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MR. JUSTICE FORTAS delivered the opinion of the Court
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. 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. 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. 103, 107-109.
(c) The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. Pp. 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. 107.
(e) The Arkansas law is not a manifestation of religious neutrality. P. 109.
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. 1
The constitutionality of the Tennessee law was upheld by the Tennessee
Supreme Court in the celebrated Scopes case in 1927. 2
The Arkansas law makes it unlawful for a teacher
in any state-supported school or university "to teach the
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. 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."
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. 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." 5 In this perspective,
the Act, 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.
6 Its two-sentence opinion
is set forth in the margin. 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. 8 There is no
record of any prosecutions in Arkansas under its statute. It is
possible that the statute is presently more of a curiosity than
a vital fact of life in these States. 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, 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 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. 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, 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.
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, 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.
13 On the other hand, "the
vigilant protection of constitutional freedoms is nowhere more
vital than in the community of American schools," Shelton
v. Tucker, 364 U.S. 479, 487 (1960). As this 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. 589, 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. 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
re-enter 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 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, 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 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 225. This
prohibition is absolute. It forbids alike the preference of a
religious doctrine or the prohibition 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, 505 (1952). The test was stated
as follows in Abington School District v. Schempp, supra, at 222:
"What 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, 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.
15 It is clear that fundamentalist
sectarian conviction was and is the law's reason for existence.
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 lower order of animals." 17
Perhaps the sensational publicity attendant upon the Scopes trial
induced Arkansas to adopt less explicit language. 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, Amendment to the Constitution.
The judgment of the Supreme Court of Arkansas
is
Reversed.
---- Begin EndNotes ----
1 Chapter
27, Tenn. Acts 1925; Tenn. Code Ann. § 49-1922 (1966 Repl.
Vol.).
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.
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."
4 The opinion
of the Chancery Court is not officially reported.
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.
6 242 Ark.
922, 416 S. W. 2d 322 (1967).
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."
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).
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).
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."
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."
12 Everson
v. Board of Education, 330 U.S. 1, 18 (1947); McCollum v. Board
of Education, 333 U.S. 203 (1948); Zorach v. Clauson, 343 U.S.
306, 313-314 (1952); Fowler v. Rhode Island, 345 U.S. 67 (1953);
Torcaso v. Watkins, 367 U.S. 488, 495 (1961).
13 See
the discussion in Developments in The Law -- Academic Freedom,
81 Harv. L. Rev. 1045, 1051-1055 (1968).
14 The
case involved a conviction for teaching "the subject of reading
in the German language" to a child of 10 years.
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).
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.
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.
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.
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