text:
II.B,D.C . - Atlanta
ATLANTA DIVISION , cFrk
SILVER, PAUL MASON, and
vs 1 02-CV-2325-CC
Plaintiffs Jeffrey Michael Selman, Kathleen Chapman, Jeff Silver, Paul Mason,
and Terry Jackson (collectively referred to herein as "Plaintiffs") bring this action
under 42 U.S.C. § 1983 against Defendants Cobb County School District and Cobb
Cobb County Board of Education (referred to herein as the "School Board") adopted
in March of 2002 and placed u1 certain science textbooks later that year Plaintiffs
contend that the sticker violates the Establishment Clause of the First Amendment,
Georgia Plaintiffs are all parents of students attending Cobb County schools,' and
Plaintiffs are residents and taxpayers of Cobb County, Georgia Plaintiffs seek
precisely because of its religious implications and the belief of some that science and
religion cannot coexist Since at least the 1920s, courts throughout the Nation have
been struggling to determine the constitutional limitations that should be placed on
public school curriculum concerning the origin of the human species and to
Due to the various challenges that arise u1 this area, the Court believes it
prudent to state from the outset what the instant case is not about First, the Court
is notresolvrng in this case whether science and religion are mutually exclusive, and
the Court takes no position on the origin of the human species . Second, the issue
before the Court is not whether it is constitutionally permissible for public school
supernatural cause could be responsible for life, living things, and the complexity
of the universe Third, this case does not resolve the ongoing debate regarding
whether evolution is a fact or theory or whether evolution should be taught as fact
or theory .
To be clear, this opinion resolves only a legal dispute Specifically, the narrow
issue raised by this facial challenge is whether the sticker placed in certain Cobb
County School District science textbooks violates the Establishment Clause of the
First Amendment of the United States Constitution and/or Article 1, Section II,
Paragraph VII of the Constitution of the Stake of Georgia
The findings of fact and conclusions of law adduced below are based on the
Court's review of the evidence presented at trial, the testimony of the witnesses at
trial, the parties' trial briefs, the parties' proposed findings of fact and conclusions
of law, the other documents and evidence in the record, and the applicable law 2
Evolution is the dominant scientific theory regarding the origin of the
diversity of life and 1s accepted by the majority of the scientific community 3 (Miller
Trial Test ; Moreno Trial Test, McCoy Trial Test, Shekel Trial Test)' The inclusion
The Court has received numerou s letters, e-mails, and other forms of
correspondence pertaining to this case The only documents submitted by third parties the
Court has considered, however, are those that are an official part of the record Consistent
with the foregoing, the Court has taken under consideration the following (1) the Amrcus
Brief of Parents for Truth in Education, (2) the Amzcus Curiae Brief of Biologists and
Georgia Scientists, In Support of Defendants, (3) the Arrucus Curiae Brief of the Colorado
Citizens for Science, Kansas Citizens for Science, Michigan Citizens for Science, Nebraska
Religious Coalition for Science Education, New Mexico Academy of Science, New
Mexicans far Science and Reason, New Mexico Coalition for Excellence in Science and
Math Education, and Texas Citizens for Science, in Support of Plaintiffs, and (4) the Arnicus
Curiae Brief of J Foy Gum, Jr, a district court fudge from another district who is
supporting the Defendants in his capacity as a citizen
' The Court notes that many in the scientific community maintain that
evolution is not a theory of the origin of life but is a theory concerning the origin of the
diversity of life See Amrcus Curiae Brief of the Colorado Citizens for Science, et al, in
Support of Plaintiffs at 4 The significance of this distinction is not entirely clear to the
Court, particularly as it relates to the origin of the human species, which is one of the more
sensitive issues in the ongoing debate between proponents and opponents of evolution
The Court notes that in an Order [Doc No 72] entered on November 4, 2004,
ruling on a Motion to Exclude Witness Testimony filed by Defendants, the Court ordered
that Dr Miller would be permitted to testify at trial so long as he testified only as a fact
witness Order at 7 The Court also expressed in that Order its understanding that
Plaintiffs no longer intended to call Dr Moreno as an expert witness at trial Id at 2 n 1
Accordingly, the Court declared moot that portion of Defendants' Motion to Exclude
of this theory in the curriculum of Cobb County Schools has been a source of
controversy for quite some time . Fn 1995, the Cobb County School District
maintained a policy, which was adopted in 1979 and revised on several occasions
thereafter, stating the following
include studies of the origin of human species theories shall be noted
in curriculum catalogs and listings which are provided for students and
parents for the purpose of course selection,
Defs ' Ex. 2.
Neither the former policy nor regulation explicitly references evolution, but
both imply that a significant number of Cobb County citizens maintain beliefs that
are deemed to conflict with evolution. Not all Cobb County teachers interpreted the
former policy and regulation to require teaching on evolution, although the state
curriculum apparently mandated such teaching. {McCoy Trial Test , Searcy Trial
Test)' In fact, it was common practice in some science classes for textbook pages
(Tippins Dep , p 86,11 . 11-15; Searcy Trial Test) With respect to human evolution
specifically, teachers were asked not to discuss that topic in required courses for
graduation but to restrict the topic to those courses that were considered electives
In the Fall of 2001, the Cobb County School District began the process of
adopting new science textbooks (Redden Aff. ~ 3 .) The textbook adoption process
started with the formation of a textbook adoption committee, which read and
studied various books and then recommended certain books for adoption (Redden
Dep, p 5,11.18-20,p 6,11 5-8, McCoy Trial Test) In October of 2001, the textbook
that a textbook adoption might conflict with the existing policy and regulation on
theories of origin (Redden Trial Test .) After a legal review of the issues raised by
"5earcy" refers to Laura Searcy, one of the members of the School Board at
the time the textbook adoption process was taking place. The other members of the School
Board at that time included Cordon O'Neili, Betty Gray, Johnny Johnson, Lindsev Tippins,
Curt Johnston, and Teresa Plenge (Redden Aff 17) Joseph Redden is the Superintendent
of the Cobb County School District and was in that position at the time of the textbook
adoption (Redden Aff T 2 )
the textbook adoption committee, the school administration determined that
revisions to the policy and regulation would be recommended (Redden Aff. TT 5-6,
Redden Trial Test .) These revisions would strengthen evolution instruction and
written by Kenneth Miller and Joseph Levine, which was one of the books ultimately
adopted by the School Board and the textbook that has taken the forefront in this
litigation, was the best they had seen for high school students (McCoy Trial Test)
George Shckel, Supervisor of High School Science Curriculum, agreed and saw the
express their concerns to School Board members about this issue. (Johnston DEp,
p 7,11 14-18, Johnston Trial Test) In accordance with School Board regulation,
parents were permitted to review and comment upon the recommended textbooks
(Redden Dep, p 5,11 21-25, Gray Trial Test) Only three parents reviewed the
books containing material on evolution at the formal review session conducted on
February 26, 2002 (Doc No. 77, Ex 42 ) Of these three parents, one parent
submitted a comment form stating that he was "vim happy w/ the inclusion of
evolution, even if not by that term we musk teach this."' (Id ) (emphasis in
original) . The second parent, Marjorie Rogers, submitted several comment forms
that criticized the presentation of evolution in various textbooks and condemned the
books for not mentioning any alternate theories, such as one involving a creator
(Id ) The thud parent made no comment regarding the presentation of evolution
(Id )
Although the evidence shows only three parents submitted official comment
forms regarding the textbooks, the School Board heard complaints from several
parents that the textbooks did not present the theories of origin in a fair manner.
(Johnston Dep, p 9,11 3-$; Johnston Trial Test, Searcy Trial Test. ; Redden Trial
Test) Similar to Ms Rogers' complaint, most of the complaints were that the
textbooks presented only the theory of evolution and did not offer any information
Johnston Trial Test ; Redden Dep, p 12,11. 24-25, p 13,11 1-4, p 24,11 19-25 .) For
some of the parents, such as Ms Rogers, the alternate theories would have included
the theories of creationism and intelligent design. (Redden Dep , p 18,11 24-25, p .
