Selman v. Cobb County School District

| 37 Comments

The appeals court has issued its opinion in Selman v. Cobb County School District. They decided to send the case back to court to clear up some holes in the factual record of the case. The trial court can either hold an entirely new trial or add to the existing record.

Of course, this gives the trial judge the opportunity to apply the ruling in Kitzmiller to Selman.

NCSE has more information.

37 Comments

Looks like ID wins again.

So, please help me understand what is happening here.

My understanding of the situation is that the entire judgement here is just asking the lower court to flesh out the evidence that is in the record of the case– asking it to do more discovery of evidence and facts, specifically facts related to the 18 items listed on pages 35-42. The upper court does not take an opinion on the findings of law but it wants to make sure that the findings of facts are complete and unambiguous before the law gets decided. Yes? So, my questions:

1. Once the lower court has fleshed out the facts, who gets first crack at interpreting those facts? Is the idea that the lower court retries facts and then writes out a new ruling based on those facts, and that’s the end of it unless someone files a new appeal? Is the idea that the lower court retries facts and then the appeals court uses the facts to make a new decision? Or does the lower court issue a new ruling based on the new facts, and the appeals court (as part of the already-filed appeal) immediately picks it up for oversight?

2. How difficult will these 18 items be to establish one way or the other? The NSCE suggests that the Atlanta Journal-Constitution has information concerning items on the appeal court’s list; could this be entered as evidence to fill some of the 18 gaps? How many of them? Is it possible that, due to the amount of time that has passed, some of these 18 items cannot be definitively established one way or the other after the fact; and if so, what happens next?

3. When is this new trial likely to happen, or how long is it likely to take?

4. The blurb here says: Of course, this gives the trial judge the opportunity to apply the ruling in Kitzmiller to Selman. How so? On what basis do you expect the trial judge will apply the Kitzmiller precedent, and why? What opportunity would even exist for the court to do so, since the appeals court has primarily asked the findings of facts, not the findings of law, to be revisited?

NCSE Wrote:

The three-judge panel vacated the district court’s judgment and remanded the case for further evidential proceedings. “[W]e leave it to the district court whether to start with an entirely clean slate and a completely new trial,” the ruling states, “or to supplement, clarify, and flesh out the evidence that it has heard in the four days of bench trial already conducted.”

Am I correct in perceiving that by vacating the ruling for the time being, rather than let it stand, the appeals court is leaning against accepting the lower court ruling?

Syntax Error: mismatched tag at line 5, column 470, byte 850 at /usr/local/lib/perl5/site_perl/5.12.3/mach/XML/Parser.pm line 187

Am I correct in perceiving that by vacating the ruling for the time being, rather than let it stand, the appeals court is leaning against accepting the lower court ruling?

No. The ruling specifically stated:

In vacating the district court’s judgment and remanding the case for additional proceedings, we want to make it clear that we do not intend to make any implicit rulings on any of the legal issues that arise from the facts once they are found on remand. We intend no holding on any of the legal premises that may have shaped the district court’s conclusions on the three Lemon prongs. Mindful that in this area factual context is everything, we simply choose not to attempt to decide this case based on a less than a complete record on appeal or fewer than all the facts.

So, now that there’s a mulligan, what would you emphasize in Selman II? Assume the district court permits a new trial. What evidence would you bring forth? What court cases would you use as authority? Any expert witnesses, and who? Which arguments would you make?

The whole “stickers” thingie seemed to be settled already by the Freiler ruling (which the Supreme Court refused to review).

Combine that with Kitzmiller, and the IDers simply don’t have a chance.

Actually, I would welcome it if the Georgia crackers decided to allow the stickers. It would mean a Supreme Court case, which would kill ID once and for all, nationwide. After all, the Court has already declined to allow such stickers, by refusing to hear the Freiler appeals.

I don’t think the fundies would have a prayer of winning.

Pardon the pun.

