A final EAE approach is related to a misunderstanding of the terminology of science: this is the attempt to require that evolution be taught as theory, not fact. Many of the theory, not fact, policies involve disclaimers to be read to students or inserted into textbooks. In readings presented in chapter 10 there are examples of disclaimers going back to the 1970s, but here I will discuss a more recent case of a textbook disclaimer in Cobb County, Georgia.
In 2001, the Cobb County district began the process to choose new biology textbooks, and as often happens, controversy emerged over how the candidate books treated evolution. By 2001, the Georgia Board of Education had passed science education standards that called for instruction in evolution in the high school biology curriculum. The Cobb County district had, since at least 1979, singled out evolution for special treatment in a series of policies and resolutions. A policy passed in 1995, for example, set up a set of regulations around the teaching of human evolution and removed the topic as a graduation requirement. In 1996, the district requested that a publisher remove a chapter in a fourth-grade science book that discussed a natural origin of the universe and the solar system after parents protested that it ignored creationist teachings (the publisher complied). As a result of the 1995 policy, pages discussing evolution were regularly cut out of textbooks. This was not a district that took casually the teaching of evolution.
The textbook that teachers selected was, as it happens, the same Prentice Hall textbook authored by Kenneth Miller and Joseph Levine that a few years later offended the Dover Area School Board, leading ultimately to Kitzmiller v. Dover. The textbook committee was concerned that district policies conflicted with the state standards, so the board promised to review the policies. The Prentice Hall book was thereafter adopted. Some parents, however, objected to the adoption of the book, and one parent, Marjorie Rogers, collected about 2,300 signatures on a petition requesting that alternate views to evolution be presented, and that a "statement [be] placed
The Cobb County, Georgia, 2002 textbook disclaimer.
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.
Approved by Cobb County Board of Education Thursday, March 28, 2002
prominently at the beginning of the text that warns the students that some of the information contained in the book is not factual but rather theory, and that there are other theories regarding these matters which are accepted by other scientists."
Shortly thereafter, the Cobb County Board of Education required that the new books would have a sticker inserted to inform students that evolution was theory, not a fact (see Figure 7.2).
In August 2002, a group of parents sued the district on the grounds that the disclaimer sticker was unconstitutional because it favored the beliefs of fundamentalist Christians by denigrating evolution. By expending public funds on the sticker and its maintenance, the district was unconstitutionally promoting religion. The school district argued in defense that its intent was to strengthen the teaching of evolution, as required by the state standards, and that having a textbook disclaimer sticker would assuage some of the parental and community opposition to this controversial topic. It claimed that it never intended to promote religion, and that the revised policies it instituted after the sticker was decided on stated that religious neutrality was to be maintained in the classroom. It took a long time before the case was scheduled for trial, and finally the sides met in early November 2004 before the district court judge Clarence Cooper. After a four-day trial, the judge filed his opinion in January 2005: the disclaimers were unconstitutional and the stickers must be removed.
The Lemon test, the commonly used litmus test for the constitutionality of creationist policies, was again applied. Cooper believed the school board members when they claimed that they had no religious purpose in passing the disclaimer requirement: they stated that they had intended to strengthen the teaching of evolution in the district and, because evolution had long been a controversial subject in Cobb County, they required the textbooks to have disclaimers to assuage the concerns of some parents. But on the effect prong of Lemon, as modified by the endorsement test, Cooper decided that a reasonable observer in the community would recognize the close ties between disclaiming or criticizing evolution and certain Christian religious views, and would conclude that adherents of these views were being politically favored. He wrote, "The Court's review of pertinent law review articles affirms that encouraging the teaching of evolution as a theory rather than as a fact is one of the latest strategies to dilute evolution instruction employed by antievolutionists with religious motivations" (Sel-man v. Cobb County School District, 390 F.Supp.2d 1286 at 1309). Pursuant to a court order, the district had the stickers removed from the books over the summer.
The case dragged on, however, because the district appealed the ruling to the Third Circuit Court of Appeals, which took more than a year to issue its decision. Finally, in May 2006, the three-judge panel vacated the district court's decision. Because there had been irregularities in the handling of evidence (e.g., Marjorie Rogers's 2,300-person petition was not among the court exhibits), and confusion in the court record as to the specific order of events, the appeals court declared that it was unable to judge the case on its merits and returned the case to Judge Cooper, who had the choice of either retrying the case or correcting the trial record.
Back before Judge Cooper, plaintiffs were prepared to retry the case, bringing in a new legal team that included Eric Rothschild from Pepper Hamilton and Richard Katskee from Americans United for Separation of Church and State—two members of the team that successfully had argued Kitzmiller v. Dover. They asked for and won permission from the judge to bring in expert witnesses and reopen discovery. Before long, the defense had settled. The settlement agreement stipulated that neither antievolution nor pro-creationism or ID disclaimers of any kind, oral or written, would be allowed in the district, and the district was directed to follow the state curriculum regarding the teaching of evolution. Mindful of the district's previous policy of cutting references to evolution out of textbooks, the settlement also forbid "excising or redacting materials on evolution in students' science textbooks." The first court trial of a theory, not fact, disclaimer policy, part of the EAE arsenal, had ended in defeat for creationism.
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