Timothy Sandefur posted Entry 116 on April 6, 2004 06:51 PM.
Trackback URL: http://www.pandasthumb.org/cgi-bin/mt/mt-tb.fcgi/115

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, 530 U.S. 793, 808 (2000) (plurality op.) (quoting Agostini v. Felton, 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

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.
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:
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.....
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

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.
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:
"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."
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.

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.
(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

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Comment #719

Posted by Ralph Jones on April 6, 2004 7:37 PM (e)

Then, as a parent, what recourse, legal or otherwise, do I have if my child is taught obvious falsehoods in public school?

Comment #721

Posted by kormal on April 6, 2004 7:55 PM (e)

Of course, then you have crazy nutjobs like me who believe that when the Constitution places the duty to “promote the general Welfare” in our government, it therefore requires that the government (in this case via mandated schooling) educate its citizens with the best conception of the truth that is available at the time.

Therefore, this sticker is unconstitutional not because it is religious but because it is wrong, at least when viewed in the common parlance of everyday use (which clearly the label is intended to be read as). It is false, unless you want to add a similar warning about literally everything else found in science textbooks.

Comment #722

Posted by Matt Inlay on April 6, 2004 8:41 PM (e)

whether constitutional or not, what is the purpose of such a disclaimer? it seems to me that the only purpose is to cast doubt upon evolution. since this isn’t the opinion of the scientific community, why does this belong on a science textbook?

in regards to the “evolution is a theory, not a fact” bit (aside from being obviously misleading), doesn’t the textbook explain what evolution is? if so, then why does the quoted phrase need to be added as a disclaimer? it just doesn’t make any sense in a secular context.

Comment #723

Posted by Timothy Sandefur on April 6, 2004 9:04 PM (e)

The answer to Mr. Jones’ question is that you have the recourse to complain to the school board, run for school board, publicize the obvious falsehood and rally other parents, and remove your child from the school and put your child into a private school. This is the same recourse you have for a school that just has really bad teaching quality, too.

Oh, and I should reiterate that in this post I’m talking about the Constitution. There might be STATUTORY language which prohibits these sorts of disclaimers or which prohibits schools from teaching obvious falsehoods, in which case you would certainly have legal recourse as a statutory matter. I’d be very much in favor of a statute that prohibited these sorts of disclaimers.

As to kormal’s point, I very much disagree that the “general welfare” clause “requires that the government (in this case via mandated schooling) educate its citizens with the best conception of the truth that is available at the time.” The general welfare clause of the preamble simply explains what the purpose of the Constitution is–not what the purpose of government is. The purposes of the federal government are specified in Article I section 8, and they do not include education. The general welfare clause in Article I section 8 is a LIMITING clause which prohibits government from spending money on specific, non-general programs–i.e., it’s a constitutional prohibition on pork-spending. See further John C. Eastman, Restoring the “General” to The General Welfare Clause, 4 Chap. L. Rev. 63 (2001). The Constitution certainly does not entitle anyone to a taxpayer-funded education. It does set limits on how such an education may be provided if a state does choose to provide it, but the point of my post is that I don’t think that this particular policy exceeds those limits.

As to Mr. Inlay’s comment, it’s true that I think anyone who’s honest about it would have to say that the disclaimer is motivated by non-secular reasons. That might be enough to render the disclaimer unconstitutional under Freiler. But I am not comfortable with such a rule. I think the motivation alone–as distinguished from the objective content of the disclaimer itself–isn’t enough grounds on which to find a constitutional violation. And I don’t think the objective content here constitutes indoctrination. It’s stupid, it’s silly, it’s bad policy that displays great ignorance on the part of the part of the school board and the parents, but I don’t think it’s an “establishment of religion.”

Comment #724

Posted by Reed A. Cartwright on April 6, 2004 9:14 PM (e)

Don’t forget the state constitution; although, the case is in federal court.

http://www.sos.state.ga.us/elections/constitution.htm

Comment #726

Posted by Ed Darrell on April 6, 2004 10:56 PM (e)

What reason for the disclaimer could there be, other than religion? There is no factual basis for it.

This is what the ID folks argue: That just because their brand of creationism doesn’t specifically name God, it’s scientific.

That’s not good enough. The history of these disclaimers clearly shows the religious motivation. Failing to mention the motivation does not change the motivation.

