Cobb County Evolution Settlement

The Cobb County, Georgia School Board has settled a case concerning text book stickers with disclaimers about the theory of evolution. The Board agreed not to continue the sticker policy, which had already been abandoned.

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 the 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 end result was right (which I believe it was), 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 if 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).