West on Miller
Not everyone liked Ken Miller's op-ed as much as I did. Over at the Discovery Institute's blog, John West has siezed on this paragraph from Miller's editorial:
The judge simply read the sticker and saw that it served no scientific or educational purpose. Once that was clear, he looked to the reasons for slapping it in the textbooks of thousands of students, and here the record was equally clear. The sticker was inserted to advance a particular set of religious beliefs -- exactly the argument advanced by the parents of six students in the district who sued the Cobb County Board of Education to get the stickers removed.
In his blog entry on this subject, West writes:
While the ACLU claimed that the Cobb County school board adopted its textbook sticker in order to advance religion, the judge rejected that claim. Instead, the judge found that the school board adopted the sticker to advance a variety of legitimate secular purposes, including “fostering critical thinking” about evolution.
The judge's decision is available in pdf form here.
Miller was indeed a bit sloppy here. Judge Cooper found that the primary effect of the stickers was the promotion of religion and they were unconstitutional for that reason. However, he also found that the School Board had legitimate secular reasons for inserting the stickers in the first place. Point to West.
We should point out, however, that Judge Copper actually found only two secular purposes behind the sticker, and not the variety West suggests. Judge Cooper wrote:
Based on the evidence before this Court at the summary judgment stage, the
Court ruled that the School Board did not act with the purpose of promoting or
advancing religion in placing the Sticker in the science textbooks. To the contrary,
the Court found that the School Board sought to advance two secular purposes.
First, the School Board sought to encourage students to engage in critical thinking
as it relates to theories of origin. Second, given the movement in Cobb County to
strengthen teaching on evolution and to make it a mandatory part of the curriculum,
the School Board adopted the Sticker to reduce offense to those students and parents
whose personal beliefs might conflict with teaching on evolution. The Court was
satisfied on summary judgment that these two purposes were secular and not a
We will leave aside the issue of whether reducing offense to those people who hold reliigous beliefs contrary to evolution really is a secular purpose.
But what West says next is a far greater mangling of Judge Cooper's decision:
The reason that the judge still ruled the sticker unconstitutional was not that the school board actually intended to advance religion, but because the judge surmised that citizens might mistakenly believe that the sticker was designed to advance religion--even though the judge admitted that it wasn't! Basically, the judge concluded that his fellow citizens were too stupid to figure out what he himself was able to realize--that the school board had legitimate secular reasons for adopting the sticker.
I don't think Judge Cooper would recognize his decision in this description. Here is what Cooper actually wrote (I have omitted the citations for ease of reading):
Thus, the Court's focus here is not on the particular views or reactions held by the Plaintiffs or the numerous citizens and organizations who wrote to the School Board. The Court's focus is on ascertaining the view of a disinterested, reasonable observer.
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. This is
particularly so in a case such as this one involving impressionable public school
students who are likely to view the message on the Sticker as a union of church and
state. Given that courts should be “particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools,” the Court is of the opinion that the Sticker must be declared unconstitutional.
From here Judge Cooper went on to explain in great detail why an “informed, reasonable observer” would conclude that the primary effect of the sticker was to promote religion.
The idea that students were likely to interpret the sticker in the way described was backed up in the “Findings of Fact” portion of the decision:
Notwithstanding the foregoing, it appears that the Sticker 1s impacting science
instruction on evolution. Some students have pointed to the language in the Sticker
to support arguments that evolution does not exist. In addition,
Dr McCoy testified that the Board's misuse of the word “theory” in the Sticker causes “confusion” in his science class and consequently requires him to spend significantly more time trying to distinguish “fact” and “theory” for his students. Dr. McCoy stated that some of his students translate the Sticker to state that evolution is “just” a theory, which he believes has the effect of diminishing the status of evolution among all other theories.
What about the rest of West's statement? Does Judge Cooper really think that his fellow citizens are too stupid to realize what he was able to figure out?
Of course not. The judge came to his conclusions about the Board's purposes in adopting the sticker only after hearing the testimony of the individual Board members and examining the legislative history of the relevant bill. That is information most citizens are not likely to have. All the “informed, reasonable observer” has to go on is the content of the sticker itself, and some basic understanding of the history of attempts to water-down or eliminate the teaching of evolution in schools.
This is why the Supreme Court's Lemon test for Establishment Clause cases makes a distinction between the purpose behind the particular bit of government expression, and the effect of that same expression. It's not a complicated distinction, but one far beyond the reasoning powers of an ID proponent in high dudgeon.