The cases to look at, I think, are Wallace v. Jaffree, which struck down the Alabama moment of silence law, and Brown v. Georgia, which upheld the Georgia moment of silence law. The difference? Alabama’s whiz-bang legislature amended the purpose clause of their bill to make it clear that the moment of silence was a loophole in the law, the time which could be hijacked for prayers. The Georgia law noted only that kids who think about their day for a moment, in silence, tend to perform better on the tasks they think about. It made no mention of God or religion.

Leaving out any mention of a deity doesn’t mean the action isn’t religious. The Shaker hymn, “Gift to be Simple,” doesn’t mention God, either. Claims that it is not religious are not taken seriously.

If there is a verifiable series of e-mails in which an advocate of the disclaimer reveals religious intent, that goose could well be cooked.

Comment #727

Posted by kormal on April 6, 2004 10:57 PM (e)

“The general welfare clause of the preamble simply explains what the purpose of the Constitution is–not what the purpose of government is. The purposes of the federal government are specified in Article I section 8, and they do not include education.”

I disagree that there is a difference between explaining what the purpose of the Constitution is and explaining what the purpose of the government is, since they are one and the same in the sense that the Constitution sets the goals of good government. As such, the Preamble’s quite important to me.

I do agree that Article I section 8 specifies further the purposes of the federal government, but I would assert that the commerce clause, by way of the necessary and proper clause, encompasses the issue of education. In other words, I ask the question: How can a federal government effectively regulate commerce if it can’t even be sure that the citizens (who make up the economy) of the several states are receiving an accurate education that enables them to understand the world?

But then again I’m of the school that the founders intended the federal government to be a broad and robust one with expansive powers in many areas of life. I fully recognize that my views on the matter put me on the fringe. As a matter of more mainstream interpretation, your analysis is quite sound, I think.

Comment #728

Posted by Steve on April 6, 2004 11:20 PM (e)

Being in the biological/physical sciences, my work deals with evolution. Being in the south, I frequently run up against people who aggressively disbelieve evolution (usually with some kind of micro-yes/macro-no belief). I know the vast majority of scientists in the related fields don’t disbelieve the theory of evolution any more than cosmologists disbelieve the theory of gravity. And this lawsuit story, like nearly all such stories, mentions this, saying ‘most scientists believe evolution…’ or something like that. I know the list is long of people and institutions who are pro-evolution, but if you tell someone most scientists support it to the extent that it’s not in dispute, and your audience says, “How do you know that?”, what do you suggest answering with? What’s the best thing to point at, to justify this obvious claim?

Comment #729

Posted by Timothy Sandefur on April 7, 2004 1:32 AM (e)

Mr. Cartwright is correct that state constitutions might also limit a school board’s discretion in placing such disclaimers on textbooks. In this motion for summary judgment, however, no such claim was raised. It’s a straightforward First Amendment challenge.

Mr. Darrell is correct that we all know this thing was written for religious reasons. And “what everybody knows the court must know.” Jacobson v. Massachusetts, 197 U.S. 11, 30 (1905). That might indeed be enough to strike this down under the Lemon test. The Freiler court seems to have thought so. (I am unfamiliar with Brown v. Georgia). But I just don’t find it convincing to say that the legislative motivation, without more, can make a law violate the Establishment Clause. Certainly that would run counter to many cases which have prohibited inquiry into legislative motive. And suppose that the legislature were to pass a law that was perfectly secular in its effect, but which was motivated by religion–say, a Congressman provides the tie-breaking vote for a military budget out of his sincere belief that God wants him to vote that way. Surely that would not invalidate the law, because the effect of the law is entirely secular. Now, a reasonable person could see the Georgia disclaimer as having a non-secular effect–that’s one thing the trial will settle. But I would say that if it has only a secular effect, the motivation is not enough to violate the Establishment Clause. My interpretation, however, is not the law, and as I said, Freiler and Lemon would seem to take an opposite view from mine.

kormal is certainly correct that he and I disagree on the proper scope of government. The Constitution nowhere gives Congress the authority to run commerce–only the authority to regulate commerce which is conducted by other people. Since it lacks a supervisory authority over the national economy, it has no right to run an education system simply to foster commerce. See further Randy E. Barnett, The Original Meaning of The Commerce Clause, 68 U. Chi. L. Rev. 101 (2001).

