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 APPEAL FROM THE SUPREME COURT OF
ARKANSAS 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. I 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. [ Footnote 1 ]

															Chapter 27, Tenn. Acts 1925; Tenn.Code Ann. § 49-1922 (1966
Repl. Vol.).

															[ Footnote 2 ] Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927).
The Tennessee court, however, reversed Scopes' conviction on the
ground that the jury, and not the judge, should have assessed the
fine of $100. Since Scopes was no longer in the State's employ, it
saw "nothing to be gained by prolonging the life of this bizarre
case." It directed that a nolle prosequi be entered, in
the interests of "the peace and dignity of the state." 154 Tenn. at
121, 289 S.W. at 367.

															[ Footnote 3 ]

															Initiated Act No. 1, Ark. Acts 1929; Ark.Stat.Ann. §§ 80-1627,
80-1628 (1960 Repl. Vol.). The text of the law is as follows:

															"§ 80-1627. -- Doctrine of ascent or descent of man from lower
order of animals prohibited. -- It shall be unlawful for any
teacher or other instructor in any University, College, Normal,
Public School or other institution of the State, which is supported
in whole or in part from public funds derived by State and local
taxation to teach the theory or doctrine that mankind ascended or
descended from a lower order of animals and also it shall be
unlawful for any teacher, textbook commission, or other authority
exercising the power to select textbooks for above mentioned
educational institutions to adopt or use in any such institution a
textbook that teaches the doctrine or theory that mankind descended
or ascended from a lower order of animals."

															"§ 80-1628. -- Teaching doctrine or adopting textbook mentioning
doctrine -- Penalties -- Positions to be vacated. -- Any teacher or
other instructor or textbook commissioner who is found guilty of
violation of this act by teaching the theory or doctrine mentioned
in section 1 hereof, or by using, or adopting any such textbooks in
any such educational institution shall be guilty of a misdemeanor
and upon conviction shall be fined not exceeding five hundred
dollars, and upon conviction shall vacate the position thus held in
any educational institutions of the character above mentioned or
any commission of which he may be a member."

															[ Footnote 4 ]

															The opinion of the Chancery Court is not officially
reported.

															[ Footnote 5 ]

															The Chancery Court analyzed the holding of its sister State of
Tennessee in the Scopes case sustaining Tennessee's
similar statute. It refused to follow Tennessee's 1927 example. It
declined to confine the judicial horizon to a view of the law as
merely a direction by the State as employer to its employees. This
sort of astigmatism, it held, would ignore overriding
constitutional values, and "should not be followed," and it
proceeded to confront the substance of the law and its effect.

															[ Footnote 6 ]

															242 Ark. 922, 416 S.W.2d 322 (1967).

															[ Footnote 7 ]

															"Per Curiam. Upon the principal issue, that of
constitutionality, the court holds that Initiated Measure No. 1 of
1928, Ark.Stat.Ann. § 80-1627 and § 80-1628 (Repl.1960), is a valid
exercise of the state's power to specify the curriculum in its
public schools. The court expresses no opinion on the question
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."

															"The decree is reversed, and the cause dismissed."

															"Ward, J., concurs. Brown, J., dissents."

															"Paul Ward, Justice, concurring. I agree with the first sentence
in the majority opinion."

															"To my mind, the rest of the opinion beclouds the clear
announcement made in the first sentence."

															[ Footnote 8 ]

															Miss.Code Ann. §§ 6798, 6799 (1942). Ark.Stat.Ann. §§ 80-1627,
80-1628 (1960 Repl. Vol.). The Tennessee law was repealed in 1967.
Oklahoma enacted an anti-evolution law, but it was repealed in
1926. The Florida and Texas Legislatures, in the period between
1921 and 1929, adopted resolutions against teaching the doctrine of
evolution. In all, during that period, bills to this effect were
introduced in 20 States. American Civil Liberties Union (ACLU), The
Gag on Teaching 8 (2d ed., 1937).

