Casey Luskin, intrepid Upchucky also-ran, is aflutter. Last week’s New York Times story about creationists and global warming deniers partnering up has the whole Disco. ‘Tute in something of a tizzy, but Casey’s outrage is of a special sort.
Casey, you see, thinks the the Times misdescribed Selman v. Cobb County. The article 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.
This is accurate. It’s what the judge ruled. And so, of course, Casey is deeply insistent that it isn’t what the judge ruled:
The problem with the NY Timesâ claim is that the Selman case did NOT rule that the sticker was unconstitutional due to the fact that âevolution alone was the target.â 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 Cooperâs lower court ruling in Selman, âThe School Board’s singling out of evolution is understandable in this contextâ because âevolution is the only theory of origin being taught in Cobb County classrooms,â and âevolution was the only topic in the curriculum, scientific or otherwise, that was creating controversy.â
The court then found two legitimate secular purposes for the sticker. The sticker was permissible because the purpose of â[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.â Additionally, âpresenting evolution in a manner that is not unnecessarily hostileâ in order to âreduce offense to students and parents whose beliefs may conflict with the teaching of evolutionâ 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.
I’m not a lawyer, but I’ve picked up some things over the years, and one of them is that the test at issue in Selman is something called the Lemon test. It has three parts (actually prongs, because lawyers love cutlery). The first is purpose: a government action may not have a primarily religious purpose. The second is effect: its effect cannot be to elevate one religion over another, or religion over nonreligion. The final is entanglement: The action cannot excessively entangle government with religion. In the 1980s, Justice O’Connor began combining the latter two prongs into a single “endorsement” test, where a policy must have a secular purpose and the policy must not endorse a particular religion or religion over nonreligion. It tends not to make a big difference in practice, but judges often perform both analyses just in case.
Anyway, the court in Selman looked at a sticker which the local board of education wanted affixed to biology textbooks and applied the Lemon test. And the court concluded that, yes, placing the sticker on books does serve a secular purpose. Had the court stopped there, Casey would be right.
But the court only stops when a policy fails one of the prongs, or after looking at all the prongs. Indeed, the same paragraph which includes the sentence: “The Court finds the School Board’s explanation to be rational and does not declare the Sticker to violate the purpose prong of Lemon,” continues:
However, because the administration suggested alternative language that did not place the emphasis so heavily on evolution, albeit after the Board adopted the Sticker, the message communicated to the unformed, reasonable observer is that the School Board believes there is some problem peculiar to evolution. In light of 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.
The court notes that isolating evolution like that has caused legal trouble before:
In Epperson, the Supreme Court declared an anti-evolution statute unconstitutional because it “select[ed] from the body of knowledge a particular segment which it proscribe[d] for the sole reason that it is deemed to conflict with a particular religious doctrine.” Similarly, in Edwards, the Supreme Court declared that a balanced treatment statute was unconstitutional because “[o]ut of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects.”
In both cases, the court ultimately found the policies unconstitutional. For someone actually reading the text of the ruling, this is a bad sign for the sticker. It looks kinda like the court is building toward saying that singling out evolution in the sticker was also unconstitutional in the way that singling out evolution made policies unconstitutional before. Aaaaand here’s how it went:
just as evolution was isolated in the statutes in Epperson and Edwards, evolution is isolated in the Sticker in this case. In the absence of an explicit explanation on the Sticker for evolution’s isolation, the Court believes the Sticker sends an impermissible message of endorsement.â¦
the Sticker focuses exclusively on evolution â¦ and there are no other stickers placed in any other textbooks used in the Cobb County School District regarding any other subjects â¦ These facts support Plaintiffs’ argument that the Sticker, considered in context, conveys a message of endorsement.â¦
considering all facts and circumstances related to the Sticker and its adoption, the Court is convinced that the Sticker’s primary effect â¦ endorses religion. â¦
In sum, the Sticker in dispute violates the effects prong of the Lemon testâ¦ Adopted by the school board, funded by the money of taxpayers, and inserted by school personnel, the Sticker conveys an impermissible message of endorsement and tells some citizens that they are political outsiders while telling others that they are political insiders. â¦ the Sticker has already sent a message that the School Board agrees with the beliefs of Christian fundamentalists and creationists. The School Board has effectively improperly entangled itself with religion by appearing to take a position. Therefore, the Sticker must be removed from all of the textbooks into which it has been placed.