presented a petition to the School Board that contained the signatures of about 2,300
Cobb County residents (Redden Dep, p. 27,11 17-23, p . 28,11 . 3-5, Rogers Trial
Test, Redden Trial Test) The petition requested that the School Board "clearly
identify presumptions and theories and distinguish them from fact" (Rogers Trial
Test) The petition also requested, among other things, that the Board ensure the
presentation of all theories regarding the origin of life and place a statement
prominently at the beginning of the text that warned students that the material on
evolution was not factual but rather was a theory (Id )
Mr Tippuls, who is the current chairman of the School Board, initially
brought to the School Board's attention the concerns of those parents who had
problems with the proposed textbooks (Redden Dep,, p 24,11 19-25., Tippuls Trial
Test) In response to the outcry from these parents, certain unidentified members
of the School Board consulted legal counsel to determine if there was any language
that would help to address parent concerns within the confines of the law
(Johnston Dep, p. 7,1 25, p 8,11 .1-12; Johnston Trial Test, Searcy Trial Test) The
Cobb County School District's legal counsel recommended language that they
thought would be constitutional . (Johnston Dep , p 7,1 21, p 8,11 . 15-18, Tippins
Dep , p 77,11 . $-11 ) The language, which now appears on the sticker (referred to
herein as the "Sticker"), reads as follows -
sticker placed in textbooks related to any other theory, topic, or subject covered in
the Cobb County School District's curriculum (Plenge Dep ., p .12,11 14-21 ; Tippuls
Dep , p. $1,11 14-17, Johnston Dep., p 18,11 8-14; Plenge Trial Test ) However, there
are other scientific topics taught that have religious implications, such as the theories
of gravity=, relativity, and GaliIean heliocentrism {Miller Trial Test . ; McCoy Trial
Test, Stickel Trial Test .}
On March 28, 2002, the School Board unanimously adopted the textbooks
recommended by the administration with the condition that the Sticker would be
paced u1 certain of the science textbooks 6 (Compl T 13; PIs 'Ex. 1 ; Plenge Dep , p
16,11 6-12, Tippins Trial Test, Plenge Trial Test) With respect to this issue, the
School Board minutes from a meeting held on March 27, 2002, reflect only that
citizen concerns prompted the School Board to consider the idea of putting a
Most individuals who were present at the Board meeting recalled that the
adoption of the textbooks was conditioned upon the placement of the Sucker in the
textbooks (Redden Dep , p 25,11 5-12, Tipptns Dep , p 77,11 2-7, Searcy Trial Test, Gray
Trial Test ) Others either did not recall the specifics of the vote or did not understand the
adoption of the textbooks to be conditioned upon placing the Sticker in the textbooks
(Plenge Dep, p 15,11 9-21, Johnston Dep,12,11 3-2Z )
statement at the beginning of the textbooks . (Doc No 77, Ex 43 ) There are no
School Board minutes detailing any of the discussions had by the School Board
members about the Sticker . The School Board's collective purpose in adopting the
Sticker is not stated on the Sticker, and the School Board did not issue any statement
regarding the purpose of the Sticker contemporaneous with its adoption
A majority of the School Board members attest that they did not intend to
promote or benefit religion in voting for the Sticker (Searcy Aff. ~; 5, O'NeiII Aff T
4; Gray Aff ~ 5, and Johnson Aff T 5 ) A majority of the School Board members also
attest that they were either aware of the fact that the policy and regulation were
being revised to strengthen evolution instruction at the time they voted on the
Sticker, or that the policy and regulation are consistent with their purpose in voting
on the Sticker . (Plenge Dep., p.14,11 . 23-25, p.15,111-8, Johnston Dep , p 24,11 14-
25, Ex 1,2 ; Johnson Aff T 4, Gray Aff. 14; Searcy Aff T 4 ) Additionally, Mr.
Johnston, who was then chairman of the School Board, issued a public statement in
September of 2002 that the Sticker "was not intended to interject religion into science
instruction but simply to make students aware that a scientific dispute exists "
(Johnston Dep., p .12,1 22, p 14,1. 20.; Pls ' Ex 17 )
The School Board members individually had several different concerns and
motivations when they unanimously decided to adopt the Sticker Mr Johnston
possessed the personal opinion that a scientific dispute regarding the origin of life
existed among proponents of evolution, creation science, intelligent design, and the
theory that life on Earth came from outer spare by means of an asteroid or meteorite
(Johnston Dep., p 13,1 15, p.14,1 20, Johnston Trial Test.) In voting for the Sticker
School Board member Lrndsey Tippins was concerned that the science
textbooks did not address "controversy u1 the field of science about macraevolutron
from an evidentiary standpoint " (Tippuls Dep., p. 14,11 23-25, p 15,11 1-4 ) Mr.
Trppins, like the other School Board members, had received communications from
members of the public and members of the scientific community, who both
supported and opposed the idea that there might be scientific controversy regarding
evolution (Id at p 22,11 . 2-19, p 24,11 1-9) Mr. Tippins also had inquired about
advised that teaching such theories of origin was not legally permissible (Ld at p.
51,1 22-25, p 52,11 1-11, p. 56,11. 9-11,19-21, Tippins Trial Test) After receiving
this advice, Mr Tippins did not further consider the teaching of these theories
(Tippins Dep , p 56, 1 . 25, p. 57, 11 1-3, 14-17,) Thus, he understood the Sucker's
purpose was "to pursue and facilitate open discussion u1 the classroom about
School Board member Teresa Plenge remembered that the School Board's
parents wanted the curriculum to include principles such as intelligent design and
creationism, and others simply wanted a broad-based approach to the subject (Id
p 19,1 . 14 ) As Ms Plenge recalled, these were the concerns that led to the Sticker
in dispute, which she adamantly stated was not a disclaimer . (id p 19,1 14, p 20,
I . 12, Plenge Trial Test)' In her mind, the School Board sought to come up with a
constitutional way to guide the discussion in science classrooms and still encourage
students to think critically . (Plunge Trial Test) She did not intend for the Sticker to
"invoke" discussion about different theories of origin, but she did state that
George Shekel and other teachers were cautious and concerned about the
handling of the subject of evolution in classrooms prior to the issuance of the Sticker and
revised policy and regulation (ShckeI Aff ~~ 44-46)
"teachers could be tolerant" of a student's expression regarding a different theory
of origin (Id.) She clarified, however, that "the teacher's responsibility is to get
back on task teaching the QCCs that do not include other theories of origin other
than evolution " (Id.) Thus, Ms. Plenge wanted to promote critical thinking among
students and provide clarification for teachers who had previously had problems
with the policy regarding teaching theories of origin. (Plenge Dep ., p 17,1 13-23;
School Board member Laura Searcy felt that placing the Sticker in the front of
the science textbooks would serve the purpose of notifying parents and students
that the book contained material on evolution so that they could handle any
potential offense or conflicts the scientific information might cause. (SEarcy Aff. ~
3, Searcy Trial Test) Both School Board members Searcy and Betty Gray thought
that the Sticker served the additional purpose of clarifying the new policy that
evolution would be taught {Searcy Aff ~ 4; Gray Aff. ~ 4 } Ms . Searcy was rigidly
opposed to alternative theories of origin being taught in the classroom, and she
clarified that her intent in adopting the Sticker was not to communicate to students
to critically consider only evolution (Searcy Trial Test) Rather, in her mind, the
School Board singed out evolution as the subject discussed on the Sticker because
School Board member Betty Gray, who has been in education 1n various
capacities fox over fifty years, was aware when shy voted for the Sticker that there
were groups of people u1 Cobb County who had very strong religious views
concerning theories of origin . (Gray Trial Test) She was aware that these parents
did not want the teaching of evolution to uzfrulge on their kids' personal feelings
and beliefs about the origin of life . (Ld) After thinking for a bong time about the
prospect of including a sticker in the science textbooks, she decided that including
the Sticker would serve the purpose of clarifying for teachers and reassuring the
public that Cobb County science classrooms would be tolerant of the diverse range
of views that students might have regarding theories of origin (Id ) However, Ms
Gray credibly testified that religion had nothing to do with her support for the
sticker {Id .} Ms Gray simply wanted to "safeguard" the feelings of the kids, and
she hoped that the science classroom would be "safe enough for a youngster to
express themselves, whatever their views are." (Ld_)
Neither School Board member Johnny Johnson nor Gordon O'Ne111 testified
at trial . However, Mr. Johnson and Mr O'Neill, along with School Board members
Gray and Searcy, previously testified by way of affidavit that they voted for the
Sucker, in park, "to promote tolerance and acceptance of diversity of opinion "
{Johnson Aff ~ 3, Gray Aff T 3; O'Neill Aff. ~ 3, Searcy Aff ~j 3 } These School
Board members also stated that they wanted to promote critical thinking (Johnson
Aff T, 3, Gray Aff ~ 3; O'Neill Aff. T 3; Searcy Aff ~ 3 )
The School Board did not solicit expert opinion on scienhf ic theories of origin
or do research outside of the School Board sessions before voting on the Sucker, but
they did hear from scientists via materials sent to them via e-mail and through the
mail (Redden Dep, p 30,11 23-25, p. 31,11 1-6; Johnston Trial Test, Searcy Trial
Test.) Among other things, the School Board received material from the Discovery
Dr West of the Discovery Institute in which Dr. West offered to assist the Board in,
Test.} Mr Johnston did not take Dr . West up an his offer, but Mr Johnston did refer
Dr West to the Cobb County School District's legal counsel (Id ) There is no
evidence that Dr. West ever conferred with the Cobb County School District's legal
After the School Board adopted the Sticker, numerous citizens, organizations,
churches, and academics from around the country contacted the School Board and
individual School Board members to praise them for then decision to open the
classroom to the teaching and discussion of creationism and intelligent design On
the other hand, the School Board also received letters in which individuals and
testified that she was not happy with the Sticker because 1t did not go far enough in
stating that there were criticisms of evolution and it did not distinguish
School Board revise the Sticker, but the School Board did not grant Ms. Rogers'
Dr Wes McCoy, one of the high school science teachers who had served on
the textbook adoption committee, opposed the placement of any sticker in the
alternative versions of the Sticker to the School Board and to the administration,
which he believed would address the status of evolution in the science community
in a more accurate manner. (McCoy Trial Test.) The administration favored one of
on language that their counsel suggested and thought was constitutional At trial,
two School Board members did not immediately recall alternative language even
being proposed (Searcy Trial Test, Plenge Trial Test) Once Ms Searcy's
recollection was refreshed, she remembered having an objection to the second
sentence of the alternative sticker because shy believed it was irrelevant whether
some scientists did not like the theory of evolution (Searcy Trial Test.) Ms Searcy
did not recall the School Board spending mush time considering the alternative
language (L
d-) Similarly, Ms. PIenge testified that the alternative language
obviously must have been rejected, but she did not recall the details of the School
Board's rejection (Plenge Test) Ms Gray actually had the impression that the
language on the Sticker was the administration's final recommendation (Gray Trial
Test) In trying to explain at trial why the alternative language was not adopted,
however, she stated that it must not have met the needs of the School Board (Id)
Mr Johnston recalled the alternative language being proposed after the adoption of
the original language, but he stated that the School Board decided to stay with the
alternative language, but he thought the language was weak. (Tippins Dep , p 78,
11 17-T9; Tippins Trial Test.) He also held the opinion that the administration had
Board had already adopted language for the Sticker . {Tlppins Trial Test) Thus,
even though no stickers had been placed in any textbooks at the rime, the School
Board rejected the alternative language for the Sucker in June of 2002 {Redden Trial
Between the Summer and Fall of 2002, the School Board had the Stickers
produced with morues from the general fund (Plenge Dep, p 30,11 20-23, Searcy
Trial Test) The Stickers were then sent to the schools, and personnel at the schools
physically affixed the Stickers into all of the science textbooks that contained
material regarding the origin of life (Redden Dep, p. 29,11 . 13-19, p . 30,11. 1-5,
Following the adoption of the new science textbooks and the Sticker, the
Board adopted its revised policy on theories of origin in September of 2002.
