520
1 IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
2 ATLANTA DIVISION
3
Jeffrey Michael Selman, )
4 et al., )
Plaintiffs, )
5 )
-vs- ) Civil Action
6 ) No. 1:02-CV-2325-CC
Cobb County Board of ) Volume IV
7 Education, et al., ) Pages 520-570
Defendants. )
8
9
10
11 Transcript of the Bench Trial Proceedings
Before the Honorable Clarence Cooper
12 November 12, 2004
Atlanta, Georgia
13
14
15
16 APPEARANCES:
17 On behalf of the Plaintiffs: Michael Eric Manely, Esq.
Gerald Weber, Esq.
18 Margaret Fletcher Garrett, Esq.
19 On behalf of the Defendants: Ernest Linwood Gunn, IV, Esq.
Carol Callaway, Esq.
20
21
22
23
Amanda Lohnaas, RMR, CRR
24 Official Court Reporter
United States District Court
25 Atlanta, Georgia
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1 (Friday, November 12, 2004, 9:30 a.m.; Atlanta,
2 Georgia.)
3 THE COURT: Thank you. Good morning, please be
4 seated. Court is now in session.
5 This morning we will hear the closing arguments of
6 counsel, after which we will be in recess until the Court rules
7 on this matter.
8 Mr. Manely?
9 MR. MANELY: Yes, sir.
10 THE COURT: You have the right to open and close.
11 MR. MANELY: Yes, sir, we respectfully reserve to
12 close, please.
13 THE COURT: Okay. Go ahead, Mr. Gunn, for the
14 defendants.
15 MR. GUNN: Thank you, Your Honor. I'd like to thank
16 you, first of all, for your thoughtful attention in this case,
17 both pretrial and trial. It's really appreciated and I think
18 this is an important case. I think it's a very unique case.
19 And first I'd like to talk about what it's not about.
20 It's not about restricting evolution instruction.
21 It's not like a lot of other cases where school boards were
22 acting to restrict evolution instruction. I don't think
23 there's any dispute that we've improved our evolution
24 instruction.
25 It's not about teaching intelligent design and
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1 creationism. And it's interesting that those buzz words have
2 been thrown around in the case and in the testimony. The one
3 person who tried to define them, Dr. Miller, gave a definition
4 which I'm not sure I quite understood, and I'm sure that other
5 people when they were using those terms weren't necessarily
6 using them in the same way. We've been faulted, I guess, for
7 using some pretty imprecise language in the sticker, and I
8 think there's some imprecise use of language in that respect as
9 well.
10 We can understand that teaching intelligent design
11 and creationism would involve positing a creator and that that
12 may raise a specter that there's some creator that's going to
13 be discussed. But there's really a fundamental difference
14 between teaching about a creator and simply allowing room for
15 that belief when you teach science. I think that's the real
16 key, as I started the case with: Can we teach science and
17 allow for belief in a creator, or are they mutually exclusive?
18 I'd like to first talk about those two competing
19 visions, which is, as I see it, how the case breaks down, and
20 talk about how the Lemon test applies in this case before I
21 conclude.
22 Legally the school district has an obligation of
23 religious neutrality. I think you saw a wide spectrum of views
24 on the stand during this trial. You saw Ms. Rogers, you saw
25 Jeff Selman, you saw a lot of views in between. And the school
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1 district has the duty to accommodate religious belief.
2 The question is how do we do that and how do we do
3 that in the context of this case. The unique context of this
4 case, where we came from a position where we restricted
5 teaching evolution in the middle schools, we said evolution
6 instruction may conflict with your family teachings and we're
7 not going to teach it if it does that, to the position where
8 the Cobb County School District is now, where we affirmatively
9 state and we in practice implement instruction on evolution.
10 The sticker was really just an interim step in the midst of
11 this progression from an unconstitutional position to what I
12 believe is a clearly constitutional position, even according to
13 Mr. Selman.
14 The Supreme Court is clear that students don't leave
15 their rights at the schoolhouse door. We can't make them leave
16 their religious beliefs at home.
17 For Jeff Selman the answer to this case is very easy:
18 Never the twain shall meet. Science is over here, religion is
19 over here; evolution's in the science realm and religion
20 doesn't belong anywhere in there. And I think his testimony
21 when I asked him about that was he said something to the effect
22 of why should it even come up.
23 The plaintiffs say that evolution instruction and
24 religion are not related. I think if they're not related, if
25 we have a sticker which says -- at most, a sticker which might
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1 create some doubts about evolutionary theory, that can't
2 possibly promote religion. It's intellectually dishonest to
3 say evolution instruction and religion aren't related if you're
4 taking the position that a disparagement, as they call it, of
5 evolution somehow has some relationship to religion. They're
6 either related or they're not.
7 Evolutionary theory and religion are related. The
8 school district could have come into this trial and pretended
9 like the issue never came up in the classroom, but in fact it
10 does. That's why Ken Miller's students at Brown University
11 come up at the end of the semester, after they've learned
12 everything there is to learn about biology, and they ask him
13 about his belief in God. That's why the plaintiffs argue that
14 calling evolution a theory promotes religious belief. That's
15 why Ken Miller had to write letters to school districts around
16 the country to explain that his textbook was not intended to be
17 anti-religious, specifically with regard to the theory of
18 evolution. And that's why Cobb County School District's old
19 policy said evolution should not -- the instruction on
20 evolution should not conflict with your family teachings.
21 Evolutionary theory and religion are related at Brown
22 University, they're related at the California school district
23 that Dr. Miller had to write to to confirm to them that he was
24 not trying to disparage their religious beliefs, and they're
25 related at Cobb County School District. And, I'll talk about
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1 it in a minute, they were related for Darwin.
2 In this respect, evolutionary theory is not like
3 other scientific theories. I think that the majority of the
4 scientists that testified agreed with that, it's not like the
5 theory of gravity. And the witnesses who have actually taught
6 evolution in the classroom, including Dr. Miller, Dr. Stickel,
7 Dr. McCoy, all admit it, evolutionary theory presents unique
8 challenges because it's the natural friction, it's the
9 intersection of science and religion, it's a key issue. That's
10 where there's so much media attention to the case. Why is
11 evolution the only theory that's mentioned in the sticker?
12 That's why.
13 Mr. Selman gives lip service to the idea that
14 evolutionary theory and religion are not mutually exclusive but
15 he thinks that somehow you should segregate the ideas in class.
16 It just ignores the reality of the situation and the
17 practicality of the situation. The conflict does come up.
18 Dr. McCoy said that it came up in his class. He was
19 a witness for the plaintiffs and you can rest assured he's
20 completely opposed to the sticker. You can rest assured that
21 he's not got any intention of promoting religion in his class,
22 but religion comes up in his class. He says it comes up now to
23 the same extent that it came up before the sticker was ever an
24 issue. It came up in Dr. Stickel's classes, as he testified,
25 both at Harrison High School before the sticker was ever an
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526
1 issue, it came up when he was teaching college classes in
2 another state. It came up before the sticker was an issue, it
3 will come up after the Court rules on whether the sticker stays
4 in the book or whether the sticker is removed from the book.
5 Mr. Selman's suggestion that we erect some kind of
6 artificial barrier is unrealistic in another sense. How would
7 we do that? Would we shout down a student if they said that
8 conflicts with our religious beliefs? Is that a violation of
9 the free exercise clause if we tell the student: You can't
10 raise an issue that disparages evolution, I don't care if it's
11 scientific, I don't care if it's religious, I'm going to assume
12 that it's religious if you raise that issue. I don't know how
13 you do that as a practical matter.
