520 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA 2 ATLANTA DIVISION 3 Jeffrey Michael Selman, ) 4 et al., ) Plaintiffs, ) 5 ) -vs- ) Civil Action 6 ) No. 1:02-CV-2325-CC Cobb County Board of ) Volume IV 7 Education, et al., ) Pages 520-570 Defendants. ) 8 9 10 11 Transcript of the Bench Trial Proceedings Before the Honorable Clarence Cooper 12 November 12, 2004 Atlanta, Georgia 13 14 15 16 APPEARANCES: 17 On behalf of the Plaintiffs: Michael Eric Manely, Esq. Gerald Weber, Esq. 18 Margaret Fletcher Garrett, Esq. 19 On behalf of the Defendants: Ernest Linwood Gunn, IV, Esq. Carol Callaway, Esq. 20 21 22 23 Amanda Lohnaas, RMR, CRR 24 Official Court Reporter United States District Court 25 Atlanta, Georgia Amanda Lohnaas, Official Court Reporter 521 1 (Friday, November 12, 2004, 9:30 a.m.; Atlanta, 2 Georgia.) 3 THE COURT: Thank you. Good morning, please be 4 seated. Court is now in session. 5 This morning we will hear the closing arguments of 6 counsel, after which we will be in recess until the Court rules 7 on this matter. 8 Mr. Manely? 9 MR. MANELY: Yes, sir. 10 THE COURT: You have the right to open and close. 11 MR. MANELY: Yes, sir, we respectfully reserve to 12 close, please. 13 THE COURT: Okay. Go ahead, Mr. Gunn, for the 14 defendants. 15 MR. GUNN: Thank you, Your Honor. I'd like to thank 16 you, first of all, for your thoughtful attention in this case, 17 both pretrial and trial. It's really appreciated and I think 18 this is an important case. I think it's a very unique case. 19 And first I'd like to talk about what it's not about. 20 It's not about restricting evolution instruction. 21 It's not like a lot of other cases where school boards were 22 acting to restrict evolution instruction. I don't think 23 there's any dispute that we've improved our evolution 24 instruction. 25 It's not about teaching intelligent design and Amanda Lohnaas, Official Court Reporter 522 1 creationism. And it's interesting that those buzz words have 2 been thrown around in the case and in the testimony. The one 3 person who tried to define them, Dr. Miller, gave a definition 4 which I'm not sure I quite understood, and I'm sure that other 5 people when they were using those terms weren't necessarily 6 using them in the same way. We've been faulted, I guess, for 7 using some pretty imprecise language in the sticker, and I 8 think there's some imprecise use of language in that respect as 9 well. 10 We can understand that teaching intelligent design 11 and creationism would involve positing a creator and that that 12 may raise a specter that there's some creator that's going to 13 be discussed. But there's really a fundamental difference 14 between teaching about a creator and simply allowing room for 15 that belief when you teach science. I think that's the real 16 key, as I started the case with: Can we teach science and 17 allow for belief in a creator, or are they mutually exclusive? 18 I'd like to first talk about those two competing 19 visions, which is, as I see it, how the case breaks down, and 20 talk about how the Lemon test applies in this case before I 21 conclude. 22 Legally the school district has an obligation of 23 religious neutrality. I think you saw a wide spectrum of views 24 on the stand during this trial. You saw Ms. Rogers, you saw 25 Jeff Selman, you saw a lot of views in between. And the school Amanda Lohnaas, Official Court Reporter 523 1 district has the duty to accommodate religious belief. 2 The question is how do we do that and how do we do 3 that in the context of this case. The unique context of this 4 case, where we came from a position where we restricted 5 teaching evolution in the middle schools, we said evolution 6 instruction may conflict with your family teachings and we're 7 not going to teach it if it does that, to the position where 8 the Cobb County School District is now, where we affirmatively 9 state and we in practice implement instruction on evolution. 10 The sticker was really just an interim step in the midst of 11 this progression from an unconstitutional position to what I 12 believe is a clearly constitutional position, even according to 13 Mr. Selman. 14 The Supreme Court is clear that students don't leave 15 their rights at the schoolhouse door. We can't make them leave 16 their religious beliefs at home. 17 For Jeff Selman the answer to this case is very easy: 18 Never the twain shall meet. Science is over here, religion is 19 over here; evolution's in the science realm and religion 20 doesn't belong anywhere in there. And I think his testimony 21 when I asked him about that was he said something to the effect 22 of why should it even come up. 23 The plaintiffs say that evolution instruction and 24 religion are not related. I think if they're not related, if 25 we have a sticker which says -- at most, a sticker which might Amanda Lohnaas, Official Court Reporter 524 1 create some doubts about evolutionary theory, that can't 2 possibly promote religion. It's intellectually dishonest to 3 say evolution instruction and religion aren't related if you're 4 taking the position that a disparagement, as they call it, of 5 evolution somehow has some relationship to religion. They're 6 either related or they're not. 7 Evolutionary theory and religion are related. The 8 school district could have come into this trial and pretended 9 like the issue never came up in the classroom, but in fact it 10 does. That's why Ken Miller's students at Brown University 11 come up at the end of the semester, after they've learned 12 everything there is to learn about biology, and they ask him 13 about his belief in God. That's why the plaintiffs argue that 14 calling evolution a theory promotes religious belief. That's 15 why Ken Miller had to write letters to school districts around 16 the country to explain that his textbook was not intended to be 17 anti-religious, specifically with regard to the theory of 18 evolution. And that's why Cobb County School District's old 19 policy said evolution should not -- the instruction on 20 evolution should not conflict with your family teachings. 