector it looks like the judges have bought into it completely. Ditto Paul Gross in latest Fordham Foundation report. Just another version of the old equal time demand, but going an extra step in order to appear reasonable and ready to compromise. Somewhere in there the ACLU should be allowed to interject that it is not how much good science they have that is in dispute.

> Carnes also said: "From nonlife to life > is the greatest gap in scientific
> theory. There is less evidence
> supporting it than there is for other
> theories. It sounds to me like
> evolution is more vulnerable and
> deserves more critical thinking..."

Evolution has nothing to do with abiogenesis, so its obvious that Carnes is reading directly from creationist propaganda crap for his research on a science question.

Re: Comment #63136
Posted by BWE on December 16, 2005

So what about something even shorter like "Jesus says everything in chapter 12 is a lie."? Would that be alright too? It doesn't matter how much creationism is conveyed. The problem with creationism is the same as with a baby puking on your sweater. It takes a second to make the mess, and hours of careful cleaning to undo it, if at all possible. The danger we face in court cases regarding creationism and the first amendment is an Alito style "balance the nativity scene in the public square" approach being used on creationism in public school science classes. You can be sure that this is what the DI is counting on, and the sticker case is the best chance they have to obtain it. In the end we're going to have to find some other way of keeping pseudo-science out of the science class. "Holding it up to the light of day" and having a public vote isn't going to work.

No problem. Teachers are nominally part of the "intelligent, educated class" and to a large degree (especially if they had some help with curriculum- all you guys out there could do your part by making science lessons that teachers could use) they can point out how magical thinking doesn't solve problems. For example, I will pray for rain has a substantially different set of odds than, "I will pray to perform at the top of my ability".

I think people are basically afraid that bad teachers do more harm than good teachers can undo and I fundementally disagree with that statement. If science classes do their job, the Pandas and people book is simply a joke.

For example: I was nearly finished with my undergrad work before I realized, before it actually sank in that there really were still people who believed in the bible. I thought of it as a colloquialism and I guess I still do. I think challenging basic assumptions is a perfectly good thing to do in a science class and I think for society as a whole in this time of rapid change these ideas need to get injected into education so people can see where we've been and possibly use sanity and evidence to begin to guide our society.

I think if the sticker said JEsus says it's a lie that the teacher could have a field day with that. Sure. Just make sure that the textbook is good. I do think it's a step in the right direction to include evolution in science classes. M'god, what were they doing before?

In the end, I know that it will be a church/ state thing but I think it's a society changing thing. In the fifties we challenged whether our beliefs on race were valid, the sixties, war; the seventies, women's roles, the eighties technology, the nineties, globalization; and now, finally, our religions. That is obviously an oversimplification but i think it makes my point.

Re: Comment #63155
Posted by BWE on December 16, 2005

It would be a much saner world if it were up to teachers, but its not. The teacher, assuming that the teacher wasn't a creationist trying to reform biology to begin with (often the case), usually has little to no say in the matter. Pressure and orders come from parents, school boards, school administrators, politically appointed burocrats of various sorts, and state and federal politicians. You'd think that some university professors would have a say in it, especially the ones who display intense and dogged interest, but they're usually laughed out of the room when it comes to evolution education, at least in Ohio, and unless their avowed creationists.

You're exactly right, Mike. It's very worrisome that someone who is presiding over a case concerning children's education has such little knowledge of the subject in dispute. I suppose you may not want to be educated if you have a preexisiting bias, however.

How then do we unlearn previous bias? I hear you and I too worry about impressionable kids getting false information but I think there are a few basic pieces that can help. We are in the middle of a radical shift in our society and it scares the pants off people who aren't equipped to change. We need to point this oput to kids so that they will understand the need for knowlege and adaptibility.

Judge Carnes said that the words on the sticker are "technically accurate." Here is part of what the sticker states: "Evolution is a theory, not a fact." I disagree. It's a fact that a cluster of cells that were on earth between 3.5 billion and 4 billion years ago evolved through reproduction into elephants.

It's very worrisome that someone who is presiding over a case concerning children's education has such little knowledge of the subject in dispute.

The primary issue in these lawsuits against criticism of evolution theory in public school science classes (Cobb County, GA and Dover, PA) seems to be the following first "prong" of the three prong "Lemon test" (named for Lemon v. Kurtzman) --- does the government action have a legitimate secular purpose? But does this refer to the intended purpose of the people who are responsible for the action, or can it refer to any conceivable legitimate secular purpose?