(Johnston Dep, p 24,11 14-17, Ex . 1 .) The pertinent part of the policy states the
[I] t is the educational philosophy of the Cobb County School District to
- 14-
rovide a broad based curriculum ; therefore, the Cobb County School
9istrict believes that discussion of disputed views of academic subjects
is a necessary element of providing a balanced education, including the
study of the origin of the species This subject remains an area of
intense interest, research, and discussion among scholars As a result,
the study of this subject shall be handled in accordance with this policy
and with objectivity and good judgment on the part of teachers, faking
alto account the age and maturity level of their students.
- 15-
placement of the Sticker in the textbooks, neither the Superintendent of the Cobb
County School District, the Supervisor of High School Science Curriculum, nor the
Board members who testified at trial have received complaints about the teaching
Test.) Moreover, students have brought up the topic of religion as it relates to the
theory of evolution no more frequently than they did before the Sticker was played
Dr McCoy testified that the Board's misuse of the word "theory" in the Sticker
causes "confusion" in his science class and consequently requires him to spend
significantly more time trying to distinguish "fact" and "theory" for his students
(Id ) Dr. McCoy stated that some of his students translate the Sticker to skate that
evolution is "lust" a theory, which he believes has the effect of diminishing the
status of evolution among all other theories (Id )
Some parents who save= the Sticker were alarmed by its contents Plaintiff
Kathy Chapman's "alarm bells went off" when she saw the Sticker in her child's
textbook, and she immediately felt that the Sticker "came from a religious source"
because, in her opinion, religious people are the only people who ever challenge
evolution . (Chapman Trial Test ) She viewed the Sticker as promoting the religious
view of origin and questioning the science in the textbooks (Id ) Plaintiff Jeff Silver
perceived the effect of the Sticker to "open[ ] the door to introducing schools of
thought based in faith and religion into science classes ." (Silver Trial Test ) He also
believed that the Sticker disparaged evolution and implicitly asked students to think
about alternative theories (Id ) Not surprisingly, the Sticker also raised a red flag
for Plaintiff Jeffrey Selman because the Sticker singled out evolution and was, in his
opinion, obviously religious (Selman Trial Test) Thus, the Sucker is now before
this Court for consideration of its constitutionality
of religion, or prohibiting the free exercise thereof " U S Canst Amend I "The
prohibition against the establishment of religion applies to the states through the
Fourteenth Amendment." King v. Richmond County, 331 F 3d 1271, 1275 (11th Cir
2003) (citing Cantwell v Connecticut, 310 U.S. 296, 303, 60 S Ct 900, 903, 84 L. Ed .
The Supreme Court has recognized that "[s]tates and local school boards are
Board of Education v . Pico, 457 U S 853, 864,102 S Ct 2799, 73 L, Ed. 2d 435 (1982),
Epperson, 393 U S at 104 Indeed, the Supreme Court has found numerous
violations of the Establishment Cause in public school settings Se Santa Fe
Index Sch. Disc v. Doe, 530 U S 290, 120 S Ct 2266, 147 L Ed 2d 295 (2000)
(declaring unconstitutional a policy permitting student-led, student-initiated prayer
at football games), Lee v. Weisman, 505 U.S 577,122 S Ct 2649,120 L Ed 2d 467
providing for a moment of silence for mediation or voluntary prayer violated the
copies of the Ten Commandments in public school classrooms), Abin ton School
Establishment Clause)
With respect to the teaching of theories of origin in public schools, both the
Supreme Court and lower federal courts have struck down anti-evolution statutes,
A illard 482 U.S 578,107 S . Ct 2573,96 L Ed 2d 510 (1987) (striking down state
statute that forbid the teaching of evolution in public schools unless "creation
science" was also taught) ; Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266, 21 L, Ed
2d 228 (striking down state statute that made it unlawful for teachers to instruct on
Bd of Educ ., 1$5 F 3d 337 (5th Cir 1999) (invalidating disclaimer required to be read
to students prior to teaching of evolution because the disclaimer had the primary
effect of endorsing a particular religious viewpoint) Daniel v Waters, 515 F 2d 485
Arkansas Bd of Educ . 529 F Supp 1255 (E.D. Ark 1982) (striking down statute that
required balanced treatment of creation science and evolution in public schools) .
To determine whether the Sticker at issue violates the Establishment Clause,
Supreme Court and Eleventh Circuit precedent direct the Court to apply the
L . Ed 2d 745 (1971) See Santa Fe, 530 U S at 314 (applying the Lemon test in
message violates the Establishment Clause of the First Amendment if. (1) it does not
have a secular purpose, (2) its principal or primary effect advances or inhibits
meet either of these three prongs, then the challenge under the Establishment Clause
Clause challenges" and "each challenge calls for line-drawing based on a fact-
specific, case-by-case analysis " Km& 331 F 3d at 1275-76 (citing Lynch v Donnell
Both the Supreme Court and the Eleventh Circuit have acknowledged that the
second and third prongs of the Lemon test are interrelated insofar as courts often
consider similar factors in analyzing them See Agostini v Felton, 521 U.S 203.,232-
331 117 S Ct 1997, 138 L Ed. 2d 391 (199 ; Holloman v, Harland, 370 F 3d 1252,
1284-85 (11th Cir 2004) In fact, the Eleventh Circuit, like several other circuit
courts, has combined the second and thud prongs of the Lemon analysis into a
single "effect" inquiry See Harland, 370 F 3d at 1285, accord Child Evan gelism
Fellowshi p of New Jersey, Inc v. Stafford Township Sch. Dist . 386 F.3d 514,534(3d
Crr 2004), Commack Self-Service Kosher Meats Inc. v . We1ss 294 F 3d 415,424 (2d
Cir 2002), Columbia Union Colle ge v Clarke 159 F 3d 151,157 (4th Cir. 1998) The
Defendants assert that the Court should also apply to this case the standard
set forth in United States v Salerno, 481 U S 739, 745,107 S . Ct. 2095, 95 L Ed 2d
697 (1987), in which the Supreme Court announced that a plaintiff mounting a facial
under which the Act would be valid ." See also Adler v Duval Counter Sch Bd , 206
F 3d 1070,1083 (11th Cir . 2000) (en banc), vac. on other gr 531 U S 801,121
S Ct 31,148 L Ed. 2d 3, opinion and judQment reinstated, 250 F.3d 1330 (11 th Cir
but deciding the appeal in favor of the school district on a different basis) . However,
the Supreme Court did not apply the Salerno standard u1 Santa Fe, the Court's most
recent case in which there was a facial challenge to a policy under the Establishment
Clause See 530 U.S. at 313-14, see also Adler, 250 F.3d at 1342 (Carnes, j ,
dissenting) (stating that the Supreme Court's Santa Fe decision "unequivocally held"
that the Salerno standard is inapplicable in the Establishment Clause area) . Thus,
Based on the nature of this case, the Court is not inclined to apply the rigid
Salerno standard First, as mentioned above, the Supreme Court has at least
suggested that the SalErno standard does not apply to Establishment Clause
challenges. Even if the standard does apply, however, the Establishment Clause
challenge mounted by the Plaintiffs in this matter does not fit squarely within the
line of cases dealing with challenges to legislative acts, statutes, or policies . In those
cases, the acts, statutes, and policies are subject to application The challenge in this
traditional sense Indeed, as both parties have acknowledged, to the extent that the
sticker has an "application," the application is governed by the Cobb County School
District's policy and regulation regarding theories of origin Albeit relevant to the
instant case, the policy and regulation are not the subject of Plaintiffs' challenge. See
Selman Dep , p. 49,11 6-25, p 52,1. 23, p 53,11 12-13, p. 54,11 17-22, Selman Trial
Test.} The sticker in dispute may have practical effects and create perceptions in the
muzds of its observers, but the Sticker does not "operate" or have an "application"
as contemplated by Salerno Far these reasons, the Court concludes that the SalErno
standard should not apply in this case, and the Court will focus its analysts using
A Purpose
"The purpose prong of the Lemon test asks whether government's actual
purpose is to endorse or disapprove of religion " Lynch, 465 U S. at 690 (O'Connor,
Gwinnett County Sch Drst . 112 F.3d 1464, 1469 (11th C1r 199' However, the
purpose of the Sucker "need not be exclusively secular." Bawn, 112 F.3d at 1469
(citing Lynch, 465 U S at 681 n. 6) The Sticker runs afoul of the Establishment
Clause only if it is "entirely motivated by= a purpose to advance religion ." Wallace,
472 U S at 56, "n 221 F .3d at 127$, Bow=n, 112 F 3d at 1469 Thus, it logically
follows that a state-sponsored message may satisfy this first prong "even if it 1s
`motivated in part by a religious purpose ."' Ad1er, 206 F.3d at 1084 (quoting Wallace,
472 U S. at a6)) However, the religious purpose must not be preeminent. Stone, 449
U.S at 41
-21 -
of religion or a religious belief "was and 1s the .. . reason for [the statement's]
existence "' 472 U S, at 75-6 (O'Connor, J, concurring) .