14 Dr. Plenge gave a description of how we envision that
15 discussion should go. The student may raise an issue like that
16 and you acknowledge the issue and you do it in a respectful way
17 and you move on to the rest of the curriculum.
18 The regulation which relates to how we actually teach
19 it says teachers are expected to set limits on discussion of
20 theories of origin in order to respectfully focus discussion on
21 scientific subject matter, at the same time it's recognized
22 that scientific intrusion may -- scientific instruction may
23 create conflict or questions for some students with regard to
24 belief systems.
25 It's a real world view. That's what happens. We can
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527
1 pretend like it doesn't happen, but when it happens what we
2 envision is that kind of respect for the opinion but at the
3 same time moving back toward the science curriculum.
4 I think the best description you got was the
5 plaintiffs' rebuttal witness, who was completely unprepared, as
6 far as I could tell, of what she was facing here. She's a
7 middle school teacher, where we did not teach evolution before,
8 and she told you about that, we had to tell them I'm not going
9 there, we don't talk about that. That was not a good situation
10 and we were restricting instruction on evolution and Ms. Quenan
11 told you, the middle school teacher, exactly what happens:
12 Before we had problems with that and we had to censor it, we
13 had to tell them we're not going to acknowledge that view. Now
14 we acknowledge the view and we move back to the curriculum.
15 And it's interesting, too, that the middle school
16 teacher, she wasn't talking about the sticker. The sticker was
17 an interim step. She was talking about we had an old policy
18 which was problematic and the new policy, as she said, is much
19 better, it's a better way to do things.
20 The plaintiffs' approach to have students check their
21 beliefs at the schoolhouse door is not only impossible as a
22 matter of practicality, it's not a good idea as a matter of
23 instruction, as Dr. Stickel testified.
24 The sticker says the text should be critically
25 considered and Dr. Stickel talked about what critical thinking
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528
1 is, and it involves the process of a student questioning the
2 facts they're given, assimilating those facts, and being able
3 to analyze them.
4 We want our students to be able to compare and
5 analyze the curriculum in history and science and literature
6 and we want to be able to analyze it in terms of what they know
7 about the real world. Some of them go to church; some of them
8 don't. Some of them read the National Geographic and some of
9 them don't. We want them to be able to assimilate that
10 knowledge. To say that you somehow segregate them makes no
11 sense. Questioning what the student is taught is the key to
12 learning how to think.
13 It's interesting, too, I was thinking that Mr. Manely
14 and myself, Ms. Callaway, all products of Cobb County schools.
15 And I think Cobb County schools have a history of excellence
16 and I'm sure that three of us, hopefully, all want what's best
17 for Cobb County students. But on a fundamental level, the
18 political decision about how to teach critical thinking, how to
19 instruct on a difficult area like evolution, is a matter that's
20 within the discretion of the school board, which is responsible
21 to the larger community.
22 Decisions about how to teach biology and to create an
23 atmosphere of tolerance, not just as a matter of religious
24 accommodation but as a matter of improving your instruction, is
25 a matter that we ought to leave to experienced teachers and
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1 administrators like Dr. Stickel, like Ms. Gray, who I'm sure
2 Your Honor could appreciate from her testimony cares genuinely
3 about kids, wants nothing more than to improve test scores and
4 to have kids go through a curriculum where they can learn as
5 much as possible.
6 The Court in Board of Education versus Pico, a
7 Supreme Court case, 1982, said the Court has long recognized
8 that local school boards have broad discretion in the
9 management of school affairs. Public education in our nation
10 is committed to the control of state and local authorities and
11 federal courts should not ordinarily intervene in the
12 resolution of conflicts which arise from the daily operation of
13 school systems. They go on to say: We're therefore in full
14 agreement with petitioners that local school boards must be
15 permitted to establish and apply their curriculum in such a way
16 as to transmit community values and that there's a legitimate
17 and substantial community interest in promoting respect for
18 authority and traditional values, be they social, moral or
19 political. And I'd add, it's also worthwhile to inculcate
20 values of respect and tolerance in the classroom.
21 The plaintiff should not be allowed a veto over
22 improvements to a science instruction unless there's a clear
23 constitutional issue. A vague statement in a huge science text
24 which does not mention religion, faith, belief, genesis, God,
25 Jesus, Christianity, any religion in particular, and which, as
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1 far as the evidence shows, has never created a single instance
2 of religious instruction in any classroom among tens of
3 thousands of students over two and a half years, does not
4 directly implicate the first amendment.
5 There was a wealth of potential witnesses who could
6 have come before Your Honor and testified in the form of
7 students that that sticker did something to their religious
8 belief, that that sticker did something to make them question
9 their basic values or that that sticker encouraged them to
10 attend a particular church or to take a particular view, you
11 didn't hear from them.
12 The Lemon test, as Your Honor is aware, requires you
13 to analyze the purpose, effect and entanglement. The first
14 prong is what the board's purpose was and, according to the
15 case law, the board's purpose must pass constitutional muster
16 unless the religious purpose is predominant overriding purpose
17 for the sticker.
18 The cases also say the first prong is a very low
19 hurdle. Edwards v. Aguillard said, 1987, that the purpose
20 inquiry should be deferential and limited and that the Court
21 should look at the language itself, look at the legislative
22 history, and the unique context of the statement.
23 Certainly none of the board members testified to
24 having a religious purpose. And I had cited previously in my
25 briefs to the Adler case where they talk about it's very
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1 difficult to know what a board meant two and a half years ago
2 based upon their testimony either in their deposition or at
3 trial.
4 I don't think the board members were all coming at it
5 from the same viewpoint, but I think they all recognized that
6 it was worthwhile to make a statement of tolerance so that we
7 could get on with the process of improving our curriculum.
8 If we look at the language itself, I would admit that
9 the language is vague and it could have been drafted better.
10 But the language is facially neutral. It says evolution should
11 be studied carefully.
12 The cases say if a government takes action which is
13 consistent with a religious point of view, that doesn't mean
14 it's necessarily religious, and that's -- the blue law cases
15 are one example of that. Well, is it consistent with a
16 religious point of view to say study evolution carefully?
17 According to Mr. Selman, it's not. It's completely
18 inconsistent with it.
19 The main issue with the language seems to be the fact
20 that it says "theory," doesn't say "scientific theory," and it
21 says "not a fact." The plaintiffs argue that this disparages
22 evolution. And I will grant you that there's some people that
23 that may create some doubt in their mind, may not create doubt
24 in their mind about the totality of evolutionary theory; it may
25 create a doubt in their mind about whether there's some
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1 scientific disputes in certain areas, as every scientist that
2 testified said there was.
3 The fact that it promulgates doubt, though, if we
4 assume that's true, doesn't mean it promotes religion. The
5 generalization that the plaintiffs make is based on historical
6 conflict and their generalization is any disparagement, any
7 suggestion that evolution is not infallible must be religious.
8 But it's not a valid generalization.
9 Dr. Miller, Dr. Moreno, Dr. McCoy, Dr. Stickel, every
10 one of them told you that is the nature of science, science
11 questions science, science disputes science, that's how science
12 improves, that's how scientific theories get bigger, that's why
13 Darwin's theory started small and became huge. It goes across
14 numerous areas of inquiry.
