Dispatches from the Creation Wars

The appeals court decision in Selman v Cobb County School District, the evolution textbook sticker case, is in. I’ve uploaded a PDF of the ruling here. I haven’t really had time to read it yet, but basically the court declared a “do over”, remanding the case back to the district court:

Whether we should reverse or affirm the judgment depends on the evidence that was before the district court, and we cannot tell from the record what that evidence was. Everyone agrees that some evidence presented to the district court has been omitted from the record on appeal, but the attorneys have not been able to identify what was omitted. The problems presented by a record containing significant evidentiary gaps are compounded because at least some key findings of the district court are not supported by the evidence that is contained in the record. We have concluded that the unfilled gaps in the record, coupled with the problematic nature of some of the district court’s factfindings, prevent proper appellate review of the merits of the important constitutional issues raised in this case. For reasons we will explain, we have decided the best thing to do is remand the case to the district court in order for it to conduct new evidentiary proceedings and enter a new set of findings based on evidence in a record that we will be able to review.

Back to square one.


  1. #1 Mark Paris
    May 25, 2006

    Oh, boy! Now Cobb County gets to spend more taxpayer money on this boondoggle.

  2. #2 Toddard
    May 25, 2006

    “We have concluded that the unfilled gaps in the record…”

    Oh no! Now they have the courts saying it!

  3. #3 Dan
    May 25, 2006

    “…unfilled gaps in the record…”

    Look for the DI press release declaring this a big win. Not that they’d quote anything out of context, of course.

  4. #4 Ed Brayton
    May 25, 2006

    A couple questions, Dan:

    Will the case go back to the same judge? I’m reasonably sure it does.

    Will the Dover verdict perhaps play a role in the re-trial?

  5. #5 Joe Shelby
    May 25, 2006

    Kitzmiller is not binding precedent, but its findings of fact and conclusions are admissable at the judge’s discretion (and do not, in themselves, become a basis for appeal). i’m pretty sure he doesn’t want to hear this all over again and will rush through anything that didn’t come over clear enough the first time.

    the real question: question is, will Cobb County actually bother to waste more money by putting the accursed stickers back on the books in the meantime? does it even mean anything to the students anymore, with them knowing what it really costs, and would it just be a feel-good gesture to the handful of ignorants in the school board?

  6. #6 Dan
    May 25, 2006


    Yes, the case will go back to the same district court where it originated.

    As to the influence of Dover, as you know Kitzmiller is not binding precedent. The district court in the Cobb County case may find some of the Kitzmiller legal reasoning and conclusions to be persuasive and thus may choose to adopt that reasoning and follow the conclusions, but the Cobb County district court is not obligated to do so. I suspect the Dover decision is much more important strategically than legally, as Dover did an excellent job of exposing so many of ID’s constitutional soft spots.

  7. #7 Sanjiv Sarwate
    May 25, 2006

    Dan – you mean this press release?

  8. #8 FishyFred
    May 25, 2006

    My big question: How big of a role can the Kitzmiller decision play in the trial? The school district’s endorsement of an “alternative theory” seems to be less obvious than it was in Dover.

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