Glenn Branch's picture

Forty-Five Years after Epperson, Part 3

Susan Epperson

The saga continues! 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 was enacted in the first place. In part 2, I discussed how the Arkansas Education Association engineered a challenge to the law, recruiting the Arkansas native Susan Epperson, a biology teacher at Central High School in Little Rock, to challenge its constitutionality. The trial, before Morris O. Reed of the Pulaski County Chancery Court, began on April 1, 1966. The date was significant, according to Edward J. Larson’s Trial and Error (third edition, 2003): “The trial judge made no secret of his contempt for the old statute—he even scheduled the trial for April Fools’ Day, allowing the case only one day rather than the two weeks requested by the state for presenting scientific arguments against evolution.”

Before the trial, Arkansas’s attorney general Bruce Bennett wavered between two ways of presenting his defense of the law. Sometimes he seemed to want to focus on a narrow legal question: whether Epperson’s constitutional rights trumped the state’s right to decide what is and what is not to be taught in its public schools. If the antievolution law were to be struck down, he warned, the public schools would be open to “every soap box orator with a crackpot theory of evolution,” even the “Ham and Eggs Theory of California” (could he have been referring to a California pension scheme proposed in the late 1930s?). Sometimes, and perhaps with greater frequency, he seemed to want to attack evolution as a form of atheism—“This is the Bible, buddy; I intend to defend it,” he assured his supporters—and as scientifically worthless. He claimed to have recruited fourteen scholars who would testify against the scientific validity of evolution.

Unfortunately for Bennett, Judge Reed was disinclined to consider any but constitutional issues. As Larson observed, “The tactical positions of the parties for and against evolution in Epperson were...exactly the reverse of their positions in Scopes.” Judge Reed granted Warren’s pre-trial motion for the testimony of scientific and religious witnesses to be excluded, and Bennett found it difficult to introduce his attack on evolution as a science while examining Epperson. (Bennett: “Do you know of a theory that man evolved from algae?” Epperson: “No sir.” Bennett: “From seaweed?”) Bennett rested the state’s case shortly after lunch, and Warren conducted the plaintiff’s case with even greater celerity: the whole trial took two hours and twenty minutes. The national press was disappointed at the lack of fireworks in what had been billed as the rematch of the Scopes trial: “Arkansas Evolution Trial Lacks 1925 Scopes Drama,” the New York Herald Tribune complained.

Two months later, on May 27, 1966, Judge Reed issued his decision. The chapter of Otto and Towle’s Modern Biology containing the material on evolution “does not constitute such a hazard to the safety, health and morals of the community that the constitutional freedoms may justifiably be suppressed by the state,” he wrote, adding that the antievolution law “tends to hinder the question for knowledge, restrict the freedom to learn, and restrain the freedom to teach.” The antievolution law was held to be unconstitutional. But that, of course, was not the end of the story: the state promptly appealed the decision, arguing that the antievolution law was a reasonable regulation of public employees and of curriculum in the public schools, and noting that employers have a right to curtail the speech of their employees. Warren submitted a brief on Epperson’s behalf rehearsing his arguments.

The Arkansas Supreme Court upheld the constitutionality of the antievolution law. In a two-sentence decision issued on June 5, 1967, the court wrote, “Upon the principal issue, that of constitutionality, the court holds that Initiated Measure No. 1. of 1928 is a valid exercise of the state’s power to specify the curriculum in its public schools. The court expresses no opinion on whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true; the answer not being necessary to a decision in the case, and the issue not having been raised.” Prima facie, the decision is puzzling. But Larson is probably right to suggest that the members of the court—who were elected to their office—were leery of overturning the law and instead chose, in effect, to punt the issue to the Supreme Court of the United States. That’s precisely where Epperson and her attorneys took their case next.

Early in 1968, the Supreme Court agreed to hear the case, and the lawyers set busily to work again. Among them were attorneys writing amicus curiae briefs for, on the one hand, the American Civil Liberties Union and the American Jewish Congress, and, on the other hand, the National Education Association and the National Science Teachers Organization. The ACLU brief stressed the conflict between the antievolution law and the Establishment Clause; it also cheekily referred to the ACLU’s participation in the Scopes case, saying that the ACLU “looks forward to its final resolution in this case.” The NEA brief argued that it is “an infringement of academic freedom to deny the teaching of so commonly and popularly accepted a theory as” evolution, citing a statement signed by 179 leading biologists (which I really should locate and add retroactively to Voices for Evolution, now that I think about it).

Oral arguments before the Supreme Court were heard on October 16, 1968. Warren continued to represent Epperson, and conducted his oral argument with such expedition that he spoke for only ten minutes of the half hour allotted to him. He emphasized the vagueness of the law, which he claimed confused and frightened teachers. Bennett was no longer Arkansas’s attorney general, and the state was represented instead by a young assistant attorney general, Don Langston, who was evidently not enthusiastic about the law, suggesting that it banned any mention of human evolution, complaining of how his predecessors handled the case, and criticizing the Arkansas Supreme Court for the brevity of its decision. Justice Thurgood Marshall joked with him about the possibility of the Supreme Court outdoing its Arkansas counterpart in brevity by issuing a decision containing only one sentence.

In the event, the Supreme Court’s decision in Epperson v. Arkansas was rather longer than one sentence. The Court’s decision, written by Justice Abe Fortas and issued on November 12, 1968, held that “[t]he statute violates the Fourteenth Amendment, which embraces the First Amendment’s prohibition of state laws respecting an establishment of religion.” The decision discounted the issue of the vagueness of the law, arguing that whether it forbids teachers from advocating or from even mentioning evolution, it is unconstitutional: “There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.” Since “[t]he law’s effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account,” it violated the First Amendment. What happened next is the topic of part 4.