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Law Review Note Critiques Selman v. Cobb County District Court Ruling

In March of 2002, the Cobb County School Board adopted a policy requiring stickers to be placed in biology textbooks which committed the apparently unconstitutional crime of stating, "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 lawsuit ended last December, when the school district entered into a lose-lose-lose settlement with the ACLU: (1) The district had to pay the ACLU $166,659, (2) The district had to permanently remove the stickers, and (3) The district was permanently enjoined from "making any disclaimers regarding evolution." I don't favor using the "evolution is a theory, not a fact" line because it enters semantic controversies over the proper definition of "theory" (a controversy which can be easily avoided, see here). I also am not a big fan of "disclaimers" (whether written or oral) because they aren't very effective in actually improving student learning. Nonetheless, it's shocking that the effect such a statement was found unconstitutional. A law review note by a student published in Temple Journal of Science Technology & Environmental Law now agrees:

Although the sticker categorized evolution as theory, the court improperly found that this categorization would have the effect of endorsing religion and favoring certain religious viewpoints. Under the Establishment Clause, the government is prohibited from taking "sides" regarding questions of religion. ... [T]he sticker made no mention of preferring one religion over another or preferring religion to non-religion. The sticker stated that evolution is a theory, which neither undermines its widely-accepted nature nor contradicts any scholarly definition of evolution. The sticker merely, in accord with the weight of scholarly definition, emphasizes evolution's theoretical nature. It was erroneous for the court to conclude that the sticker improperly denigrated evolution as merely a theory, because even the most unimpeachable science is merely a theory.

By finding that presenting evolution as theory rather than fact violated the Lemon Test's effects prong, the court fundamentally created a new precedent making it unconstitutional per se for a school to even suggest that evolution is theoretical. It is true that, under Epperson, schools cannot suppress evolution instruction simply because it conflicts with a particular religious doctrine. In Selman, however, the School Board did not suppress evolution instruction, but rather acted to strengthen it. Not finding the School Board at fault on this account, the court identified the emphasis of evolution as merely a theory problematic.

This logic is confusing especially considering that the Edwards Court noted that the dictionary definition of evolution is "the theory that the various types of animals and plants have their origin in other preexisting types, the distinguishable differences being due to modifications in successive generations." As this paper earlier espoused, the academic community also regards evolution as a theory. It would therefore be contradictory for the court to require public schools to de-emphasize evolution's theoretical nature, or to require the presentation of evolution as unimpeachable theory, or worse yet, as indisputable fact.

(Kaitlin DeCrescio, "An Education in Evolution: Silencing Scientific Inquiry in Selman v. Cobb County School District," 25 Temp. J. Sci. Tech. & Envtl. L. 285, 301-303 (internal citations removed).)

In other words, the article exposes hypocrisy in the law: courts are permitted to call evolution a "theory," but apparently school boards cannot. Darwinists might counter that evolution is both "fact" and "theory," and so her critique is off-base. As DeCrescio suggests, this implies they are fudging the definitions of their own terms, and such dogmatism would have the effect of "Silencing Scientific Inquiry."

While I don't agree with every aspect of this article's analysis, Ms. DeCrescio makes some critiques worth considering. As a final note, the lower court's ruling was vacated by an appellate court in May, 2006, so technically this case ends without a statement of law, and the anti-freedom-of-inquiry ruling she critiques is now defunct.