Appeals court: Louisiana school evolution disclaimer still doesn’t fly

Thursday, January 27, 2000

A Louisiana school district has failed again in a bid to have its teachers read a classroom disclaimer about evolution.

Voting 8-7 on Jan. 25, the 5th U.S. Circuit Court of Appeals found “that under the facts and circumstances of this case, the statement of the Tangipahoa Parish School Board is not sufficiently neutral to prevent it from violating the Establishment Clause” and denied the school board's request that the entire appellate court consider the case.

Last August, a three-judge panel of the court unanimously ruled that the school board's proposed evolution disclaimer was unconstitutional because school officials' intent was to promote and protect the Christian story of creationism.

In 1994, the Tangipahoa Parish Board of Education created a disclaimer and voted to have elementary and high school teachers read it to students before instruction on evolution. The disclaimer said discussion of evolution was only to enhance students' knowledge of science and was not “intended to influence or dissuade the Biblical version of Creation or any other concept.”

In its August 1999 decision, the appeals panel dismissed the school board's claim that the disclaimer was meant to foster critical thinking among students as a “sham.” The panel said the board was actually seeking to “maintain a particular religious viewpoint, namely belief in the Biblical version of creation.”

The school board's attorneys, Barry Ashe and William Treeby, had sought a review and reversal of the panel decision by the entire 5th Circuit.

Seven of the circuit's 15 judges said a review should have been granted and that the board's evolution disclaimer was a neutral statement that did not advance religion.

“The theory of evolution may be viewed by some as anti-religious,” Judge Rhesa Hawkins Barksdale wrote for the dissenters. “The disclaimer recognizes this historic tension between evolution (scientific concept) and other theories or concepts about the origin of life and matter, using the 'Biblical version of Creation' as but an example of such other concepts. In furtherance of the purposes to disclaim any orthodoxy of belief that could be inferred from the exclusive placement of evolution in the curriculum, and to reduce any resulting offense to students who adhere to concepts other than evolution, the disclaimer points out that the fact that evolution is the only such concept taught is not intended to influence or dissuade any other concept, including the Biblical version.

“In any event, how does reminding students of their right to maintain beliefs taught by their parents regarding the origin of life and matter, or to form their own beliefs about the subject, advance religion?” Barksdale asked. “Based on my review of the record, the language of the disclaimer, and the context in which it was intended to be used, the primary effect of the disclaimer is not to advance religion; instead, it is to advance tolerance and respect for diverse viewpoints.”

Ashe, one of the school board's attorneys, described the dissent as “eloquent and strong” and said he would encourage the board to seek a Supreme Court hearing of the case.

“It will be our strong recommendation to the board to pursue this matter to the Supreme Court and take every step toward that end,” Ashe said. “However, the board must agree to an appeal at an official meeting.”

Ashe said the board's next official meetings occur on Feb. 8 and 22. He said he had talked with one board member who was hopeful that the entire board would vote to appeal the 5th Circuit's decision to the Supreme Court.