Based on the evidence before this Court at the summary judgment stage, the
Court ruled that the School Board did not act with the purpose of promoting or
advancing religion in placing the Sticker in the science textbooks To the contrary,
the Court found that the School Board sought to advance two secular purposes.
First, the School Board sought to encourage students to engage in critical thinking
as it relates to theories of origin. Second, given the movement in Cobb County to
the School Board adopted the Sucker to reduce offense to those students and parents
whose personal beliefs might conflict with teaching on evolution . The Court was
satisfied on summary judgment that these two purposes were secular and not a
sham However, both parties made arguments in their trial briefs and presented
evidence at trial relevant to the purpose inquiry . Therefore, having considered all
of the arguments and evidence presented by the parties and upon closer review of
the applicable law, the Court will revisit the purpose prong of the Lemon test to
creation science in science classroom was to protect academic freedom), Adler. 206
quiet reflection in public schools was to glue students the opportunity to reflect
quietly on the events to come during the day) . The Shaker in this case does not
legislative history, such as detailed meeting minutes, which would aid the Court in
determining the School Board's purpose for voting for the Sticker . The dearth of
such evidence makes the Court's factual inquiry regarding the purpose somewhat
difficult, but it does not mean that Defendants fail the purpose prong KM& 331
F 3d at 1277 (government does not fail purpose prong simply because "there is no
In this case, Defendants state that the Cobb Country School District's revised
policy concerning theories of origin is consistent with the School Board's purposes
for adopting the Sticker Notably, the School Board did not adopt the revised policy
until almost six (6) months after adopting the Sticker, and the revised policy does
not reference the Sticker. However, the majority of the School Board members either
knees= the policy was bung revised to reflect the strengthening of the evolution
curriculum in Cobb County or they testified during the litigation that the policy was
consistent with their purpose in voting for the Sucker.
Courts generally frown upon evidence of purpose that is not
contemporaneous with the challenged action See Edwards, 482 U S. at 595
not outweigh other evidence of a secular purpose) ; Adland v. Russ, 307 F .3d 471,483
-23 -
legislators or decision-makers regarding their particular motivations. In contrast,
the post-adoption evidence in this case is an official policy of the Cobb County
School District, which was revised and adopted by the School Board as a collective
unit Thus, while the Court examines the secular purposes asserted following the
adoption of the Sucker with caution, the Court will not refuse to consider them
The revised policy states, in pertinent part, that its purpose "'is to foster critical
thinking among students, to allow academic freedom consistent with legal
the text of the Sticker and the circumstances giving rise to the Sucker's adoption.
The Court also considers the testimony of the School Board members whom the
Fostering critical thinking 1s a clearly secular purpose for the Sticker, which
the Court finds 1s not a sham First, it is important to note that prior to the adoption
of the new textbooks and Sticker and the revision of the related policy and
regulation, many students in Cobb County were not being taught evolution or the
origin of the human species in school Further, the School Board was aware that a
large population of Cobb County citizens maintained beliefs that would potentially
conflict with the teaching of evolution Against this backdrop, the Sticker appears
approach the material on evolution with an open mind, to study it carefully, and to
give it critical consideration The other language on the Sticker, which states that
evolution is a theory and not a fact, somewhat undermines the goal of critical
thinking by predetermining that students should think of evolution as a theory
when many in the scientific community would argue that evolution is factual in
some respects However, the testimony of the School Board members persuades the
Court that the School Board did not seek to disclaim evolution by encouraging
students to analyze the material on evolution themselves and make their own
decision regarding its merit.
school board's avowed purpose of critical thinking. 185 F.3d 337 (5th Cir 1999) The
disclaimer in that case instructed students "to exercise critical thinking and gather
all information possible and closely examine each alternative toward forming an
opinion," but the disclaimer also stated that the teaching of evolution was "not
intended to influence or dissuade the Biblical version of Creation or any other
concept ." Id . at 341 The court concluded that the disclaimer did not further the
went on to state that "critical thinking . requires that students approach new
concepts with an open mold and a willingness to alter and shift existing viewpoints.
Id at 345
Unlike the disclaimer in the Freiler case, the Sticker in this case does not
contain a reference to religion in general, any particular religion, or any religious
theory This weighs heavily in favor of upholding the Sticker as constitutional See
Adler, 206 F 3d at 1083 ("For the most part, statutes which the Supreme Court has
not explicitly mention any alternative theories of origin The Sticker specifically tells
students to keep an open mind and to study evolution carefully Plaintiffs urge that
encouraging students to critically consider only evolution suggests that the School
Board's asserted purpose of promoting critical thinking is a sham However,
evolution is the only theory of origin being taught in Cobb County classrooms.
Thus, it makes sense that the School Board is not suggesting that students critically
consider other theories of origin Moreover, as School Board member Laura Searcy
pointed out at trial, evolution was the only topic in the curriculum, scientific or
otherwise, that was creating controversy at the time of the adopt-ion of the textbooks
and Sticker The School Board's singling out of evolution is understandable in this
context, and the undisputed fact that there are other scientific theories with religious
implications that are not mentioned in this Sticker or in others supports the Court's
conclusion that the Board was not seeking to endorse or advance religion .
Therefore, the Court continues to believe that the School Board sincerely sought to
n 6 (stating that Lemon requires only one secular purpose to exist) However, the
Court does not believe that the promotion of critical thinking is the Sticker's main
offense to those persons who hold beliefs that might be deemed inconsistent with
the scientific theory of evolution The School Board did not articulate this purpose
as such in the revised policy it adopted, but the arguments of the Defendants and
the evidence in this case overwhelmingly show that this is the primary purpose of
the Sticker . Because this purpose is intertwined with religion, the Court discusses
Evidence u1 the record suggests that the idea of placing a sticker in the
textbooks originated with parents why opposed the presentation of only evolution
in science classrooms and sought to have other theories, including creation theories,
included in the curriculum Namely, Marjorie Rogers wrote a letter to the School
Board over two weeks before the adoption of the Sticker recommending, among
other things, that the School Board place a disclaimer in each book Moreover, Ms
Rogers and over 2,300 other Cobb County citizens submitted a petition to the School
Board also asking the School Board to place a statement at the beginning of the texts
that warned that the material on evolution was not factual There is no dispute that
a large number of Cobb County citizens opposed the teaching of evolution in a rigid
fashion, and it is clear to the Court that many of these citizens were motivated by
their religious beliefs
However, the Court does not rely on communications from these individuals,
who apparently sought to advance religion, to determine whether the School Board
itself sought to endorse or advance religion when it voted to pace the Sticker in
science textbooks . See Adler 206 F 3d at 1086 (stating that courts should not discern
Rather, the highly credible testimony of the School Board members, although not
contemporaneous with the sticker adoption, made it clear that the School Board
adopted the Sticker to placate their constituents and to communicate to them that
secular institutions to force one or some religion on any person " Id Additionally,
"the First Amendment does not permit the State to require that teaching and
stated u1 Freiler, "local school boards need not turn a blind eye to the concerns of
students and parents troubled by the teaching of evolution in public classrooms ."