I think that intentions or motives should not be considered here, for the following reasons -- (1) different people could have different intentions or motives for taking the same action, and (2) intentions or motives may be difficult to determine. A Supreme Court or federal appeals court decision that uses this first prong of the Lemon test to prohibit a government action would be binding not only on the defendants but would also be binding on others who might have non-religious motives for taking the same action, and I think that is unfair. There are kinds of court cases where I think consideration of intent or motive is appropriate, e.g., murder cases and racial discrimination cases, and in those kinds of cases, a court decision would have no effect on other cases. The Lemon test has fallen into disfavor, and I think that it should be modified or scrapped.

The primary issue in these lawsuits against criticism of evolution theory in public school science classes (Cobb County, GA and Dover, PA) seems to be the following first "prong" of the three prong "Lemon test" (named for Lemon v. Kurtzman) ---- does the government action have a legitimate secular purpose?

"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.

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.

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.

Larry,

I could certainly be mistaken, but I don't think the primary issue of these lawsuits is in relation to the first prong ("Purpose") of the Lemon Test.

As I understand the lower court's decision, the "purpose" prong of the Lemon test was found to have withstood scrutiny. In other words, the lower judge ruled that the stickers could be interpreted as having a secular purpose. As you point out, Larry, due to the confusion introduced by "intent", it would have to be an egregiously sectarian move to fail this first prong completely.

But, I'm pretty sure from what I've read on the matter, that where the lower court judge found that the stickers failed the Lemon test was not with this first prong. Rather, the other two prongs, the "effect" and "entanglement" clauses, of the Lemon Test are singled out as culprits. For a law to pass scrutiny, all three prongs must be evaluated. They were, and two of the three were found to be lacking.

But, I'm pretty sure from what I've read on the matter, that where the lower court judge found that the stickers failed the Lemon test was not with this first prong. Rather, the other two prongs, the "effect" and "entanglement" clauses, of the Lemon Test are singled out as culprits. For a law to pass scrutiny, all three prongs must be evaluated. They were, and two of the three were found to be lacking.

I agree completely, Lenny. Your argument that Cobb is more damaging than Dover is a persuasive one. Naturally, should they come out on the losing side of both, they will continue to cry out that they have been mistreated and denied their Freedom of Speech. It will be an argument that makes little sense, but will resonate with those who want to believe it. I'm hopeful that, while this is not the last death throe of Creationism, it signals a dimishment of their thrashing into an occasional, pitiful twitch.

Oh, and to make sure we're on the same page, my reply above was to Larry, not Lenny. I made the reply before realizing that you, Lenny, had already done a much more thorough job explaining which parts of the Lemon Test the lower court judge felt had been failed.

I'm gaining the suspicion that we've begun to see the far right's campaign to sack the Lemon test. It looks like the appeals court judges are trying to apply an Alito style "balance" test for the establishment clause. If so, the stick case is the perfect one for the other side to take to the Supreme Court, particularly when Alito is in there.

I'm gaining the suspicion that we've begun to see the far right's campaign to sack the Lemon test.

I read the many comments attached to the article "Did The ACLU Lie?" I particularly noted comments by BWE and I think Reed.
Both Posters, and others continue to rely on the lie of the incorrect interpretation of the Ist Amendment of the Constitution. Also I read a reference to Hugo Black in what I think was referred to as TINKER. Hugo Black was an evil man who made a statement in 1947 that he would work to remove all vestiges of religion from the United States. During a televion interview I saw he answered a question by "reading" the Ist Amendment incorrectly. He substituted the word "the" for "an" establishment of religion.
Recently a federal appeals court stated that it was time to put aside the tiresome argument, not found in the Constitution, of a wall of seperation of church and state.
More than 60 years ago I was taught creationism and evolution side by side in the classroom. The idea was that neither argument could disprove the other. I suppose for atheists and heathens that was a bad curicculum but I would argue based on how my classmates have turned out it was a good one.

Let's see, Hugo Black was "evil" because a) he disagreed with your interpretation of the First Amendment and because b) he doesn't happen to agree that one given sect of one religion is entitled to have its version of creation taught along science in the public schools that everyone pays for. And, of course, you must be right because, of course, we ought to accept your word for it that you know a whole lot more about interpreting the constitution than a Supreme Court justice.

And you think this is all OK just because you and your friends turned out all spiffy and such, in your humble opinion.

Tell me, "Larry" (gosh, we sure seem to have had a spate of poorly-informd Larrys around here lately), was your school that turned out you and your friends also racially segregated? But that's OK too, I suppose, because you and your friends received a reasonably-decent education despite this slight constitutional defect.

Larry, ol' boy, you're overlooking one teensy facet of all this--whether the good ol' boys in the majority got a good education out of their segregated, religion-pushing schools isn't really the relevant point.

It's whether the other constitutionally-protected students also got a good education...

Recently a federal appeals court stated that it was time to put aside the tiresome argument, not found in the Constitution, of a wall of seperation of church and state.