21 Evolutionary theory and religion are related at Brown 22 University, they're related at the California school district 23 that Dr. Miller had to write to to confirm to them that he was 24 not trying to disparage their religious beliefs, and they're 25 related at Cobb County School District. And, I'll talk about Amanda Lohnaas, Official Court Reporter 525 1 it in a minute, they were related for Darwin. 2 In this respect, evolutionary theory is not like 3 other scientific theories. I think that the majority of the 4 scientists that testified agreed with that, it's not like the 5 theory of gravity. And the witnesses who have actually taught 6 evolution in the classroom, including Dr. Miller, Dr. Stickel, 7 Dr. McCoy, all admit it, evolutionary theory presents unique 8 challenges because it's the natural friction, it's the 9 intersection of science and religion, it's a key issue. That's 10 where there's so much media attention to the case. Why is 11 evolution the only theory that's mentioned in the sticker? 12 That's why. 13 Mr. Selman gives lip service to the idea that 14 evolutionary theory and religion are not mutually exclusive but 15 he thinks that somehow you should segregate the ideas in class. 16 It just ignores the reality of the situation and the 17 practicality of the situation. The conflict does come up. 18 Dr. McCoy said that it came up in his class. He was 19 a witness for the plaintiffs and you can rest assured he's 20 completely opposed to the sticker. You can rest assured that 21 he's not got any intention of promoting religion in his class, 22 but religion comes up in his class. He says it comes up now to 23 the same extent that it came up before the sticker was ever an 24 issue. It came up in Dr. Stickel's classes, as he testified, 25 both at Harrison High School before the sticker was ever an Amanda Lohnaas, Official Court Reporter 526 1 issue, it came up when he was teaching college classes in 2 another state. It came up before the sticker was an issue, it 3 will come up after the Court rules on whether the sticker stays 4 in the book or whether the sticker is removed from the book. 5 Mr. Selman's suggestion that we erect some kind of 6 artificial barrier is unrealistic in another sense. How would 7 we do that? Would we shout down a student if they said that 8 conflicts with our religious beliefs? Is that a violation of 9 the free exercise clause if we tell the student: You can't 10 raise an issue that disparages evolution, I don't care if it's 11 scientific, I don't care if it's religious, I'm going to assume 12 that it's religious if you raise that issue. I don't know how 13 you do that as a practical matter. 14 Dr. Plenge gave a description of how we envision that 15 discussion should go. The student may raise an issue like that 16 and you acknowledge the issue and you do it in a respectful way 17 and you move on to the rest of the curriculum. 18 The regulation which relates to how we actually teach 19 it says teachers are expected to set limits on discussion of 20 theories of origin in order to respectfully focus discussion on 21 scientific subject matter, at the same time it's recognized 22 that scientific intrusion may -- scientific instruction may 23 create conflict or questions for some students with regard to 24 belief systems. 25 It's a real world view. That's what happens. We can Amanda Lohnaas, Official Court Reporter 527 1 pretend like it doesn't happen, but when it happens what we 2 envision is that kind of respect for the opinion but at the 3 same time moving back toward the science curriculum. 4 I think the best description you got was the 5 plaintiffs' rebuttal witness, who was completely unprepared, as 6 far as I could tell, of what she was facing here. She's a 7 middle school teacher, where we did not teach evolution before, 8 and she told you about that, we had to tell them I'm not going 9 there, we don't talk about that. That was not a good situation 10 and we were restricting instruction on evolution and Ms. Quenan 11 told you, the middle school teacher, exactly what happens: 12 Before we had problems with that and we had to censor it, we 13 had to tell them we're not going to acknowledge that view. Now 14 we acknowledge the view and we move back to the curriculum. 15 And it's interesting, too, that the middle school 16 teacher, she wasn't talking about the sticker. The sticker was 17 an interim step. She was talking about we had an old policy 18 which was problematic and the new policy, as she said, is much 19 better, it's a better way to do things. 20 The plaintiffs' approach to have students check their 21 beliefs at the schoolhouse door is not only impossible as a 22 matter of practicality, it's not a good idea as a matter of 23 instruction, as Dr. Stickel testified. 