15 It's the very nature of scientists and science to
16 question. Questioning is what improves science. It's
17 questioning that corrected some of the past errors we had in
18 our understanding of evolution and it's a process that
19 continues today. It's not stagnant.
20 The National Geographic that was brought up several
21 times asks this month, was Darwin wrong? It's not a religious
22 question. It's National Geographic and it's asking it as a
23 legitimate scientific inquiry, the same way that a student in
24 one of our classes may ask that question, and we should not
25 assume that the reason they're asking it is for some religious
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1 agenda. It may be a scientific question and it may be because
2 there's some conflict and allowing them to ask that question
3 may actually improve the way they can think about evolution.
4 I think it's worthwhile to consider, what were the
5 alternatives, given that we had -- the press coverage that we
6 had, we had all these people that were concerned about these
7 textbooks and about the fact that -- like the school districts
8 in California were concerned -- that that textbook somehow
9 disparaged religion, that it somehow didn't allow room for
10 religious belief, like some of the other textbooks which
11 specifically address that issue and say this is science, it's
12 not meant to be about faith, it's about the natural, it's not
13 about the supernatural, the two aren't mutually exclusive.
14 We could have said evolution is a theory, period. We
15 could have said it's -- evolution is a scientific theory,
16 period, leaving out the "not a fact." We could have used Wes
17 McCoy's alternative, we could have said evolution is accepted
18 by the majority of scientists but questioned by some.
19 If I had to write it today I think I'd say something
20 like: This book contains information on science. Even though
21 we're in the process of improving and changing the restrictions
22 we had on instruction on evolution, it doesn't mean that it's
23 intended to disparage any faith.
24 We could have adopted another textbook which
25 addressed this issue. We could have sent the textbook out with
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1 letters from Dr. Miller, the letters that he sent to school
2 districts around the country explaining this is not intended to
3 be anti-religious. And we could have, I guess, put that letter
4 in the front cover of every one of the biology books and then I
5 guess it would have taken up more space than this sticker takes
6 up. I don't know what the letter says. But I don't think any
7 of those alternatives really would have been acceptable to the
8 plaintiffs, given the position they're taking.
9 Their position is it's all or none, it's that body of
10 knowledge, and if there's three or four words at the beginning
11 of the book that say something that creates doubt it's
12 unacceptable at a constitutional level.
13 The plaintiffs also make an argument that the board
14 was acting based on someone else's intent, maybe based on
15 Ms. Rogers' intent, maybe they were acting based on the
16 Discovery Institute's intent. But the evidence shows that's
17 not true.
18 They had input from a wide variety of sources,
19 including Mr. Selman. They had input from Mr. Selman. They
20 had input from Ms. Rogers. They had input from Larry Taylor,
21 who tried to intervene in this case to create a big issue about
22 whether there was a scientific dispute and whether we could
23 teach intelligent design and whether we were required, in a
24 constitutional sense, to teach intelligent design. And Your
25 Honor decided to keep this case narrow, and I think properly
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1 so.
2 They got information from scientists who said there's
3 no dispute. They got information from scientists who said
4 there is a dispute.
5 And the end result, as far as the actions taken by
6 the government, Mr. Selman's not happy, Ms. Rogers isn't happy,
7 Mr. Taylor's not happy. I think that tells you we didn't adopt
8 any particular viewpoint.
9 After we adopted the policy, Mr. Johnston, who was
10 then the chair of the board, issued a public statement, it's in
11 the record, Plaintiffs' Exhibit 17. And he said, in light of
12 that context, we're willing to listen to -- but we're not
13 willing to cater to any particular viewpoint where genuine
14 doubt exists, be it scientific or religious. We expect our
15 science instruction to be broad-based, factual and respectful
16 of all views.
17 In the unique context of this case there's clearly
18 not a religious purpose. The purpose is clearly stated in the
19 policy: To promote tolerance, to promote critical thinking, to
20 ensure religious neutrality.
21 If the purpose was indeed to promote religion, why
22 would they change a policy and regulation which said we'll
23 respect your family teachings and we'll restrict evolution
24 instruction?
25 And it's worth noting, no one outside in the
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1 community ever asked them to change that policy and the
2 regulation. It was only when we adopted the sticker that this
3 all became an issue.
4 Finally, if the purpose was to promote religion, the
5 plan was a colossal failure because there's not any evidence,
6 again, of a single student, a single person that ever was
7 affected as a reasonable observer in a sense that they somehow
8 understood that to mean they should go out and worship a
9 particular god or practice a certain religious practice or do
10 anything religious whatsoever.
11 The issue under the effects prong of the Lemon test
12 is whether the government action, in fact, conveys a message of
13 endorsement or disapproval of religion. Endorsement sends a
14 message to nonadherents that they're outsiders, they're not
15 full members of the political community, and accompanying
16 message to adherents that they are insiders, favored members of
17 the political community.
18 The message here is pretty clear, I think. If you
19 look at the sticker, if you look at the policy, if you look at
20 the regulation, the message is, as in the sticker, keep an open
21 mind. The regulation, the policies say we want to promote
22 tolerance, we want to promote respect for other people's views.
23 It's not an endorsement of religion.
24 The Allegheny case, the Supreme Court said the
25 fullest realization of true religious liberty requires a
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1 government effect no favoritism among sects or between religion
2 and nonreligion. They continue: The term "endorsement" is
3 closely linked to the term "promotion" and this Court has long
4 since held a government may not promote one religion or
5 religious theory against another or even against the militant
6 opposite.
7 As far as the effect prong, the general rule on a
8 facial challenge is that the Court should assume the government
9 action will occur in a constitutional manner.
10 Here you don't have any need to assume that because
11 there's no evidence of any constitutional discussion of
12 religion whatsoever.
13 In addition, as we've cited in previous pleadings, a
14 reasonable observer would review the sticker in the context
15 under cases like Smith versus Board of Commissioners and King
16 versus Richmond County, both Eleventh Circuit cases. The
17 context is the textbook and the whole purpose of the display is
18 to show how insignificant the language is in the sticker
19 compared with the instruction, which I assume promotes
20 evolution, promotes the view that evolution is true, promotes
21 the view that evolution should be studied, should be studied
22 carefully, studied heartily.
23 If we analyze this like one of the display cases,
24 where there's Christmas displays, if you want to balance the
25 content, the content, if we assume it creates doubt regarding
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1 evolution, it's insignificant compared with the remainder of
2 the content, and that's excluding what happened with the policy
3 and the regulation.
4 The context, though, does include the policy and the
5 regulation. It's part of the legislative history and it's part
6 of what happened if a reasonable observer had questions about
7 what's that theory, not a fact supposed to mean.
8 It's interesting, Dr. Miller joked that students
9 aren't asking him to include other information in that book to
10 make it any heavier, and Your Honor has had a chance to look at
11 that book and feel how heavy that book is during the course of
12 the week. The book is not heavy because it's got that sticker
13 in it.
14 As much as the plaintiffs want to argue that this
15 case is about the sticker and nothing else, we can look to
16 Mr. Selman to understand how people actually interpreted what
17 they did.
18 Mr. Selman testified he waited for the policy to be
19 issued to help him understand what was going to happen as far
20 as what the sticker said. Mr. Selman admitted that within a
21 month after the policy being issued he wrote a letter to the
22 board in which he stated, quote, "It seems apparent that the
23 board is correctly moving to keep faith-based beliefs out of
24 science instruction."