185 F 3d at 346
Here, the School Board did not implement other recommendations, such as
making theories of origin that posit the existence of a creator or supreme being a
part of the curriculum or obtaining specially-printed textbooks from publishers that
omit materials that some would consider "'objectionable " Instead, the School Board
adopted a sticker that is not openly religious but served to put students, parents,
and teachers on notice that evolution would be taught in a manner that is inclusive
rather than exclusive The School Board sought to show consideration for their
constituents' personal beliefs regarding the origin of fife while still maintaining a
posture of neutrality towards religion, The School Board's decision to adopt the
forbids only a purpose to endorse or advance religion Wallace, 472 U S. at 56, KLn&
331 F.3d at 1278, Bown, 112 F.3d at 1469. Here, even Plaintiffs concede that "[tjhe
intention of the Board was to accommodate parents who held a belief contrary to
evolution," Plaintiffs' Amended Findings of Fact and Conclusions of Law T1 36, and
the law clearly holds that mire accommodation of religion is insufficient to render
the Sticker unconstitutional See I-Iobbie v Unemployment Appeals Comm'n, 480
merely tolerance, of all religions, and forbids hostility toward any") ; cf Smith v
Board of Sch . Comm'rs 827 F 2d 684, 691 (11th Cir 198' (stating that mere
accommodation of religion is not sufficient to violate the primary effect prong of the
Lemon analysis) .
advance religion It is undisputed that School Board member Lindsey Tippins posed
it is also the case that this became a moot issue once the School Board received the
legal opinion of the Cobb County School District's counsel that such theories could
not be taught While one still might assume from these inquiries that at least one
School Board member may have seen the Sucker as the first step in getting religion
into the classrooms, the Eleventh Circuit has advised that "[t]here is nothing
individual School Board members cannot invalidate the Sticker See Bown, 112 F.3d
at 1471-72 (holding that motivations of individual legislators could not alone
(ED Ark 1982), a case u1 which a balanced treatment statute was herd
unconstitutional, Plaintiffs also assert that the Court should infer a purpose to
advance religion by the School Board's failure to seek out expert opinion from
scientists before adopting the Sticker McLean, however, is distinguishable from the
instant case because McLean involved a statute requiring the teaching of creation-
science, which was a substantial change to the curriculum . In this case on the other
hand, the Sticker only speaks generally about evolution and does not change the
curriculum . While the School Board may have acted more prudently by consulting
regarding what impact, if any, the Sticker might have on the teaching of evolution,
the School Board's failure to do so does not prove that the School Board sought to
advance religion
Plaintiffs further contend that the School Board's refusal to adopt the
alternative language drafted by Dr McCoy and proposed by the administration is
indicative of the School Board's desire to advance religion The evidence in the case
and the testimony from the School Board members refute this proposition Frrst, the
alternative language proposed, which was more comprehensive and probably more
accurate as a scientific matter, was not before the School Board at the time that the
Cobb County School District's attorneys presented the language that they believed
would be constitutional . The record indicates that the alternative language was not
presented until almost three months later. Although the School Board had the
alternative language prior to the printing o¬ the Sucker, and therefore it was not too
late to change the language, the testimony of the School Board members indicates
that the School Board simply considered the language of the Sticker to be a closed
issue because they had relied on the attorneys to draft language that would pass
constitutional muster While one School Board member, Lindsey Tippins, testified
that he thought the alternative language was weak, his individual opinion does not
represent the collective belief of the School Board . School Board member Betty Gray
testified that the alternative language must not have met the needs of the School
Board, but Ms Gray's testimony was no more than her guess as to why the School
Board did not adopt the other language Defendants concede that the language of
the Sticker perhaps could have been better, but their refusal to adopt the alternative
language three months later does not render the Sticker unconstitutional
remains convinced that the Sticker at issue serves at last two secular purposes
First, the Sucker 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 Sucker
reduces ofEense to students and parents whose beliefs may conflict with the teaching
of evolution . For the foregoing reasons, the Court concludes that the Sticker satisfies
the first prong of the Lemon analysis .
B Effect
Regardless of the School Board's actual subjective purpose in voting for the
Sicker, the effects prong asks whether the statement at issue in fact conveys a
at 1472 "Endorsement sends a message to nonadherents that they are outsiders, not
adherents that they are insiders, favored members of the political community "
Lynch, 465 U S at 688. Borrowing from the analysis typically applied in religious
display cases, to which this ease bears great similarities, the Court is mindful that the
informed, reasonable observer is someone who personifies the "community ideal of
reasonable behavior" and is familiar with the origins and context of the government-
sponsored message at issue and the history of the community where the message
is displayed See Capitol Square Review & Advisory Bd v Pipette, 515 U S 753,
Court's factual findings but is "'in large part a legal question to be answered on the
basis of judicial interpretation of social facts " Lynch, 465 U S at b93-94 (O'Connor,
J , concurring) Thus, the Court's focus here is not on the particular views or
reactions held by the Plaintiffs or the numerous citizens and organizations who
wrote to the School Board The Court's focus is on ascertaining the view of a
disinterested, reasonable observer .
In this case, the Court believes that an informed, reasonable observer would
interpret the Sticker to convey a message of endorsement of religion 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
state Given that courts should be "particularly vigilant in monitoring compliance
with the Establishment Clause in elementary and secondary schools," Edwards 482
US. at 583-$4, the Court is of the opinion that the Sucker must be declared
unconstitutional See also Smith, 827 F .2d at 690 {stating that courts must use
"'particular care" when "'many of the citizens perceiving the governmental
opposition to evolution) As early as the 1920s and continuing into the late 1960s,
tthe judicial system was resolving challenges to anti-evolution statutes, which made
State 154 Tenn 105, 126, 2$9 S W . 363, 369 (1927), see also McLean, 529 F Supp at
1259 In E_pi2erson the Supreme Court declared such statutes unconstitutional In
the 1970s and 1980s, there was a movement by anti-evolutionists to have creationism
taught alongside evolution . See Edwards, 482 U S at 578, McLean, 529 F Supp at
1255, 1259 However, the Supreme Court held in Edwards that the teaching of
violation of the First Amendment. Most recently, the judicial system has witnessed
efforts by ant-evolutionists motivated by religion to discredit or disclaim the theory
Just as citizens around the country have been aware of the historical debate
between evolution and religion, an informed, reasonable observer in this case would
be keenly aware of the sequence of events that preceded the adoption of the Sticker .
See Capitol Square. 515 U S at 780 (O'Connor, J , concurring) (noting that the
reasonable observer would be deemed to know, the Court believes these events are
key to ascertaining the primary effect of the Sticker Specifically, the informed,
reasonable observer would know that a significant number of Cobb Country citizens
had voiced opposition to the teaching of evolution for religious reasons The
informed, reasonable observer would also know that despite this opposition, the
Cobb County School District was in the process of revising its policy and regulation
regarding theories of origin to reflect that evolution would be taught in Cobb
County schools Further, the informed, reasonable observer would be aware that
citizens and parents largely motivated by religion put pressure on the School Board
to implement certain measures that would nevertheless dilute the teaching of
evolution, including placing a disclaimer in the front of certain textbooks that
distinguished evolution as a theory, not a fait Finally, the informed, reasonable
observer would be aware that the language of the Sucker essentially mirrors the
viewpoint of these religiously-motivated citizens .
While the School Board may have considered the request of its constituents
and adopted the Sticker for sincere, secular purposes, an informed, reasonable
reasonable observer would be aware of this also . On the whole, however, the
fundamentalists and creationists who were vocal during the textbook adoption
process regarding then belief that evolution is a theory, not a fact, which students
-33 -
problematic because of its truth or falsity, although testimony from various
witnesses at trial and the amicus brief submitted by the Colorado Citizens for
Science, et al , suggest that the statement is not entirely accurate Rather, the first
problem with this language is that there has been a lengthy debate between
School Board appears to have sided with the proponents of religious theories of
origin in violation of the Establishment Clause As the Supreme Court stated in
County of Allegheny v. American Civil Liberties Union, 492 U S 573,593-94,109 S
Ct 3086, 106 L Ed 2d 472 (1989), "[tjhe Establishment Clause, at the very least,
belief," and this is exactly what the School Board appears to have done.
taught as a fact because it would communicate to students that "science has proved
their religious beliefs false"), Peloza v Capistrano Unified Sch Dist , 37 F 3d 517, 520
(9th Cir.1994) (high school biology teacher who was a practicing Christian brought
§ 1983 action to oppose the teaching of "evolutionism" because, among other things,
the school district allegedly required him to teach "evolutionism" as a fact rather
than a theory); Mozert v Hawku-is County Bd of Educ , 827 F .2d 1058,1062 (6th Cir.
1987) (witness in Free Exercise case brought by born again Christians complained
(noting concern of school board members with teaching of evolution as fact because
many students in school district believed in Biblical version of creation)
Because the Court is examuung social facts to aid in its analysis of the effect
of the Sticker, the Court may also consider secondary sources that shed light on
relevant facts, See County of Allegheny,, 492 U S at 614 n. 60; Lynch, 465 U.S at 709-
12, 721-24 (Brennan, J, dissenting) The Court's review of pertinent law review
articles affirms that encouraging the teaching of evolution as a theory rather khan as
a fact is one of the latest strategies to dilute evolution instruction employed by anti-
Ideas : Evolution, Creationism, and Intelligent Design, 17 Notre Dame J .L. Ethics & Pub
Poly 321, 329 (2003), Wendy F. Hanakahi, Comment, Ezrolutron-Creation ism Debate.
