a.
When
Insiders Are Outsiders and Outsiders Are Insiders: Cobb v. Selman County School
District as a Heckler’s Veto
In Allegheny County, Justice Kennedy
criticized the endorsement test as “flawed in its fundamentals and unworkable
in practice.”[1]
It is a subjective and indeterminate test, “an incoherent mess” that can be
used to reach any result you wish it to reach.[2]
Interestingly, a recent empirical study of Establishment Clause decisions in
federal courts concluded that “the Supreme Court’s Establishment Clause
jurisprudence invites even the most conscientious of judges to draw deeply on
personal reactions to religious symbols and political attitudes about religious
influence on public institutions or policies. Sadly, the Court’s Establishment
Clause doctrine has become an attractive nuisance for political judging.”[3]
Perhaps there is no better example
of the ambiguous and subjective nature of the endorsement test than Selman v. Cobb County School Dist.,[4]
a case in which a federal district judge considered the constitutionality
of a local school board’s attempt to deal with the coverage of evolution in
public school science classes. The facts of the case are simple. Cobb County
school officials adopted a policy designed to “strengthen evolution
instruction”[5]
in the schools and, in pursuit of this goal, adopted a science textbook that
provided “a comprehensive perspective of current scientific thinking regarding
theory of origins.”[6]
When some parents expressed concern
about this, the school board responded to these complaints by requiring the
following sticker to be placed in the science textbooks: “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.”[7]
Of course, other parents objected
to the Sticker. One such offended observer opined that she was alarmed because
she “felt that the Sticker ‘came from a religious source’ because, in her
opinion, religious people are the only people who ever challenge evolution.”[8]
Some of these offended observers sued in federal district court to challenge
the sticker’s constitutionality under the incorporated Establishment Clause.[9]
District Judge Cooper applied the
endorsement test to the Sticker and found that it served two clear secular
purposes:
First, the Sticker fosters critical thinking by encouraging
students to learn about evolution and to make their own assessment regarding
its merit. Second, by presenting evolution in a manner that is not
unnecessarily hostile, the Sticker reduces offense to students and parents
whose beliefs may conflict with the teaching of evolution.[10]
He thus concluded the Sticker satisfied the purpose prong of
the Lemon/endorsement test and went
on to consider “whether the statement at issue in fact conveys a message of
endorsement or disapproval of religion to an informed, reasonable observer.”[11]
Astonishingly, Judge Cooper decided
that a “reasonable observer would interpret the Sticker to convey a message of
endorsement of religion,”[12]
and explained his conclusion as follows:
That is, the Sticker sends a message to those who oppose
evolution for religious reasons that they are favored members of the political
community, while the Sticker sends a message to those who believe in evolution
that they are political outsiders. This is particularly so in a case such as
this one involving impressionable public school students who are likely to view
the message on the Sticker as a union of church and state.[13]
In other words, the “political outsiders” are those whose
views are comprehensively taught inside the textbook and the “favored”
political insiders are those who get only the Sticker. Even an impressionable
child knows that the real insiders are those who get the cake and the real
outsiders are those who are allowed only to lick the crumbs off the table. The
Sticker was a consolation prize designed to assure the real outsiders that the
school’s decision to strengthen its teaching of evolution was “not unnecessarily
hostile” to parents whose religious beliefs contradict what their children are
being taught in the public school classroom. This message endorses, not
religion, but rather religious tolerance and respect “for students and parents
whose beliefs may conflict with the teaching of evolution.”[14]
The Sticker did not deprive any
parent or any child of any liberty protected by the First Amendment. However,
by censoring the Sticker to appease the offended observers, Judge Cooper sent a
clear message to those whose religious beliefs deny human evolution that they
are entitled neither to the cake nor the crumbs. This is a court-ordered
heckler’s veto that denies the Sticker’s willing audience access to a message
designed, not to endorse their religion, but rather to assure them that no
disrespect was intended by the school board’s curricular decisions. The
incorporated Establishment Clause was employed by the court in Selman not to advance liberty but rather
to restrict liberty. In a tolerant and pluralistic society, this case should
come out the other way.
[1]
Allegheny County, 492 U.S. at 669
(Kennedy, J., concurring in part and dissenting in part).
[2]
Steven G. Gey, Vestiges of the
Establishment Clause, 5 First
Amendment L. Rev. 1, 4 (2006) (“One of the few things scholars of every
stripe seem to agree about is the proposition that the Court’s Establishment
Clause jurisprudence is an incoherent mess.”) See also American Jewish Congress v. Chicago, 827 F.2d 120, 129 (7th
Cir. 1987) (Easterbrook, J., dissenting) (under the Court’s Establishment
Clause jurisprudence, “a judge can do little but announce his gestalt.”)
[3]
Gregory C. Sisk & Michael Heise, Ideology
“All The Way Down”? An Empirical Study of Establishment Clause Decisions In The
Federal Courts, 110 Mich. L. Rev.
1201, 1263 (2012). This study demonstrated that the most important variable in
predicting the outcome of Establishment Clause decisions in the lower federal
courts was whether the judge was appointed by a Democratic president or a
Republican president. Id. at 1204-05.
The authors further concluded that “the subjectivity of Establishment Clause
doctrine has passed the point of tolerability” and, as a result, “the door to
unrestrained political judging has been thrown wide open.” Id. at 1207.
[4]
390 F. Supp. 2d 1286 (N.D. Ga. 2005), vacated 449 F. 3d 1320 (11th Cir. 2006)
[5]
Id. at 1290.
[6]
Id. at 1291.
[7]
Id. at 1292.
[8]
Id. at 1297.
[9]
Id. at 1288.
[10]
Id. at 1305.
[11]
Id.
[12]
Id. at 1306.
[13]
Id.
[14]
Id. at 1305.
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