Assume the district court permits a new trial. What evidence would you bring forth? What court cases would you use as authority? Any expert witnesses, and who? Which arguments would you make?

It would seem that the IDers would be the ones who need to answer those questions. What argument could they offer that wasn’t already shredded in Dover?

We, on the other hand, could just read the entire Dover transcript (and the Kansas Kangaroo Kourt transcript) into the record, and it would be “game over” for ID. (shrug)

[Here is the DI’s spin on the verdict:]

ID is dead. When are the IDiots going to get over it?

In my opinion, this is a CYA ruling. IIRC, at least one appellate judge went off against the ACLU in the hearing, based on his own misreading of the trial record, and was later shown to be wrong.

So now they’re claiming the trial record is unintelligible. Must be, after all, consider the alternative :-)

Alright, the first paragraph of that DI press release states:

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.

The very next paragraph states:

In a unanimous decision the federal three-judge panel – including both Democratic and Republican appointees – 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.

Am I the only one who fails to see any connection between the statements made in the two paragraps? Can someone please tell me how sending the case back to the the same judge to clarify a handful of issues had any similarity to having “thrown out the trail court decision”? Seriously, if they are going to mislead people the least they could do is not insulting their readers by putting the real facts that contradict their opening paragraph in the very next paragraph. They should at least have enough respect for their readers to at least make some superficial effort to hide contradictory evidence.

Readin through the first 3/4 of the statement, it does sound like the record was extremely messed up, I can see why the appeals court would be pretty upset. It all sounds very sloppy. The key seems to be this petition, it seems from the appeals court’s overview of the trial record someone has a copy of it and it seems the newspaper knows about it, so that should hopefully settle that matter.

12 of the 18 questions are linked either explicitly or very closely to that petition, and having the petition confirmed would answer most or all of those concerns. 3 have to deal with the treatment of evolution in the textbook adopted and whether it actually conflicts with the sticker, 2 have to deal with the teaching of evolution by the district, and one has to do with the qualifications of the professor who wrote the book (which were ruled inadmissible by the district court I believe)

“This decision is a victory as it throws out the problematic ruling from the trial court,” said Casey Luskin, an attorney with the Discovery Institute.

aka nascent graduate of a second or third-tier law school with minimal legal experience and a lengthy record of lies, misrepresenations and errors.

Calling Luskin an “attorney” is an insult to professional lawyers.

“This is a major step towards a bigger victory for students, school districts, and objective science education,” added Luskin.

Another lie.

Tell us, Casey, if you have the guts to show your face here (which we know that you don’t) what is “objective” about a sticker which suggests that the evolution of life on earth is especially deserving of skepticism? What is “objective” about putting that sticker in a biology textbook and not in a physics textbook or a chemistry textbook or a geology textbook? Or a history textbook, for that matter? Or your copy of the Bible?

And what’s “objective” about not teaching kids about the “intelligent design” debacle and the discredited buffoons who keep peddling creationist garbage long after the expiration date?

Let’s hear the answer, Luskin. I’d love to hear your “objective” explanation.

Prove to us, Casey, that you are more than a first year associate who softly turned the pages of Johnny Witt’s Bible, thus earning himself a fancy title at Howard “Gay Stoner” Ahmanson’s fundie drink tank.

The Institute does not favor the mandatory inclusion of alternative scientific theories, such as intelligent design,

So, uh, why did the Discovery Institute provide materials to public school teachers for teaching “intelligent design”? So they could ignore it?

And in case you didn’t hear the news, Casey: “intelligent design” isn’t an “alternative scientific theory.” It’s Christian apologetics aka creationist refry. Ask your girlfriend, Nancy Pearcy. She’ll explain it to you. Then you can get all abstinent with her, rowwrrr!!!

The Institute does not favor the use of disclaimers

Then why in gob’s name are you calling the appeals court ruling a “victory” in your press release?

Fundies. They just can’t avoid stepping in their own doo-doo.

http://community.webshots.com/photo[…]272744FKzyGJ

http://www.stlzoo.org/images/chimpanzee19.jpg

Yo, Discovery Institute rubes!

