The problem with the NY Times’ claim is that the Selman case did NOT rule that the sticker was unconstitutional due to the fact that “evolution alone was the target.” In fact, in the Selman v. Cobb County ruling, Judge Cooper held that the Cobb County sticker had a valid secular purpose and that it was permissible to single out evolution. In the words of Judge Cooper’s lower court ruling in Selman, “The School Board's singling out of evolution is understandable in this context” because “evolution is the only theory of origin being taught in Cobb County classrooms,” and “evolution was the only topic in the curriculum, scientific or otherwise, that was creating controversy.”About this, Rosenau writes:
I'm not a lawyer, but I've picked up some things over the years, and one of them is that the test at issue in Selman is something called the Lemon test. It has three parts (actually prongs, because lawyers love cutlery). The first is purpose: a government action may not have a primarily religious purpose. The second is effect: its effect cannot be to elevate one religion over another, or religion over nonreligion. The final is entanglement: The action cannot excessively entangle government with religion...Rosenau continues by noting that the court viewed the opposition to evolution to be peculiar and to be historically religious-based. The court also noted that opposition to evolution had run into legal trouble in the past and used Epperson as an example. The sticker, therefore, violated the "effects" prong of the lemon test. As I wrote yesterday, Casey then wrote the New York Times and complained that they had gotten it wrong (when they didn't) and that there should be a correction. Here is where it gets a little funny. When they declined to do so, Luskin posted the information to his blog. Rosenau writes:
... Anyway, the court in Selman looked at a sticker which the local board of education wanted affixed to biology textbooks and applied the Lemon test. And the court concluded that, yes, placing the sticker on books does serve a secular purpose. Had the court stopped there, Casey would be right. But the court only stops when a policy fails one of the prongs, or after looking at all the prongs.
Having been rebuffed by the reporter, by the editors, and by lawyers with at least modest literacy, Casey didn't take the hint, so he posted his complaint and selections from the Times' response at the Disco. 'Tute complaints department (created, they explain, for "the misreporting of the evolution issue"), hoping that if he didn't link to the ruling itself and the various other documents relevant to the case, that his readers would just take his word for the ruling's content.I linked to Luskin's piece yesterday, in which he waxes indignantly about being rebuffed by the Times. Rosenau continues:
There have been a number of instances in which DI individuals have posted about news stories (here and here) and have gotten basic points about the stories wrong. We all do that. This is a bit more complex, however, in that Luskin is being accused of academic dishonesty here. I am curious to see if he responds to Rosenau's accusation.
What's most disappointing is that, for all Casey's bluster in his blog post (and presumably the letter he sent to the Times), he knew he was wrong. He knew this because he wrote this about the Selman case in a 2009 law review article (p. 54):While the sticker passed the purpose prong of the Lemon analysis, the judge ruled that the disclaimer failed the effect prong of the Lemon test. The court observed that “citizens around the country have been aware of the historical debate between evolution and religion.” The court found that the school district did not intend to endorse religion, but nonetheless “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.” In this particular case, “the informed, reasonable observer would know that a significant number of Cobb County citizens had voiced opposition to the teaching of evolution for religious reasons” and “put pressure on the School Board to implement certain measures that would nevertheless dilute the teaching of evolution.” Although the district did not intend to endorse religion, “the informed, reasonable observer would perceive the School Board to be aligning itself with proponents of religious theories of origin.”While Casey decided not to emphasize the decision's specific references to the effect of singling out evolution, he quoted language found all around those passages, so I presume he read those bits as well, and saw how the parts he's quoting here connect to the parts about isolating evolution. So we know that, within the last year, Casey has apparently read the ruling. He saw that the sticker failed the Lemon test, and why. He knows better, yet he keeps advancing a claim which he knows to be wrong. I cannot fathom why. The issue isn't even the dishonesty of haranguing reporters with meritless demands for a correction, but the massive FAIL embodied in trotting out the attempts by others to set him straight that I find so puzzling.
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