U Haw L Rev 9, 28, 50-51 (2002) ; Deborah A Reule, The New Face of Creattontsrn'
The Establishment Clause and the Latest Efforts to Suppress Evolution in Public Schools,
54 Vand L Rev 2555, 255$ (2001) ; cf. Jay D Wexler, Darwin, Design, and
Drsestnbhshment Teaching the Evolutzon Controversy m Public Schools, 56 Vand L Rev.
There is no evidence in this ease that the School Board included the statement
in the Sticker that "evolution is a theory, not a fact" to promote or advance religion .
Indeed, the testimony of the School Board members and the documents 1n the record
all indicate that the School Board relied on counsel to draft language for the sticker
that would pass constitutional muster Thus, the presence of this language does not
change the Court's opinion that the Sticker survives the purpose prong of the Lemon
analysis .
Still, the informed, reasonable would perceive the School Board to be aligning
itself with proponents of religious theories of origin . The case haw 1s clear that a
governmental action or message that coincides with the beliefs of certain religions
does not, without more, invalidate the action or message Harris v McRae, 448 U S
- 35 -
420, 81 S. Ct 1101, 6 L Ed . 2d 393 (1961) ; Smith, 827 F .2d at 691 However, in light
to those who endorse evolution that they are political outsiders, while the Sticker
communicates to the Christian fundamentalists and creationists who pushed for a
The Sucker also has the effect of implicitly bolstering alternative religious
field of science In this regard, the Sticker states, in part, that "[ejvoluhon is a
theory, not a fact, concerning the origin of jiving things" that should be "approached
with an open mind, studied carefully, and critically considered ." Pls ' Ex 1 This
elective course on theories of origin or a religious text However, the evidence in the
record and the testimony from witnesses with science backgrounds, including the
co-author of one of the textbooks into which the Sticker was placed and Defendants'
own witness, Dr Stickel, reflect that evolution is more than a theory of origin in the
theory, creationism or variations thereof, even though the Sticker does not
specifically reference any alternative theories .
because it was the topic causing the controversy at the time. The Court finds the
School Board's explanation to be rational and does not declare the Sticker to violate
the purpose prong of Lemon However, because the administration suggested
alternative language that did not place the emphasis so heavily on evolution, albeit
after the Board adopted the Sticker, the message communicated to the unformed,
reasonable observer is that the School Board believes there is some problem peculiar
to evolution In light of the historical opposition to evolution by Christian
fundamentalists and creationists in Cobb County and throughout the Nation, the
informed, reasonable observer would infer the School Board's problem with
evolution to be that evolution does not acknowledge a creator.
In E1212erson, the Supreme Court declared an anti-evolution statute
unconstitutional because it "select[ed] from the body of knowledge a particular
segment which it proscribe[d] for the sole reason that it is deemed to conflict with
legislature chose to affect the teaching of the one scientific theory that historically
has been opposed by certain religious sects." 482 U S at 522 n.7 This case is
distinguishable from Epperson and Edwards inasmuch as those statutes clearly
impacted the teaching of evolution and the theories of origin curriculum, whereas
the Sticker in this case does not preclude evolution from being taught and has not
resulted in any complaints that religion is being taught in science classrooms . This
case is further distinguishable because the Supreme Court found that the
government actors in those cases did act with a purpose to advance religion
However, just as evolution was isolated in the statutes in Emerson and Edwards,
Due to the manner in which the Sticker refers to evolution as a theory, the
Sucker also has the effect of undermining evolution education to the benefit of those
Cobb County citizens who would prefer that students maintain their religious
beliefs regarding the origin of life As Plaintiffs argue and Dr Miller, the co-author
of the science textbook, testified, the use of "theory" in the Sticker plays on the
colloquial or popular understanding of the term and suggests to the informed,
reasonable observer that evolution is only a highly questionable "opinion" or a
"hunch " The Sticker thus has a great potential to prompt confusion among the
students.' While there may be an educational benefit to students spending time
learning the general difference between a theory and a fact as a scientific matter,
teachers have less time to teach the substance of evolution. Thus, although
evolution is required to be taught in Cobb County classrooms as a technical matter,
distracting tangential issues effectively dilute evolution instruction to the benefit of
the anti-evolutionists who are motivated to advance their religious beliefs 9
Plaintiffs have argued emphabcall << throughout this litigation that the Sticker
at issue also invites discussion of alternative theories of origin, including religious theories
The Court is of the opinion that the regulation regarding theories of origin, more so than
the Sticker, permits and perhaps invites discussion of alternative theories of origin
Parents for Truth in Education, participating as amid curiae, argue that the
Sucker properly references evolution as a theory because prior case haw, the
dictionary, and other sources do the same See Brief of Parents for Truth in
Education 7-9 In this regard, amid note that the Supreme Court referred to
evolution as a "theory" in both the Edwards and E12person decisions and that justice
"evolution" as a "theory ." Id, at 7 Amid also argue that the Edwards Court
implicitly acknowledged that evolution is not a fact by making the statement that
"iw]e do not imply that a legislature could never require that scientific critiques of
prevailing scientific theories be taught ." Id. at $ (citing Edwards . 482 U 5, at 593) .
While the foregoing may be true, the basis for this Court's conclusion that the Sticker
violates the effects prong is not that the School Board should not have called
evolution a theory or that the School Board should have called evolution a fact
Rather, the distinction of evolution as a theory rather than a fact is the distinction
in the most recent anti-evolution movement, and that was exactly what parents in
Cobb County did in this case By adopting this specific language, even if at the
direction of counsel, the Cobb County School Board appears to have sided with
these religiously-motivated individuals Additionally, unlike the Edwards and
Ennerson Courts, the Sucker does not reference "evolution" as a "scientific theory"
Defendants and their amid also argue that the context in which the Sticker is
displayed supports the conclusion that the Sticker does not have a primary effect to
Cir X987), a case in which the Eleventh Circuit considered an Establishment Cause
challenge to the use of certain textbooks that allegedly advanced secular humanism,
the court emphasized that "`[fjoCUS exclusively on the religious component of any
activity would inevitably lead to its invalidation under the Establishment Clause "'
Smith, 827 F .2d at 692 (citing Lynch, 465 U S at 679-8Q) In this case, the Court has
considered the Sticker in context and still concludes the Sticker is unconstitutional
The Sticker is a statement composed of only three sentences, and the Sucker makes
up only a very small part of a text that contains hundreds of pages on evolution
Nevertheless, the Sucker is prominently featured at the front of the textbooks, and
the Sticker focuses exclusively on evolution The Sucker is the only one of its kind
in the science textbooks, and there are no other stickers placed in any other
textbooks used in the Cobb County School District regarding any other subjects
Therefore, although the message on the Sticker might be small in size when
message has an overwhelming presence The School Board has explicitly endorsed
its approval of this message, and students are bound to see the message when they
open their textbooks These facts support Plaintiffs' argument that the Sticker,
that students in elementary and secondary schools are impressionable and must be
protected from the coercive power of the government) ; Edwards, 482 U S at 5$4
Defendants further urge that the instant case 1s distinguishable from the
FrerIer case, in which the Fifth Circuit held that an oral disclaimer regarding
evolution had a secular purpose but nevertheless violated the Establishment Clause
because of its impermissible primary effect See FreilEr, l$5 F.3d at 346 In Freiler,
the Fifth Circuit relied on the presence of three factors in concluding that the
disclaimer violated the primary effect prong'
(1) thejuxtaposition of the disavowal of endorsement of evolution with
an urgin that students contemplate alternative theories of the orign
of life; (2f the reminder that students have the right to maintain beliefs
taught by their parents regarding the origin of life; and (3) the "Biblical
version of Creation" as the only alternative theory explicitly referenced
in the disclaimer
Id Defendants persuasively argue that the Sticker in this case does not explicitly
reference any alternative theory of origin, religious or otherwise . Nor does the
them that they have the right to maintain their home teachings regarding the origin
historical context of the statement that evolution is a theory and not a fact The
informed, reasonable observer is deemed aware of this historical context Ca 2to1
testimony of the School Board members and the other evidence in the record,
including the revised regulation, that the School Board sought to communicate to
students that even though evolution would be taught, they should feel comfortable
alone render the primary effect of the Sticker religious . However, considering all
facts and circumstances related to the Sticker and its adoption, the Court is
convinced that the Sucker's primary effect surpasses accommodation and endorses
religion Thus, even though the Sucker may not explicitly advance a particular
course of complete neutrality toward religion." Wallace, 472 U S at 60 The Sticker
in this case, considered in context, communicates to the reasonable observer that the
In sum, the Sticker in dispute violates the effects prang of the Lemon test and
justice O'Connor's endorsement test, which the Court has incorporated into its
Lemon analysis Adopted by the school board, funded by the money of taxpayers,
endorsement and tells some citizens that they are political outsiders while telling
others that they are political insiders . Regardless of whether teachers comply with
the Cobb County School District's regulation on theories of origin and regardless of
the discussions that actually take place m the Cobb County science classrooms, the
Sticker has already sent a message that the School Board agrees with the beliefs of
Christian fundamentalists and crest ionrsts . The School Board has effectively
improperly entangled itself whiz religion by appearing to take a position Therefore,
the Sticker must be removed from all of the textbooks into which it has been placed .