25 Your Honor heard Mr. Selman's views, and I would
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539
1 suggest to you they are strongly held views, and if we can
2 convince Mr. Selman with the policy that we're moving away from
3 religious instruction, then a reasonable observer is certainly
4 going to interpret it at least that way.
5 Mr. Selman testified that the regulation we adopted
6 later was appropriate and it closed any possible loophole in
7 the policy. Most importantly, Mr. Selman testified that he has
8 closely watched each of these developments, that he considered
9 expanding his complaint to include each of the actions that we
10 took in this sequence of events and he decided not to.
11 If we assume for purposes of argument that Mr. Selman
12 was a hypothetical reasonable observer, you'd have to conclude
13 that the actions the board took subsequent to this removed any
14 doubt as to a religious purpose or religious effect.
15 And again, there's no admissible evidence in this
16 case the classroom instruction was ever affected in any
17 significant way by the text adoption which included the
18 sticker, except that instruction has improved, as the middle
19 school teacher testified. The sticker, in fact, made Dr.
20 Stickel's daughter not want to go and worship a particular god
21 but go and research mitochondrial DNA.
22 In this case classroom instruction was really just an
23 afterthought. The case began and it ends as a facial challenge
24 to a facially neutral sticker. Mr. Selman filed this
25 litigation before he had ever seen the sticker or the textbook.
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540
1 He was concerned -- and I think it may be legitimate -- he was
2 concerned about the wording of the sticker, what would it mean
3 as far as classroom instruction. If you look at the complaint,
4 it's pregnant with that concern. What he did was to wait and
5 see how it was implemented. He waited for the policy and the
6 regulation and they satisfied him that everything was not
7 intended for religious purpose.
8 As far as entanglement, the issue is not whether
9 there's some relationship between religion and evolution
10 instruction. There clearly is and it's clearly not unique to
11 this school district, it happens at Brown University, it
12 happens all across the country.
13 The issue for Section 1983 purposes is whether the
14 government action in this case caused excessive entanglement,
15 and the evidence clearly shows the issues regarding I have a
16 question about the intersection of faith and evolution, those
17 issues came up before and they still come up. But according to
18 the testimony, it's a little easier to handle it now. The
19 sticker didn't cause any increase in the frequency of
20 discussion according to every witness that you heard from.
21 The Supreme Court case in Agostini in 1997 said
22 there's -- some interaction between church and state is
23 inevitable and we've always tolerated some level of involvement
24 between the two.
25 Your Honor, science and religion are related and
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541
1 they're not mutually exclusive. They're not mutually exclusive
2 for Dr. Miller, they're not mutually exclusive for Dr. Stickel,
3 they're not mutually exclusive for Betty Gray. They can't be
4 mutually exclusive if we want to teach science.
5 Part of the resistance to learning the science is
6 some people's religious beliefs. This sticker was an effort to
7 get past that conflict in an effort to teach good science. We
8 took respect for family teachings out of the policy and then we
9 made a gesture to show that the science will be taught in a
10 respectful way.
11 I opened the case with a quotation from the Origin of
12 Species and the reason I thought it was important was because
13 Darwin talked about a creator and I wanted the Court to
14 recognize that that reference to a creator should not be lost
15 in the context of what this volume actually means, just like
16 that volume. Didn't mean we should take it out of context.
17 What I didn't say at the time was that the reference
18 to the creator wasn't in the first volume. Mr. Darwin,
19 apparently, in the second edition decided to add the reference
20 to the creator, not to promote religion, but as a gesture, to
21 allow people to get past that objection to accept what he had
22 in the text. And I think it's worth reading again because I
23 think the reference to the creator doesn't detract from what
24 he's saying.
25 "Thus, from the war of nature, from famine and death,
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542
1 the most exalted object which we are capable of conceiving,
2 namely, the production of the higher animals, directly follows.
3 There is grandeur in this view of life, with its several
4 powers, having been originally breathed by the Creator into a
5 few forms or into one; and that, whilst this planet has gone
6 cycling on according to the fixed law of gravity, from so
7 simple a beginning endless forms most beautiful and most
8 wonderful have been, and are, being evolved."
9 The sticker was a gesture, nothing more or less. It
10 may be poorly worded but it doesn't promote religion.
11 And I ask that you enter judgment for the defendants.
12 THE COURT: Thank you, Mr. Gunn.
13 Mr. Manely, we're now ready. You may proceed on
14 behalf of the plaintiffs, go ahead.
15 MR. MANELY: May it please the Court, before I really
16 get under way, let me address a few ideas proposed by Mr. Gunn.
17 Mr. Gunn started off saying what this case is not
18 about, it's not about restricting evolution instruction.
19 However, from the very fever of the school board, this textbook
20 contains material on evolution, it is a theory not a fact. It
21 seems to be -- to me to be a restrict on evolution instruction.
22 It disagrees with the instruction from the text, it disagrees
23 from the instruction as offered by the teachers in the
24 classroom. It is a restriction on evolution instruction.
25 And further, that evolution, and we notice it's only
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1 evolution, nothing else, should be critically considered. That
2 is a restriction on the teaching of evolution.
3 So Mr. Gunn and I disagree about whether or not
4 they're attempting to restrict evolution instruction.
5 Mr. Gunn talked about, well, we can't make the
6 students leave their religious beliefs at home. But this case
7 is not about the students' fault. There is nowhere in here
8 where we are blaming the students. The school board is saying,
9 what, us? This is about the school board's action. That
10 sticker has nothing to do with what the students are doing;
11 that's what the school board wants. That's the imposition from
12 the school board, not the students.
13 Mr. Gunn says the disclaimer does not mention belief.
14 It said evolution is not a fact. That is a belief, that is a
15 religious tenet.
16 Mr. Gunn says that the language could have been
17 drafted better, but not according to the school board. They
18 weren't going to hear of it. As you heard Ms. Searcy say,
19 they'd be fighting two and a half years later.
20 And I agree with Mr. Gunn where he says that the
21 disclaimer can create doubt in readers' minds. Doubt is what
22 it's all about.
23 The Cobb County school board singled out evolution
24 for disparagement and encouraged alternate theories. No other
25 scientific theory has a disclaimer. No other nonscience
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1 teaching has a disclaimer. No other textbook has a disclaimer.
2 Nowhere else does the Cobb County school board encourage
3 students to critically consider its curriculum and thereby to
4 explore alternate views.
5 The board tells this Court the reason it imposed the
6 disclaimer is because evolution violates some parents'
7 religious beliefs. The disclaimer expresses that religious
8 belief that evolution is not a fact and that evolution must be
9 critically considered. Opposing counsel freely admits in his
10 closing that the problem with evolution is religious.
11 These are the cases that we're operating under.
12 You've heard Mr. Gunn talking about the Lemon case and, of
13 course, we all know that is the broad overview of what we're
14 talking about. Government's conduct must serve a secular
15 purpose, not convey a message of government endorsement, which
16 means that the state action is impermissible if its primary
17 effect is to advance or prohibit religion. And, lastly, the
18 government's conduct must not entangle government and religion.
19 Under Allegheny the Court pays particularly close
20 attention to whether the challenged government practice either
21 has the purpose or effect of endorsing religion.
22 Under Lynch, endorsement violates the establishment
23 clause because endorsement sends a message to nonadherents that
24 they are outsiders, not full members of the political
25 community, and an accompanying message to adherents that they
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1 are insiders, favored members of the political community.
