MSNBC reports that a federal judge "ordered a suburban Atlanta school system to remove stickers from its high school biology textbooks that call evolution 'a theory, not a fact,' saying the disclaimers are an unconstitutional endorsement of religion."

Is that really the case? Is this the right decision? If I were the U.S. Supreme Court and this case appeared on my desk with an application for a writ of certiorari attached to it, I might consider granting that writ. Does criticism of evolution necessarily entail support for creationism? I'm certainly no fan of creationism, but when it comes to the law, I am a fan of correct, well-thought-out, objective rulings based in the law and not ideology. A formalist critic might ask of a judge writing an opinion, "Where's your textual support?" In that case, the "text" would be the law, and in order to make a ruling in a particular case, the law must support that ruling. So let's take a closer look at the Atlanta case.

The case is called Selman et. al v. Cobb County. (Link goes to a PDF of the opinion courtesy of the ACLU.) "Selman et. al" refers to a group of parents who were upset about the placement of warning stickers on biology textbooks in Cobb County, Atlanta. The case was argued and decided in the U.S. District Court for the Northern District of Georgia. (As an aside, why can't AP get this information in their articles? I have to beg, borrow, and steal to find out what "a federal judge" means. Also, AP doesn't even report the name of the case! Back to you, Chet.)

Back in 1995, Cobb County Schools tried to avoid the issue of evolution altogether by eliminating it from the curriculum. The regulation mandated the following:

1. The curriculum of the Cobb County School District shall be organized so as to avoid the compelling of any student to study the subject of the origin of human species.
2. The origin of human species shall be excluded as a topic of curriculum for the elementary and middle schools of the Cobb County School District.
3. No course of study dealing with theories of the origin of human species shall be required of students for high school graduation.
4. Elective opportunities for students to investigate theories of the origin of human species shall be available both through classroom studies and library collections which shall include, but not be limited to, the creation theory.
5. All high school courses offered on an elective basis which include studies of the origin of human species theories shall be noted in curriculum catalogs and listings which are provided for students and parents for the purpose of course selection.

So as you can see, Cobb County is hardcore about keeping evolution out, even if it has to graduate students who are completely ignorant of biological evolution. Looks like it's Bob Jones University for them! And, just to make things more interesting, "[I]t was common practice in some science classes for textbook pages containing material on evolution to be removed from the students' textbooks."

In 2001, Cobb County decided to purchase new science textbooks, some of which may have included material on biological evolution. Some parents objected to the treatment of evolution as a fact, rather than a theory. This makes things murky, especially when we don't use our terms consistently or correctly. That organisms evolve over time is indisputable. It has been observed in our lifetime of simple organisms like bacteria and virii. It has been observed through fossils, which show us that organisms have not remained static. Fossils (and geology) have also shown us, by the way, that the Earth is much more than six thousand years old. Most creationists believe that the Earth is only around six thousand years old, since that date is consistent with the Biblical account of creation.

What is in dispute in the biological community is the mechanism of evolution. Darwin suggested natural selection, whereby organisms with mutations favorable to their environment survive to pass on those mutations to their offspring and organisms with unfavorable mutations die, leaving a population that is well-suited to exist in a particular environment. "Intelligent design" (ID) is another theory used to explain the mechanism of evolution. Intelligent design does not dispute the existence of evolution, but it does call into question what (or who) is responsible for evolution. ID proponents suggest that biological life is so complex that only a "higher power" (which usually goes unnamed) could possibly have created it. While this is not a scientific theory, but a rhetorical argument, it is still a proposition that runs counter to evolution.

But placing a sticker on a book saying that evolution (read: natural selection) is a theory does not, in itself, constitute an endorsement of non-empirical, unscientific theories of evolution like intelligent design. "After the School Board adopted the Sticker, numerous citizens, organizations, churches, and academics from around the country contacted the School Board and individual School Board members to praise them for then decision to open the classroom to the teaching and discussion of creationism and intelligent design," reads the opinion of the court. This is the full text of the sticker:

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.

