Author: David Opderbeck

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).

To show y’all that I’m not just making up my position on “plagiarism,” I here is a quote from the U.S. Supreme Court on this very issue:

“even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous. “ Anderson v. City of Bessmer City, 105 S.Ct. 1504 (1985).

The Third Circuit, the circuit in which Judge Jones sits, also specifically recognizes that a trial court can adopt a party’s proposed findings verbatim. See Landsford-Coaldale Joint Water Authority v. Tonolli Corp., 4 F.3d 1209, 1215 (1993)(stating, “[w]e similarly reject the [plaintiff’s] argument that the district court’s verbatim adoption of many of [the defendant’s]proposed factual findings contravened the purposes of Fed.R.Civ.P. 52(a) such that they do not warrant review under the clearly erroneous standard. This argument has been rejected by the Supreme Court….”)

Will those who have been trying to make political hay out of this aspect of Judge Jones’ opinion now acknowledge that they are wrong on this point?

A story making the rounds of the conservative email and blog circuit suggests that Judge Jones copied most of the findings of fact in the Kitzmiller opinion from an ACLU submission. I spent 13 years as a litigator in a major firm, where I was a partner, and now I teach law. I have serious problems with the Kitzmiller opinion, which I’ve written about on my blog and also in a letter published in First Things.

However, I have to say that this particular criticism of Judge Jones is terribly misplaced. Trial judges routinely copy from the findings of fact and conclusions of law submitted by the parties — this is exactly why they ask the parties to submit such documents. It is not plagiarism, because the ethical norms governing journalists and scholars simply don’t apply to trial judges in this context.

Trial judges are supposed to decide cases based on the submissions of the parties. This is their job. Anyone who has spent time handling cases at the trial level will immediately see that those making this particular criticism either don’t know what they’re talking about or are trying to make political points out of a non-issue. I sincerely hope they will back off of this non-issue and focus on things of substance.

If you’re serious about understanding and critiquing legal theory, you should buy this book:

It’s big, it’s dense, but becoming familiar with some of the theorists and schools of thought represented in this collection is necessary if you want to write and think carefully about jurisprudence. It’s here on my desk, and I’m resolved to work through those essays I haven’t read before, or haven’t read in a while, over this winter break!