Georgia Disclaimer Trial Wraps Up

The Cobb County evolution disclaimer trial wraps up with closing arguments today. The judge will likely take a few weeks to make a decision, during which time briefs will be filed in addition to the ones already filed. We are finishing up a brief on the question of whether there is any real scientific evidence against evolution and it should be filed soon. I should be able to put all of those briefs up for everyone to see, as well as the original complaint filed and the school district's response to it, sometime next week. For the 2 people who aren't bored to death with it already.

After reading the complaint and the response, as well as talking about it with a couple of people, I'm not entirely convinced that the disclaimer really is unconstitutional. Certainly the argument here is thinner than it has been even in past disclaimer cases, the most obvious one being Freiler v. Tangipahoa Parish Board of Education. The only real argument is that the school board was motivated by a desire to protect the religious views of some students and parents with the disclaimer, but is that motivation enough to overturn it on establishment clause grounds? One can envision many circumstances in which a government body, whether a legislature or a school board, would exercise an entirely legitimate authority with a religiously-derived motivation. But if it's a legitimate authority being exercised, does the motivation make it illegitimate? It's a very close question, I think. I'd be interested in hearing the opinions of the attorneys who read this blog on that question.

The AJC has an article this morning about the judge in this case. In one of his first cases as a judge he presided over the Wayne Williams serial killer case in Atlanta, so he's used to the spotlight. He won universal acclaim for how he handled that case and my sources tell me that he has handled this one very well too. He is evidently very engaged, asking his own questions of witnesses and attorneys fairly often. In a case like this, that's appropriate.

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Ed. note: This is a guest post on the ACLU lawsuit filed against the school board in Dover, Pennsylvania by Dan Ray. Dan is an attorney and the director of the Paralegal Studies Program at Eastern Michigan University. He studied in law school under the esteemed Jack Balkin of the Yale Law School.…
Judge Clarence Cooper has ruled against the Cobb County school district regarding the evolution disclaimers: "Rather, the distinction of evolution as a theory rather than a fact is the distinction that religiously motivated individuals have specifically asked school boards to make in the most…
The long-awaited decision of the Dover Area School District in Pennsylvania regarding evolution and intelligent design has finally been released to the public (press release found here). It's a policy that virtually guarantees legal action that the school district will lose. Let's take a look at…
Larry Farma has left a long comment in response to my post about the DI's claim that Judge Jones should not have ruled on the scientific status of ID in the Dover case. Because that post is getting old and the comment is so long, I figured it should be moved up top and responded to in its own post…

I've not followed this case too closely, and I can't make any claim to be that familiar with the issues and arguments. I'd like to read any briefs that have been filed, if you get a chance to put them up, Ed. With that said, this disclaimer case seems like a tough sell to me on Establishment Clause grounds. While we all know what's really going on, I don't see how the disclaimer amounts to an endorsement by the state, notwithstanding the disclaimer proponents' motivations. Hope I'm wrong.

"But if it's a legitimate authority being exercised, does the motivation make it illegitimate?"

Have a look at the dissents in Edwards v. Aguillard, 482 U.S. 578 (1987). Quoting myself:

"In Edwards, the legislation at issue provided definitions of "creation science" and "evolution" which ostensibly indicated that creation science had a scientific, rather than a religious bias. Scalia relied solely on the Louisiana legislature's assurances that it did not intend to promote religion, without giving any weight to the history of similar legislative efforts."

E

"In Edwards, the legislation at issue provided definitions of "creation science" and "evolution" which ostensibly indicated that creation science had a scientific, rather than a religious bias. Scalia relied solely on the Louisiana legislature's assurances that it did not intend to promote religion, without giving any weight to the history of similar legislative efforts."
I think the issue is considerably different. In Edwards, you had the school actually teaching what amounted to a religious story as an alternative to science. Though Scalia made a big deal out of the legislature's stated intent, that really wasn't the crux of the issue in Edwards because what was being taught was itself inherently religious in nature even if the legislature thought it wasn't. In this case, there is nothing being taught other than evolution, so the intent is the only thing that is at issue.

"Though Scalia made a big deal out of the legislature's stated intent, that really wasn't the crux of the issue in Edwards because what was being taught was itself inherently religious in nature even if the legislature thought it wasn't."

The majority opinion fairly matches your interpretation. That's why Scalia dissented.

I did not intend to offer a statement on how your question might be addressed in light of the majority decision in Edwards. Rather, I believe Scalia's dissent in that case opens a window on how your question will probably be resolved when Bush makes a few appointments to the SCOTUS.

No matter who becomes the Chief Justice if and when Rhenquist retires, I think Scalia's brand of constituionalism will come to dominate the High Court's jurisprudence for at least a generation.

I would also disagree with your speculation (though I do not suggest that you stated a firm conclusion on the matter) that the legislature in Edwards had no religious intentions. I think Scalia felt that they did, and would have preferred the decision in Edwards had insulated them from reproach.

E

I would also disagree with your speculation (though I do not suggest that you stated a firm conclusion on the matter) that the legislature in Edwards had no religious intentions. I think Scalia felt that they did, and would have preferred the decision in Edwards had insulated them from reproach.
Oh, I think the legislature certainly DID have a religious intent. I only said that the distinction between the two cases was that you didn't really need to show in that case that they have a religious intent because the bill, on its face, required the teaching of a religious belief. In the Cobb County case, we have only the intent of the school board to go on, and I don't think that alone is enough to make an establishment clause violation as long as the authority they exercised is an authority that they legitimately have.

In the Cobb County case, we have only the intent of the school board to go on, and I don't think that alone is enough to make an establishment clause violation as long as the authority they exercised is an authority that they legitimately have.

Well said, and ultimately the reason why this Supreme Court (or any other Supreme Court we might foreseeably have in the next few years) will not strike the disclaimer on Establishment Clause grounds if the case gets that far. A school board can legitimately encourage "critical" inquiry into scientific or other "theories;" that is what school boards do. The Supreme Court does not want to put the judiciary in the position of having to police textbooks, the reasons why they are or are not adopted, and the motivations behind facially-neutral disclaimers associated with them. One needn't think very long about the implications of putting the courts in this position to realize what a huge mess it would create. While I agree that in an appropriate case, the Supreme Court might have no choice but to take action (e.g., if the disclaimer in some way endorsed a particular religious viewpoint) this isn't the case.

When you're trying to make constitutional law, you have to pick your battles carefully. These facts are not conducive to the outcome the pro-science forces seek. I'm afraid they got suckered into this one. Again, I hope I'm wrong about the outcome.