However, I actually think we’re close to agreeing on the preamble. The preamble is not wholly inoperative language. But it does not explain the purpose of government–the Declaration of Independence does that. The preamble only explains the purpose of the Constitution. The Constitution only gives the federal government some of the powers that a legitimate government might exercise. A legitmate government establishes tort law, for instance, but Congress has no authority to establish tort law. The General Welfare clause in the preamble does not give Congress authority to legislate for the General Welfare–Article I Section 8 gives Congress the powers by which it may effect the general welfare. If the General Welfare Clause of the Preamble were a substantive grant of power, then the rest of the entire Constitution would be surplusage. The Preamble says that the powers granted by the Constitution should be exercised in such a way as will accomplish the various purposes, such as securing the blessings of liberty. But it does not give Congress the authority to secure the blessings of liberty in whatever way Congress may choose.

Finally, I’m not sure I understand Steve’s question. If the question is, how do you prove to audiences that scientists don’t disagree about evolution, then one fine way would be the NCSE’s “Project Steve,” in which, serendipitously, Steve himself is eligible to participate. Or just explaining evolution to them. I know that takes a long time, and is hard to do, but, dammit, that’s our job!

Comment #737

Posted by kormal on April 7, 2004 8:28 AM (e)

I don’t believe that I said that Congress has the power to run commerce, and I certainly did not mean to imply such. I apologize if it reads that way. Perhaps we indeed are closer together on the role of the Preamble than we think; I’m not sure. Let me give my views in some further detail.

When I say that the Constitution defines government, I mean that it does the following two things:

(a) It establishes the allowable ends of good government (the Preamble), and

(b) it establishes the structures and powers by which this government can pursue these ends (the subsequent Articles).

And so we come to Article I sec. 8, which by way of the 3rd and 18th clauses gives the Congress the power, if not the duty, to regulate commerce among the several states by means necessary and proper in executing this power. I think we agree so far.

However, I then see a lot of vagueness here. What does it mean to regulate? What does commerce mean? What does necessary and proper mean? When it allows regulation among the several states, does it forbid federal regulation within a single state? The Constitution does not provide the answers, outside of the Preamble sketching the ends that guide the execution of this vague power. In looking at, say, Federalist #10, it seems that at least some of the founders intended to allow broad and expansive use of the power to regulate commerce.

So I personally come to the following conclusion: Article I section 8 gives Congress expansive power to regulate commerce, which, by virtue of the need to educate the citizenry to participate in such commerce, does have the right, if not the duty, to educate the public (I realize I’m glossing over several steps here, but I’d be happy go over it in more detail if you’re interested). The Congress today exercises this power when it funds state-run school systems, particularly with mandated performance goals and the like.

And so we come to the current question: Is what the school board did constitutional? It’s clear to me that the government is constitutionally pursuing its power (fitting the requirements of (b) mentioned above), but it certainly isn’t clear that it is doing so towards a proper end (outlined in (a), specifically the general welfare). By teaching students false ideas, the government is violating its duty to pursue these goals in the name of the general welfare, and it’s therefore unconstitutional.

Now, as I said, not many people probably agree with this reading. If you were to ask me, would today’s Supreme Court strike down the school boards actions as violating the establishment clause of the 1st Amendment? I would emphatically say no. But are there constitutional grounds by which I personally find reason to strike it down? Certainly.

Comment #745

Posted by Steve on April 7, 2004 10:21 AM (e)

I thought about Project Steve as a reply, but it’s not a very elegant answer, to people who won’t understand the extrapolation. BTW, as far as having a disclaimer goes, I think there was a SCOTUS case about that. I would love it if the evolution people would comprimise and have the disclaimer read “Evolution, like Gravity, or the Earth orbiting the Sun, is only a theory, not a fact…” ;-)

Comment #761

Posted by Dave S on April 7, 2004 12:12 PM (e)

Correct me if I’m wrong Steve, but aren’t such things as what constitures a ‘theory’ and a ‘fact’ (and a ‘law’) and how science works pretty much covered within the context of most science classes as part of the normal course requirements. Such disclaimers inside the cover to me seem superfluous if good education of what is inside the textbook is brought to bear.

If you’re being asked how you know that most scientists support evolution as the best explanation, it seems to me you have the opportunity to point out that IDists sometimes list scientists who support their position who number in the dozens (a hunderd or so), but ‘evolution scientists’ can list more than 400 alone just with the same first name as yours, and that constitutes only a tiny fraction, perhaps 1%, of all scientists who support the position. I would certainly emphasize that evolution is not correct because most scientists support it; it’s supported by most scientists because it is the best explanation we have at the moment.

Comment #778

Posted by FransGroenendijk on April 7, 2004 4:53 PM (e)

“It is false, unless you want to add a similar warning about literally everything else found in science textbooks.”
When you go for results instead for fighting the principles maybe here is the better appraoch!
Demand the school to put the label on every book….