24 The sticker says the text should be critically 25 considered and Dr. Stickel talked about what critical thinking Amanda Lohnaas, Official Court Reporter 528 1 is, and it involves the process of a student questioning the 2 facts they're given, assimilating those facts, and being able 3 to analyze them. 4 We want our students to be able to compare and 5 analyze the curriculum in history and science and literature 6 and we want to be able to analyze it in terms of what they know 7 about the real world. Some of them go to church; some of them 8 don't. Some of them read the National Geographic and some of 9 them don't. We want them to be able to assimilate that 10 knowledge. To say that you somehow segregate them makes no 11 sense. Questioning what the student is taught is the key to 12 learning how to think. 13 It's interesting, too, I was thinking that Mr. Manely 14 and myself, Ms. Callaway, all products of Cobb County schools. 15 And I think Cobb County schools have a history of excellence 16 and I'm sure that three of us, hopefully, all want what's best 17 for Cobb County students. But on a fundamental level, the 18 political decision about how to teach critical thinking, how to 19 instruct on a difficult area like evolution, is a matter that's 20 within the discretion of the school board, which is responsible 21 to the larger community. 22 Decisions about how to teach biology and to create an 23 atmosphere of tolerance, not just as a matter of religious 24 accommodation but as a matter of improving your instruction, is 25 a matter that we ought to leave to experienced teachers and Amanda Lohnaas, Official Court Reporter 529 1 administrators like Dr. Stickel, like Ms. Gray, who I'm sure 2 Your Honor could appreciate from her testimony cares genuinely 3 about kids, wants nothing more than to improve test scores and 4 to have kids go through a curriculum where they can learn as 5 much as possible. 6 The Court in Board of Education versus Pico, a 7 Supreme Court case, 1982, said the Court has long recognized 8 that local school boards have broad discretion in the 9 management of school affairs. Public education in our nation 10 is committed to the control of state and local authorities and 11 federal courts should not ordinarily intervene in the 12 resolution of conflicts which arise from the daily operation of 13 school systems. They go on to say: We're therefore in full 14 agreement with petitioners that local school boards must be 15 permitted to establish and apply their curriculum in such a way 16 as to transmit community values and that there's a legitimate 17 and substantial community interest in promoting respect for 18 authority and traditional values, be they social, moral or 19 political. And I'd add, it's also worthwhile to inculcate 20 values of respect and tolerance in the classroom. 21 The plaintiff should not be allowed a veto over 22 improvements to a science instruction unless there's a clear 23 constitutional issue. A vague statement in a huge science text 24 which does not mention religion, faith, belief, genesis, God, 25 Jesus, Christianity, any religion in particular, and which, as Amanda Lohnaas, Official Court Reporter 530 1 far as the evidence shows, has never created a single instance 2 of religious instruction in any classroom among tens of 3 thousands of students over two and a half years, does not 4 directly implicate the first amendment. 5 There was a wealth of potential witnesses who could 6 have come before Your Honor and testified in the form of 7 students that that sticker did something to their religious 8 belief, that that sticker did something to make them question 9 their basic values or that that sticker encouraged them to 10 attend a particular church or to take a particular view, you 11 didn't hear from them. 12 The Lemon test, as Your Honor is aware, requires you 13 to analyze the purpose, effect and entanglement. The first 14 prong is what the board's purpose was and, according to the 15 case law, the board's purpose must pass constitutional muster 16 unless the religious purpose is predominant overriding purpose 17 for the sticker. 18 The cases also say the first prong is a very low 19 hurdle. Edwards v. Aguillard said, 1987, that the purpose 20 inquiry should be deferential and limited and that the Court 21 should look at the language itself, look at the legislative 22 history, and the unique context of the statement. 23 Certainly none of the board members testified to 24 having a religious purpose. And I had cited previously in my 25 briefs to the Adler case where they talk about it's very Amanda Lohnaas, Official Court Reporter 531 1 difficult to know what a board meant two and a half years ago 2 based upon their testimony either in their deposition or at 3 trial. 4 I don't think the board members were all coming at it 5 from the same viewpoint, but I think they all recognized that 6 it was worthwhile to make a statement of tolerance so that we 7 could get on with the process of improving our curriculum. 8 If we look at the language itself, I would admit that 9 the language is vague and it could have been drafted better. 10 But the language is facially neutral. It says evolution should 11 be studied carefully. 12 The cases say if a government takes action which is 13 consistent with a religious point of view, that doesn't mean 14 it's necessarily religious, and that's -- the blue law cases 15 are one example of that. Well, is it consistent with a 16 religious point of view to say study evolution carefully? 17 According to Mr. Selman, it's not. It's completely 18 inconsistent with it. 19 The main issue with the language seems to be the fact 20 that it says "theory," doesn't say "scientific theory," and it