U.S.

Supreme Court
Epperson v. Arkansas, 393 U.S. 97 (1968)

Epperson v. Arkansas

No. 7

Argued October 16, 1968

Decided November 12, 1968

393 U.S. 97

Syllabus

Appellant Epperson, an Arkansas public school teacher, brought this action for
declaratory and injunctive relief challenging the constitutionality of Arkansas' "anti-
evolution" statute. That statute makes it unlawful for a teacher in any state supported
school or university to teach or to use a textbook that teaches "that mankind ascended
or descended from a lower order of animals." The State Chancery Court held the statute
an abridgment of free speech violating the First and Fourteenth Amendments. The State
Supreme Court, expressing no opinion as to whether the statute prohibits "explanation"
of the theory or only teaching that the theory is true, reversed the Chancery Court. In a
two-sentence opinion, it sustained the statute as within the State's power to specify the
public school curriculum.

Held: The statute violates the Fourteenth Amendment, which embraces the First
Amendment's prohibition of state laws respecting an establishment of religion. Pp. 393
U. S. 102-109.

(a) The Court does not decide whether the statute is unconstitutionally vague, since,
whether it is construed to prohibit explaining the Darwinian theory or teaching that it is
true, the law conflicts with the Establishment Clause. Pp. 393 U. S. 102-103.

(b) The sole reason for the Arkansas law is that a particular religious group considers
the evolution theory to conflict with the account of the origin of man set forth in the Book
of Genesis. Pp. 393 U. S. 103, 393 U. S. 107-109.

(c) The First Amendment mandates governmental neutrality between religion and
religion, and between religion and nonreligion. Pp. 393 U. S. 103-107.

(d) A State's right to prescribe the public school curriculum does not include the right to
prohibit teaching a scientific theory or doctrine for reasons that run counter to the
principles of the First Amendment. P. 393 U. S. 107.
(e) The Arkansas law is not a manifestation of religious neutrality. P. 393 U. S. 109.

242 Ark. 922, 416 S.W.2d 322, reversed.

Page 393 U. S. 98

MR. JUSTICE FORTAS delivered the opinion of the Court.

This appeal challenges the constitutionality of the "anti-evolution" statute which the
State of Arkansas adopted in 1928 to prohibit the teaching in its public schools and
universities of the theory that man evolved from other species of life. The statute was a
product of the upsurge of "fundamentalist" religious fervor of the twenties. The Arkansas
statute was an adaptation of the famous Tennessee "monkey law" which that State
adopted in 1925. [Footnote 1] The constitutionality of the Tennessee law was upheld by
the Tennessee Supreme Court in the celebrated Scopes case in 1927. [Footnote 2]

The Arkansas law makes it unlawful for a teacher in any state supported school or
university "to teach the

Page 393 U. S. 99

theory or doctrine that mankind ascended or descended from a lower order of animals,"
or "to adopt or use in any such institution a textbook that teaches" this theory. Violation
is a misdemeanor and subjects the violator to dismissal from his position. [Footnote 3]

The present case concerns the teaching of biology in a high school in Little Rock.
According to the testimony, until the events here in litigation, the official textbook
furnished for the high school biology course did not have a section on the Darwinian
Theory. Then, for the academic year 1965-1966, the school administration, on
recommendation of the teachers of biology in the school system, adopted and
prescribed a textbook which contained a chapter setting forth "the theory about the
origin . . . of man from a lower form of animal."

Page 393 U. S. 100

Susan Epperson, a young woman who graduated from Arkansas' school system and
then obtained her master's degree in zoology at the University of Illinois, was employed
by the Little Rock school system in the fall of 1964 to teach 10th grade biology at
Central High School. At the start of the next academic year, 1965, she was confronted
by the new textbook (which one surmises from the record was not unwelcome to her).
She faced at least a literal dilemma because she was supposed to use the new
textbook for classroom instruction, and presumably to teach the statutorily condemned
chapter; but to do so would be a criminal offense, and subject her to dismissal.

She instituted the present action in the Chancery Court of the State, seeking a
declaration that the Arkansas statute is void and enjoining the State and the defendant
officials of the Little Rock school system from dismissing her for violation of the statute's
provisions. H. H. Blanchard, a parent of children attending the public schools,
intervened in support of the action.

The Chancery Court, in an opinion by Chancellor Murray O. Reed, held that the statute
violated the Fourteenth Amendment to the United States Constitution. [Footnote 4] The
court noted that this Amendment encompasses the prohibitions upon state interference
with freedom of speech and thought which are contained in the First Amendment.
Accordingly, it held that the challenged statute is unconstitutional because, in violation
of the First Amendment, it "tends to hinder the quest for knowledge, restrict the freedom
to learn, and restrain the freedom to teach." [Footnote 5] In this perspective, the Act,

Page 393 U. S. 101

it held, was an unconstitutional and void restraint upon the freedom of speech
guaranteed by the Constitution.

