Are the Georgia Labels Unconstitutional?
In Thursday's posts I reported on the trial currently underway regarding the decision by the School Board of Cobb County, GA to insert the following warning labels into their biology textbooks:
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.
Now, all sensible people can agree that this one dumb label. But is it unconstitutional? That's a tough call. Ed Brayton of Dispatches from the Culture Wars offers his thoughts here:
After reading the complaint and the response, as well as talking about it with a couple of people, I'm not entirely convinced that the disclaimer really is unconstitutional. Certainly the argument here is thinner than it has been even in past disclaimer cases, the most obvious one being Freiler v. Tangipahoa Parish Board of Education. The only real argument is that the school board was motivated by a desire to protect the religious views of some students and parents with the disclaimer, but is that motivation enough to overturn it on establishment clause grounds? One can envision many circumstances in which a government body, whether a legislature or a school board, would exercise an entirely legitimate authority with a religiously-derived motivation. But if it's a legitimate authority being exercised, does the motivation make it illegitimate? It's a very close question, I think. I'd be interested in hearing the opinions of the attorneys who read this blog on that question.
According to the Lemon Test, for a state action to be allowable under the Establishment Clause it must serve some secular purpose. It is not clear to me what the secular purpose is behind this label. Specifically, what secular purpose is there for singling out evolution for critical scrutiny? It has been reported elsewhere that a proposed warning label that would encourage students to critically analyze all scientific theories was turned down. I have not seen the response of the School Board to the ACLU's complaint, but it seems to me they would have to find some secular purpose for singling out evolution that wasn't served by a more general label. I can't imagine what that purpose would be.
It's definitely a close call, though. Since everyone knows the intent of the label is primarily religious, the trial will come down to how convincingly the School Board's representatives can lie about the reasons for the label.