Selman v. Cobb County School Dist.

Decision Date13 January 2005
Docket NumberCiv.A. No. 1 02-CV-2325-CC.
Citation390 F.Supp.2d 1286
PartiesJeffrey Michael SELMAN, Kathleen Chapman, Jeff Silver, Paul Mason, and Terry Jackson, Plaintiffs, v. COBB COUNTY SCHOOL DISTRICT and Cobb County Board of Education, Defendants.
CourtU.S. District Court — Northern District of Georgia

Gerald R. Weber, Margaret Fletcher Garrett, American Civil Liberties Union Foundation of Georgia, Inc., Atlanta, GA, Michael Eric Manely, The Manely Firm, Marietta, GA, for Plaintiffs.

Ernest Linwood Gunn, IV, Brock Clay Calhoun Wilson & Rogers, Marietta, GA, for Defendants.

Lynn Gitlin Fant, Office of Lynn G. Fant, Marietta, GA, for Amicus.

George M. Weaver, Hollberg & Weaver, Atlanta, GA, for Amicus and Intervenor.

Kevin Thomas McMurry, Hollberg & Weaver, Atlanta, GA, Kevin Hayden Theriot Alliance Defense Fund, Olathe, KS, for Intervenor.

ORDER

COOPER, District Judge.

INTRODUCTION

Plaintiffs Jeffrey Michael Selman, Kathleen Chapman, Jeff Silver, Paul Mason, and Terry Jackson (collectively referred to herein as "Plaintiffs") bring this action under 42 U.S.C. § 1983 against Defendants Cobb County School District and Cobb County Board of Education (collectively referred to herein as "Defendants") to challenge the constitutionality of a sticker commenting on evolution, which the Cobb County Board of Education (referred to herein as the "School Board") adopted in March of 2002 and placed in certain science textbooks later that year. Plaintiffs contend that the sticker violates the Establishment Clause of the First Amendment, as incorporated by the Fourteenth Amendment, and the Constitution of the State of Georgia. Plaintiffs are all parents of students attending Cobb County schools,1 and Plaintiffs are residents and taxpayers of Cobb County, Georgia. Plaintiffs seek declaratory and injunctive relief, nominal damages, costs, and attorneys' fees.

This matter involves one of those instances where science and religion both offer an explanation to resolve a controversial issue — namely, the origin of the human species. This issue historically has generated intense controversy and debate precisely because of its religious implications and the belief of some that science and religion cannot coexist. Since at least the 1920s, courts throughout the Nation have been struggling to determine the constitutional limitations that should be placed on public school curriculum concerning the origin of the human species and to delineate clearly the line that separates church and state.

Due to the various challenges that arise in this area, the Court believes it prudent to state from the outset what the instant case is not about. First, the Court is not resolving in this case whether science and religion are mutually exclusive, and the Court takes no position on the origin of the human species. Second, the issue before the Court is not whether it is constitutionally permissible for public school teachers to teach intelligent design, the theory that only an intelligent or supernatural cause could be responsible for life, living things, and the complexity of the universe. Third, this case does not resolve the ongoing debate regarding whether evolution is a fact or theory or whether evolution should be taught as fact or theory.

To be clear, this opinion resolves only a legal dispute. Specifically, the narrow issue raised by this facial challenge is whether the sticker placed in certain Cobb County School District science textbooks violates the Establishment Clause of the First Amendment of the United States Constitution and/or Article I, Section II, Paragraph VII of the Constitution of the State of Georgia.

The findings of fact and conclusions of law adduced below are based on the Court's review of the evidence presented at trial, the testimony of the witnesses at trial, the parties' trial briefs, the parties' proposed findings of fact and conclusions of law, the other documents and evidence in the record, and the applicable law.2

FINDINGS OF FACT

Evolution is the dominant scientific theory regarding the origin of the diversity of life and is accepted by the majority of the scientific community3 (Miller Trial Test; Moreno Trial Test, McCoy Trial Test, Stickel Trial Test).4 The inclusion of this theory in the curriculum of Cobb County Schools has been a source of controversy for quite some time. In 1995, the Cobb County School District maintained a policy, which was adopted in 1979 and revised on several occasions thereafter, stating the following

The Cobb County School District acknowledges that some scientific accounts of the origin of human species as taught in public schools are inconsistent with the family teachings of a significant number of Cobb County citizens. Therefore, the instructional program and curriculum of the school system shall be planned and organized with respect for these family teachings. The Constitutional principle of separation of church and state shall be preserved and maintained as established by the United States Supreme Court and defined by judicial decisions.

