Appeals Panel Criticizes Evolution Ruling
BY: ELLEN BARRY
Dec 18, ATLANTA (LA TIMES) A federal appeals court panel appeared sharply critical Thursday of a ruling this year that ordered the removal of stickers in science textbooks stating, "Evolution is a theory, not a fact."
Judge Ed Carnes of the U.S. 11th Circuit Court of Appeals said that the lower court judge had misstated facts in his ruling, overstating the influence religious protests had on the school board's actions. He also said the words on the sticker are "technically accurate," and that the Cobb County school board was justified in singling out the theory of evolution for comment.
"From nonlife to life is the greatest gap in scientific theory," Carnes said. "There is less evidence supporting it than there is for other theories. It sounds to me like evolution is more vulnerable and deserves more critical thinking" than other subjects.
The three-judge appellate panel heard oral arguments in the case Thursday and may not release its decision for several weeks. But attorney Michael Manely, who argued against the stickers at trial last year, said the judges' questions suggested they might seek to overturn U.S. District Judge Clarence Cooper's original ruling.
"I'm certainly more worried than I was when I walked in this morning," Manely said.
The sticker debate played out in Cobb County, an area north of Atlanta where science teachers used to rip pages out of textbooks rather than discuss evolution. When the school board adopted a new biology textbook that addressed Charles Darwin's theory in detail, some conservative Christian parents protested.
As a compromise, the school board decided in March 2002 to apply a sticker to the inside cover of every textbook. It read: "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."
A group of parents, backed by the American Civil Liberties Union, sued the school district, charging that the sticker endorsed religious beliefs.
In a 44-page decision released in January, Cooper agreed. He acknowledged that the disclaimers had a secular purpose, and avoided religious reference. But, he continued, "the sticker communicates 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."
On Thursday, Linwood Gunn, an attorney for the school board, argued that the stickers were part of a larger effort by school officials to enhance the teaching of evolution, which had been "a long-standing problem" in Cobb County.
"The whole genesis of the stickers is because people were upset by an improvement the school made," he said.
In his questioning, Carnes alleged several significant errors of fact in Cooper's decision. He said Cooper suggested that a petition had influenced the sticker policy when, in fact, the petition was dated six months after the plan was in place.
He went on to chastise Jeffrey Bramlett, who was arguing for the ACLU, for duplicating the fact in his brief, telling him to "justify to me that that's not misrepresenting the facts."
Following the oral arguments, Gunn said he was pleased with the judges' line of questioning. They were "struggling to see why there's a constitutional problem with an accurate sticker," he said. Gunn's satisfaction was echoed by John West, senior fellow at the Discovery Institute, a Seattle group that supports the concept of intelligent design. Proponents of intelligent design contend organisms are too complex to have developed by chance.
"They found pretty serious sloppiness on the part of the judge and on the part of the ACLU," West said of the appellate panel. "Finally, we have a group of federal judges who are being properly skeptical of what we regard as overreaching claims."
Gerry Weber, an attorney for the ACLU, said the plaintiffs' central argument - that the stickers communicated the influence of a religious group - did not rely on the petition. Before it printed the stickers, he said, the school board had received numerous e-mails and letters from parents carrying the message, "Preserve our faith."
A disclaimer about evolution was included in textbooks "to favor a particular faith," Weber said. "The key focus is what a reasonable observer will perceive from the stickers."
In order to overturn a district court ruling, appellate judges must show that the lower court relied on facts that were "clearly erroneous," said Michael Broyde, director of the law and religion program at Emory University's law school. Broyde said that Cooper "wrote a very crafty opinion" that relied heavily on fact-finding - probably in anticipation of the appeals process.
A wit on the Supreme Court once put it this way, he said: "District court facts are like mud. They stick to you."