Look at these pictures and tell me how anyone can “objectively” dispute the evolutionary relatedness of chimpanzees and human beings.

Go ahead, freaks. Let’s hear it.

I’m all ears. No wait. I just have two of them. On each side of my head …

Calling Luskin an “attorney” is an insult to professional lawyers.

According to this he is licensed as an attorney by the California bar.

Shalini Wrote:

ID is dead. When are the IDiots going to get over it?

Unfortunately ID is not dead.

1. As science it was never born.

2. As a strategy to manpulate public science education it is “comatose” (likely to die, but could conceivably be revived).

3. As a pop-pseudoscience it is almost as thriving as astrology.

So, like I keep saying, while we can’t put our guard down about restricting the “supply” (2), job 1 should be about restricting the “demand” (3).

While the public will always be drawn to feel-good pseudoscience, they will appreciate ID and creationism much less if they were more aware that it is not just bad science but bad theology - bearing false witness and all.

R.U. I bow down 2U.…BASTARD!!!! Isn’t time you went on a long holiday? Seriously, blowing up postmodernism isn’t for amateurs …oh wait. clump…clump.…clump..slams door

OH MAN!!!

IS CRAZY!

After all, the Court has already declined to allow such stickers, by refusing to hear the Freiler appeals.

Is there any link to this Freiler Case that Lenny makes reference to? If so, I’d be interesting in reading this one. Thank you in advance to whoever could post a link.

Tony:

Freiler vs. Tangipahoa Parish Board of Education is the name of the case, which makes it pleasantly Googlable. Here ‘tis, or at least one of the major pieces.

The good Rev Dr wrote:

Actually, I would welcome it if the Georgia crackers decided to allow the stickers.

Actually, it was the Atlanta Crackers a baseball team. But if “crackers” is used as a pejorative it also applies to Floridians (welcome to the club), but since Cobb County is a suburb of Atlanta the term is applicable. It looks like the school board was trying to hit one out of the park, but umpire called a foul ball. Despite their enthusiasm, I don’t think the DI cheerleading squad will help the cause. Their routine is dated, outfits unimaginative, and they are generally unappealing to the eye.

Delta Pi Gamma (Scientia et Fermentum)

But if “crackers” is used as a pejorative it also applies to Floridians (welcome to the club)

No, no, no – in Florida we have “peckerwoods”. :)

Well, OK, we have “crackers” too. IIRC, it refers to the “cracking” of the whips used by cowboys in the old days (yes, Florida had cowboys — and *still* has a larger number of cattle herds than Texas does).

Despite their enthusiasm, I don’t think the DI cheerleading squad will help the cause.

Indeed, what argument can they present that didn’t already fall flat on its ass in Pennsylvania? Put Flew on the stand to testify that ID converted him from atheism?

Maybe we’ll REALLY get lucky, and the Thomas More Law Center will offer to take on the re-trial, for free. (snicker) (giggle)

One thing puzzled me, though, in reading the Cobb appellate “decision”:

We will begin with the facts that appear to be undisputed. In 1995 the Cobb County School District had an official policy concerning the instruction of students on “Theories of Origin.” The policy acknowledged that “some scientific accounts of the origin of human species as taught in public schools are inconsistent with the family teachings of a significant number of Cobb County citizens.” It provided that “the instructional program and curriculum of the school system shall be planned and organized with respect for these family teachings.” An accompanying regulation explained how the policy was to be implemented. The 1995 regulation stated that out of “respect for the family teachings of a significant number of Cobb County citizens,” the subject of the origin of human species would not be taught in the elementary and middle schools,

and instruction in it would not be mandatory in the district’s high schools.

The court agreed with the defendants that “reducing offense to students and parents is a legitimate, secular purpose.”

