Last week’s New York Times article on academic freedom legislation makes a false assertion that the Selman v. Cobb County Board of Education claimed it was illegal to single out evolution in a curricular policy. The NY Times article wrongly states:

The legal incentive to pair global warming with evolution in curriculum battles stems in part from a 2005 ruling by a United States District Court judge in Atlanta that the Cobb County Board of Education, which had placed stickers on certain textbooks encouraging students to view evolution as only a theory, had violated First Amendment strictures on the separation of church and state.

Although the sticker was not overtly religious, the judge said, its use was unconstitutional because evolution alone was the target, which indicated that it was a religious issue.

The problem with the NY Times‘ claim is that the Selman case did NOT rule that the sticker was unconstitutional due to the fact that “evolution alone was the target.” In fact, in the Selman v. Cobb County ruling, Judge Cooper held that the Cobb County sticker had a valid secular purpose and that it was permissible to single out evolution. In the words of Judge Cooper’s lower court ruling in Selman, “The School Board’s singling out of evolution is understandable in this context” because “evolution is the only theory of origin being taught in Cobb County classrooms,” and “evolution was the only topic in the curriculum, scientific or otherwise, that was creating controversy.”

The court then found two legitimate secular purposes for the sticker. The sticker was permissible because the purpose of “[f]ostering critical thinking is a clearly secular purpose . . . [and] because [the disclaimer] tells students to approach the material on evolution with an open mind, to study it carefully, and to give it critical consideration.” Additionally, “presenting evolution in a manner that is not unnecessarily hostile” in order to “reduce[] offense to students and parents whose beliefs may conflict with the teaching of evolution” was held to be a permissible purpose. In the end, the court struck down the sticker on other grounds. (See Selman v. Cobb County Board of Education, 390 F. Supp. 2d 1286, 1302-05 (N.D. Ga. 2005) vacated and remanded, 449 F.3d 1320 (11th Cir. 2006).)

So the NY Times was flat wrong to claim that Selman held it is impermissible to single out evolution.

The day the story came out, I contacted Leslie Kaufman, the New York Times reporter who wrote the original story, and sent all of the above information, explaining the error. Ms. Kaufman and her editor refuse to correct the error, claiming, “we are confident that our characterization of the decision was correct and that no correction is warranted” because “lawyers whom I have consulted concur” with the story. Despite my requests, they have refused to release information about which “lawyers” “concur” with the NY Times‘ inaccurate description of the ruling.

We do know one of the NY Times sources–and he’s not a lawyer. Kaufman’s original article cites Josh Rosenau of the NCSE to wrongly claim that Selman struck down policies that single out evolution, which means that, unfortunately, the NCSE gave inaccurate information to the NY Times which has now been promulgated around the country. (This is not the first time the NCSE gave bad facts which the NY Times reprinted uncritically.)

In fact, the only court ruling to buy the “no singling out” evolution argument was Judge Jones in the Kitzmiller v. Dover ruling; however, the authority that Judge Jones relied on to validate the “no singling out” evolution argument was the (now vacated) Selman decision which, as we have seen, rejected the “no singling out” evolution argument and instead held “[t]he School Board’s singling out of evolution is understandable” because “evolution was the only topic in the curriculum, scientific or otherwise, that was creating controversy.” So Judge Jones chose the wrong authority to validate the “no singling out evolution” argument.

What the NY Times doesn’t tell you is that the highest court to deal with the “singling out” of evolution question in fact determined that it IS legally permissible to single out evolution in a curricular policy. In Freiler v. Tangipahoa Parish Board of Education, the Fifth Circuit Court of Appeals dealt with a lawsuit over an evolution-disclaimer, and validated a secular purpose underlying the disclaimer “to disclaim any orthodoxy of belief that could be inferred from the exclusive placement of evolution in the curriculum, and . . . to reduce offense to the sensibilities and sensitivities of any student or parent caused by the teaching of evolution.” The Fifth Circuit noted that “a purpose is no less secular simply because it is infused with a religious element,” and thus “the fact that evolution, the subject about which the School Board sought to disclaim any orthodoxy of belief, is religiously charged . . . and the fact that sensitivities and sensibilities to which the School Board sought to reduce offense are religious in nature, does not per se establish that those avowed purposes are religious purposes.” The court explicitly validated these legislative purposes because “local school boards need not turn a blind eye to the concerns of students and parents troubled by the teaching of evolution in public classrooms.” (Freiler v. Tangipahoa Parish Bd. of Educ. 185 F.3rd 337, 344-346 (5th Cir. 1999), cert. denied, 530 U.S. 1251 (2000) (striking down the policy on other grounds).)

In sum, there are 3 cases that have dealt with the “singling out evolution” argument: (1) Selman v. Cobb County (a vacated lower court ruling which said it’s OK to single out evolution), (2) Freiler v. Tangipahoa (a 5th Circuit Appellate court ruling which said it’s OK to single out evolution), and (3) Kitzmiller v. Dover (a lower court which said it is NOT OK to single out evolution, but mis-cited Selman as its authority to justify that point). That means that courts are 2-1 in favor of the constitutionality of singling out evolution, and the highest court to rule on the issue upheld the constitutionality of singling out evolution. (And the one case that disagreed mis-cited Selman, its authority.)

Since Selman was vacated (on other grounds), the ruling doesn’t hold much water anymore for anyone–whether for Judge Jones or for the NY Times or for me. Nonetheless, the Times said that Cobb County’s disclaimer “was unconstitutional because evolution alone was the target,” but the singling out of evolution was NOT the basis that the Selman court struck down the sticker.

Whatever current law may say, that is not an accurate description of the Selman holding.

(For further details on these cases, see Does Challenging Darwin Create Constitutional Jeopardy? A Comprehensive Survey of Case Law Regarding the Teaching of Biological Origins.)
At the end of the day, all of the NY Times‘ misinformation is part of a campaign to attack academic freedom for teachers to openly discuss all the scientific evidence regarding evolution in the classroom. To support academic freedom, visit AcademicFreedomPetition.com.