See what the court did there? It found the Sticker unconstitutional because it violated the second two prongs of the Lemon test â and therefore the endorsement test âÂ in no small part because it singles out evolution. (Note to Casey: “singles out” and “isolates” would be synonyms.)
Now, my first thought was just that Casey might’ve been lazy. Maybe he got to the bit about “The Court finds the School Board’s explanation to be rational and does not declare the Sticker to violate the purpose prong of Lemon,” and stopped reading. But that doesn’t work, because even before getting to that, the decision says:
the informed, reasonable observer would perceive the School Board to be aligning itself with proponents of religious theories of origin. â¦ in light of the sequence of events that led to the Sticker’s adoption, 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.
This is not what you write if you plan to say that there’s no unconstitutional endorsement of or entanglement with religion. It’s what you write as you prepare to say that there might be circumstances where a policy singles out evolution for valid secular reasons, but which nonetheless has an unconstitutional effect, thus invalidating the policy.
Casey is just wrong.
But he sent his plaint to the Times, and they politely informed him that they checked with real lawyers, and those lawyers “concur” that “our characterization of the decision was correct and that no correction is warranted.â Having been rebuffed by the reporter, by the editors, and by lawyers with at least modest literacy, Casey didn’t take the hint, so he posted his complaint and selections from the Times’ response at the Disco. ‘Tute complaints department (created, they explain, for “the misreporting of the evolution issue”), hoping that if he didn’t link to the ruling itself and the various other documents relevant to the case, that his readers would just take his word for the ruling’s content.
Maybe they will. And maybe they’ll buy his elaborate conspiracy in which â¦ well, let’s let Casey explain:
Despite my requests, they [staff at the Times] have refused to release information about which âlawyersâ âconcurâ with the NY Timesâ inaccurate description of the ruling.
We do know one of the NY Times sourcesâand heâs not a lawyer. Kaufmanâs 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.
My God! NCSErs under every rock!
Yes, I spoke to the reporter about this, and suggested that the Selman ruling spurred attempts to tie creationism in with other scientific notions found distasteful by conservatives. And I did suggest that it was the Selman ruling’s emphasis on the isolation of evolution which gave impetus to that move. I still think that. Because I know that “isolate” and “single out” mean the same thing, and because I know that the purpose prong is followed by two others, and because the court found that isolating (or singling out!) evolution violated those other prongs in Cobb County, I’m comfortable saying that other courts may well find policies which single out evolution to be unconstitutional. But I’m not the lawyers that the Times contacted.
What’s most disappointing is that, for all Casey’s bluster in his blog post (and presumably the letter he sent to the Times), he knew he was wrong. He knew this because he wrote this about the Selman case in a 2009 law review article (p. 54):
While the sticker passed the purpose prong of the Lemon analysis, the judge ruled that the disclaimer failed the effect prong of the Lemon test. The court observed that âcitizens around the country have been aware of the historical debate between evolution and religion.â The court found that the school district did not intend to endorse religion, but nonetheless âthe Sticker sends a message 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.â In this particular case, âthe informed, reasonable observer would know that a significant number of Cobb County citizens had voiced opposition to the teaching of evolution for religious reasonsâ and âput pressure on the School Board to implement certain measures that would nevertheless dilute the teaching of evolution.â Although the district did not intend to endorse religion, âthe informed, reasonable observer would perceive the School Board to be aligning itself with proponents of religious theories of origin.â
While Casey decided not to emphasize the decision’s specific references to the effect of singling out evolution, he quoted language found all around those passages, so I presume he read those bits as well, and saw how the parts he’s quoting here connect to the parts about isolating evolution. So we know that, within the last year, Casey has apparently read the ruling. He saw that the sticker failed the Lemon test, and why. He knows better, yet he keeps advancing a claim which he knows to be wrong. I cannot fathom why. The issue isn’t even the dishonesty of haranguing reporters with meritless demands for a correction, but the massive FAIL embodied in trotting out the attempts by others to set him straight that I find so puzzling.
The Times reporter has no anti-Casey agenda. She just has an accurately-describe-reality agenda. And if that agenda happens to be anti-Casey, the problem is Casey’s, not the reporter’s.