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Judge Clarence Cooper on Thursday looked like he wanted to avoid the crossfire at the beginning of his 44-page decision that ordered Cobb County, Ga., public school officials to remove stickers from science books that declared evolution “a theory, not a fact.” Noting he was the recipient of numerous letters and e-mails concerning the case, the 62-year-old federal judge pointed out that his ruling “takes no position on the origin of the human species” and does not resolve whether public schools can constitutionally teach “that only an intelligent or supernatural cause could be responsible for life.” Despite his cautionary preamble, Cooper’s decision that the stickers conveyed an “endorsement of religion” barred by the First Amendment sparked the language of the culture wars. Michael E. Manely, the Marietta, Ga., lawyer who brought the suit on behalf of five parents who objected to the stickers, praised the decision as a victory in the fight against “the fundamentalist right” and a win for students in the Cobb schools. “They won’t have to endure religious dogma in science class,” added Manely, who argued the case along with the American Civil Liberties Union. Sadie Fields, who heads the Christian Coalition of Georgia, called the decision “a classic example of a judge overstepping” his bounds by interfering with a local government. For his part, Cooper tried to keep his ruling narrow, but the facts of the case required him to wade into ideological controversy. Since 1979, the Cobb County School District had maintained a policy acknowledging that evolution conflicted with some students’ family teachings, and, accordingly, did not require any study of the origin of human species for students to graduate from high school. Teachers were asked not to discuss human evolution, and it was common practice in some science classes to remove pages dealing with evolution from textbooks. In 2002, the board decided to purchase new science textbooks that taught evolution. Marjorie M. Rogers, a Marietta lawyer who believes in Genesis’ account of a literal six-day creation, led a petition drive in which 2,300 people said they opposed teaching evolution as a fact. In response to the outcry, Cooper wrote, the school board decided to place a sticker in biology books that read: “This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.” Cobb parents, including Jeffrey Selman and Kathleen Chapman, objected to the stickers as promoting a religious point of view. Manely and the ACLU sued the school board for violating federal and state constitutional guarantees against an establishment of religion. Marietta attorney E. Linwood Gunn IV, representing the school board, argued that the stickers were inserted as part of the board’s determination to have evolutionary science taught — a radical change given the board’s old policy. Cooper presided over a bench trial in November that saw the testimony of scientists from both sides who argued for evolution, as well as for alternative concepts of creation, such as intelligent design. Despite the national interest from pro- and anti-evolutionists, Cooper tried to keep the trial focused not on the validity of the science, but, more narrowly, on whether the textbook sticker had a religious purpose. His decision came almost two months following the end of the trial. He cited the so-called Lemon test, based on a 1971 U.S. Supreme Court decision that said a government-sponsored message violates the Establishment Clause if it does not have a secular purpose, advances or inhibits religion, or “creates an excessive entanglement of the government with religion.” Persuaded that the Cobb board wanted to promote critical thinking among students and not offend parents who do not believe in evolution, Cooper held that the stickers passed the first part of the Lemon test — that they had a secular purpose. But the history behind the stickers doomed their chances on the Lemon test’s “effect” and “entanglement” prongs. Cooper took note that the stickers were a reaction to complaints from parents who wanted religious theories taught at the schools. Citing three recent law review articles from the University of Notre Dame, the University of Hawaii and Vanderbilt University, Cooper found that “encouraging the teaching as theory rather than as fact is one of the latest strategies to dilute evolution instruction employed by anti-evolutionists with religious motivations.” Thus, Cooper concluded, “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.” Cooper added that the sticker “misleads students” regarding the significance of evolution “for the benefit of religious alternatives,” in particular by singling out evolution as a theory that should be considered carefully. “By denigrating evolution,” Cooper wrote, “the School Board appears to be endorsing the well-known prevailing alternative theory, creationism or variations thereof, even though the Sticker does not specifically reference any alternative theories.” Selman v. Cobb County School District, No. 1:02CV2325-CC (N.D.Ga. Jan. 13, 2005). J. Randy Beck, who teaches constitutional law at the University of Georgia and advises the Christian Legal Society, suggested that the parents who disliked evolution were the losers, not the winners, in placing disclaimers in textbooks because evolution is being taught. “Consequently, one could question whether a reasonable observer would really view them as favored political insiders, once the entire context is considered,” said Beck. The school board issued a statement that said it had not decided whether to appeal the ruling. Gunn, the school board’s lawyer, said that under Cooper’s decision, anytime someone criticizes or disputes evolution “that becomes an endorsement of religion.” “The way I read it,” he added, “evolution has a special status.” Margaret F. Garrett of the ACLU, however, said the judge properly focused on evolution being singled out as a theory needing special consideration, which in effect undermined the theory in favor of religious views. She said the decision was “a win against the government” imposing its views on religion in schools and, instead, leaving the matter “for the parents to decide.”

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