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Forty-Five Years after Epperson, Part 4

Susan Epperson

And finally the last installment in what proved to be a rather longer essay on Epperson v. Arkansas than I had originally anticipated. In part 1, posted on the forty-fifth anniversary of the Supreme Court’s decision, 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. In part 3, I traced the legal history of the case, from the Pulaski County Chancery Court through the Arkansas Supreme Court to the United States Supreme Court, which struck down the law in a decision issued on November 12, 1968. And now I want to examine the aftermath of the Epperson decision, comparing the situation in Arkansas with that in the other two states with Scopes-era antievolution laws.

When the Supreme Court’s decision in Epperson v. Arkansas was issued on November 12, 1968, it was featured in headlines around the country. The New York Times ran a short story, referring to Epperson as “Mrs. John O. Epperson”—which was both sexist and wrong; Susan Epperson’s husband’s first name is “Jon,” with no H. (A further reason for annoyance with the practice of referring to a married woman by her husband’s name will be mentioned below, in the discussion of Mississippi.) “A sarcastic ‘Special Report’ in Life magazine expressed surprise that ‘in this year of our Lord 1968, even as Apollo 7 twinkled in space, the possibility of there being some monkeys in the woodpile would come up for discussion in no less august a body than the United States Supreme Court,’” Edward J. Larson wrote in his Trial and Error (third edition, 2003). And versions of a report from the Associated Press were common.

The Associated Press report quoted John Thomas Scopes, who had emerged from obscurity in 1960 to help to publicize the Hollywood version of Inherit the Wind, as saying that as far as he was concerned, the decision came “43 years too late.” (That reminds me. Among the treasures in NCSE’s archives are a photograph of Scopes together with Epperson and a photograph of Epperson together with Don Aguillard, the lead plaintiff in Edwards v. Aguillard, the 1987 Supreme Court case finding that teaching creationism in the public schools is unconstitutional. [The photograph of Epperson accompanying these posts is cropped from the latter picture.] Obviously, some enterprising photographer needs to snap a shot of Aguillard together with Tammy Kitzmiller, the lead plaintiff in Kitzmiller v. Dover, the 2005 case finding that teaching “intelligent design” creationism in the public schools is unconstitutional—and to send a copy to NCSE!)

By the time that the decision in Epperson was released, though, Tennessee’s Butler Act, under which Scopes was prosecuted, was already a thing of the past. The situation in Tennessee was particularly byzantine, involving two separate lawsuits and two separate bills. First, in early 1967, Martin Southern filed suit in the Knox County Chancery Court, charging that the Butler Act was unconstitutional. As his suit was pending, House Bill 48, which would repeal the Butler Act, was introduced in the Tennessee House of Representatives. A sign of the confidence of its legislative sponsors was that they lightheartedly brought a live monkey carrying a sign reading “Hello Daddy-o.” While it passed the House—the bill, silly, not the monkey—the Senate reached a 16–16 deadlock on the bill, causing it (the bill, still!) to die. The Senate passed a bill of its own that did not repeal the Butler Act but amended it: only teaching evolution as a fact would be illegal.

The Tennessee Senate’s intransigence helped to focus attention on the second lawsuit in Tennessee. A week before the Senate’s vote, the Campbell County Board of Education voted to fire a young teacher, Gary L. Scott, for teaching evolution. The local chapter of the ACLU offered to help Scott, and William Kunstler (who was later to defend the Chicago Seven) became his counsel. Scott sued the school board over his dismissal and also filed a federal class action lawsuit against the antievolution law, in which he was joined by the National Science Teachers Association and sixty Tennessee professors. Scott’s legal team publicly offered to dismiss the latter action if the statute were repealed. The Senate could take a hint. When it reconsidered House Bill 48 on May 16, 1967, less than three minutes of debate occurred before a vote was taken. The Senate passed the bill on a 20–13 vote, and Governor Buford Ellington signed the bill into law two days later.

With antievolution laws repealed in Tennessee and overturned in Arkansas, only Mississippi’s was left on the books. Reporting on EppersonThe New York Times commented, “Since the wording of the Mississippi law is different from the one declared unconstitutional today, lawyers connected with the case were uncertain as to whether it would also fall under the decision.” A Mrs. Arthur G. Smith of Jackson was inclined to think that it was, filing suit in Mississippi’s state court complaining that the law violated the Establishment Clause of the First Amendment to the Constitution. (I spent about two hours a few years ago trying to identify Mrs. Smith’s first name. In vain: there are a lot of people named Smith.) By the time the suit reached the Mississippi Supreme Court in 1970, the outcome was clear: “in Epperson...the Supreme Court...has for all practical purposes already held that our anti-evolution statutes are unconstitutional.”

It was already clear, too, where creationists would be headed next. At the very end of the Associated Press’s story on Epperson—so present only in newspapers, like the El Dorado (Arkansas) Times, especially interested in the case—appeared the following quote from the Reverend M. L. Moser Jr., a Baptist pastor in Little Rock: “Under the rights of academic...I think there should be someone who believes in the creation should be allowed to teach their views where the theory of evolution is presented” (ellipsis in original). Garbled though it is, Moser’s suggestion points the way to what would dominate the next phase of creationist activity: calling for equal time for creationism, often speciously invoking academic freedom. As for Epperson herself, she was headed out of the state, to accompany her husband. Today they live in Colorado, where Susan Epperson teaches biology and chemistry at the University of Colorado at Colorado Springs.