Thursday, May 25, 2006


Appealing Omens

The Eleventh Circuit Court of Appeals has vacated the decision of Judge Clarence Cooper in the Cobb County, Georgia "textbook sticker" case, Selman v. Cobb County School District, and sent the case back to Judge Cooper for further proceedings. The facts of the case can be found in the lower court decision here.

The rather lengthy decision from the Court of Appeals, authored by Circuit Judge Edward Earl Carnes, can be found here.
At the outset, there is this disclaimer by Judge Carnes:

In vacating the district court’s judgment and remanding the case for additional proceedings, we want to make it clear that we do not intend to make any implicit rulings on any of the legal issues that arise from the facts once they are found on remand. We intend no holding on any of the legal premises that may have shaped the district court’s conclusions on the three Lemon prongs. [p. 42]
The purported reason for this remand is that the Record on Appeal, for whatever reason, is apparently missing items that the Circuit Court finds to be crucial for its decision. The Circuit Court has not restricted Judge Cooper's response to the remand and he can either try to recreate the original record or he can hold a whole new trial. The Circuit Court has suggested that Judge Cooper issue an entirely new set of findings of fact and conclusions of law, however.

For those who enjoy poking through chicken entrails, the Circuit Court presented Judge Cooper with a list of suggested factual issues to address, starting at page 35 and running to page 42 of the decision.

A bit of background is in order, however. Judge Cooper found that the policy of the school board had a sufficient "secular purpose" under the "Lemon test" but that it failed the second prong in that "the Sticker communicates to those who endorse evolution that they are political outsiders, while the Sticker communicates to the Christian fundamentalists and creationists who pushed for a disclaimer that they are political insiders." Judge Cooper also found a violation of the third prong but, as least as the Circuit Court sees it, he based that on the same facts as for his finding of a violation of the second prong, meaning they stand or fall together. Applying Justice O'Connor's "Endorsement Test," Judge Cooper held that, based on "the historical opposition to evolution by Christian fundamentalists and creationists in Cobb County and throughout the Nation, the informed, reasonable observer would infer the School Board’s problem with evolution to be that evolution does not acknowledge a creator" and that such an observer "would interpret the Sticker to convey a message of endorsement of religion."

The Circuit Court expressed it concerns as follows:
[T]he [lower] court’s decision that the sticker violated the Establishment Clause turned on its conclusion that the adoption and use of the sticker had the effect of advancing and endorsing religion. That conclusion was heavily influenced by the court’s findings about the sequence of events that led to the adoption of the sticker. [pp.19-20]
The factual areas that the Circuit Court wants clarified are those that support a finding of an endorsement of religion. The Courts of Appeal usually accord great weight to the facts found in the lower courts. That this panel wants such detail in the record suggests to me that there will have to be a very clear showing that the sticker in fact conveys an endorsement and that they may want to tie it to the particular facts in Cobb County, rather than basing it on general principles. In other words, that "informed, reasonable observer" is going to have to be a person living in Cobb County, who knows the actual facts, not merely what is reported in the news media or what might be inferred, and those facts will have to be relevant only to the actions of the board and proved by competent evidence in court. That could be a quite difficult case to make. On the other hand, Judge Cooper has plenty of reason to make his original decision (you should pardon the expression) stick.

My record of success in reading the tea leaves left over in appellate cups is poor enough that even I wouldn't put much store in my guesses. Maybe after the new findings of fact (assuming Judge Cooper rules the same way) we will be able to get a better handle on things. Until then, it isn't much use trying to work out all the "what ifs."
The Discovery Institute's rather pathetic celebration over this decision is out already. Any good news in a storm, I suppose . . .
The NCSE has also reacted to the decision here.

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