"[T]he Sticker adopted by the Cobb County Board of Education violates the Establishment Clause of the First Amendment," declared U.S. District Judge Clarence Cooper, in a forty-four-page ruling issued on January 13, 2005. Cooper's ruling requires the Cobb County School District to remove the disclaimers immediately and not to disseminate them again in any form. NCSE Executive Director Eugenie C. Scott commented, "This is another win for good science and good science education. Kudos to the legal team for being confident and creative enough to take on a case that was not obviously easy to win, to the plaintiffs for being willing to stick their necks out, to the witnesses for their forbearance under fire and valuable expertise -- and to the judge for listening carefully to the legal team's excellent arguments connecting 'theory not fact' disclaimers to creationism."
Disclaimers about evolution are a popular antievolution strategy, and most of them follow the "theory, not fact" approach of the disclaimer affixed inside the books used in Cobb County's public schools, which reads:
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 disclaimer used in Alabama from 1995 to 2001, for example, describes evolution as "a controversial theory some scientists present as a scientific explanation for the origin of living things" and comments, "No one was present when life first appeared on earth. Therefore, any statement about life's origin should be considered as theory, not a fact." (A revised version is still in effect in Alabama, but is clearly now in constitutional jeopardy.) Proposals to require such a disclaimer have appeared in a variety of states, including Louisiana, Oklahoma, Washington, and Mississippi, and communities across the country.
In August 2002, Jeffrey Selman and five other local parents, represented by Michael E. Manely working with the American Civil Liberties Union, filed suit to challenge the constitutionality of the Cobb County disclaimer. They contended that the disclaimer singles out evolution for special treatment for religious reasons, and argued that the result of the disclaimer will be the teaching of creationism or similar pseudoscientific alternatives to evolution. Selman et al. v. Cobb County School District et al. was heard in the Atlanta Division of the US District Court of the Northern District of Georgia, with Judge Clarence Cooper presiding, in November 2004.
After carefully identifying the precise issue -- whether the disclaimer violated the Establishment Clause -- and reviewing the facts in the case, Judge Cooper's ruling applies the Supreme Court's Lemon test. "Under the Lemon test," Cooper writes, "a government-sponsored message violates the Establishment Clause of the First Amendment if (1) it does not have a secular purpose, (2) its principal or primary effect advances or inhibits religion, or (3) it creates an excessive entanglement of the government with religion." Since the second and third prongs of the Lemon test are interrelated, he considered them together.
On the purpose prong of Lemon, Cooper ruled, as expected on the basis of a preliminary ruling, that the Cobb County School Board did not act with the purpose of promoting or advancing religion in placing the disclaimer in the biology textbooks. He was satisfied that the purpose that the board professed to have -- of encouraging critical thinking regarding "theories of origin" -- was sincere. Although he concluded that "the chief purpose of the Sticker is to accommodate or reduce offense to those persons who hold beliefs that might be deemed inconsistent with the scientific theory of evolution," he ruled that it, too, was a constitutionally permissible purpose.
It is on the effect prong of Lemon that Cooper found the disclaimer to be unconstitutional. "In this case," he wrote,
the Court believes that an informed, reasonable observer would interpret the Sticker to convey a message of endorsement of religion. That is, the Sticker sends a message to those who oppose evolution for religious reasons that they are favored members of the political community, while the Sticker sends a message to those who believe in evolution that they are political outsiders. This is particularly so in a case such as this one involving impressionable public school students who are likely to view the message on the Sticker as a union of church and state.Because of the history of antievolutionism both in the United States overall and in Cobb County in particular, "an informed, reasonable observer would understand the School Board to be endorsing the viewpoint of Christian fundamentalists and creationists that evolution is a problematic theory lacking an adequate foundation."
Particularly interesting is the discussion of the disclaimer's phrase "[e]volution is a theory, not a fact, concerning the origin of living things," described as the "critical language in the Sticker that supports the conclusion that the Sticker runs afoul of the Establishment Clause." Cooper notes that religiously motivated antievolutionists typically use such language, citing recent law review articles that explain that it is "one of the latest strategies to dilute evolution instruction employed by antievolutionists with religious motivations."
He also notes that "[b]y denigrating evolution, the School Board appears to be endorsing the well-known prevailing alternative theory, creationism or variations thereof, even though the Sticker does not specifically reference any alternative theories." And he notes that because the disclaimer singles out evolution for special attention, an informed, reasonable observer would infer that it was singled out because of its supposed consequences for religious belief.Relying on the plaintiffs' arguments and testimony from Kenneth R. Miller -- the Brown University biology professor who is co-author of the textbook used in Cobb County's high school biology classes -- Cooper also observed that the disclaimer's phrase "[e]volution is a theory, not a fact" plays on the popular meaning of the term "theory," suggesting that evolution is questionable or speculative. The effect of doing so "has the effect of undermining evolution education to the benefit of those Cobb County citizens who would prefer that students maintain their religious beliefs regarding the origin of life," Cooper writes, adding, "the Sticker appears to purposely leave to question whether evolution is an accepted or established theory in the scientific community."
In addition to ruling that the disclaimer violates the Establishment Clause of the First Amendment, Judge Cooper also ruled that, because the money of taxpayers was used to produce and place the disclaimer and because it "aids the beliefs of Christian fundamentalists and creationists," it violates a provision of the Georgia Constitution that requires that "[n]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution."
Maggie Garrett, an ACLU of Georgia attorney who helped to argue the case, hailed the ruling in a press release from the ACLU: "The school district gave evolution second-class status among all scientific theories and, at the same time, gave advantage to a specific religious viewpoint that rejects evolution." And Michael Manely told the Associated Press that now students in Cobb County schools are "going to be permitted to learn science unadulterated by religious dogma." But NCSE's Eugenie C. Scott warned, "Creationists don't go away; they just change their tactics. Although 'theory not fact' disclaimers have been deservedly quashed by the ruling in Selman, new disclaimers without that phrase can be anticipated. Expect to see antievolutionist strategies continue to evolve."