															[ Footnote 9 ]

															Clarence Darrow, who was counsel for the defense in the Scopes trial, in his biography, published in 1932,
somewhat sardonically pointed out that States with anti-evolution
laws did not insist upon the fundamentalist theory in all respects.
He said:

															"I understand that the States of Tennessee and Mississippi both
continue to teach that the earth is round and that the revolution
on its axis brings the day and night, in spite of all
opposition."

															The Story of My Life 247 (1932).

															[ Footnote 10 ]

															R. Hofstadter & W. Metzger, in The Development of Academic
Freedom in the United States 324 (1955), refer to some of Darwin's
opponents as

															"exhibiting a kind of phylogenetic snobbery [which led them] to
think that Darwin had libeled the [human] race by discovering
simian, rather than seraphic, ancestors."

															[ Footnote 11 ]

															In Scopes v. State, 154 Tenn. 105, 126, 289 S.W. 363,
369 (1927), Judge Chambliss, concurring, referred to the defense
contention that Tennessee's anti-evolution law gives a "preference"
to "religious establishments which have as one of their tenets or
dogmas the instantaneous creation of man."

															[ Footnote 12 ] Everson v. Board of Education, 330 U. S.
1 , 330 U. S. 18 (1947); McCollum v. Board of Education, 333 U.
S. 203 (1948); Zorach v. Clauson, 343 U.
S. 306 , 343 U. S.
313 -314 (1952); Fowler v. Rhode Island, 345 U. S. 67 (1953); Torcaso v. Watkins, 367 U.
S. 488 , 367 U. S. 495 (1961).

															[ Footnote 13 ] See the discussion in Developments in The Law --
Academic Freedom, 81 Harv.L.Rev. 1045, 1051-1055 (1968).

															[ Footnote 14 ]

															The case involved a conviction for teaching "the subject of
reading in the German language" to a child of 10 years.

															[ Footnote 15 ]

															Former Dean Leflar of the University of Arkansas School of Law
has stated that "the same ideological considerations underlie the
anti-evolution enactment" as underlie the typical blasphemy
statute. He says that the purpose of these statutes is an
"ideological" one which

															"involves an effort to prevent (by censorship) or punish the
presentation of intellectually significant matter which contradicts
accepted social, moral or religious ideas."

															Leflar, Legal Liability for the Exercise of Free Speech, 10
Ark.L.Rev. 155, 158 (1956). See also R. Hofstadter &
W. Metzger, The Development of Academic Freedom in the United
States 320-366 (1955) ( passim ); H. Beale, A History of
Freedom of Teaching in American Schools 202-207 (1941); Emerson
& Haber, The Scopes Case in Modern Dress, 27
U.Chi.L.Rev. 522 (1960); Waller, The Constitutionality of the
Tennessee Anti-Evolution Act, 35 Yale L.J.191 (1925)
( passim ); ACLU, The Gag on Teaching 7 (2d ed., 1937); J.
Scopes & J. Presley, Center of the Storm 45-53 (1967).

															[ Footnote 16 ]

															The following advertisement is typical of the public appeal
which was used in the campaign to secure adoption of the
statute:

															" THE BIBLE OR ATHEISM, WHICH?" "All atheists favor evolution. If you agree with atheism, vote
against Act No. 1. If you agree with the Bible, vote for Act No. 1.
. . . Shall conscientious church members be forced to pay taxes to
support teachers to teach evolution which will undermine the faith
of their children? The Gazette said Russian Bolshevists laughed at
Tennessee. True, and that sort will laugh at Arkansas. Who cares?
Vote FOR ACT No. 1."

															The Arkansas Gazette, Little Rock, Nov. 4, 1928, p. 12, cols.
4-5.

															Letters from the public expressed the fear that teaching of
evolution would be "subversive of Christianity," id. Oct.
24, 1928, p. 7, col. 2; see also id., Nov. 4, 1928, p. 19,
col. 4, and that it would cause school children "to disrespect the
Bible," id. Oct. 27, 1928, p. 15, col. 5. One letter
read:

															"The cosmogony taught by [evolution] runs contrary to that of
Moses and Jesus, and, as such, is nothing, if anything at all, but
atheism. . . . Now let the mothers and fathers of our state that
are trying to raise their children in the Christian faith arise in
their might and vote for this anti-evolution bill that will take it
out of our tax-supported schools. When they have saved the
children, they have saved the state." Id. at cols. 4-5.

