A judge in Atlanta, Georgia, has refused to dismiss a lawsuit brought by a group of parents against the Cobb County School District. The parents are arguing that the district’s placement of stickers bearing a “disclaimer” about evolution is illegal.
The disclaimer says “This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully and critically considered.” The parents, who are represented by the Georgia ACLU argue that the School Board’s use of this sticker violates the Establishment Clause of the First Amendment. Although I think such disclaimers are incredibly stupid, I don’t think that they violate the Constitution.
As I mentioned a while back, a government action is said to constitute an establishment of religion if it violates the test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), and modified in subsequent cases. There are “three primary criteria…to evaluate whether government aid has the effect of advancing religion,” namely, whether it “result[s] in governmental indoctrination; define[s] its recipients by reference to religion; or create[s] an excessive entanglement’” of government and religion. Mitchell v. Helms,</i> 530 U.S. 793, 808 (2000) (plurality op.) (quoting Agostini v. Felton, </i>521 U.S. 203, 234 (1997)).
The district court in this case found that the elements of this test were arguably implicated–and that means that the court has to hold a trial to determine the facts of the matter. (In cases where it’s too clear for dispute, the court grants a motion to dismiss, or a motion for summary judgment, which means either “no matter what you try to prove, you would lose,” or “you’ve already proven your case, you win.”) In its order, the court says<blockquote>While the Sticker, on its face, is neutral towards religion and contains no religious content, the statement is not clearly neutral towards evolution. A cursory reading of the Sticker would likely posit doubt in the mind of the reader regarding the merits of evolutionary theory when those doubts might not otherwise exist. Assuming [for the sake of argument] that the Sticker’s purpose is to posit that doubt, then [the court] would likely want to understand the underlying context in which the statement was developed to determine the constitutionality of the Sticker. Thus, further investigation into the context of the history of the language contained on the Sticker is necessary.</blockquote>This ruling just means the case is going to go to trial to determine why the school board placed the stickers in the textbooks. I think the answer to that is pretty obvious, but courts like to be careful. The district judge says in his order, “The Sticker…makes no mention of intelligent design. Thus, other theories that students might consider plausibly could be religious or non-religious in nature.” The judge, of course, is not naive–in fact, he notes that there is already substantial evidence supporting the idea that this disclaimer was really meant to endorse creationism: <blockquote>Plaintiffs…have produced a series of emails exchanged on a listserve associated with intelligent design to which a Cobb County parent belongs…. The Cobb County parent explains in these emails how he and other parents have been able to covertly persuade the Cobb County School District to change their policy regarding evolution to allow for student consideration of other theories. Part of the parents’ strategy was to disguise what was essentialyl a religious issue for them as one concerning consideration of other theories generally. While these emails provide support for Plaintiffs’ theory that there were parents in Cobb County advocating for discussions of intelligent design in schools, a reasonable trier of fact would likely conclude that these parents came across to the Board of Education as parents who were simply concerned that their children were being spoon-fed a single idea regarding the origin of living things. The court is unwilling to impute the ill-motives of these parents to the Board of Education…..</blockquote>The other two prongs, the court held, were also arguable.
The problem is, I’m not sure that the sticker–even if inserted for purely religious reasons–violates the Establishment Clause. It makes no reference to religion or to creationism; as a factual matter it is untrue (it says that evolution is “a theory, not a fact,” which is not true), but nothing in the Constitution requires schools to teach children the facts, or forbids schools from teaching children most kinds of lies. (And I would be very much opposed to amending the Constitution in such a way as to add such a requirement or such a prohibition.) It does forbid schools from teaching children a state-endorsed religion, and the court will consider at trial whether this sticker does that. But I don’t think it can reasonably be said that the sticker results in indoctrination, or limits people’s access to rights or privileges on a religious basis, or that it creates an excessive entanglement between the state and religion.
Suppose that the school were to put a sticker on its geography books that said “Columbus’ idea that the world is round is a theory, not a fact. This material should be approached with an open mind, studied carefully and critically considered.” I consider this essentially identical to the Cobb County disclaimer–but stupid as it is, it’s surely not unconstitutional. Now, suppose that the school were to put a sticker on the Norton Anthology of Literature (which includes the Book of Job, among other things) that said “For more information on the Judaeo-Christian religious tradition, students may wish to speak to a rabbi or minister.” This, too, would hardly qualify as an establishment of religion. The Cobb County disclaimer is a combination of these two things, and I don’t see why their combination without more violates the Establishment Clause.
In Freiler v. Tangipahoa Parish Board of Education, 185 F.3d 337 (5th Cir. 1999), the Court of Appeals struck down Louisiana’s “disclaimer” as an establishment of religion. But there, the disclaimer said <blockquote>It is hereby recognized by the Tangipahoa Board of Education, that the lesson to be presented, regarding the origin of life and matter, is known as the Scientific Theory of Evolution and should be presented to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation or any other concept. It is further recognized by the Board of Education that it is the basic right and privilege of each student to form his/her own opinion and maintain beliefs taught by parents on this very important matter of the origin of life and matter. Students are urged to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion.</blockquote>The Fifth Circuit focused in particular on the reference to the Bible. This explicit reference, coupled with the disclaimer of the “scientific theory” showed that the school board had been motivated entirely by a desire to inculcate religion by wink and nudge: <blockquote>“The disclaimer, taken as a whole, encourages students to read and meditate upon religion in general and the ‘Biblical version of Creation’ in particular…. [T]he disclaimer–including the directive to ‘exercise critical thinking’ in the second paragraph, together with the explicit reference to the ‘Biblical version of Creation’ in the first paragraph–urges students to think about religious theories of ‘the origin of life and matter’ as an alternative to evolution, the State-mandated curriculum.”</blockquote>Id. at 346-47.
The Supreme Court declined to review the Freiler case. 530 U.S. 1251 (2000). But Justices Scalia, joined by Chief Justice Rehnquist, and Justice Thomas, wrote a separate opinion explaining that they would have taken the case. “[T]he theory of evolution is the only theory actually taught in the Tangipahoa Parish schools,” Scalia wrote. <blockquote>In view of the fact that the disclaimer merely reminds students of their right to form their own beliefs on the subject, or to maintain beliefs taught by their parents-not to mention the fact that the theory of evolution is the only theory actually taught in the lesson that follows the disclaimer-there is no realistic danger that the community would think that the [School Board] was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental. At bottom, the disclaimer constitutes nothing more than simply a tolerable acknowledgment of beliefs widely held among the people of this country.</blockquote> (Citations omitted). I find this pretty persuasive, and the disclaimer in Freiler was far more religious in content than the disclaimer in this case. Indeed, the district court in this case distinguished Freiler on the grounds that the Georgia disclaimer does not include a specific reference to the Bible, or to supernatural theories of the origin of life. The trial is to determine whether there are secular purposes, or a secular effect, to the Georgia disclaimer.
The case is Selman v. Cobb County Schools, No. 1:02-CV-2325