2 When the cases say religion, they are not so narrow
3 as to say the endorsement of Baptists versus Methodists or
4 Methodists versus Catholics, no, not even so broadly as to say
5 Christian, Buddhist or Jew. But they are to advance a
6 particular religious belief, a dogma. In this case the
7 religious belief is that evolution is not fact and that
8 evolution is something our children must be warned about, they
9 must critically consider so that they will consider alternate
10 theories.
11 In the Edwards case that's applied here, by
12 discrediting evolution, the Cobb County school board creates
13 quote, "persuasive advantage to a particular religious doctrine
14 that rejects the factual basis of evolution in its entirety."
15 And, of course, as Edwards says, the Court is especially
16 vigilant in school cases.
17 I thought it rather remarkable and instructive that
18 for the cases that Mr. Gunn cited, I don't believe any of them
19 were evolution cases. But that's what we're talking about.
20 For example, under Freiler, that disclaimer against
21 evolution had the primary effect of protecting and maintaining
22 a particular religious viewpoint, as here, that evolution is
23 not a fact and it must be carefully considered, critically
24 considered.
25 The Court held that the disclaimer was
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1 unconstitutional because of the juxtaposition of the disavowal
2 of endorsement of evolution, evolution is a theory not a fact,
3 with an urging that students contemplate alternate theories of
4 the origin of life. This material must be critically
5 considered.
6 The Cobb school board says evolution is only a theory
7 and not a fact and it must be critically considered.
8 Did the Cobb school board disparage evolution? Is
9 there any question that this sticker disparages, disclaims
10 evolution? Except for board member Plenge, who denied the
11 obvious, did any witness have difficulty understanding that the
12 disclaimer disclaims, despite the extensive revisionist history
13 we heard from the board members on the stand? Did anybody have
14 a problem understanding that for the sticker -- that the
15 sticker disparages evolution?
16 Dr. Miller referred to it as a warning. Only
17 cigarette packs get warnings. Dr. McCoy saw it as orange and
18 flashing. Dr. Moreno said the primary message over the whole
19 textbook is this disclaimer. Mr. Selman referred to it as a
20 .22 caliber bullet through the heart. And Ms. Chapman referred
21 to it as a red flag.
22 As Dr. Moreno testified, the disclaimer is
23 incompatible with evolution. The disclaimer diminishes
24 evolution. The disclaimer's message is that evolution is not
25 the same, nor as useful as other theories. The disclaimer
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1 sends the message that evolution is dangerous, warning, and
2 should be treated differently than all other subjects in the
3 text.
4 Further, the board came in with its predetermined
5 agenda. Remember, the board members conducted no research.
6 The board members did not study the science of this significant
7 issue. From the hip they just disclaimed.
8 Is evolution a fact? As Dr. Miller testified, his
9 text says evolution occurs. And Superintendent Redden, defense
10 witness Stickel and Dr. McCoy testified that this text is the
11 best available, complete in every way, satisfied the highest
12 AAS standards.
13 As Dr. McCoy testified, he teaches that evolution
14 occurs. As Ms. Searcy testified, board member Searcy,
15 evolution is so, it occurs. She makes her living on healing
16 people. She is intertwined with evolution happening.
17 Evolution is the underpinning, she says, of all life sciences.
18 Dr. Miller testified that evolution is a fact.
19 Evolution is as much a fact as anything in science. Just as
20 surely as gravity is holding you to your chair and me to the
21 floor, evolution is a fact.
22 Dr. McCoy testified that evolution is a fact. Dr.
23 Moreno testified that evolution is a fact. Even Dr. Stickel,
24 the defense's witness, testified that evolution is a fact.
25 Hundreds of scientists petitioned the Cobb County
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1 school board telling them that evolution is a fact.
2 Now, Ms. Rogers said, no, evolution is not a fact.
3 But she told the Court she is a strict creationist, six days.
4 Ms. Gray said no, and Your Honor had a colloquy with her and,
5 bless her, so honestly did she tell you that evolution does not
6 comport with her religious beliefs and she's not sure if she
7 could remove her religious beliefs from considering and voting
8 on that disclaimer. Mr. Tippins said, no, evolution is not a
9 fact but he thinks he got that material from something he read
10 somewhere in the AJC.
11 Scientific American says evolution is a fact. The
12 National Geographic asks, was Darwin wrong? No. The evolution
13 for over -- the evidence for evolution is overwhelming.
14 You heard testimony. No credible scientist anywhere
15 in the whole wide world says otherwise.
16 Is evolution a scientific theory? The same witnesses
17 testified that evolution is not just a theory, as the Cobb
18 school board's belief maintains, it is a scientific theory,
19 which in the hierarchy of science is even more certain than
20 fact.
21 Even Dr. Stickel testified evolutionary theory is a
22 scientific theory, and one of the best ones, at that.
23 So the disclaimer is wrong. It is very wrong. As
24 educational material, it is very wrong. Evolution is not not a
25 fact; it is a fact. The school board's assertion to the Cobb
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1 County students is wrong.
2 Why do they single out evolution? Under Epperson,
3 government's action does not survive the establishment clause
4 when it selects from a body of knowledge that a particular
5 segment which it prescribes for the sole reason that it is
6 deemed to conflict with a particular religious doctrine. The
7 Supreme Court held that it could not ignore the fact that the
8 government's action was a product of the upsurge of
9 fundamentalist religious fervor.
10 Does the disclaimer foster critical thinking? Beyond
11 being flat-out wrong, the school board says it imposed the
12 disclaimer to encourage critical thinking. Even in his
13 opening, Mr. Gunn said the idea behind the sticker is that that
14 is not all there is.
15 The disclaimer has the effect of saying this Cobb
16 school board says evolution, above every other scientific
17 theory, should be critically considered. But considered
18 against what? If they intend to foster critical thinking why
19 don't they mention something like alternative two, all
20 scientific theories should be studied with an open mind,
21 carefully considered? Why just evolution?
22 School Board Chair Curt Johnston testified that when
23 a student looks at the disclaimer, the student should think
24 that evolution should not be taken at face value.
25 Now, the text says evolution is real. The text says
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1 evolution is solid. So if the students critically consider
2 evolution as taught in the text against just the text, they
3 wind up with the text. It's circular. If the student should
4 not take evolution at face value and the text says at face
5 value that evolution is a fact and a very reliable scientific
6 theory, how are the students going to evaluate evolution
7 according to the Cobb school board's disclaimer? What can they
8 critically consider evolution against?
9 As Chairman Johnston said when he read on behalf of
10 the Cobb school board the statement in September 2002, this
11 sticker was simply to, quote, "make students aware that a
12 scientific dispute exists." And as he testified here to you,
13 the scientific dispute is the differences of opinion between
14 evolution, creation science and intelligent design.
15 So what are these alternate theories? In Epperson
16 the Court held the evolution statute was unconstitutional
17 because the law could not be justified by government policy
18 other than the religious views of some of its citizens.
19 Looking at the advertisements in that case placed by citizens
20 in support of the law, the Court found that, quote, "It is
21 clear that fundamentalist sectarian conviction was and is the
22 law's reason for existence."
23 Here the disclaimer exists because of fundamentalist
24 sectarian outcry from thousands of parents about evolution
25 instruction. As the board chair testified, parents complained
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1 that the text only taught evolution and did not allow for any
2 alternate versions of how life began, and so the disclaimer was
3 born.
