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A three-judge panel of the 11th U.S. Circuit Court of Appeals sounded particularly skeptical Thursday of a lower court’s January ruling that removed stickers calling evolution “a theory, not a fact” from Cobb County, Ga., biology books. Judge Edward E. Carnes, joined by Judges Frank M. Hull and William H. Pryor Jr., led sharp questioning of Jeffrey O. Bramlett, who represented the challengers of the sticker and had to defend the January ruling of U.S. District Judge Clarence Cooper. All three judges sounded concerned about both Cooper’s decision and the sticker challengers’ briefs, which listed incorrectly the events leading up to the placement of the stickers. Carnes ended the hearing by upbraiding Bramlett for failing to correct the timeline problems. “That’s just wrong,” Carnes said in frustration. Bramlett said that he had not been the trial attorney. But Carnes was not satisfied and said he would expect a filing from Bramlett explaining how the timeline confusion came to be included in the appellate brief. The overall issue was the stickers, which state, “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.” Responding to a suit by parents objecting to the stickers, Cooper ordered them removed because he found they conveyed an “endorsement of religion” barred by the First Amendment. Selman v. Cobb County School District, 390 F. Supp. 2d 1286. Cobb County appealed and was represented by Ernest Linwood Gunn IV, who opened arguments by directly assailing Cooper’s ruling that religion was entangled with the stickers. He pointed out that, under the county’s old curriculum, Cobb barred courses teaching evolution in elementary and middle schools and allowed them only as electives in high school. Thus, he argued, the school board actually had taken pro-evolution action by using a new textbook that taught evolution. “If they wanted to restrict the teaching of evolution, they would have done nothing,” said Gunn. He conceded that media attention and public controversy surrounding the decision to use the new textbooks spurred the sticker placement, a move meant to be sensitive to the concerns of Cobb parents who objected to the book’s lessons on evolution. Gunn also noted that after the stickers were in place, there were few complaints from teachers or students. “If you read the briefs, you think there were all sorts of horrible things happening in the classrooms,” he said. “It’s as if there’s a huge waterfall … and there’s this one little rock in the way. It doesn’t change the course of the waterfall; it doesn’t change anything.” Pryor, the court’s newest member and one whose confirmation hearings were marked by questions that he may be overly deferential to religion, seemed more concerned with sorting out the factual arguments from the legal basis of Cooper’s ruling. “The district court said one of the purposes was to reduce offense,” said Pryor. “Is that true?” Gunn conceded that allaying some of the divisiveness of the issue was a key concern. But, he said, “the sticker stands for open-mindedness and tolerance. � The school board was not discriminating against viewpoint. They were acknowledging that kids come to the classroom with some preconceived notions, and that sometimes science teachers teach things in a dogmatic way that ignores those kids’ notions. “There’s nothing religious here,” he noted. “There’s no Establishment Clause issue at all.” CONFLICTING ACCOUNTS When it was Bramlett’s turn to argue for the sticker challengers, Carnes interrupted the Bondurant, Mixson & Elmore partner almost immediately. The judge pointed to Cooper’s assertions that the sticker originated with a letter from an avowed abortion opponent and a petition with more than 2,300 signatures supporting a sticker. Then Carnes noted that the Cobb County appeal showed that the sticker had been in place “Four or six months before the petition,” and that the purported letter could not be found. “So that’s just wrong, isn’t it?” asked Carnes. Bramlett agreed. “The district court gives two bases for its decision, and both of them were wrong,” Carnes said. “Do we not have evidence about where [the sticker idea] came from?” asked Pryor. “It’s hard for me to believe nobody asked that question before,” added Carnes. Bramlett responded, “The dates are important, but the context of the decision … to place them in the textbooks is really the key issue.” Carnes then turned to the sticker itself, reading it aloud, and noted that he had read the textbook sections on evolution. “Your difficulty,” he told Bramlett, “is that you’ve got to take something that actually is reflective of the content of this textbook you like so much, and say it violates the First Amendment.” Again, Bramlett pointed out Cooper’s observation that a “reasonable observer” of the historical struggle over evolution, as well as Cobb’s history with the theory, would conclude that religious overtones surrounded the entire issue. He also pointed out — as did Cooper’s opinion — that no other scientific “theory” had been so challenged. Carnes conceded the point, but responded that evolution — which he described as a “collection of theories, speculations and hypotheses” — was far less settled than the “theories of gravity, relativity, and Galilean heliocentrism, whatever that is.” (Cooper had cited those theories as evidence that evolutionary theory was singled out for particular suspicion.) Bramlett also offered that the stickers violated Georgia’s constitutional guarantees of a quality education for each student, but Carnes declined to address that issue. “I see no reason why we need to be striking down state statutes,” he said. As the hearing concluded, Carnes took the highly unusual step of recalling Bramlett to the lectern. “I am troubled by one part of your brief,” he said, pointing to Bramlett’s assertion that the petitions contributed to “a public firestorm of controversy” before the textbooks were selected. Outside the courtroom, Bramlett was asked whether he would have any trouble satisfying Carnes’ demand for an explanation for the inclusion of incorrect timeline information in his brief. Bramlett replied, “Not too much.” The case is Selman v. Cobb County Bd. Of Ed., No. 05-10341-1.

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