Many were taken by surprise by the Cobb County School Board’s decision to settle the Selman case, give up their practice of putting evolution “warning labels” in textbooks, and pay $167,000 in fees to the plaintiffs. They had fought this case for four years, and succeeded in getting the Court of Appeals to vacate the district court decision for a retrial. Perhaps the third time Cobb’s sticker got in front of a court would be the charm.
Well, the reality was that this was not likely at all.
After the case was sent back to the district court for a retrial, the plaintiffs brought on two attorneys from the Kitzmiller case, Eric Rothschild and Richard Katskee. The Court of Appeals had directed the trial court to collect more evidence and clarify the record on a number of points they found insufficiently documented in the record from the first trial. The new legal team petitioned the district court for a new trial and new discovery (“discovery” is the pretrial gathering of documents and evidence that takes place before a trial). Judge Cooper granted this motion, including expert discovery. So, the plaintiffs selected three expert witnesses who had worked on the Kitzmiller case – Ken Miller and Brian Alters, who had both testified in Kitzmiller, and Eugenie Scott of NCSE, who had consulted. Although we now will not have a Kitzmiller sequel in Georgia, the expert witness statements from these witnesses give us some idea of the case that confronted the school board in the retrial.
I currently have just uploaded Genie Scott’s expert report (right-click to download PDF or visit NCSE’s Selman page). (I am waiting for permissions on the other two reports.) It is well known that the Supreme Court tests for constitutionality require judges to examine the history of governmental policies as part of their assessment of whether or not the government’s asserted secular purposes and effects are real, or a sham.
Well, Scott’s report shows that there is far more history to “theory not fact” than even I knew until recently. Last year I noted on PT that “theory not fact” goes back to policy passed by the California state Board of Education in 1925 in the midst of the nationwide fundamentalist crusade against evolution. But it turns out that “theory not fact” can be traced back even further, to a 1923 policy pushed in Georgia by William Jennings Bryan himself.
Opposition to evolution in Georgia has deep roots. Like those in other southern states, Georgia legislators were enthusiastic over Scopes-type antievolution laws in the 1920s. William Jennings Bryan, in fact, visited Georgia to promote a “theory not fact” bill. In 1923, he urged the Georgia House to pass a bill that would “forbid teachers from teaching evolution as a fact, declaring that they had no right to present it to their pupils as anything other than a theory or hypothesis.”
And, as it turns out, “theory not fact” statements were a common feature of antievolution policies both in the 1920s and as part of “creation science” and “intelligent design” policies from the 1960s to the present. The cases in which “theory not fact” language has appeared as part of the challenged creationist policy include Daniel v. Waters (1975), Edwards v. Aguillard (1987), and Kitzmiller v. Dover (2005). It has also appeared in policies or disclaimers in Alabama, Texas, New Mexico, Oklahoma, etc. Read the report for more of the history.
Furthermore, Cobb’s theory-not-fact policy did not just occur to someone in Cobb one day as a good idea. Instead, it was just the latest in a long line of antievolution policies in Cobb and Georgia generally:
As with the rest of Georgia, evolution education in Cobb County, Georgia, has been a perennial sore spot. A controversy over evolution erupted in Cobb County in 1979 when the Cobb School Board approved on a 7-0 vote a “balanced treatment of evolution” resolution submitted by board member John McClure. The goal of the policy was to teach creation science along with evolution. The district spent $7,600 on instructional materials purchased from two creationist organizations, the Institute for Creation Research and the Creation Research Society. Teachers protested both the policy and the instructional materials, rating them as scientifically and pedagogically substandard, and according to one source, threatened to strike if the policy wasn’t rescinded.
In the mid-1980s, the district became embroiled in a controversy over the alleged teaching of “humanism” as part of a values clarification exercise in the elementary school classes. One of the people who had been central in promoting creationism in the 1980s, Carolyn Sanford, was prominent in this controversy as well. She included evolution education as part of the breakdown of morals in society that she saw as part of a creeping influence of “humanism” in the schools. To try to settle the issue, the Superintendent’s office circulated a memo restricting classroom discussion on a number of topics, including “evolution, abortion, communism, religion, and [values clarification]”. This memo, “Standard Practices to be Observed With Instructional Materials for Selected Curriculum Topics,” was circulated to teachers in December 1984. Although teachers were permitted to supplement the county-approved instructional materials for all other controversial topics, materials used for teaching evolution were restricted to “that selected and purchased through county procedures.” The policy was protested by the president-elect of the citizens group, Georgia Council for Science Education, Paula Eglin, a biology teacher in Cobb County. Because there were at the time no written guidelines for teaching evolution in Cobb County, the restriction on instructional materials were seen as a burden by teachers. The policy remained in place.
In the mid-1990s, evolution returned to Cobb County as a controversial issue, when parents complained about the inclusion of a few pages about the origin of the solar system and Earth in a fourth-grade science book. Parents Jeffrey and Beth Wright objected to the Macmillan / McGraw-Hill book Changing Earth because one chapter, “The Birth of Earth,” included a discussion of different theories about the origin of the solar system, and also mentioned – briefly – the Big Bang. The Wrights were quite clear that their objections to the book were because it conflicted with their biblically based views of creation. To quote from a news story: “We’re not fanatics,” says Beth Wright, “but we believe in creation. If creation isn’t being taught, then nothing should be taught.” The Board of Education, arguing that the topic of the evolution of the earth wasn’t part of the fourth grade curriculum anyway, requested that the publisher reprint the books deleting pages 72–85. The publisher agreed, which generated a considerable amount of discussion in the community, including fiery letters to the editor from both sides of the controversy. During the course of this controversy, reporters uncovered the fact that the official Cobb County policy “Theories of Origin,” Policy IDBD, proscribed the teaching of human evolution in several ways. The policy, originally passed in December of 1979, had undergone a number of revisions, the most recent in August of 1995. This policy would, in a few years, be seen to conflict with the contents of new textbooks.
By the terms of the consent agreement, the board does not have to admit that its “theory not fact” warning label was unconstitutional. But I think that the prospect of the above sort of detailed testimony may have helped convince them that settling was a good idea.
Part of the policies ruled unconstitutional in Daniel v. Waters (1975):
Any biology textbook used for teaching in the public schools, which expresses an opinion of, or relates a theory about origins or creation of man and his world shall be prohibited from being used as a textbook in such system unless it specifically states that it is a theory as to the origin and creation of man and his world and is not represented to be scientific fact.
…in Edwards v. Aguillard (1987):
“When creation or evolution is taught, each shall be taught as a theory, rather than as proven scientific fact.”
…in Kitzmiller v. Dover (2005):
“The Theory is not a fact.”