															[ Footnote 17 ]

															Arkansas' law was adopted by popular initiative in 1928, three
years after Tennessee's law was enacted and one year after the
Tennessee Supreme Court's decision in the Scopes case, supra. [ Footnote 18 ]

															In its brief, the State says that the Arkansas statute was
passed with the holding of the Scopes case in mind. Brief
for Appellee 1.

															MR. JUSTICE BLACK, concurring.

															I am by no means sure that this case presents a genuinely
justiciable case or controversy. Although Arkansas Initiated Act
No. 1, the statute alleged to be unconstitutional, was passed by
the voters of Arkansas in 1928, we are informed that there has
never been even a single attempt by the State to enforce it. And
the pallid, unenthusiastic, even apologetic defense of the Act
presented by the State in this Court indicates that the State would
make no attempt to enforce the law Page 393 U. S. 110 should it remain on the books for the next century. Now, nearly
40 years after the law has slumbered on the books as though dead, a
teacher, alleging fear that the State might arouse from its
lethargy and try to punish her, has asked for a declaratory
judgment holding the law unconstitutional. She was subsequently
joined by a parent who alleged his interest in seeing that his two
then school-age sons "be informed of all scientific theories and
hypotheses. . . ." But whether this Arkansas teacher is still a
teacher, fearful of punishment under the Act, we do not know. It
may be, as has been published in the daily press, that she has long
since given up her job as a teacher and moved to a distant city,
thereby escaping the dangers she had imagined might befall her
under this lifeless Arkansas Act. And there is not one iota of
concrete evidence to show that the parent-intervenor's sons have
not been or will not be taught about evolution. The textbook
adopted for use in biology classes in Little Rock includes an
entire chapter dealing with evolution. There is no evidence that
this chapter is not being freely taught in the schools that use the
textbook, and no evidence that the intervenor's sons, who were 15
and 17 years old when this suit was brought three years ago, are
still in high school, or yet to take biology. Unfortunately,
however, the State's languid interest in the case has not prompted
it to keep this Court informed concerning facts that might easily
justify dismissal of this alleged lawsuit as moot or as lacking the
qualities of a genuine case or controversy.

															Notwithstanding my own doubts as to whether the case presents a
justiciable controversy, the Court brushes aside these doubts and
leaps headlong into the middle of the very broad problems involved
in federal intrusion into state powers to decide what subjects and
schoolbooks it may wish to use in teaching state pupils. While I
hesitate to enter into the consideration and decision Page 393 U. S. 111 of such sensitive state-federal relationships, I reluctantly
acquiesce. But, agreeing to consider this as a genuine case or
controversy, I cannot agree to thrust the Federal Government's long
arm the least bit further into state school curriculums than
decision of this particular case requires. And the Court, in order
to invalidate the Arkansas law as a violation of the First
Amendment, has been compelled to give the State's law a broader
meaning than the State Supreme Court was willing to give it. The
Arkansas Supreme Court's opinion, in its entirety, stated that:

															"Upon the principal issue, that of constitutionality, the court
holds that Initiated Measure No. 1 of 1928, Ark.Stat.Ann. § 81627
and § 81628 (Repl.1960), is a valid exercise of the state's power
to specify the curriculum in its public schools. The court
expresses no opinion on the question 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."

															It is plain that a state law prohibiting all teaching of human
development or biology is constitutionally quite different from a
law that compels a teacher to teach as true only one theory of a
given doctrine. It would be difficult to make a First Amendment
case out of a state law eliminating the subject of higher
mathematics, or astronomy, or biology from its curriculum. And, for
all the Supreme Court of Arkansas has said, this particular Act may
prohibit that and nothing else. This Court, however, treats the
Arkansas Act as though it made it a misdemeanor to teach or to use
a book that teaches that evolution is true. But it is not for this
Court to arrogate to itself the power to determine the scope of
Arkansas statutes. Since the highest court of Page 393 U. S. 112 Arkansas has deliberately refused to give its statute that
meaning, we should not presume to do so.

