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“Missing Links” and “Unfilled Gaps” Cause Selman v. Cobb County Case to be Vacated and Remanded

Casey Luskin

Today the 11th Circuit Court of Appeals issued its ruling in the Selman v. Cobb County case, which vacated and remanded the prior ruling of a federal district court. By vacating the problematic ruling, this could be a step towards the vindication of the right of school districts to teach evolution objectively.

The 3-Judge panel found that until “missing links in the documentary chain have been provided” (pg. 33) which would remedy “the unfilled gaps in the record” (pg. 43), they cannot determine if trial court Judge Cooper was correct to find that:

“in light of the sequence of events that led to the Sticker’s adoption, the Sticker communicates to those who endorse evolution that they are political outsiders, while the Sticker communicates to the Christian fundamentalists and creationists who pushed for a disclaimer that they are political insiders.”

The “events” which Judge Cooper apparently references here include (1) a letter sent by a parent to the Cobb County School Board, and (2) a petition of 2,300 community members urging the Cobb County Board to teach evolution more objectively. The Appellate Court unanimously agreed that it was unclear from the record they were given precisely when those documents were given to the school board, so they could not even determine the extent to which the school board relied upon statements from the community when adopting their sticker policy. In a blunt statement from the Appellate Court, they wrote, “we cannot tell from the record what that evidence was” (pg. 3).

It is important to note that the Appellate Court made no findings about the legal reasoning of Judge Cooper’s original decision (pg. 42), deciding to wait until factual issues have been cleared up before ruling on the law. Whether the missing links will be found and the unfilled gaps plugged in subsequent hearings remains to be seen. Perhaps the Darwinists will argue that the events happened too quickly and among too few people to get preserved into the record.

In remanding the case, the Judges suggested that the trial court make some findings of fact on 18 questions. In my view, the most interesting question is as follows:

“(16) Is the statement in the sticker that the material on evolution in the textbook Biology “should be approached with an open mind, studied carefully, and critically considered” consistent with the approach taught in the textbook itself? If not, how is it inconsistent?” (pg. 41)

This insightful question seems to insinuate that Ken Miller’s textbook Biology either is inconsistent with the Cobb County sticker’s policy to approach evolution “with an open mind, studied carefully, and critically considered” or is consistent with that policy, thus weakening the plaintiffs’ grounds for complaining about the sticker.

The suggested lines of inquiry also asked if plaintiffs’ expert biology witness Ken Miller “[has] any qualifications to testify as an expert on the popular meaning of the word ‘theory’?” (pg. 41) and whether “the sticker that evolution is a theory and not a fact [is] generally consistent with the description of evolution contained in the textbook Biology” (pg. 41).

It should be reiterated that this decision is in no way a vindication of Judge Cooper’s legal reasoning in the district court ruling. Thus the Appellate Panel wrote:

“[W]e want to make it clear that we do not intend to make any implicit rulings on any of the legal issues that arise from the facts once they are found on remand. We intend no holding on any of the legal premises that may have shaped the district court’s conclusions on the three Lemon prongs.” (pg. 42)

It is entirely possible that even if the facts do indicate that the documents from the community were given to the school board prior to the adoption of the sticker, that would not necessarily vindicate the trial court’s original ruling. Judge Cooper’s reasoning in the trial ruling was highly problematic, as it effectively held that it is unconstitutional for the government to adopt a policy if it is widely known to be supported by many religious persons in a community, even if the policy has a secular purpose and otherwise secular benefits. Such legal reasoning threatens the political rights of religious persons to advocate for secular policy positions and engage in our democratic process.

Previous analysis of the original trial court ruling in the Selman case can be found here. More information on the Selman v. Cobb County Case can be found at Discovery Institute’s Cobb County Trial resource page, and we have a press release on the latest ruling from the appellate panel here.


Casey Luskin

Associate Director, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.



Selman v. Cobb County