Cobb County Evolution Sticker Case remanded for further findings
On May 25, 2006, the Eleventh Circuit issued its opinion in Selman et al v. Cobb County School District et al, 2006 WL 1428822, known informally as the “Cobb County evolution sticker case.” In an opinion written by Judge Carnes (with Judges Hull and Pryor on the panel), the Court remanded the case to the district court for further factual findings, in light of the significant problems with the state of the evidentiary record that were brought to light on appeal. (Disclaimer: BME represented the plaintiffs on appeal, although not at trial.)
This case was a test of whether the school district’s placement of stickers inside the front cover of biology textbooks stating that “[e]volution is a theory, not a fact, regarding the origin of living things” as an accommodation to parents who objected to teaching evolution on religious grounds was a violation of the 1st Amendment’s Establishment Clause. The district court, after a four-day bench trial, concluded that the sticker did violate the Establishment Clause and the Georgia Constitution, and issued a permanent injunction against the use of the stickers.
The stickers grew out of the official policies of Cobb County to plan its curriculum “with respect for” the “family teachings” of Cobb County citizens. In particular, the school system’s regulations in 1995 stated that evolution would not be taught until high school, at which point it would not be mandatory. At the same time, elective courses on alternative theories such as creation theory would be available. The evolution sections of science textbooks were torn out before the texts were provided to the students.
By 2001, the State of Georgia mandated teaching of evolution, but Cobb County’s 1995 policy remained in place. In 2002, it was time for the school district to adopt new science textbooks. In spite of the school district's policy, the school district’s textbook review committee recommended a text that contained an entire unit on evolution. The school board, based on comments from parents about the text, believed its constituents wanted a text that presented alternative theories of the origin of life, including intelligent design, creation science, and creationism. The board’s counsel advised that intelligent design could not constitutionally be included in a science textbook, but, to address the parents’ concerns, drafted language to place on stickers in the textbooks indicating that evolution was a “theory, not a fact,” and that it should be “approached with an open mind, studied carefully, and critically considered.” The issues surrounding adoption of the science texts apparently prompted a review of the 1995 policy, and in 2002 and 2003, Cobb County revised its policy, providing that evolution would be taught in Cobb County science classrooms, and religion would not be.
The district court viewed the essence of the dispute as whether seeking to accommodate the parents’ religious beliefs and reduce offense was a “secular purpose” or was in fact an intent to promote religion. The court concluded on summary judgment that the board’s purpose was secular, but the case went to trial on the effect and entanglement prongs of the Lemon test because, the district court observed, the sticker arguably disavows evolution and encourages discussion of religious theories in the science classroom.
After the bench trial, the court credited the testimony of board members who, the district court believed, were not trying to disclaim evolution. Rather, the district court found the board had two secular purposes: (1) encouraging students to analyze evolution and make their own decision regarding its merit, and (2) attempting to placate constituents by showing them that students’ personal beliefs would be respected in the classroom. The district court again found the board’s purpose was secular, satisfying the first prong of the Lemon test. However, the district court found that the sticker communicated an endorsement of religion by isolating evolution for special consideration (and a misleading description of its standing in the scientific community), which a reasonable observer would interpret, in light of the history of the issue in Cobb County, to be motivated by the fact that evolution does not acknowledge a creator. Likewise, because the district court believed the board had sent a message that it agreed with the religious beliefs of the Christian fundamentalists and creationists, it found the board had impermissibly entangled itself with religion.
The Eleventh Circuit found that there were “serious problems” the factual basis for the court’s findings. The district court found the stickers constituted both endorsement and entanglement “in light of the sequence of events that led to the Sticker’s adoption,” but the Eleventh Circuit was concerned about whether the evidence supported the district court’s view of the “sequence of events.”
Specifically, the district court believed that the idea of the disclaimer sticker had originated with a parent who both wrote a letter to the Board and submitted a petition requesting such a disclaimer. However, the only petition in the record came well after the board’s decision. Indeed, this particular problem with the record caused the Court, and Judge Carnes in particular, to question the truthfulness of plaintiffs’ appellate counsel at oral argument. (After counsel submitted supplemental briefing explaining the problems with the record, the Court issued an order finding that plaintiffs’ counsel had not misled the Court, and in light of the heavy press coverage of the oral argument, the Court instructed the clerk’s office to distribute this order to the press in order to remove any such impression.)
Judge Carnes’s discussion of the problems with the record in the panel opinion reflects the Court’s ongoing concern and frustration with the state of the record on appeal as transmitted from the district court, and the district court’s factual findings based on that record. Exhibits were missing from the record that could not be accurately or confidently recreated, and it could not be determined whether certain documents supplied by the parties in their supplementation of the record had been before the district court. (Importantly, unlike many other circuits, the Eleventh Circuit generally reviews cases on the full, original district court record, which is transmitted directly from the district court, rather than on a joint appendix created by the parties, so the Eleventh Circuit’s inability to locate information in the “record on appeal” means it was missing from the district court’s original record.) Witnesses had testified about documents (including the missing petition) but those documents had not been entered into evidence, or referenced by exhibit number or other foundational information at the time of the testimony. The Court acknowledged that “[t]he parties have tried diligently but unsuccessfully to correct the record,” but determined that there was nothing the parties or the district court could do to correct the problems pursuant to FRAP 10(e)(2).
On the other hand, the Court declined to apply the usual rule that absence of evidence to support the appeal requires affirmance of the district court’s opinion. The Court reasoned that the problem was not a question of the appellants failing to supply evidence to support their position. (And, as noted above, neither party is responsible for supplying the record on appeal.) Rather, the problem was with evidence that may have gone missing from the record, in spite of the good-faith and diligent efforts of the parties on appeal to recover it, and that this evidence was necessary for the Court to review in order to determine whether there was error. In particular, the Court observed that both parties challenged the district court’s findings (though the defendants did not cross-appeal). Finally, the Court stated that “the issues presented by this case are ones of substantial public importance and need to be resolved on their merits based on the facts instead of based upon mutual mishaps, mistakes, and misunderstandings about the evidence.”
To assist the district court in issuing new factual findings and conclusions of law, the Court made a (nonexclusive) list of eighteen suggested issues that the district court “probably will want to address.” The Court also cautioned that it was not making any implicit rulings on any of the legal issues, nor was it expressing an opinion on how or whether the Georgia constitutional issue should be decided (citing 28 U.S.C. 1367(c) – a reference which, in spite of the disclaimer, actually suggests that the Court is of the opinion it should not have been decided).
The Eleventh Circuit's opinion – particularly the last half of it – reads something like a “what not to do” critique of the trial court record left by the trial lawyers and the district court. (In fact, those of us who are former appellate clerks probably recognize and are deeply in touch with the sort of frustration expressed in the opinion regarding the record on appeal.) But, ironically, the Court’s remand for additional factual findings -- on the ground that the issues raised by the case were of “substantial public importance” and therefore should be decided on the merits -- has the potential to result in the parties declining to pursue the matter further due to the passage of time and the expense of having what will amount to a second trial. Thus, it remains to be seen whether the issues of “substantial public importance” presented by this case will be finally decided on the merits.
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