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Selman vacated and remanded


The ruling in the appeal of Selman et al. v. Cobb County School District et al. -- the case in which a federal district court ruled that textbook stickers describing evolution as "a theory, not a fact" violate the First Amendment -- was issued by the Eleventh Circuit Court of Appeals on May 25, 2006. The three-judge panel vacated the district court's judgment and remanded the case for further evidential proceedings. "[W]e leave it to the district court whether to start with an entirely clean slate and a completely new trial," the ruling states, "or to supplement, clarify, and flesh out the evidence that it has heard in the four days of bench trial already conducted."

After suggesting no fewer than eighteen factual issues for the district court to address, the appeal court's ruling emphasizes that "we want to make it clear that we do not intend to make any implicit rulings on any of the legal issues that arise from the facts once they are found on remand. We intend no holding on any of the legal premises that may have shaped the district court's conclusions on the three Lemon prongs. Mindful that in this area factual context is everything, we simply choose not to attempt to decide this case based on a less than complete record on appeal or fewer than all the facts."

What primarily concerned the appeals court about the district court's decision was the evidence introduced at trial concerning the adoption of the stickers by the Cobb County, Georgia, school board. The plaintiffs alleged, and the district court agreed, that a letter and a petition organized by a local creationist parent, Marjorie Rogers, affected the school board's decision to require the stickers. But, the appeals court states, "The evidence in the record before us does not establish that the Rogers letter was submitted to the board before it adopted the sticker. And the only petition in the record that resembles the one the court described came well after the board's action."

These concerns were prefigured during oral argument on December 15, 2005, when Judge Ed Carnes expressed concern about the timing of the petition. According to the Atlanta Journal-Constitution (December 16, 2005), however, it reported on March 29, 2002, that Rogers told the board about her petition at its March 28, 2002, meeting, the same meeting at which the board promised that students would be told that evolution is a theory, not a fact. A few days later, a Journal-Constitution reporter "examined the petitions at the Cobb school system offices and took notes on names and phone numbers of some of the people who had signed."