On appeal, the Supreme Court of Arkansas reversed. [Footnote 6] Its two-sentence

opinion is set forth in the margin. [Footnote 7] It sustained the statute as an exercise of
the State's power to specify the curriculum in public schools. It did not address itself to
the competing constitutional considerations.

Appeal was duly prosecuted to this Court under 28 U.S.C. § 1257(2). Only Arkansas
and Mississippi have such "anti-evolution" or "monkey" laws on their books. [Footnote 8]
There is no record of any prosecutions in Arkansas

Page 393 U. S. 102

under its statute. It is possible that the statute is presently more of a curiosity than a vital
fact of life in these States. [Footnote 9] Nevertheless, the present case was brought, the
appeal as of right is properly here, and it is our duty to decide the issues presented.

II

At the outset, it is urged upon us that the challenged statute is vague and uncertain, and
therefore within the condemnation of the Due Process Clause of the Fourteenth
Amendment. The contention that the Act is vague and uncertain is supported by
language in the brief opinion of Arkansas' Supreme Court. That court, perhaps reflecting
the discomfort which the statute's quixotic prohibition necessarily engenders in the
modern mind, [Footnote 10] stated that it "expresses no opinion" as to whether the Act
prohibits "explanation" of the theory of evolution or merely forbids "teaching that the
theory is true." Regardless of this uncertainty, the court held that the statute is
constitutional.

On the other hand, counsel for the State, in oral argument in this Court, candidly stated
that, despite the State Supreme Court's equivocation, Arkansas would interpret the
statute "to mean that to make a student aware of the theory . . . just to teach that there
was

Page 393 U. S. 103

such a theory" would be grounds for dismissal and for prosecution under the statute,
and he said "that the Supreme Court of Arkansas' opinion should be interpreted in that
manner." He said:

"If Mrs. Epperson would tell her students that 'Here is Darwin's theory, that man
ascended or descended from a lower form of being,' then I think she would be, under
this statute, liable for prosecution."

In any event, we do not rest our decision upon the asserted vagueness of the statute.
On either interpretation of its language, Arkansas' statute cannot stand. It is of no
moment whether the law is deemed to prohibit mention of Darwin's theory or to forbid
any or all of the infinite varieties of communication embraced within the term "teaching."
Under either interpretation, the law must be stricken because of its conflict with the
constitutional prohibition of state laws respecting an establishment of religion or
prohibiting the free exercise thereof. The overriding fact is that Arkansas' law selects
from the body of knowledge a particular segment which it proscribes for the sole reason
that it is deemed to conflict with a particular religious doctrine; that is, with a particular
interpretation of the Book of Genesis by a particular religious group. [Footnote 11]

III

The antecedents of today's decision are many, and unmistakable. They are rooted in
the foundation soil of our Nation. They are fundamental to freedom.

Government in our democracy, state and national, must be neutral in matters of

religious theory, doctrine,

Page 393 U. S. 104

and practice. It may not be hostile to any religion or to the advocacy of no-religion, and it
may not aid, foster, or promote one religion or religious theory against another or even
against the militant opposite. The First Amendment mandates governmental neutrality
between religion and religion, and between religion and nonreligion. [Footnote 12]
As early as 1872, this Court said: "The law knows no heresy, and is committed to the
support of no dogma, the establishment of no sect." Watson v. Jones, 13 Wall. 679, 80
U. S. 728. This has been the interpretation of the great First Amendment which this
Court has applied in the many and subtle problems which the ferment of our national life
has presented for decision within the Amendment's broad command.

Judicial interposition in the operation of the public school system of the Nation raises
problems requiring care and restraint. Our courts, however, have not failed to apply the
First Amendment's mandate in our educational system where essential to safeguard the
fundamental values of freedom of speech and inquiry and of belief. By and large, public
education in our Nation is committed to the control of state and local authorities. Courts
do not and cannot intervene in the resolution of conflicts which arise in the daily
operation of school systems and which do not directly and sharply implicate basic
constitutional values. [Footnote 13] On the other hand, "[t]he vigilant protection of
constitutional freedoms is nowhere more vital than in the community of American
schools," Shelton v. Tucker, 364 U. S. 479, 364 U. S. 487 (1960). As this

Page 393 U. S. 105

Court said in Keyishian v. Board of Regents, the First Amendment "does not tolerate
laws that cast a pall of orthodoxy over the classroom." 385 U. S. 385 U.S. 589, 385 U.
S. 603 (1967).