4 As Board Chair Johnston testified, the disclaimer was
5 a reaction to parents complaining. Students and parents think
6 if the school board thinks that evolution isn't the right
7 theory of origin and that it's not a fact, then there must be
8 alternate theories to answer that question. And you will read
9 from the public's extensive outcry from the stipulated exhibit
10 we're giving you today, the board's action left little doubt to
11 the public's mind.
12 E-mail: "My daughter recognizes evolution as the
13 theory that it is. She absolutely will mention her beliefs of
14 creationism in class and she will introduce a discussion of
15 creationism, not as a fairy tale religious story but as a
16 scientific theory backed by the scientific facts. Thank you
17 again for taking a stand to allow discussion of disputed views
18 of academic subjects."
19 An e-mail: "Please hold your ground on your right to
20 teach creationism in school." E-mails to the school board.
21 An e-mail: "I applaud your decision to open the
22 doors to alternative theories concerning the creation of man."
23 And another one: "Ladies and gentlemen, those who
24 fear your decision to allow creationism to be taught must not
25 have much confidence in their beliefs."
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1 The petition that you heard so much about: "We, the
2 concerned citizens and taxpayers of Cobb County, support the
3 policy you're considering which will allow open discussion
4 about the theory of evolution, as well as other legitimate
5 scientific views concerning the origin of life, such as
6 intelligent design."
7 And you will read them again and again: "I applaud
8 Cobb County's recent decision to open up the teaching of
9 origins to include other theories about the origin of life."
10 A letter: "I wanted to express my support to the
11 Cobb school board's position concerning teaching creation
12 science. There is little doubt all the religious people I know
13 of every faith are clearly in support of teaching creationism,
14 intelligent design and evolution."
15 Letter after letter, e-mail after e-mail, the public
16 knew very well what these people were doing.
17 And the students and the parents are right, the board
18 wants students to think about alternate theories. But as you
19 heard, there are no alternate theories that are scientific; the
20 only other theories are religious. Even Dr. Stickel readily
21 concedes there are no alternate theories to evolution.
22 So what are the alternate theories that the board is
23 talking about, that the board encourages the students to
24 discuss? Intelligent design, which as you heard Mr. Gunn talk
25 about, posits a designer, a creator, a supernatural
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1 intelligence that is in the business of designing. And
2 creationism, which posits formation and population of the earth
3 in six days, the Genesis story.
4 By definition any theory that requires a creator is
5 religious on its face. It has a deity, a god. Not everyone
6 accepts these alternate theories, they're not scientific.
7 Board Member Plenge told you that she thought they were
8 scientific. Except for Ms. Plenge, however, Dr. Miller, Dr.
9 McCoy, Dr. Moreno, and Dr. Stickel testified that there is no
10 science to these theories. They are a religion, period.
11 And the board members testified the disclaimer was
12 there to appease the religious beliefs of the loudest parents,
13 those who wanted intelligent design and creationism in the
14 classroom, teaching, discussion, whatever in the classroom.
15 In Epperson the Supreme Court held that it could not
16 ignore the fact that the government's action was a product of
17 the upsurge of fundamentalist religious fervor. Board Chair
18 Johnston and Board Member Plenge, among others, testified that
19 the disclaimer allows students to bring up religious issues in
20 the classroom. Board Chair Johnston called these discussions
21 wonderful, teachable moments. Teacher, why do I believe this
22 way? In the science class.
23 Additionally, even if the students were forbidden
24 from bringing up the issues in class, the disclaimer is still
25 there day after day, written by the very finger of the school
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1 board. The endorsement, the religious expression against
2 evolution is still there.
3 For example, if the Ten Commandants were displayed in
4 the classroom, regardless if the teachers never taught it and
5 the students never discussed it, it is still an endorsement, it
6 is still in the classroom. The disclaimer is there because the
7 school board commands it there, period.
8 So why not kinder, gentler language? The board would
9 not entertain any language other than that of the disclaimer.
10 They had to disclaim evolution to be happy with the language.
11 Board Member Gray testified that she wanted the
12 disclaimer to be an assurance to parents who were concerned
13 that evolution might criticize their religious beliefs that
14 evolution instruction would not be taught in a dogmatic way.
15 So she disclaimed it. Suddenly, despite science, evolution
16 isn't true.
17 Board Member Searcy testified that if she were going
18 to fight the language of the disclaimer the board would still
19 be meeting on this issue two and a half years later. Given
20 that two and a half years later the disclaimer remains in the
21 texts and we are here in court fighting about it, I am inclined
22 to believe her.
23 The administration wanted other language. You heard
24 Mr. Redden. He thought then and still thinks now the texts are
25 fine without the disclaimer, they present well-balanced science
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1 education. The disclaimer is not necessary. Mr. Redden
2 proposed other language. Given lemonades, make lemon -- given
3 lemons, make lemonade, even though lemonade is still made from
4 lemons. Mr. Redden proposed softer, gentler, more inclusive
5 language, language which the board rejected in whole
6 absolutely.
7 And there was a beautiful moment in Mr. Gunn's
8 closing, it really got me. We've been talking an awful lot
9 about what could they have said and I thought he said it, he
10 said it could have read: This is science, it is not meant to
11 be about faith.
12 That is not what the school board wanted. What the
13 school board wanted was to disclaim evolution from a religious
14 belief which is the only place that disclaims evolution. The
15 board would have you believe that once they voted on the
16 language it was a done deal, it was just too late, too late to
17 change course when the administration's language was presented.
18 But the board's decision -- you heard Dr. Stickel talk about
19 this -- the board's decision was in March. They had four
20 months to develop a more balanced statement. The textbooks did
21 not come in until summer. The stickers were just word
22 processing forms, you or I could do it in a day. The stickers
23 went out to the schools, where the personnel affixed them the
24 week before school started in August. There was plenty of time
25 to come up with much more balanced language. So the board
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1 could have easily changed the language.
2 Another excuse of the board is it's not our fault,
3 our attorneys drafted the language, the attorneys did it.
4 I don't buy it. The attorneys don't vote on the
5 school board and this excuse far from explains the contentious
6 board environment which would leave them quarreling until this
7 day. This excuse does not explain the board's desire to
8 disclaim rather than merely notify. That the board refused to
9 craft language that wasn't false and that addressed their
10 stated concerns in a less onerous way, additionally proves that
11 they wanted to disparage evolution.
12 And let us not forget that of all the theories in all
13 the world that are taught in the Cobb County classrooms, only
14 evolution is disparaged, only evolution is warned about, only
15 evolution is singled out, only evolution is disclaimed. For
16 the board, that language could not be changed, because the
17 disclaimer expresses that religious belief that evolution is
18 not a fact, evolution must be critically considered.
19 Our history from Edwards says out of many possible
20 science subjects taught in the public schools the government
21 chose to effect the teaching of the one scientific theory that
22 has historically been opposed by certain religious sects. The
23 disclaimer serves to, quote, "protect and maintain a particular
24 religious viewpoint." The Court as a reasonable observer must
25 be mindful, aware of history.
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1 As Dr. Moreno said throughout history the only attack
2 on evolution came from religious motivations, from Scopes in
3 1925 through Freiler just five years ago. And the state school
4 board superintendent just last year wanted to do away with even
5 the word "evolution" because of the religious hostility against
6 it, as defendant's witness Dr. Stickel testified. Evolution is
7 forever under attack by religious forces whose dogma disagrees
8 with science.