															It seems to me that, in this situation, the statute is too vague
for us to strike it down on any ground but that: vagueness. Under
this statute, as construed by the Arkansas Supreme Court, a teacher
cannot know whether he is forbidden to mention Darwin's theory at
all or only free to discuss it as long as he refrains from
contending that it is true. It is an established rule that a
statute which leaves an ordinary man so doubtful about its meaning
that he cannot know when he has violated it denies him the first
essential of due process. See, e.g., Connally v. General
Construction Co., 269 U. S. 385 , 269 U. S. 391 (1926). Holding the statute too vague to enforce would not only
follow longstanding constitutional precedents, but it would avoid
having this Court take unto itself the duty of a State's highest
court to interpret and mark the boundaries of the State's laws.
And, more important, it would not place this Court in the
unenviable position of violating the principle of leaving the
States absolutely free to choose their own curriculums for their
own schools so long as their action does not palpably conflict with
a clear constitutional command.

															The Court, not content to strike down this Arkansas Act on the
unchallengeable ground of its plain vagueness, chooses rather to
invalidate it as a violation of the Establishment of Religion
Clause of the First Amendment. I would not decide this case on such
a sweeping ground for the following reasons, among others.

															1. In the first place I find it difficult to agree with the
Court's statement that

															"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."

															It may be, instead, that the people's motive was merely that it
would be best to remove this controversial Page 393 U. S. 113 subject from its schools; there is no reason I can imagine why a
State is without power to withdraw from its curriculum any subject
deemed too emotional and controversial for its public schools. And
this Court has consistently held that it is not for us to
invalidate a statute because of our views that the "motives" behind
its passage were improper; it is simply too difficult to determine
what those motives were. See, e.g., United States v.
O'Brien, 391 U. S. 367 , 391 U. S.
382 -383 (1968).

															2. A second question that arises for me is whether this Court's
decision forbidding a State to exclude the subject of evolution
from its schools infringes the religious freedom of those who
consider evolution an anti-religious doctrine. If the theory is
considered anti-religious, as the Court indicates, how can the
State be bound by the Federal Constitution to permit its teachers
to advocate such an "anti-religious" doctrine to school children?
The very cases cited by the Court as supporting its conclusion hold
that the State must be neutral, not favoring one religious or
anti-religious view over another. The Darwinian theory is said to
challenge the Bible's story of creation; so, too, have some of
those who believe in the Bible, along with many others, challenged
the Darwinian theory. Since there is no indication that the literal
Biblical doctrine of the origin of man is included in the
curriculum of Arkansas schools, does not the removal of the subject
of evolution leave the State in a neutral position toward these
supposedly competing religious and anti-religious doctrines? Unless
this Court is prepared simply to write off as pure nonsense the
views of those who consider evolution an anti-religious doctrine,
then this issue presents problems under the Establishment Clause
far more troublesome than are discussed in the Court's opinion.

															3. I am also not ready to hold that a person hired to teach
school children takes with him into the classroom a constitutional
right to teach sociological, economic, Page 393 U. S. 114 political, or religious subjects that the school's managers do
not want discussed. This Court has said that the rights of free
speech, "while fundamental in our democratic society, still do not
mean that everyone with opinions or beliefs to express may address
a group at any public place and at any time." Cox v.
Louisiana, 379 U. S. 536 , 379 U. S. 554 ; Cox v. Louisiana, 379 U. S. 559 , 379 U. S. 574 .
I question whether it is absolutely certain, as the Court's opinion
indicates, that "academic freedom" permits a teacher to breach his
contractual agreement to teach only the subjects designated by the
school authorities who hired him.

															Certainly the Darwinian theory, precisely like the Genesis story
of the creation of man, is not above challenge. In fact the
Darwinian theory has not merely been criticized by religionists,
but by scientists, and perhaps no scientist would be willing to
take an oath and swear that everything announced in the Darwinian
theory is unquestionably true. The Court, it seems to me, makes a
serious mistake in bypassing the plain, unconstitutional vagueness
of this statute in order to reach out and decide this troublesome,
to me, First Amendment question. However wise this Court may be or
may become hereafter, it is doubtful that, sitting in Washington,
it can successfully supervise and censor the curriculum of every
public school in every hamlet and city in the United States. I
doubt that our wisdom is so nearly infallible.