Why the heck did the judge agree to THAT? It’s transparently obvious that the “family teachings” referred to were religious (unless all the “families” in Cobb County are paleontologists). I think ten minutes of resaearch would be enough to produce a whole file folder full of the typical fundie letters to the editor screaming “evolution is atheistic !!!!!!!!!!!!” Indeed, since fundies simply can’t shut their mouths, I’d be willing to bet that the very people who introduced the policy were all full of fire and brimstone about it.

The board’s action was obvious — it wanted to diminish evolution because lots of families don’t like it for religious reasons. And the Supreme Court has ruled, time and time again, that it simply is unconstitutional to blot out a portion of the science curriculum in deference to someone or other’s religious opinions.

The very fact that the board cites “family teachings” as the reason for its evolution policy, should be enough, all by itself, to kill the policy dead.

Well, OK, we have “crackers” too. IIRC, it refers to the “cracking” of the whips used by cowboys in the old days (yes, Florida had cowboys —- and *still* has a larger number of cattle herds than Texas does).

hmm, these days, are you sure the meaning hasn’t something to do with smoking crack?

hmm, these days, are you sure the meaning hasn’t something to do with smoking crack?

Nah – we sell that to the rest of the country.

:)

Lenny wrote:

Indeed, what argument can they present that didn’t already fall flat on its ass in Pennsylvania? Put Flew on the stand to testify that ID converted him from atheism?

Maybe we’ll REALLY get lucky, and the Thomas More Law Center will offer to take on the re-trial, for free. (snicker) (giggle)

I’m just a lurker here, but it seems to me that to get really lucky, the Thomas More Law Center would have to take on this hypothetical retrial and Eric Rothschild would have to cross-examine Dembski.

No, no, no — in Florida we have “peckerwoods”. :)

Also found in Marietta Ga. the heart of Cobb County right on Hwy 41. Not to denigrate the big chicken, an institution from time immemorial. It was used as a landmark for driving instructions and years ago the motorized beak opened and closed.

Delta Pi Gamma (Scientia et Fermentum)

It is truly pathetic when a once-mighty PR machine is reduced to claiming “victory” on such slim grounds as as technical remand to fix transcript problems. No matter how often we compare the DI’s statements to the bluster of the Black Night in Monty Python’s “Holy Grail,” DI comes back to make the comparison even closer. Next: Casey Luskin offers to head-butt the stickers back into each book …

I would have liked to have live-blogged this. But, I was told late last year that the 11th Circuit judges don’t convene court to issue these rulings; they just issue statements to the clerk of court’s office & thence to the press.

So, they’re kicking it back to the lower court because they don’t have all the documentation straight? Doesn’t seem like there is any victory to claim for either side, just yet.

Could be a new alibi in the making, though. The ol’ “the andrewsarchus ate my homework” defense…

Hi, first time poster here, long time lurker.

Upon reading the .pdf of the appeals court, it seems like the crux of the decision rested upon evidence that was either misunderstood or missing. In particular, it seemed as if a 2300 pro-sticker petition was presented to the school board before the inception of the sticker, but upon further examination, the petition is lost and its contents were misrepresented to the court.

The DI Institute must be pretty desperate if they’re claiming this as a victory.

I’m just a lurker here, but it seems to me that to get really lucky, the Thomas More Law Center would have to take on this hypothetical retrial and Eric Rothschild would have to cross-examine Dembski.

I’d pay money to see THAT.

;)

Unfortunately ID is not dead. 1. As science it was never born. 2. As a strategy to manpulate public science education it is “comatose” (likely to die, but could conceivably be revived). 3. As a pop-pseudoscience it is almost as thriving as astrology.

It’s getting to be a mass mania, worthy of Charles Mackay.

