11th Circuit Refuses to Stay Cobb County Ruling

Good news from the 11th Circuit Court of Appeals that is hearing the appeal of the Cobb County evolution disclaimer case. The appeals court has refused to stay Judge Cooper's lower court ruling during the appeals process. Just like in the Terri Schiavo case, one of the key questions the courts consider when deciding whether to grant a stay is whether the appeal has a realistic chance of succeeding. That's not the only criteria, of course, but it's an important one. Unfortunately, I don't have the text of the judge's ruling to see whether that is explicitly stated or not, but the attorney thinks it bodes well:

Moreover, Brock Clay filed a motion for stay on the sticker removal order until the court of appeals heard the case. That motion was denied Tuesday by Circuit Judges Joel Dubina, Frank Hull and Charles Wilson.

Marietta attorney Michael Manely, who, along with the American Civil Liberties Union, defended the plaintiffs in district court, said that to get a stay, it has to be proven that the case is likely to succeed on its own merits.

"This showed it's not likely to prevail," Manely said. "It's the first serious nail in the coffin from the Court of Appeals. They are expressing their preliminary thoughts on the subject. This is like a preview of what is certain to come. It tells the board that this corpse is beginning to smell really bad."

There is one very interesting comment in the article from the school board vice chair:

"If we don't proceed, we will be turning several hundred thousand dollars of tax payer money to the ACLU in punitive damages and it's costing us nothing because we're getting legal counsel pro bono," she said.

Dr. Plenge said Cooper's opinion could hold the school board liable for legal fees and an undetermined amount for the ACLU.

When the school board decided to appeal the district court's ruling, they said they would do so only if their attorney, Linwood Gunn, agreed to do the appeal pro bono. He agreed to do so, obviously. But she is wrong that it could cost them punitive damages. The law says that in a case where a governmental body is sued and the plaintiff wins the suit, the governmental body can be ordered to pay the legal fees for the plaintiff. Those are not punitive damages, which are entirely different. Punitive damages are distinct from compensatory damages, and both are distinct from an order to pay legal fees. In this case where the plaintiffs are asking for constitutional relief, there are neither punitive nor compensatory damages being demanded by the plaintiffs. The plaintiff's attorneys take the case pro bono with the understanding that if they win the case, they can get their legal fees reimbursed, but there is no contingency fee based upon a percentage of any punitive or compensatory damages awarded because there are none.

Update: It should perhaps be noted that two of the three judges assigned in this case, Frank Hull and Charles Wilson, are Clinton appointees. The third, Joel Dubina, was appointed by Bush the Elder.

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Asked what she plans to do now, Dr. Plenge said, "I guess we have to take them out. They're stuck, so it's going to be messing with the inside cover of the book."

School staff has already experimented with removing the stickers, using such things as nail polish. Removing so many stickers will not be easy, she said.

C'mon people, these folks need our help.

Some suggested ways to remove the stickers.

A belt sander with a #60 grit paper?

Trained silverfish?

A genetically engineered fungi that attacks unconstitutional gibberish?

We need answers!

I wonder whether the school board member was that ignorant, of she is intentionally trying to make the public think the ACLU will profit if the school board loses.

By Mark Paris (not verified) on 05 May 2005 #permalink


My thought exactly.


Dave S,

Don't waste time trying to remove the stickers with nail polish remover. Cover them with a picture of the flag or something else equally innocuous.

Presto chango, message gone.

Sometimes you open the soda by holding the bottle and unscrewing the cap. Other times you hold the cap and unscrew the bottle. Got to think inside the book at times like these.

Obvious solution: the school board members responsible for this fiasco should pay for new books out of their own pockets.

By Ginger Yellow (not verified) on 05 May 2005 #permalink

I am actually at my wits end reading this blog here in Germany--and it's merely because of the format. I'm currently in Europe, but each post on the main blog is one word per line. That's not the case if I find a comment link, then it works quite well. I apologize that my computer is running only Windows 98 and that I'm doing IE 5, but there's a serious problem here, but I wanted to let you know.

I would not complain except for the fact that this is one of the most erudite blogs I have run across. And I am quite serious about that.

We'll be back in the USA in a couple of days, so it probably isn't worth the time and effort to deal with for us. But someone might want to figure out why the text isn't displayed correctly in older versions of IE.

Hi Bill,

Don't waste time trying to remove the stickers with nail polish remover. Cover them with a picture of the flag or something else equally innocuous.

That would appear to be the simplest solution. But I would be concerned with 2 things. First, does merely covering over the disclaimers actually conform to the legal requiements to remove them or must they be physically removed? Second, there'd probably be a minor grass-roots effort to remove just the covering stickers by individual students, thereby defeating the purpose. What then?

Now what I'd suggest is maybe scoring the backing paper all around disclaimer so when the disclaimer is peeled away it only leaves a rectangular 'disclaimer sized' mangle zone. Then this can be covered with another sticker of the same size or slightly larger (perhaps just blank white, or a flag if you like, or stamped with "Property of Cobb County District School Board") or a sticker the whole dimension of the inside cover could be affixed.