															I would either strike down the Arkansas Act as too vague to
enforce or remand to the State Supreme Court for clarification of
its holding and opinion.

															MR. JUSTICE HARLAN, concurring.

															I think it deplorable that this case should have come to us with
such an opaque opinion by the State's highest court. With all
respect, that court's handling of the Page 393 U. S. 115 case savors of a studied effort to avoid coming to grips with
this anachronistic statute, and to "pass the buck" to this Court.
This sort of temporizing does not make for healthy operations
between the state and federal judiciaries. Despite these
observations, I am in agreement with this Court's opinion that, the
constitutional claims having been properly raised and necessarily
decided below, resolution of the matter by us cannot properly be
avoided. * See, e.g.,
Chicago Life Insurance Co. v. Needles, 113 U.
S. 74 , 113 U. S. 579 (1885).

															I concur in so much of the Court's opinion as holds that the
Arkansas statute constitutes an "establishment of religion"
forbidden to the States by the Fourteenth Amendment. I do not
understand, however, why the Court finds it necessary to explore at
length appellants' contentions that the statute is
unconstitutionally vague and that it interferes with free speech,
only to conclude that these issues need not be decided in this
case. In the process of not deciding them, the Court obscures its
otherwise straightforward holding, and opens its opinion to
possible implications from which I am constrained to disassociate
myself.

															* Short of reading the Arkansas Supreme Court's opinion to have
proceeded on the premise that it need not consider appellants'
"establishment" contention, clearly raised in the state courts and
here, in view of its holding that the State possesses plenary power
to fix the curriculum in its public schools, I can perceive no
tenable basis for remanding the case to the state court for an
explication of the purpose and meaning of the statute in question.
I am unwilling to ascribe to the Arkansas Supreme Court any such
quixotic approach to constitutional adjudication. I take the first
sentence of its opinion ( ante at 393 U. S. 101 ,
n. 7) to encompass an overruling of appellants' "establishment"
point, and the second sentence to refer only to their "vagueness"
claim.

															MR JUSTICE STEWART, concurring in the result.

															The States are most assuredly free "to choose their own
curriculums for their own schools." A State is entirely Page 393 U. S. 116 free, for example, to decide that the only foreign language to
be taught in its public school system shall be Spanish. But would a
State be constitutionally free to punish a teacher for letting his
students know that other languages are also spoken in the world? I
think not.

															It is one thing for a State to determine that "the subject of
higher mathematics, or astronomy, or biology" shall or shall not be
included in its public school curriculum. It is quite another thing
for a State to make it a criminal offense for a public school
teacher so much as to mention the very existence of an entire
system of respected human thought. That kind of criminal law, I
think, would clearly impinge upon the guarantees of free
communication contained in the First Amendment and made applicable
to the States by the Fourteenth.

															The Arkansas Supreme Court has said that the statute before us
may or may not be just such a law. The result, as MR. JUSTICE BLACK
points out, is that "a teacher cannot know whether he is forbidden
to mention Darwin's theory at all." Since I believe that no State
could constitutionally forbid a teacher "to mention Darwin's theory
at all," and since Arkansas may, or may not, have done just that, I
conclude that the statute before us is so vague as to be invalid
under the Fourteenth Amendment. See Cramp v. Board of Pub.
Instruction, 368 U. S. 278 .

Summary: In Epperson v. Arkansas (1968), the U.S. Supreme Court ruled that an Arkansas law prohibiting the teaching of evolution in public schools violated the Establishment Clause of the First Amendment, as applied to the states through the Fourteenth Amendment. The Court held that the law was motivated by religious purposes and lacked religious neutrality, infringing on the freedom of speech and academic freedom protected by the First Amendment. The Court emphasized the state's right to set school curricula, but asserted that this right does not extend to prohibiting the teaching of scientific theories for religious reasons, as this would violate the principles of the First Amendment.