Sucker violates Article I, Section II, Paragraph VII of the Constitution of the State of
Georgia . This provision states the following "No money shall ever be taken from
the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious
denomination or of any sectarian institution." As an initial matter, the Court pokes
that case law interpreting this provision is sparse . However, in Bennett v City of
LaGra~ 153 Ga 428, 112 S E . 482, 484 (1922), the Supreme Court of Georgia
declared unconstitutional a resolution passed by the city council of LaGrange that
authorized the city to pay the Salvation Army, a sectarian institution, to perform the
city's charitable work The court specified in Bennett that the provision at lssuelo
seeks to safeguard citizens from having their tax dollars "taken or appropriated" in
aid of religious institutions or denominations of religionists See also Savannah v
Richter, 160 Ga . 177, 127 S E 148 (1925) (declaring unconstitutional the city of
institutions) . In addition, while not folding a violation of this provision, this Court
provision to afford greater protection or "have a stronger application than the first
amendment to the United States Constitution ." See Birdine v. Moreland, 579 F
Supp. 412, 417 (N. D Ga 1983) (citing 19b0-b1 Op Ate y Gen p 349)
In the instant case, it is undisputed that the Cobb County School Board used
the money of taxpayers to produce and place the Sticker in dispute in certain of the
Cobb County School District science textbooks This Sticker aids the beliefs of
Christran fundamentalists and creationists. In light of the prior interpretation of the
Georgia Constitution provision challenged by the Plaintiffs and given the Court's
conclusion above that the Sticker violates the Establishment Clause of the First
Amendment, the Court likewise concludes that the Sticker runs afoul of the Georgia
Fox the abode-stated reasons, the Court hereby FINDS and CONCLUDES
that the Sucker adopted by the Cobb County Board of Education violates the
Establishment Clause of the First Amendment and Article I, Section II, Paragraph
-43 -
VII of the Constitution of the State of Georgia In light of this conclusion, the Court
entitlement . Defendants shall have the right to object to any such fees
75], and Plaintiffs' Motion Seeking Leave to Amend the Pretrial Order [Doc No 78] .
The Court GRANTS the Application to File Brief Amicus Curiae of Amicus
Curlae of Colorado Citizens for Science, Kansas Citizens for Science, Michigan
Citizens for Science, Nebraska Religious Coalition for Science Education, New
Mexico Academy of Science, New Mexicans for Science and Reason, New Mexico
Coalition for Excellence in Science and Math Education, and Texas Citizens for


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Kalashnikov has joined the push of firms hoping to make it massive with electrical automobiles.
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Kalashnikov will face extra hurdles in its dwelling market of Russia, the place the marketplace for electrical automobiles is small. Standard gas is affordable in Russia and the federal government doesn't supply subsidies on electrical automobiles.
"Releasing an idea is a far cry from having the ability to supply a viable product and producing it efficiently," stated Christian Stadler, a professor of strategic administration at Warwick Enterprise Faculty in the UK. "I do not assume the corporate has the know-how or deep pockets it takes to make this a hit."
The corporate's export gross sales dropped after sanctions have been imposed on Russia over its function within the battle in Crimea. It was banned from importing weapons into the USA.
Kalashnikov has since tried to diversify its enterprise and even opened a memento store in Moscow. The corporate went non-public final yr after Russian state holding firm Rostec bought its stake.
Urquhart stated that the CV-1 is unlikely to be an enormous vendor.
"It is a good PR instrument by way of Kalashnikov's plans for diversification, however I might be shocked if it was made in something however very restricted numbers," he stated.
CNNMoney (London) First revealed August 24, 2018: 9:32 AM ET
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Downloads of v 18.104.22.16853
Last update
Veeam Explorer for Microsoft Active Directory
Recovery tool for Microsoft Active Directory
Veeam® Explorer™ for Microsoft Active Directory provides fast and reliable object-level recovery for Active Directory from a single-pass, agentless backup or storage snapshot — without the need to restore an entire virtual machine (VM) or use third-party tools.
Please Note: This is an automatically updated package. If you find it is
out of date by more than a day or two, please contact the maintainer(s) and
let them know the package is no longer updating correctly.
To install Veeam Explorer for Microsoft Active Directory, run the following command from the command line or from PowerShell:
C:\> choco install veeam-explorer-for-microsoft-active-directory
To upgrade Veeam Explorer for Microsoft Active Directory, run the following command from the command line or from PowerShell:
C:\> choco upgrade veeam-explorer-for-microsoft-active-directory
- tools\chocolateyinstall.ps1
$ErrorActionPreference = 'Stop'; $toolsDir = "$(Split-Path -parent $MyInvocation.MyCommand.Definition)" $isoPackageName = 'veeam-backup-and-replication-iso' $scriptPath = $(Split-Path -parent $MyInvocation.MyCommand.Definition) $commonPath = $(Split-Path -parent $(Split-Path -parent $scriptPath)) $filename = 'VeeamBackup&Replication_188.8.131.5253.Update4a.iso' $installPath = Join-Path (Join-Path $commonPath $isoPackageName) $filename $fileLocation = 'Explorers\VeeamExplorerForActiveDirectory.msi' $updateFileVersion = ($filename -replace 'VeeamBackup&Replication_' -replace '.iso').ToLower() $updateFileLocation = "Updates\veeam_backup_$($updateFileVersion)_setup.exe" $packageArgs = @{ packageName = $env:ChocolateyPackageName isoFile = $installPath softwareName = 'Veeam Explorer for Microsoft Active Directory*' file = $fileLocation fileType = 'msi' silentArgs = "ACCEPT_EULA=1 ACCEPT_THIRDPARTY_LICENSES=1 /qn /norestart /l*v `"$env:TEMP\$env:ChocolateyPackageName.$env:ChocolateyPackageVersion.log`"" validExitCodes = @(0,1641,3010) destination = $toolsDir } Install-ChocolateyIsoInstallPackage @packageArgs # An update file is provided in the ISO. This should be executed after # the installation of the software. # This update file contains an update to all available software on the # ISO and should be executed After each installation. # # This should be in a seperate package, but you can't trigger / force a # dependency after the installation Therefore I need to trigger it this way. If ($filename -Match "Update") { $updatePackageArgs = @{ packageName = $env:ChocolateyPackageName isoFile = $installPath softwareName = $packageArgs['softwareName'] file = $updateFileLocation fileType = 'exe' silentArgs = "VBR_AUTO_UPGRADE=1 /silent /noreboot /log `"$env:TEMP\$env:ChocolateyPackageName.$env:ChocolateyPackageVersion.log`"" validExitCodes = @(0,1641,3010) destination = $toolsDir } Install-ChocolateyIsoInstallPackage @updatePackageArgs }
Virus Scan Results
- veeam-explorer-for-microsoft-active-directory.126.96.36.19953.nupkg (48fbc673353b) - ## / 60 - Log in or click on link to see number of positives
- veeam-backup-and-replication-iso (= 22.214.171.12453)
- veeam-backup-and-replication-console (= 126.96.36.19953)
- chocolatey-isomount.extension (≥ 1.0)
Package Maintainer(s)
Software Author(s)
Veeam Software AG
Release Notes
Version History
|Last updated
|Veeam Explorer for Microsoft Active Directory 18.104.22.16866
|Thursday, July 18, 2019
|waiting for maintainer
|Veeam Explorer for Microsoft Active Directory 18.104.22.16853
|Sunday, June 16, 2019
Discussion for the Veeam Explorer for Microsoft Active Directory Package
Ground rules:
- This discussion is only about Veeam Explorer for Microsoft Active Directory and the Veeam Explorer for Microsoft Active Directory package. If you have feedback for Chocolatey, please contact the google group.
- This discussion will carry over multiple versions. If you have a comment about a particular version, please note that in your comments.
- The maintainers of this Chocolatey Package will be notified about new comments that are posted to this Disqus thread, however, it is NOT a guarantee that you will get a response. If you do not hear back from the maintainers after posting a message below, please follow up by using the link on the left side of this page or follow this link to contact maintainers. If you still hear nothing back, please follow the package triage process.
- Tell us what you love about the package or Veeam Explorer for Microsoft Active Directory, or tell us what needs improvement.
- Share your experiences with the package, or extra configuration or gotchas that you've found.
- If you use a url, the comment will be flagged for moderation until you've been whitelisted. Disqus moderated comments are approved on a weekly schedule if not sooner. It could take between 1-5 days for your comment to show up.


text:
Medicare Part A: Here's what you'll pay in 2016
Medicare celebrated its 50th anniversary in 2015, and the program helps tens of millions of Americans cover their healthcare expenses. In particular, Medicare Part A coverage offers help with the expensive cost of care in hospitals and other inpatient facilities. For the vast majority of participants, Medicare Part A coverage comes with no monthly premium. Instead, Part A requires you to pay deductibles and coinsurance amounts when you actually use hospital services.