Defs' Ex. 1.

A more specific statement regarding the practicality of teaching theories of origin in Cobb County public school classrooms, the Cobb County School District's regulation concerning theories of origin read as follows in 1995

In respect for the family teachings of a significant number of Cobb County citizens, the following regulations are established for the teaching of theories of the origin of human species in the Cobb County School District:

(1) The curriculum of the Cobb County School District shall be organized so as to avoid the compelling of any student to study the subject of the origin of human species.

(2) The origin of human species shall be excluded as a topic of curriculum for the elementary and middle schools of the Cobb County School District.

(3) No course of study dealing with theories of the origin of human species shall be required of students for high school graduation.

(4) Elective opportunities for students to investigate theories of the origin of human species shall be available both through classroom studies and library collections which shall include, but not be limited to, the creation theory.

(5) All high school courses offered on an elective basis which include studies of the origin of human species theories shall be noted in curriculum catalogs and listings which are provided for students and parents for the purpose of course selection.

Defs' Ex. 2.

Neither the former policy nor regulation explicitly references evolution, but both imply that a significant number of Cobb County citizens maintain beliefs that are deemed to conflict with evolution. Not all Cobb County teachers interpreted the former policy and regulation to require teaching on evolution, although the state curriculum apparently mandated such teaching. (McCoy Trial Test, Searcy Trial Test)5 In fact, it was common practice in some science classes for textbook pages containing material on evolution to be removed from the students' textbooks (Tippins Dep., p. 86, ll. 11-15; Searcy Trial Test) With respect to human evolution specifically, teachers were asked not to discuss that topic in required courses for graduation but to restrict the topic to those courses that were considered electives (McCoy Trial Test).

In the Fall of 2001, the Cobb County School District began the process of adopting new science textbooks (Redden Aff. ¶ 3.) The textbook adoption process started with the formation of a textbook adoption committee, which read and studied various books and then recommended certain books for adoption (Redden Dep., p. 5, ll. 18-20, p. 6, ll. 5-8, McCoy Trial Test) In October of 2001, the textbook adoption committee raised concerns regarding curriculum and instruction on theories of the origin of life (Redden Aff. ¶ 3.) One concern of the committee was that a textbook adoption might conflict with the existing policy and regulation on theories of origin (Redden Trial Test.) After a legal review of the issues raised by the textbook adoption committee, the school administration determined that revisions to the policy and regulation would be recommended (Redden Aff. ¶¶ 5-6, Redden Trial Test.) These revisions would strengthen evolution instruction and bring Cobb County into compliance with statewide curriculum requirements (Redden Aff ¶ 6, Redden Trial Test)

Prior to the presentation of the new policy and regulation and based on recommendations received from the textbook adoption committee, the administration recommended science textbooks for adoption by the School Board (Redden Aff. ¶ 7, Redden Trial Test) The committee believed that the textbook written by Kenneth Miller and Joseph Levine, which was one of the books ultimately adopted by the School Board and the textbook that has taken the forefront in this litigation, was the best they had seen for high school students (McCoy Trial Test) George Stickel, Supervisor of High School Science Curriculum, agreed and saw the textbook as offering a comprehensive perspective of current scientific thinking regarding theory of origins. (Stickel Aff. ¶¶ 7-8, Ex. A, B; Stickel Trial Test.)

Once parents of Cobb County students learned that instruction on evolution was being strengthened and that the School Board was in the process of adopting new science textbooks containing material on evolution, certain parents began to express their concerns to School Board members about this issue. (Johnston Dep., p. 7, ll. 14-18, Johnston Trial Test) In accordance with School Board regulation, parents were permitted to review and comment upon the recommended textbooks (Redden Dep., p. 5, ll. 21-25, Gray Trial Test) Only three parents reviewed the books containing material on evolution at the formal review session conducted on February 26, 2002 (Doc. No. 77, Ex. 42) Of these three parents, one parent submitted a comment form stating that he was "very happy w/the inclusion of evolution, even if...

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    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
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    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
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    ...the sticker from all textbooks and permanently enjoined them from disseminating the sticker in any form. Selman v. Cobb County Sch. Dist., 390 F.Supp.2d 1286, 1313 (N.D.Ga.2005). The findings of fact and conclusions of law contained in the court's order were explicitly based on: "the Court'......
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