Some background on Cobb from RSR

and a tidbit from the ruling in case you didn’t read it:

I. We will begin with the facts that appear to be undisputed. In 1995 the Cobb County School District had an official policy concerning the instruction of students on “Theories of Origin.” The policy acknowledged that “some scientific accounts of the origin of human species as taught in public schools are inconsistent with the family teachings of a significant number of Cobb County citizens.” It provided that “the instructional program and curriculum of the school system shall be planned and organized with respect for these family teachings.” An accompanying regulation explained how the policy was to be implemented. The 1995 regulation stated that out of “respect for the family teachings of a significant number of Cobb County citizens,” the subject of the origin of human species would not be taught in the elementary and middle schools, 6 and instruction in it would not be mandatory in the district’s high schools. The regulation did state that elective courses on alternative theories of the origin of human species, including creation theory, would be offered to high school students and noted in curriculum catalogs and listings. In compliance with the 1995 policy and regulation, the school district provided students with science textbooks only after any section containing material on evolution had been torn out of the books. !!!

The 1995 policy and regulation were still in place in the fall of 2001 even though they conflicted with the state curriculum requirements mandating the teaching of evolution. At the same time, the school district was beginning the process of adopting new science textbooks. Textbooks are adopted by subject matter on a seven year cycle, and it was time for new science textbooks in 2002. The State Board of Education chooses a group of recommended books, and the administration (including but not limited to the Cobb County Superintendent of Education) forms a committee to review the books, and that committee recommends to the school board which books to select. When the committee began its science textbook selection process in fall 2001, it was concerned that the books it recommended might conflict with the 1995 school district policy regarding instruction on theories of origin. …

The policy acknowledged that “some scientific accounts of the origin of human species as taught in public schools are inconsistent with the family teachings of a significant number of Cobb County citizens.” It provided that “the instructional program and curriculum of the school system shall be planned and organized with respect for these family teachings.”

“Family teachings”?

Can anyone argue with a straight face that this does NOT refer to “religious teachings”?

'Rev Dr' Lenny Flank Wrote:

Indeed, what argument can they present that didn’t already fall flat on its ass in Pennsylvania?

Well, the current strategy as reported to me involves not bothering with the whole “argument” thing at all.

Instead, they will rely upon the enactment of the zombie-like reanimation of H. R. 1070 - “The Constitution Abolition Act of 2005”. This useful piece of legislation effectively changes the wording of the First Amendment to read: “…Congress shall make no law respecting an establishment of religion, unless it does. In which case it should have. And y’all can just put a sock in it if you don’t like that, ‘cause the courts are hereby forbidden to hear cases that might arise therefrom…”

The court agreed with the defendants that “reducing offense to students and parents is a legitimate, secular purpose.”

Why the heck did the judge agree to THAT? It’s transparently obvious that the “family teachings” referred to were religious (unless all the “families” in Cobb County are paleontologists). I think ten minutes of resaearch would be enough to produce a whole file folder full of the typical fundie letters to the editor screaming “evolution is atheistic !!!!!!!!!!!!” Indeed, since fundies simply can’t shut their mouths, I’d be willing to bet that the very people who introduced the policy were all full of fire and brimstone about it.

Reducing offense to students is a legitimate secular purpose and the Courts have affirmed this truth many times in their opinions while kicking creationism to the curb. The crux is that while the secular purpose (reducing offense) can be valid, it doesn’t you can do something invalid and pretend that it’s valid. In these creationism cases it typically boils down to you can’t invalidate the Establishment Clause and establish or favor a certain religious view-point over a competing view-point, including the various shades of religion and athiesm and the right to be free of someone else’s religion, because once you do, it is no longer a secular purpose.

I posted a fairly long analysis of this opinion at my site–direct link here: http://realitybasedcommunity.net/ar[…]sent_bac.php

In a nutshell, my take on the opinion is that it is more foreboding than is obvious at first glance, due to the 11th Circuit’s subtle signalling that it would prefer the district court use Rehnquist’s Neutrality test as expressed in Zelman v. Harris, rather than the Lemon test.

About this Entry

This page contains a single entry by Reed A. Cartwright published on May 25, 2006 4:35 PM.

Creationism dismissed as ‘a kind of paganism’ by Vatican’s astronomer was the previous entry in this blog.

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