9 In 1995 the teaching of human evolution was banned in
10 Cobb County, yet the class was required for graduation.
11 And as Mr. Selman testified, as recently as last
12 year, the school board was indoctrinating our children through
13 character education, teaching during the week of the great
14 American holiday, Thanksgiving, respect for the Creator,
15 contemporaneous, during the same week, with democracy. Isn't
16 that theocracy? That is part of the school board's history.
17 And though the school board has improved, they are
18 still banning the teaching of evolution in some form. They
19 allow teachers now to teach evolution, but the school board
20 says it isn't true, it isn't a fact.
21 The school board undermines evolution instruction
22 just as if they were standing behind the teacher during
23 instruction, shaking their heads back and forth, saying, oh,
24 no, oh, no, it's not true, this is not a fact. That hasn't
25 changed.
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1 How did they publish the religious belief that
2 evolution is not a fact? Location, location, location.
3 Under Freiler that disclaimer against evolution had
4 the primary effect of protecting and maintaining a particular
5 religious viewpoint. The Court held that a disclaimer was
6 unconstitutional because of the juxtaposition of the disavowel
7 of endorsement of evolution with an urging that students
8 contemplate alternate theories of the origin of life. That
9 demonstrated endorsement.
10 The Cobb school board said evolution is only a
11 theory, not a fact, and right after that, it must be critically
12 considered.
13 The disclaimer is a message from the government
14 directly to the students day after day after academic day. It
15 bypasses the parents entirely.
16 The policy and the regulations which the school board
17 says exonerates its aberrant behavior are nice, two nice,
18 8-1/2-by-11 pieces of paper locked up in a policy and
19 procedures book somewhere. But the disclaimer is there in the
20 textbook, a message to the students, a message from the Cobb
21 school board day after day.
22 The school board complains but compare their size, my
23 goodness, we have this whole textbook, we have a little
24 sticker, we're fine. The school board says, look, the
25 disclaimer is only little, it's 33 words, but the Bible is well
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1 over a thousand pages long, perhaps close to a million words.
2 But the Ten Commandants don't even take an entire page, they're
3 only a few lines long. The Ten Commandants control the whole
4 book. The Ten Commandants are the finger of God, just as the
5 disclaimer is the finger from the school board.
6 The text is by some authors the students don't know.
7 The students don't see the authors in the paper. The authors
8 don't tell the students how long their summer vacation will be.
9 The authors will never have the students in their care. The
10 authors won't be providing laptops to them.
11 But the school board, they have each student almost
12 eight hours a day. The school board has authority over
13 students' lives, oftentimes for more time than parents do. The
14 school board for the students are the big kahuna.
15 And there is the proclamation, the disclaimer, a
16 proclamation from the government inside the cover of the
17 textbook proclaiming the religious message: Evolution isn't a
18 fact, it must be critically considered. It is a .22 caliber
19 bullet through the heart. Talk about your endorsement.
20 The school board's argued five points. Purpose, the
21 school board says it had pure motive. This is irrelevant.
22 From the standpoint of your summary judgment ruling that all
23 school board members would have had to have testified that they
24 wanted the disclaimer for religious reasons and religious
25 reasons only, that is not what this case is about over the last
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1 four days. We didn't go there. That's not the case. This
2 case focuses on the last two prongs of Lemon, not the first.
3 Another argument of the school board is the policy
4 and regulation. That is largely irrelevant also because we are
5 not suing under the policy and regulation. Mr. Gunn misstated
6 Mr. Selman. He wanted to see the policy before he decided to
7 expand the litigation. The litigation from day one has been
8 about the disclaimer, it remains so today.
9 Now, granted, with the policy, it has enough
10 loopholes to drive a truck through and the regulation is only
11 some better, but the bottom line is the children do not see the
12 regulation and policy; they only see the religious assertion in
13 the disclaimer, day in, day out. And it is the effect of the
14 disclaimer and the school board's subsequent efforts that
15 matter, how the public perceives what the school board was
16 doing that matters.
17 The school board says our history exonerates us. It
18 offered considerable testimony about how evolution was not
19 previously taught. Now, that is relevant, I'll give them that.
20 But not for the reason the school board thinks. In Doe v.
21 Santa Fe, as here, the government was attempting to improve
22 upon its prior constitutionally defective acts. The Court
23 said, quote, "What strikes us is the government" -- excuse me,
24 start again. The Court said, quote, "What strikes us is the
25 evolution of the current policy indicates that the government
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1 intended to preserve," in that case, "the practice of prayer."
2 As we have shown in this case, the government
3 continued to intend to preserve the practice of impairing
4 evolution instruction. Under Santa Fe the school board's
5 history is relevant to show that it has always favored religion
6 over science. It is powerful evidence of the school board's
7 current establishment clause violation.
8 The school board claims it's enlightened now. They
9 say, hey, we used to omit all evolution instruction, but look
10 how far we've come, we're enlightened now, we're not violating
11 the constitution nearly as much as we used to.
12 But, sadly, they didn't include evolution instruction
13 because they wanted to; they included evolution instruction
14 because they had to. The state mandated it.
15 The board even had one holdover from its 1995 policy
16 which prohibited evolution instruction. Remember Ms. Gray was
17 on the board when that policy was enacted.
18 Most of the way toward constitutional compliance is
19 not all the way to constitutional compliance.
20 The board says there's little religious discussion in
21 the science class. The board argues that religion does not
22 frequently come up in science class. As you recall, while Dr.
23 McCoy testified about numerous incidents of students pointing
24 to the disclaimer in their arguments against evolution, with
25 the exception of a flurry of activity around the time of the
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1 imposition of the disclaimer and the vote on the policy, the
2 incidents of religious disputes have not markedly increased.
3 However, ours is a facial challenge, not an as
4 applied challenge. The reasonable likelihood of entanglement
5 applies here.
6 Dr. McCoy testified that the disclaimer has caused
7 problems. The disclaimer requires him to spend an inordinate
8 amount of time teaching about theory and teaching about fact.
9 Further, he does have to respond to students'
10 assertions about evolution not being fact. Well, that's what
11 the school board said.
12 Further, he finds that the disclaimer discourages
13 teachers from teaching evolution.
14 Also he has taught seminars in how to deal with this
15 problem. He's had teachers attend them, at least 65 in one
16 count.
17 When the authors were here they had to take part of
18 their time to attend how to teach the problem created by the
19 school board. And Dr. McCoy has nine science teachers in his
20 15-member department without so much as an undergraduate degree
21 in biology. How can they deal with this problem, this
22 religious problem of the board's making?
23 The question here is whether in order to prevent
24 endorsement the board must monitor the classroom. As we've
25 seen, the board doesn't care to monitor; it's asleep at the
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1 wheel.
2 Ms. Quenan was a godsend to bear that out. She was
3 discovered the day before she was brought in. She contended
4 that, in an AJC online forum, that she was going to present the
5 evolution creationism controversy to her students in the
6 classroom. Now, regardless of whether or not she did, she
7 contended in an online forum, some bright and quick member of
8 the public caught it, e-mailed that portion over to Curt
9 Johnston, board chair, and the board turned a blind eye. It at
10 least tacitly approved a presentation of creationism and
11 evolution in the classroom. When Ms. Quenan's statements were
12 brought to the board's attention the board chair wrote, "This
13 is exactly what we were trying to accomplish." Those were his
14 written words, not "prohibit;" "accomplish."
