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'Evolution is theory' sticker on court docket

ATLANTA — Under orders from a federal judge, school staffers and students used putty knives and a glue remover last spring to erase the evolution debate from 34,452 Cobb County schoolbooks.

The famous stickers declared evolution "a theory, not a fact," but U.S. District Court Judge Clarence Cooper said that assertion had more to do with religion than science.

This week, in a nation still riven by disagreement over the ascent of man, the federal appeals court in Atlanta will hear arguments on whether the metro Atlanta school district's stickers did, indeed, violate the First Amendment's rule that government may not establish a religion.

"This case, like the recent Dover, Pa., case on intelligent design, is one of the storm signals of new collisions between religion and science and between law and religion," said John Witte, director of Emory University's Center for the Study of Law and Religion.

Witte said the Cobb appeal may prove to be an influential test case and will be closely watched by all sides in the debate.

The federal trial in Pennsylvania — over whether the Dover Area School District may require intelligent design instruction in ninth-grade biology classes — ended a month ago, but the judge has yet to rule. The Dover school board was sued after it decided that evolution is "not a fact" and issued a statement referring students to the intelligent design book, "Of Pandas and People," for more information.

A few days after the trial, Dover voters dumped eight of the nine school board members who adopted the policy.

That same week, Kansas became the fifth state — joining Minnesota, New Mexico, Ohio and Pennsylvania — to adopt standards that clear the way for teaching intelligent design and creationism.

In August, President Bush weighed in by endorsing the teaching of both intelligent design and evolution.

With Americans hardly in agreement on human development, three judges of the 11th U.S. Circuit Court of Appeals will now consider the constitutionality of Cobb's evolution disclaimer. The case will be argued Thursday.

Cobb school board member Betty Gray said she is unsure whether the board will return the stickers to textbooks, even if it prevails on appeal.

"But the emotional impact of this is something else," Gray said. As for having to remove the stickers, she said, "It was just about the most aggravating and frustrating thing you've ever seen."

The divisive issue has roiled school districts since 1925, when Tennessee high school teacher John Scopes was prosecuted and convicted for teaching the Darwinian theory of human evolution.

Beginning in 1968, the U.S. Supreme Court struck down laws banning the teaching of evolution or requiring the teaching of both evolution and creationism in public schools.

A previous disclaimer case to reach a federal appeals court required teachers in Tangipahoa Parish, La., to tell students that evolution lessons were "not intended to influence or dissuade" them from their beliefs in "the biblical version of creation or any other concept." The 5th U.S. Circuit Court of Appeals in New Orleans struck down that policy in 1999, finding that the disclaimer protected and maintained a particular religious viewpoint.

In the Cobb County case, attorneys general from Alabama, which began affixing its own evolution disclaimers to biology textbooks in 1996, and Texas have filed friend-of-the-court briefs before the 11th Circuit. They urge the court to find the Cobb stickers constitutional.

Cobb's stickers read: "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 Cobb school district adopted the language when it realized in 2001 that certain biology textbooks under consideration would violate the district's evolution policy.

That regulation, adopted in 1995, said the curriculum should be organized to avoid compelling any student to study the origin of species. Evolution instruction had been curtailed at least partly because teachers were afraid it would conflict with some students' religious beliefs. In some cases, pages referring to evolution had been ripped out of textbooks.

Ultimately, Cobb's school board decided that one textbook, "Biology," written by Kenneth Miller and Joseph Levine, was the best biology textbook for high school students — even though it included 101 pages on evolutionary theory.

Once Cobb parents learned the evolution curriculum was being strengthened, they deluged the school board with phone calls and e-mails both for and against the new schoolbooks. Parent Marjorie Rogers, who identifies herself as a six-day biblical creationist, mounted a petition drive decrying "Darwinism, unchallenged" that attracted 2,300 signatures.

The petition asked the board to place a statement prominently at the beginning of science texts warning students that material on evolution was not factual, but rather a theory. When the science textbooks were issued to middle and high school students in the fall of 2002, they contained the evolution disclaimer language.

In his ruling, issued in January, Cooper, elevated to the federal court bench by President Bill Clinton in 1994, applied a three-pronged test called for in 1971 by the U.S. Supreme Court to settle church-state disputes. A law is to be upheld only if it has a secular purpose, neither advances nor inhibits religion and does not excessively entangle government and religion.

In finding that the sticker passed the "purpose prong," Cooper determined that the board's stated goal of using the sticker to foster critical thinking was not a sham. He found "highly credible" the testimony of school board members who said they adopted the sticker to placate their constituents and tell them that students' personal beliefs would be respected and tolerated in the classroom.

But Cooper said the sticker failed to pass the second — or "effect" — prong because the disclaimer conveys an impermissible endorsement of religion.

By adopting the language it did, the school board adopted a distinction that "religiously motivated individuals have specifically asked school boards to make in the most recent anti-evolutionary movement. ... Although the message on the sticker might be small in size when compared to the numerous pages of material on evolution in the textbook, the message has an overwhelming presence."

In his appeal filed before the 11th Circuit, Cobb school board attorney Linwood Gunn noted the language on the sticker makes no mention of religion and is "neutral on its face." The court should take into account that the school board "was taking substantial actions to correct previous problems with evolution instruction," he said.

"The mere fact that a part of the language of the sticker may coincide with the religious views of some citizens does not render it unconstitutional," Gunn wrote.

But Jeffrey Bramlett, an Atlanta lawyer who will argue on behalf of the American Civil Liberties Union and five parents who sued the Cobb school district, said the school board should have left well enough alone rather than affix the stickers to science textbooks.

"Cobb's school board crossed the legal Rubicon when it festooned a perfectly good biology textbook with a political sticker that promotes the cause of scientific confusion," Bramlett said last week. "For the millions of us who experience no conflict between the advance of scientific knowledge and the teachings of our faith traditions, this case is a quaint aftershock from a bygone era."

Bill Rankin writes for The Atlanta Journal-Constitution. E-mail: brankin@ajc.com