Among the many significant events that happened in 1968, fifty years ago, many have been all but forgotten, some perhaps deservedly so. There is one, however, that should be remembered both for its immediate message and for the continuing impact it has had on our lives in the United States. Like many of the other significant events, this one is a Supreme Court decision, but this is one that you probably have never heard about. It is Epperson v. Arkansas.
Epperson is often described in reference to another much more famous court case. It is often called the second Scopes trial, or possibly the anti-Scopes. The original was a 1925 trial officially designated The State of Tennessee v. John Thomas Scopes. In that trial a teacher was charged with violating a law that made it illegal to teach human evolution in any public school. It was a national media sensation at the time. In fact, that was the original intent. The prosecution of Scopes, a biology teacher, was initiated and promoted primarily to bring fame and tourist traffic to the small town of Dayton, Tennessee. In that goal it was successful beyond the wildest dreams of its publicists. The “Scopes Monkey Trial” has since been memorialized in four different plays, three television portrayals, and the novel Monkey Town. The Broadway play Inherit the Wind was made into a 1960 movie under the same name.
At the end of the Scopes trial, John Scopes was convicted of teaching evolution and fined 100 dollars. On appeal, the Tennessee Supreme Court upheld the verdict and the constitutionality of the law. Even so, Tennessee repealed their state anti-evolution law a year later, but the voters of the state of Arkansas, inspired by the Scopes trial and a wave of fundamentalism, passed its own version in a ballot initiative in 1928. That Arkansas law was almost never enforced but remained in place for forty years. It was finally challenged by the Arkansas Education Association (AEA) using as lead plaintiff a young biology teacher named Susan Epperson. She was an Arkansas native, the daughter of a science professor at the College of the Ozarks, and holder of a master’s degree in zoology. Most important for the optics of the case, she and her family were all devout Christians who believed there was no conflict between the scientific theory of evolution and the tenets of their faith.
The Arkansas law made it unlawful for any teacher in any school supported by public funds “to teach the doctrine or theory that mankind ascended or descended from a lower order of animals”, and further prohibited teachers or schools or textbook commissions from adopting or using any textbook that included such information. This was, for anybody familiar with almost any discipline of science, an unacceptable prohibition. It was in essence telling teachers of biology, botany, geology, paleontology, and other scientific subjects that they had to pretend that evolution, one of the fundamental concepts underlying their disciplines, did not apply to human beings, and prohibiting them from using any of the best (i.e., most responsible and complete) available textbooks.
Susan Epperson was a 10th grade Biology teacher at Little Rock Central high School. For the 1965 school year the school’s Biology teachers recommended, and their administrators adopted, just such a textbook, Modern Biology. This is an excellent book, one I have used in classes in two different high schools. My wife and I still have a copy of it in our personal reference library. One of the arguments put forward by the AEA was that Epperson was put in a difficult position, one in which she could either follow the state law or she could use the book required by her administrators and colleagues, but she could not do both. And if she did not follow state law she could be fired. That, of course, was the argument that demonstrated that Epperson had standing; that she had sufficient connection to the law, and potential harm from the law, to be a plaintiff. A parent with children in the school, H. H. Blanchard, joined her in the suit. They were supported by the AEA, the ACLU, and the Little Rock Ministerial Association. The principal issue was the constitutionality of banning the teaching of evolution.
The trial began in the Pulaski County Chancery Court on April 1st, 1966. It quickly became a media circus attracting hundreds of in-person observers and reporters, including coverage in the New York Times. After a two-hour hearing, the judge held that the law was unconstitutional because it “tends to hinder the quest for knowledge, restrict the freedom to learn, and restrain the freedom to teach”, and that the textbook did not constitute such a hazard that “the constitutional freedoms may justifiably be suppressed by the state.” That was a win for Epperson and the AEA, a win largely based on the first amendment’s guarantee of freedom of speech.
The state of Arkansas appealed the decision to the state supreme court, which in June 1967 reversed the Chancery Court ruling. Their opinion stated that the anti-evolution law was “a valid exercise of the state’s power to specify the curriculum in its public schools.” That round went to the state of Arkansas, and the law remained in effect, this time based on what might be called a states-rights argument.
The AEA and ACLU appealed that decision to the final arbiter, the United States Supreme Court. That court heard oral arguments on October 16, 1968. They didn’t waste a lot of time with the case. Less than a month later, on November 12, they delivered a unanimous ruling that struck down the Arkansas law. Their primary argument referenced the First Amendment to the Constitution, but not the part about freedom of speech. It was about the ban on establishment of religion: “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.”
The case also originated the “directly and sharply” test limiting court intervention, but also pointed out the importance of legal action to guide educational processes: “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. On the other hand, the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”
Epperson is perversely both much more important and much less well known than Scopes. It marked the end of the initial evangelical strategy to stop evolution, the direct attempts to declare the teaching of evolution illegal. Admittedly, the religious right has evolved since then, creating pseudo-scientific constructs such as creation science and the missing evidence arguments and intelligent design, and using those fabrications to call for “balance” through “teaching the controversy”. Epperson has been used as precedent in many court cases since then, cases in which judges have ruled repeatedly that such creationist alternatives are inherently religious, not scientific, and therefore do not belong in public school science classes.
The fact is that there are active fundamentalist and evangelical groups in our nation that want to impose their religious doctrines on the rest of us. To support that effort they want to usurp the activities and powers of government, including public meetings and school events, to proselytize everyone. Those of us who believe in freedom of religion, who don’t want to have sectarian religious propaganda paid for by our tax dollars, should celebrate the Supreme Court’s ruling in Epperson and support the fifty years of legal opinions based on it. Epperson v. Arkansas was, and still is, vital.