The Panda’ Thumb announced that an appeal is likely in the Cobb County Sticker case. After re-reviewing the slip opinion, there is evidence of what I call “bulletproofing” the opinion. I use the term “bulletproofing” for those actions the trial judge takes to reduce the chances of a case being reversed on appeal. “Bulletproofing” can take many forms.
Any trial attorney has endured a trial when the judge has clearly favored the other side in all evidentiary rulings and has apparently unfairly favored the opponent throughout the trial. When this has happened to me, I have won every time. The losing side is unable to appeal because they got all their evidence and witnesses into evidence even over my objections and still lost. It’s hard to complain the trial was unfair when you got all the breaks.
Another common way to bulletproof a decision or ruling is to base the ruling on the facts and avoid deciding legal issues. On appeal, generally the appellate court only considers legal issues and will not re-decide the facts. Factual issues are generally reviewed on what is called an “abuse of discretion” standard. Generally, this means that, if there is any evidence in support of the ruling, the court of appeals will uphold the ruling even if there is substantial evidence to support the losing side. An appellate court will not re-evaluate evidence or reconsider which side was more believable. It is extremely rare for a case to be reversed when the abuse of discretion standard is applied. This makes sense. Nuance, facial expressions, hesitations, doubt, pauses and all aspects of witness demeanor can be observed at trial but don’t make it into the sterile court transcripts. Appellate courts generally respect this and uphold trial court resolutions of disputed facts.
It appears that judge Cooper took steps to bulletproof his opinion by avoiding the broad policy questions on science/religion compatibility or origins of the human species. Judge Cooper also avoided evolution and intelligent design/creationism issues. Appellate courts live to make broad reaching decisions and Judge Cooper made a point to keep his decision very narrow so that any appellate court could avoid the temptation to make broad legal policy on an appeal. Next, he avoided ruling on the first Lemon prong, which is more of a “legal” issue than a “factual” issue.
He also specifically noted, “The findings of fact and conclusions of law adduced below are based on the court’s review of the evidence, 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.” This language is somewhat standard but the reliance upon evidence and testimony are clear indications that he made findings of fact on disputed evidence on a relatively narrow issue.
He specifically referred to testimony of various witnesses, demonstrating that the evaluated conflicting testimony and resolved it by observing witness demeanor in the courtroom. He considered testimony from a parent, Marjorie Rodgers, a self identified 6-day creationist and a footnote details the conflicting recollections regarding what happened at board meetings. He analyzed at length the various positions of the school board members, which often contradicted each other and efforts to compromise. All this demonstrates to the appellate court that he resolved conflicting evidence to make his decision. It will be very hard for the appellate court to reverse his ruling.
With respect to ultimate review by the Supreme Court, he also invoked another common bulletproofing strategy by finding that the stickers violated the Georgia State Constitution, as well as the U.S. Constitution. This ruling could only be ultimately challenged in Georgia Courts for a determination of Georgia law. The U.S. Supreme Court will not make a final ruling on Georgia law.
In making his decision, Judge Cooper made several finding very favorable to science. The Discovery Institute is faced with a hard decision after this case. It’s not likely that the ruling will be overturned by the Court of Appeals because Judge Cooper’s decision is so factually detailed. Right now, his decision is of limited precedential value as it is only an opinion of one U.S. District Court on a specific set of facts. It is not binding on any other school district in the country and one legitimate strategy by the Discovery Institute could be to ignore it legally and “spin it” politically as an aberration by an activist judge. If it is sustained by the Eleventh Circuit Court of Appeals, it will be binding precedent in Alabama, Georgia and Florida, all known for creationist activity, and also be persuasive legal authority in the entire rest of the country.
His first holding favorable to science is that sham statements of secular purpose can be disregarded. He relied on the U.S. Supreme court’s Aguillard case for this—a nice touch, further bulletproofing his opinion. He also “defined” critical thinking in a way that is particularly damaging to the Discovery Institute. Judge Cooper observed that the language on the sticker actually undermines the goal of critical thinking by “predetermining what students should think about evolution.” He did not explicitly say that religious creationism claims would also be subject to critical thinking in the absence of a sham stated purpose but that unstated conclusion logically flows from his holding, and the Discovery Institute must now concede that ID must be equally subject to critical thinking for it to even be considered as a viable alternative in the classroom. In the absence of a positive unified field theory of ID, that will be increasingly difficult. The discovery Institute typical negative argumentation may well qualify as “critical thinking with respect to evolution, but the Discovery institute has never offered any critical thinking analysis of Intelligent design. In future court cases, I would encourage attorneys representing science to require proof that the alternative ID/creationism would be actually subject to critical thinking as well.
Finally, the court found that the purpose of the sticker was to reduce offense to religious sensibilities of those persons who believed in creationism, and, furthermore that was an invalid purpose. Again, showing a nice touch, the judge relied on another U.S. Supreme Court case, Epperson, to hold that the First Amendment does not permit the school to tailor otherwise solid education to the principles or prohibitions of a particular religion. School districts are permitted, even required, to accommodate religion, but if evolution disclaimers are widely recognized as a form of endorsement (which they are), the Discovery Institute will have reduced opportunities to sneak ideology into science classrooms. As long as students can be accommodated by opting out of the particular classes or subjects as is currently done in frog dissecting and sex educations cases, the Discovery Institute may not have much room to maneuver.
Given that so much is at risk, The Discovery Institute might consider discouraging an appeal and waiting for a factually more favorable case.