Re: [asa] Cobb County settles lawsuit

From: David Opderbeck <>
Date: Wed Dec 20 2006 - 10:43:43 EST

I haven't studied this case in any depth and don't know the politics that
led up to this settlement, so I'm only going to make a couple of provisional
comments. My initial reaction is that I find some aspects of Consent Order
settling this case disturbing.

For example, paragraph 2(a) of the order enjoins the school board and its
agents, employees, and successors from *"making any disclaimers regarding
evolution orally, in writing, or by any other means."* Paragraph 3 of the
Order states that it is binding on the school board *"and its officers and
members in perpetuity, notwithstanding any changes to the Board's membership
that may result from further elections, appointments, vacancies, or other
changes to the Board or its composition."* The trial court retains
perpetual jurisdiction to enforce these provisions.

If this broad language is interpreted literally, depending on what
"disclaimers" means in Paragraph 2(a), no teacher in Cobb County can ever
criticize the theory of evolution in any way, nor can the citizens of Cobb
County vote to adopt a policy that would allow teachers to criticize the
theory of evolution in any way, *even in a philosophy or history class.*

When Kitzmiller was decided, I took lots of heat for arguing that, even if
the result was right, the fact that a federal trial judge took it upon
himself to provide a philosophical definition of "science" was bad for
science as a discipline. This Consent Order seems to me like another step
towards control over the philosophy of science by the federal trial courts.
I can't see how this is good for science or for democracy.

Footnote: I would note here two aspects of my initial thoughts on this that
makes them provisional: (1) I'm not sure how a different judge or an
appellate court a few years from now might interpret the term "disclaimers"
in this Order. A court could give it a narrow interpretation that means
only "officially endorsed statements of policy," which makes the Order
somewhat less problematic though still troubling; (2) In the event a court
gave the term "disclaimers" a broad interpretation -- or even a more narrow
interpretation were adopted -- it seems to me that these provisions would be
subject to a strong first amendment free speech challenge. A free speech
challenge, however, would face some difficult procedural hurdles, since this
is an Order entered by consent, which would make a challenge by a
later-elected school board or its agents or employees difficult on grounds
of claim or issue preclusion. (Claim and issue preclusion is a doctrine
that says a party generally cannot relitigate claims or issues that were
raised or could have been raised in an earlier proceeding).

On 12/20/06, James Mahaffy <> wrote:
> James Mahaffy ( Phone: 712 722-6279
> 498 4th Ave NE
> Biology Department FAX : 712
> 722-1198
> Dordt College, Sioux Center IA 51250-1697
> >>> PvM <> 12/20/06 1:01 AM >>>
> It's Kitzmaz all over again :-)
> > It's not a very good year for ID proponents.
> About the only statement I can agree with.
> > First Kitzmiller and the incessant whining about how
> > irrelevant the ruling really was, and then
> > the elections and now Cobb County settling the lawsuit.
> > One may wonder how (ir)relevant the ruling really was.
> I don't care what you wonder. I do care about the broader issue of
> whether or not public education should claim that it is
> neutral and the beliefs of the teachers and the community CAN NOT be
> part of the education. I would content to make the strong separation
> and put some academic areas in the neutral camp is to teach a
> secularism.
> Now that is an issue I would like see us discuss on its merits.
> > The noise from ID suggests that they realize it is far more relevant
> > than they want to openly admit.
> This is a non sequitor if I ever saw one.
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David W. Opderbeck
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Received on Wed Dec 20 10:44:05 2006

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