Inherit The Sticker

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com

A federal judge ruled Thursday that the county acted improperly when it ordered placed into new science textbooks a sticker that declared: "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." Specifically, U.S. District Judge Clarence Cooper found that the first sentence of that sticker had the effect of endorsing religion in violation of the Establishment Clause of the First Amendment.

The ruling is consistent with many other rulings, including decisions from the Supreme Court and federal appeals courts, that preclude school officials or teachers from giving students disclaimers about evolution when teaching about the origin of life. That doesn't mean we won't see an appeal, or that the appeal won't necessarily be successful. But it does mean that Judge Cooper had plenty of precedential ground to stand upon when he declared that Cobb County had impermissibly told "some citizens [the pro-evolution folks] that they are political outsiders while telling others [the anti-evolution folks] that they are political insiders."

So the ruling itself is neither surprising nor unusual. But, as the judge's order makes clear, what is rather unusual is that the Cobb County crowd was not the stereotypical (and dated) group of Southern politicians or bureaucrats looking to unilaterally impose their will upon a hapless minority. This is no civil rights tale. This is no Mississippi Burning. Instead, as the order illustrates, this is a tale about decent people trying to navigate their way through the shoals of science and religion. Never mind studying the theory of evolution or creation as the origin of life. Every public school official in the country, every bureaucratic educator, ought to be required to study U.S. District Judge Clarence Cooper's 44-page ruling in order to avoid the chaos it chronicles.

First, the background. The study of evolution, Judge Cooper found, had been "a source of controversy for quite some time" in the county. For years, the school district had a regulation in place that precluded teachers from forcing any student "to study the subject of the origin of human species." No such course would be required for high school graduation and no such course could even taught in elementary or middle schools in the district. "It was common practice in some science classes," the judge found, "for textbook pages containing material on evolution to be removed from the students' textbooks." Judge Cooper determined that these policies implied "that a significant number of Cobb County citizens maintain beliefs that are deemed to conflict with evolution."

A few years ago, however, the school district began to reevaluate its policies about teaching about the origins of life and decided to revise those policies to, in the judge's words, "strengthen evolution instruction and bring Cobb County into compliance with statewide curriculum requirements." Then a textbook adoption committee chose a new science textbook that offered a "comprehensive perspective of current scientific thinking regarding theory of origins." These are the same people, remember, who ultimately had the stickers placed into the textbooks. The judge's order makes clear that these folks did not intend for things to turn out that way.

After school officials made the initial call on the new textbook and the new policy, they opened up the process to parents. "Only three parents reviewed the books containing material evolution at the formal review session," Judge Cooper found. One parent was happy with the new textbook, one wasn't, and one didn't say. Other parents informally chimed in and one, Marjorie Rogers, ultimately gathered 2,300 signatures of Cobb County residents who were "opposed to the presentation of evolution as a fact rather than as a theory." The petition requested, among other things, "that the Board ensure the presentation of all theories regarding the origin of life and place a statement prominently at the beginning of the text that warned students that the material on evolution was not factual but rather was a theory."

The school board took these complaints to their lawyers, who recommended the language that ultimately found its way onto the stickers and into the textbooks. They selected the particular language above over this more specific alternative: "This textbook contains material on evolution, a scientific theory, or explanation, for the nature and diversity of living things. Evolution is accepted by a majority of scientists, but questioned by some. All scientific theories should be approached with an open mind, studied carefully and critically considered."

After the stickers were ordered, the school board officially changed its policy on teaching the origins of life. After the stickers made their way into the textbooks, the judge found that students "brought up the topic of religion as it relates to theory of evolution no more frequently than they did before the sticker was placed in textbooks." But, the judge found, "it appears that the sticker is impacting science instruction on evolution. Some students have pointed to the language on the sticker to support arguments that evolution does not exist." A group of parents then sued Cobb County.

Judge Cooper found that the county had a secular purpose for including the stickers — the promotion of critical thinking — but that the chief purpose for the stickers was "to accommodate or reduce offense to those persons who hold beliefs that might be deemed inconsistent with the scientific theory of evolution." But he invalidated the stickers because of the unconstitutional effect he said they have of endorsing religion. The "sticker," the judge wrote, "misleads students regarding the significance and value of evolution in the scientific community for the benefit of religious alternatives."

So there you have it. Cobb County school officials tried to be progressive, had second thoughts when an organized group of parents chimed in, and will end up satisfying no one. Maybe the language of that alternative sticker is the answer. Maybe the answer lies in showing more trust to teachers and students to figure out the new policy by themselves. Maybe the Supreme Court will reverse its own precedent and come to the rescue of the stickers and the parents who wanted them in textbooks. And maybe this case represents a true teaching opportunity, a lesson for high school students in Georgia and everywhere else to reflect upon. The lesson is this: when it comes to interpreting the Constitution, compromises almost always get you in trouble.

By Andrew Cohen