15 Now, part of what might have been suggested in his
16 direct from Mr. Gunn was "accomplished" referred more to what
17 the parents' e-mail was about rather than Ms. Quenan's. But
18 the proof that this is what the board contemplated is that if
19 Mr. Gunn were right, that the board was trying to accomplish
20 separation, why, after Chairman Johnston responded to the
21 e-mail, "This is exactly what we're hoping to accomplish," did
22 he do nothing with that alert? According to Mr. Gunn the alert
23 would have been unusual, even unique. Why did he do nothing
24 with the alert?
25 Why? Because the presentation of creationism and
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1 evolution is exactly what they were trying to accomplish. That
2 discussion in the classroom about alternate theories, why would
3 he want to put an end to that? It fits.
4 The school board is specifically encouraging
5 discussion, as Johnston defines discussion. Everything that
6 happens in the classroom but teaching the curriculum, the board
7 defines as discussion. The board encouraged discussion of
8 intelligent design and creationism. And why not? If evolution
9 is not a fact, evolution must be critically considered. The
10 board essentially encourages a filibuster of evolution
11 instruction, that precious moment of class time.
12 The Court has been the supervisor of this issue for
13 two years. I'm concerned that when the Court is no longer
14 watching, the filibuster will begin in earnest.
15 Finally, the school board's defense is accommodation.
16 The board claims they voted on the sticker to accommodate
17 people's religious views. The board claims it is concerned
18 about religious views, it wants to accommodate. But the board
19 does not accommodate young earthers, astronomy texts, star
20 distances over millions of light years, geology texts,
21 stratification of rock layers, history texts, civilizations
22 that predate Noah's story, physics texts, radioactive isotopes.
23 The board does not accommodate Christian Science, the germ
24 theory of disease. The board does not accommodate chromosome
25 theory of inheritance, few have a problem with that, Galilean
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1 heliocentrism, atomic theory, genetically modified foods, stem
2 cell research.
3 We're thinking if the board really wanted to
4 accommodate we need more stickers.
5 For example: This textbook contains material on
6 gravity. Graft is a theory, not a fact, regarding a force that
7 cannot be directly seen. This material should be approached
8 with an open mind, studied carefully, and critically
9 considered.
10 Or, perhaps: This textbook contains material on
11 plate tectonics, a theory claiming that continental drift has
12 produced the major land masses. Because nobody observed this
13 process, this material should be approached with an open mind,
14 studied carefully, and critically considered.
15 Or last perhaps we could have said: This textbook
16 contains material on heliocentrism, which states that the Earth
17 orbits around a centrally located sun. Because astronomers
18 argue about the exact nature of the heliocentric model, this
19 material should be approached with an open mind, studied
20 carefully, and critically considered.
21 No, they didn't consider any of that. The only thing
22 they wanted to disclaim, the only thing they wanted to
23 disparage, the only religious belief they wanted to insert into
24 the students' minds is that evolution is not a fact, it must be
25 critically considered.
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1 As Dr. Stickel said, even gravity has religious
2 conflicts. Many scientific theories conflict with some
3 religious doctrines but they are not disclaimed, those
4 doctrines are not favored, they are not espoused by a vocal
5 plentiful chord.
6 Under Epperson, the state has no legitimate interest
7 in protecting any or all religions from views distasteful to
8 them, nor can the state give preference to a religious
9 doctrine, nor prohibit the teaching of a theory that is deemed
10 antagonistic to a particular dogma.
11 Under Wright versus Houston Independent School
12 District, science and religion may frequently provide
13 conflicting answers, but as the Supreme Court said 20 years
14 ago, it is not the business of government to suppress real or
15 imagined attacks upon a particular religious doctrine.
16 In this case the Cobb County school board is doing
17 more than accommodating religion; they are promoting religious
18 dogma to all students, the religious dogma that evolution is
19 not a fact, that evolution must be critically considered.
20 As the Court said in Doe versus Santa Fe, the
21 principle that government may accommodate the free exercise of
22 religion does not supersede the fundamental limitations imposed
23 by the establishment clause. And as Dr. Miller said, you don't
24 want religious theories in science textbooks, our science
25 teachers would have to become experts in theology.
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1 Science teachers should not have to answer the
2 question contemplated by Board Chair Johnston: Teacher, why do
3 I believe this way? Science is for science class. The
4 disclaimer does not just go to students who need accommodation,
5 it goes to all students.
6 The defendants bear the burden of demonstrating ways
7 for the school board to accommodate the beliefs of their
8 constituents, but we have suggested quite a few: letters home
9 in book bags, e-mail. An accommodation is really there, there,
10 it's all right, kind of like the language that Mr. Gunn
11 suggested, the beautiful language he suggested in closing:
12 This is a book about science, not a book about faith.
13 It is not an accommodation to assert, it is not an
14 accommodation to assert that we are right and you are wrong.
15 In closing, Your Honor, I've got three boys and
16 Monday night after trial I came home relatively early to crash.
17 But first I had the wonderful opportunity to help my three boys
18 out. Billy, our 16-year-old, I got to help him out with
19 German. He was working on writing some letter for the teacher.
20 Matthew, our 10-year-old, I got the opportunity to work with
21 him on a history paper. And Benjamin, our two-year-old, I had
22 the opportunity to work with him on reading. Actually, he was
23 more listening, I was reading. And I was so happy that the
24 boys are in the Marietta school system, not the Cobb school
25 system, it's a different system. And I was so happy that there
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568
1 will not come a time when they are in biology and I have to
2 confront and refute my government's religious proclamations to
3 them that evolution is not a fact.
4 I want school to teach my boys about science; I want
5 me to teach my boys about religion, my wife and I, I should
6 say. I don't want this government telling my boys that they
7 have to be worried about evolution, that evolution is not true.
8 I don't want this government engaging in stealth indoctrination
9 of my children to the government's religious proclamation that
10 evolution must be critically considered because evolution is
11 not a fact.
12 You know, we're supposed to be going forward, science
13 marches on, but this is moving backward. The schools are
14 supposed to be teaching our children, not hindering them, and
15 certainly not indoctrinating them by stealth.
16 To invoke the ghost of Thomas Jefferson, who wrote,
17 Believing, quote, "that religion is a matter which lies solely
18 between man and his God, that he owes account to none other for
19 his faith or his worship, that the legislative powers of the
20 government reach actions only, and not opinions, I contemplate
21 with sovereign reverence that the act of the whole American
22 people which declared that their legislature should, quote,
23 'make no law respecting an establishment of religion, or
24 prohibiting the free exercise thereof,' close quote, thus
25 building a wall of separation between church and state."
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569
1 We, Your Honor, are supposed to safeguard separation,
2 not ignore it. I ask that you safeguard our freedoms. I ask
3 that you protect our First Amendment. I ask that you declare
4 the government's disclaimer unconstitutional. Thank you.
5 THE COURT: Thank you. I want to take this
6 opportunity to thank counsel for their closing arguments. The
7 Court is going to take this matter under advisement and rule
8 upon it as quickly as possible.
9 With that, we'll be in recess. Thank you. Good day.
10 (Proceedings concluded at 10:45 a.m.)
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1 C E R T I F I C A T E
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3 UNITED STATES DISTRICT COURT:
4 NORTHERN DISTRICT OF GEORGIA:
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6 I hereby certify that the foregoing pages, 1 through
7 569, are a true and correct copy of the proceedings in the case
8 aforesaid.
9 This the 4th day of February, 2005.
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14 Amanda Lohnaas, CCR-B-580, RMR, CRR
Official Court Reporter
15 United States District Court
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Amanda Lohnaas, Official Court Reporter