Commentary on Selman v. Cobb County

I spent part of the weekend reading the opinion of the 11th Circuit Court of Appeals decision in Selman v. Cobb County. While the Court stated, ". . . we want to make 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," the 43 page decision gives plenty of information on the Court's position on many key issues in the case, and, by extension, in any other case involving teaching evolution in public schools. It was also good for a few chuckles.

For example, the Court had this to say about the reasoning of the District Court:

The court thought that the board’s decision to have a sticker placed in the textbooks came about because of the letter Marjorie Rogers wrote to the board and the 2,300 name petition it thought that she had submitted to the board. Having outlined the sequence of events in its factfinding and purpose inquiry, the district court specifically relied on the timing of events in concluding that the sticker had the effect of advancing or endorsing religion. Id. at 1308 (stressing the sequence of events).

There is a serious problem with that reasoning. The findings on which it is based are not adequately supported by the evidence in the record before us. The evidence in the record before us does not establish that the Rogers letter was submitted to the board before it adopted the sticker. And the only petition in the record that resembles the one the court described came well after the board’s action. (p. 22; bold added).

So the court is saying that the reasoning that led to the essential holding in the case that the sticker had the effect of advancing or endorsing religion had a serious problem. The district court was dead wrong on the chronology of the critical events in the "sequence of events" on which his holding was based. It is hard to see how the district court can come up with the same holding on remand without looking foolish. If he comes up with the same holding and bases it on different facts, he is likely to look foolish for not mentioning these facts the first time around. Despite their insistence that this is not a reversal, it is hard to see how it is not, in fact, a functional reversal, if only temporary.

On a number of points, the Appeals Court decision is an enormous embarrassment to the district court judge. The error discussed above shows incredible sloppiness on his part. How can you base your holding on two events that allegedly led to the Board's decision, and not realize that those events took place after the Board meeting where the sticker decision was made?

The Appeals Court did not use explicitly insulting language in criticizing the District Court judge, but they did include this in their instructions to the lower court on remand:

Whatever the court decides to do, however, it should take care to ensure that any and all evidence on which it bases any findings is part of the record before it. (p. 34).

Ouch. This is equivalent to telling a professional photographer to remember to take the lens cap off, or telling a race car driver to remember to put fuel in the car.

That is enough for today. I will probably comment more later.

My previous post on this decision is here.