In part 1, posted on the forty-fifth anniversary of the Supreme Court’s decision in Epperson v. Arkansas, I related how the state law prohibiting the teaching of evolution (“the theory or doctrine that mankind ascended or descended from a lower order of animals”) in Arkansas’s public schools was enacted in the first place. Uniquely among the Scopes-era antievolution laws, the Arkansas law was the product of a popular initiative, submitted to the electorate after a similar bill failed in the legislature. The electorate was enthusiastic, to say the least, passing the initiative 108,991 to 63,406. There were attempts in the legislature to repeal the act in 1937, and again in 1959, and yet again in 1965; none of the repeals even came to a vote: a two-thirds majority would have been required to overturn the act anyhow. The failure of the last of these attempts inspired the Arkansas Education Association to consider challenging the act in court.
Forrest Rozzell was the executive secretary of the Arkansas Education Association, and in that capacity drafted a statement to support the 1965 repeal bill. Convinced by its failure that the legislature would never bring itself to repeal the antievolution law, he began to orchestrate a campaign to launch a lawsuit challenging its constitutionality. Writing in The Arkansas Historical Quarterly (1979), Cal Ledbetter Jr. explained that Rozzell’s idea was “to keep the legal case as local as possible. This meant finding a plaintiff who had roots in Arkansas, finding an Arkansas group and an Arkansas attorney to undertake the financing and trial of the case, and keeping national groups that might be interested in the case for reasons of ideology or political belief out of the case as sponsors.” As far as Rozzell was concerned, in his legal challenge to the Arkansas law, out-of-state entities should not be multiplied beyond necessity: call it Occam’s Razorback.
Enter Susan Epperson. Raised and educated in Arkansas, where she received her undergraduate degree in biology from the College of the Ozarks (now the University of the Ozarks) in Clarksville, she returned to the state after earning her master’s degree in zoology at the University of Illinois to teach biology at Central High School in Little Rock—the same school, by the way, where in 1957 the Little Rock Nine were denied entry to the school despite the Supreme Court’s ruling in Brown v. Board of Education ordering the integration of the public schools; in the resultant turmoil, President Eisenhower deployed army troops to escort the students. Nothing quite so flamboyant was contemplated for the challenge to the state’s antievolution law, though: Rozzell and the AEA’s counsel Eugene Warren wanted a quiet challenge, with a demure all-Arkansas schoolmarm quietly asking a court to issue a declaratory judgment on the law.
The theory of the case centered on the textbook that Epperson was expected to use in her classes, James H. Otto and Albert Towle’s Modern Biology (1965). A descendant of Moon, Mann, and Otto’s Modern Biology (1956), which itself was a descendant of Moon’s Biology for Beginners (1921), which bore a portrait of Darwin as its frontispiece, Modern Biology was recovering from the eclipse of evolution in America’s textbooks after the Scopes trial. Where the 1956 edition didn’t use the e-word—using instead what the biologist Rudolf A. Raff describes in his memoir Once We All Had Gills (2012) as “a truly grotesque neologism, racial development”—the 1965 edition discussed human evolution, if less than forthrightly, saying, “It is believed by many anthropologists that, although man evolved along separate lines from the primates, the two forms may have had a common, generalized ancestor in the remote past.”
Epperson was thus in a position to argue that teaching evolution was part of her professional duty as a biology teacher. After all, the district chose a textbook that presented evolution. But if she were to teach evolution, she would be violating a state law, and if she were convicted of so doing, she would not only be fined but also would lose her position, as specified by the law. Accordingly, her complaint challenging the constitutionality of the law not only contended that it violated the First Amendment of the Constitution and provisions of the Arkansas constitution but also asked for the district to be enjoined from firing her for breaking the law. Since nobody in Arkansas ever seems to have been prosecuted under the antievolution law, it’s tempting to suppose that the request for the injunction was motivated less by a genuine fear that Epperson would be sacked and more by a desire to highlight the law’s absurdity.
On December 6, 1965, the AEA’s Warren filed the suit in Pulaski County Chancery Court, asking for a declaratory judgment that the antievolution law was unconstitutional. Since it was filed in a chancery court, the case would be heard only by a judge if it went to trial: there would be no jury. The judgment was denied, so preparations for a trial began. Epperson was joined as plaintiff by Hubert H. Blanchard Jr., a parent of school-aged children whose constitutionally protected right to learn about evolution was, Warren argued, denied by the antievolution law; presumably it was no coincidence that Blanchard worked for the AEA. For the state, Arkansas’s attorney general Bruce Bennett leapt into the fray, showing, as Ledbetter writes, “signs initially of wanting to turn the case into a second Scopes trial.” He may have had broader political ambitions in mind: Bennett ran for governor in 1960, to the right of Orval Faubus, and again in 1968.
Despite Warren’s efforts, Bennett thrust the case into the spotlight, and people took sides. The Arkansas Gazette and the Little Rock Chapter of the American Association of University Women (whose president Virginia Minor, a fellow teacher of Epperson’s, had recruited her for the case) praised Epperson, and Central High School’s own newspaper noted that “Mrs. Epperson has shown admirable courage in filing her law suit.” Interestingly, although both the teaching of evolution and Epperson herself were commonly castigated for promoting atheism, the Executive Committee of the Arkansas Presbyterian Church wrote a letter to Bennett commending Epperson for bringing the suit and expressing concern about the damage that a successful defense of the antievolution law would do to the reputation of the state. Bennett, who repeatedly accused Epperson of promoting atheism, was reportedly not pleased.
Epperson herself received a lot of letters about the case. Some were civil: a letter from the Creation Research Society informed her that “evolution is on its way out” and suggested, “Can’t you delay your action against [the law] while you study the facts?” Some were not. One, quoted by Randy Moore in a 2002 article for RNCSE, commented, “You go right ahead Mrs Epperson and teach the ugly theory of evolution—because from the way you looked on TV, it could be true that man and woman did evolve from apes.” (Discussing a 2004 talk by Epperson on the Panda’s Thumb blog, Reed Cartwright wryly commented, “Of course, that was the point of the lawsuit, humans do look like monkeys. Even people writing hate mail can do comparative morphology.”) As the trial approached, Epperson released a statement describing the law as “the sure path to the perpetuation of ignorance, prejudice, and bigotry.” The trial began on April 1, 1966: that will be the topic of part 3.