The earliest cases in this Court on the subject of the impact of constitutional guarantees
upon the classroom were decided before the Court expressly applied the specific
prohibitions of the First Amendment to the States. But, as early as 1923, the Court did
not hesitate to condemn under the Due Process Clause "arbitrary" restrictions upon the
freedom of teachers to teach and of students to learn. In that year, the Court, in an
opinion by Justice McReynolds, held unconstitutional an Act of the State of Nebraska
making it a crime to teach any subject in any language other than English to pupils who
had not passed the eighth grade. [Footnote 14] The State's purpose in enacting the law
was to promote civic cohesiveness by encouraging the learning of English and to
combat the "baneful effect" of permitting foreigners to rear and educate their children in
the language of the parents' native land. The Court recognized these purposes, and it
acknowledged the State's power to prescribe the school curriculum, but it held that
these were not adequate to support the restriction upon the liberty of teacher and pupil.
The challenged statute, it held, unconstitutionally interfered with the right of the
individual, guaranteed by the Due Process Clause, to engage in any of the common
occupations of life and to acquire useful knowledge. Meyer v. Nebraska, 262 U. S.
390 (1923). See also Bartels v. Iowa, 262 U. S. 404 (1923).

For purposes of the present case, we need not reenter the difficult terrain which the
Court, in 1923, traversed without apparent misgivings. We need not take advantage of
the broad premise which the Court's decision

Page 393 U. S. 106

in Meyer furnishes, nor need we explore the implications of that decision in terms of the
justiciability of the multitude of controversies that beset our campuses today. Today's
problem is capable of resolution in the narrower terms of the First Amendment's
prohibition of laws respecting an establishment of religion or prohibiting the free
exercise thereof.

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. In Everson v. Board of Education, this Court, in upholding
a state law to provide free bus service to school children, including those attending
parochial schools, said: "Neither [a] State nor the Federal Government can pass laws
which aid one religion, aid all religions, or prefer one religion over another." 330 U. S.
1, 330 U. S. 15(1947).

At the following Term of Court, in McCollum v. Board of Education, 333 U. S.

203 (1948), the Court held that Illinois could not release pupils from class to attend
classes of instruction in the school buildings in the religion of their choice. This, it said,
would involve the State in using tax supported property for religious purposes, thereby
breaching the "wall of separation" which, according to Jefferson. the First Amendment
was intended to erect between church and state. Id. at 333 U. S. 211. See also Engel v.
Vitale, 370 U. S. 421(1962); Abington School District v. Schempp, 374 U. S. 203 (1963).
While study of religions and of the Bible from a literary and historic viewpoint, presented
objectively as part of a secular program of education, need not collide with the First
Amendment's prohibition, the State may not adopt programs or practices in its public
schools or colleges which "aid or oppose" any religion. Id. at 374 U. S. 225. This
prohibition is absolute. It forbids alike the preference of a religious doctrine or the
prohibition

Page 393 U. S. 107

of theory which is deemed antagonistic to a particular dogma. As Mr. Justice Clark

stated in Joseph Burstyn Inc. v. Wilson, "the state has no legitimate interest in
protecting any or all religions from views distasteful to them. . . ." 343 U. S. 495, 343 U.
S. 505 (1952). The test was stated as follows in Abington School District v. Schempp,
supra, at 374 U. S. 222:

"[W]hat are the purpose and the primary effect of the enactment? If either is the
advancement or inhibition of religion, then the enactment exceeds the scope of
legislative power as circumscribed by the Constitution."

These precedents inevitably determine the result in the present case. The State's
undoubted right to prescribe the curriculum for its public schools does not carry with it
the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or
doctrine where that prohibition is based upon reasons that violate the First Amendment.
It is much too late to argue that the State may impose upon the teachers in its schools
any conditions that it chooses, however restrictive they may be of constitutional
guarantees.Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 605-606 (1967).

In the present case, there can be no doubt that Arkansas has sought to prevent its
teachers from discussing the theory of evolution because it is contrary to the belief of
some that the Book of Genesis must be the exclusive source of doctrine as to the origin
of man. No suggestion has been made that Arkansas' law may be justified by
considerations of state policy other than the religious views of some of its citizens.
[Footnote 15] It is clear

Page 393 U. S. 108

that fundamentalist sectarian conviction was and is the law's reason for existence.
[Footnote 16] Its antecedent, Tennessee's "monkey law," candidly stated its purpose: to
make it unlawful

"to teach any theory that denies the story of the Divine Creation of man as taught in the
Bible, and to teach instead that man has descended from a

Page 393 U. S. 109

lower order of animals. [Footnote 17]"

Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to

adopt less explicit language. [Footnote 18] It eliminated Tennessee's reference to "the
story of the Divine Creation of man" as taught in the Bible, but there is no doubt that the
motivation for the law was the same: to suppress the teaching of a theory which, it was
thought, "denied" the divine creation of man.

Arkansas' law cannot be defended as an act of religious neutrality. Arkansas did not
seek to excise from the curricula of its schools and universities all discussion of the
origin of man. The law's effort was confined to an attempt to blot out a particular theory
because of its supposed conflict with the Biblical account, literally read. Plainly, the law
is contrary to the mandate of the First, and in violation of the Fourteenth, Amendments
to the Constitution.

The judgment of the Supreme Court of Arkansas is

Reversed.