The latest Medicare cost figures for 2016 just came out, and as you'd expect, costs are heading up next year. Let's take a closer look at exactly what Medicare Part A participants will pay next year.
What Medicare Part A covers
Medicare Part A covers many of the services you need on an inpatient basis. It covers semi-private rooms, meals, general nursing, drugs received as part of your inpatient treatment, and other hospital services. Coverage takes effect when a doctor officially orders that you need to stay overnight for at least two nights for medically necessary care that can be given only in a hospital. Skilled nursing care is also included, as are long-term care hospitals for serious medical conditions that are expected to improve over time, and allow the patient to return home.
For separate skilled nursing facilities, Medicare requires that you have a qualifying hospital stay of at least three days of inpatient care associated with your admission to the facility. In addition, your doctor needs to determine that you need daily skilled care by qualified staff.
What you'll pay for inpatient services under Medicare Part A
Medicare Part A charges an upfront deductible that participants must pay before inpatient hospital coverage kicks in. For 2016, that deductible is $1,288, which is up $28 from 2015.
At that point, Medicare pays all of the allowed costs of hospital care for the first 60 days of your stay. From the 61st to the 90th day of your hospital stay, Medicare still covers most of the cost, but you'll have to pay a daily coinsurance amount. That figure is $322 per day for 2016, up $7 from this year.
Beyond the 90th day of a hospital stay, you've used up all of your annual benefits under Medicare. However, Medicare entitles you to a lifetime reserve of up to 60 additional days of care. The coinsurance amount on these reserve days is double the figure for the 61st to 90th days, making the cost next year $644 per day, up $14 from 2015.
For skilled nursing facilities, the calculations are slightly different. Medicare covers all costs for the first 20 days of skilled nursing care, with no deductible because the required hospital stay related to the skilled nursing facility admission involved the hospital deductible. From the 21st to 100th day, you'll pay a coinsurance amount of $161 per day in 2016. That's up $3.50 from 2015. After the 100th day, you're responsible for all costs, and there's no provision for lifetime reserve days for skilled nursing facilities.
Hospital and skilled nursing facility charges can be astronomical, and Medicare pays the lion's share of costs for these expenses. Nevertheless, you'll still be responsible for paying a substantial amount of money for your medical care in an inpatient facility. Making sure you understand the risks involved can help you with the decision of whether to get additional insurance coverage in retirement, either through a Medigap supplemental policy or by using a Medicare Advantage plan to provide further benefits.
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text:
About Joyetech eGo AIO D22 Quick Start Kit 1500mAh
Joyetech is offering you electronic cigarette and e-liquid products too. They bring in a ton of VG and PG flavors too. Everything is easy to carry, and the company releases a plethora of e-cig kits for your convenience like Atopack Penguin, eVic VT, Primo and AIO, as well as Cuboid, UNIMAX and many others.
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Diameter: 22mm
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Atomizer : 2.0ml
Resistance: 0.6ohm
Color: Silver, Black, Red, Blue, Orange, White
Joyetech eGo AIO D22 Quick Start Kit 1500mAh contains
- 1 x eGo AIO D22 battery
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- 1 x eGo AIO mouthpiece
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Simple packing. Customary Packing from the factory, the packing is subject to change without notice.
- It doesn't come with liquids, you shall buy separately.
- You can buy BF Replacement coil. We suggest you use 0.6ohm BF SS coil with eGo AIO.
- Attention: AIO D22 is NOT compatible with BF RBA Head.
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Adjustment of air inflow
Choose Your Color: In power-off condition, long press the fire button to turn off the indicate light or shift among the color of red, yellow, green, blue, indigo, white or purple.
Adjustment of Air Inflow: Rotating the ring on the atomizer cap clockwise or counterclockwise to adjust the air inflow.
E-juice filling: Press the cap to unscrew the atomizer cap, then inject the liquid directly into the cambered slot.
1. In order to avoid overflow when reassemble please don't overfill.
2. Please drip a few drops of e-juice to the atomizer head before its first use to avoid dry burn.
Charging: Simply charge eGo AIO by connecting it with a computer or a wall adapter via USB cable. When it's fully charged, the button light will go out.
3 months for eGo AIO. Please check Guarantee Policy.
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text: We've all put off fixing a broken doorknob or restitching a seam for longer than we'd care to admit, despite the deep satisfaction that arrives when we finally get around to it. Why does it take so long to make small repairs when we know how much they matter to our daily lives? Even the little things can feel overwhelming when we're not organized, which is why a dedicated fix-it station makes all the difference.


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text:
Huge Harold
Bill Peet
AbeBooks Seller Since August 14, 2015Quantity Available: 1
Stock Image
AbeBooks Seller Since August 14, 2015Quantity Available: 1
About this Item
Bibliographic Details
Title: Huge Harold
Publisher: HMH Books for Young Readers
Publication Date: 1974
Binding: Hardcover
Book Condition: Good
About this title
The world seems a cold place to Harold, a very overgrown rabbit, until he finds his niche as a champion trotter.From the Back Cover:
It is a children's book which tells the life of a rabbit named Harold. Harold started out to be the smallest rabbit but then an amazing thing started to happen.
"About this title" may belong to another edition of this title.
Store Description
Buy with confidence. Excellent customer service. 30 day return policy.
Books Express LLC
318 US Route 1, STE 2
Kittery ME 03904
Standard and expedited shipping options include shipping and handling costs. Default shipping is by USPS Media Mail and frequently USPS Priority Mail or UPS Ground is used. Books should arrive within 10-14 business days for expedited shipping, and 20-30 business days for standard shipping. Standard shipping can on occasion take up to 30 days for delivery.
Payment Methods
accepted by seller
Check Money Order PayPal Invoice Bank Draft Bank/Wire Transfer Direct Debit (Personally Authorized Payment)


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text:
Police release photo of Bank of America burglary suspect
The Cottonwood Police Department has released surveillance photo from the Jan. 27 burglary of the Cottonwood branch of the Bank of America.
According to Detective Sergeant Tod Moore, police are "still seeking the public's help in identifying who may have been involved in the Bank of America burglary on Jan. 27. A $10,000 reward is being offered for any information leading to the arrest and successful prosecution of anyone involved in the burglary. A new surveillance photo is being released showing the suspect leaving the bank and walking towards Safeway at about 4:25 a.m.
"Anyone who may have seen any suspicious activity in the area during this time or who may have seen someone matching the description of the suspect seen ... is encouraged to call." (Surveillance photo attached)
The Jan. 27 early morning burglary of the Cottonwood branch of the Bank of America saw about $350,000 stolen.
According to a news release from Cottonwood Police Dept. Commander Gary Eisenga, the break-in and theft occurred prior to Bank of America opening for business.
"An individual or individuals entered the bank through the rear door of the building. The suspect or suspects removed approximately $350,000 from the bank. It appears that the suspect may have had knowledge of banking procedures to include security procedures. Information has been obtained that a white sedan was seen in the area during the time of the initial alarm call at 1 a.m.," Eisenga's news release stated.
Moore said one or two people entered the bank branch overnight through the back door to the building.
There was no forced entry, he said.
Moore said alarms called police to the bank branch twice. The first alarm brought police to the Bank of America branch at 1 a.m. The second alarm was at 4 a.m.
Both times, said Moore, police "found the bank secured and nothing suspicious was observed."
Cottonwood Police Department criminal investigations division continues to investigate the burglary along with assistance from the FBI, Yavapai County Sheriff's Office and Yavapai County Attorney's Office personnel.
A $10,000 reward has been offered for information leading to the arrest and conviction of the suspect or suspects involved. Yavapai Silent Witness can also be contacted at 1-800-932-3232.
Please contact Detective Sgt. Tod Moore of the Cottonwood Police Department Criminal Investigations Division if you have any information in regard to this incident. He can be reached at (928) 634-4246 or firstname.lastname@example.com.
- Some wildfires still burning; smoke visible in Verde Valley
- Jerome, other fire departments contain house blaze to basement
- County plans $1 million-plus investment in Ogden Ranch Road
- Saber, Sheridan fires blanket Verde with smoke
- Jerome accident turns fatal
- Sun shines over new Cottonwood hair studio
- Land swap to give UofA property for Verde Valley veterinary school
- Stolen car recovered in Oak Creek Canyon
- Yavapai County K9 team discovers nearly 30 pounds of narcotics
- Vehicle stolen in Rimrock found in New Mexico
- Infant death in Camp Verde
- Jerome accident turns fatal
- Camp Verde man arrested for alleged assault, abuse of infant
- Fire destroys Montezuma Veterinary Services
- Cottonwood's Goodwill store moving to new location
- Clarkdale couple believed responsible for string of area burglaries
- Friday storm takes roof off Cornville home; causes other major damage
- Not a bomb, but a snake and an ax
- Traffic stop leads to felony arrest of Cottonwood man
- Two vehicles totaled in Beaverhead Flats collision
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