The people who asserted that criticism of natural selection necessarily entails acceptance of creationism are just plain silly. Not p does not imply q. It implies only not p.

Okay, okay, so creationism isn't a scientific theory. We already knew that. What about the law?

The opinion in this case asserts that courts have struck down numerous "balanced treatment" laws because those laws, far from attempting to be objective, were attempting to endorse a religious viewpoint:

Freiler v. Tangipahoa Parish Bd of Educ., 185 F.3d 337 (5th Cir 1999) (invalidating disclaimer required to be read to students prior to teaching of evolution because the disclaimer had the primary effect of endorsing a particular religious viewpoint). Daniel v. Waters, 515 F.2d 485 (6th Cir 1975) (declaring unconstitutional a statute that required a disclaimer to accompany all theories of origin except the Biblical theory of creation and that precluded the teaching of occult or satanical beliefs of human origin), McLean v. Arkansas Bd of Educ. 529 F.Supp 1255 (E.D. Ark 1982) (striking down statute that required balanced treatment of creation science and evolution in public schools).

The test of whether or not a government message violates the Establishment Clause of the Federal Constitution ("Congress shall make no law respecting an establishment of religion") is articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971):

[A] government-sponsored message violates the Establishment Clause of the First Amendment if (1) it does not have a secular purpose, (2) its principal or primary effect advances or inhibits religion, or (3) it creates an excessive entanglement of the government with religion.

If a government-sponsored message does not meet one of these prongs, then it is unconstitutional under the Establishment Clause.

The U.S. District Court in this case affirmed that the textbook sticker does have a secular purpose. In analyzing the second prong of the Lemon test, the Court believes that the Sticker fails the "effect" test:

In this case, the Court believes that an informed, reasonable observer would interpret the Sticker to convey a message of endorsement of religion. That is, the 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.

In coming to this conclusion, the Court said that the "problem with this language is that there has been a lengthy debate between advocates of evolution and proponents of religious theories of origin specifically concerning whether evolution should be taught as a fact or as a theory, and the School Board appears to have sided with the proponents of religious theories of origin in violation of the Establishment Clause." How has the school board "appear[ed]" to have sided with proponents of religious theories? Again, I must emphasize that critically considering a theory is not tantamount to the negation of that theory. Unless, of course, Cobb County is denying the existence of the fact of evolution (that is, biological change over time), which is not religious entanglement, but just stupidity.

Or is it? "This Court's review of anti-evolution cases indicates that whether evolution is referenced as a theory or a fact is certainly a loaded issue with religious undertones," says the opinion. Remember: the existence of biological change over time is a fact supported by evidence. The existence of natural selection, however, is a theory. In this case, the sticker suggests that evolution is not a fact, and to say this is, as the court notes, a loaded statement. It is akin to suggesting that the heliocentric model of the universe is only a theory, when it is really a fact supported by evidence. The court also observed that "encouraging the teaching of evolution as a theory rather khan as a fact is one of the latest strategies to dilute evolution instruction employed by antievolutionists with religious motivations." To put an asterisk next to everything a student learns about evolution, with the footnote "There's a good chance that this information isn't true" is plainly not a true statement. The court's basis for invalidating the Sticker based on the effect prong is that "the School Board should have called evolution a fact."

My original intent when writing this entry was to demonstrate that the court's decision was wrong, that asking students to critically consider evolution did not constitute an endorsement of religion. Reading the case, further, however, it became clear to me that calling evolution a "theory" rather than a "fact" was disingenuous and false on its face. Perhaps a sticker saying that "natural selection is a theory" would have been more true.

Ultimately, I agree with the District Court on both prongs of the Lemon test. While the school board's purpose may not have been to advance or inhibit religion (and the Court agreed that this was not the purpose), its effect has been to advance religion through the denigration of evolution. More seriously, the Sticker makes a patently false statement -- that evolution itself is a theory -- and has the effect of advancing the conservative Christian opposition to evolution. In retrospect, if I were a judge and this case came across my desk for an appeal, I would probably deny the appeal and let the District Court ruling stand.