November 2018 Church & State | Featured

By Kimberly Winston, a freelance writer who specializes in religion.

In the fall of 1965, Susan Epperson was a newlywed and a newly minted biology teacher at Little Rock’s Central High School, when a family friend approached her after school.

Would she consider being the lead plaintiff in a challenge to Arkansas’ law prohibiting the teaching of evolution in public schools? Would she be willing to be the next John Scopes?

“At first, I thought they were going around asking all the biology teachers,” Epperson said 45 years later in a 2010 interview. “My stomach was churning.”

It should have been. When Epperson said “yes,” she had no idea she would become the face of a landmark Supreme Court case, Epperson v. Arkansas, decided 50 years ago this month. The Epperson ruling would effectively end the teaching of biblical creationism in public schools and, ultimately, spawn its offspring – intelligent design and “teach the controversy” laws.

“The Epperson decision was literally pivotal,” said Ann Reid, executive director of the National Center for Science Education (NCSE), a California-based group that defends the teaching of evolution in public schools. “By putting a long-overdue end to the Scopes-era bans on the teaching of evolution, it empowered science teachers across the country to teach evolution more accurately, more honestly and more confidently.”

The Epperson decision was literally pivotal. By putting a long-overdue end to the Scopes-era bans on the teaching of evolution, it empowered science teachers across the country to teach evolution more accurately, more honestly and more confidently.

~Ann Reid, executive director of the National Center for Science Education

And Epperson further cemented the wall between church and state.

“[T]he 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,” Justice Abe Fortas wrote in the court’s 1968 opinion. “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.”

The Arkansas statute Epperson challenged became law in 1928.

“It shall be unlawful for any [public school] teacher … to teach the theory or doctrine that mankind ascended or descended from a lower order of animals”, the law stated. “[A]nd also it shall be unlawful for any teacher … 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.”

Violating the law would bring a $500 fine at a time when teachers in most states earned less than $2,000 a year.

The law was a direct result of the Scopes trial three years earlier. In that case, John Scopes, a high school science teacher in Dayton, Tenn., challenged the state’s Butler Act, an anti-evolution law, by teaching Darwin’s theory that human beings evolved over time from a common ancestor shared with modern apes.

 The “Scopes monkey trial,” as the era’s tabloid-style journalists dubbed the case, both captivated and polarized the country. On one side sat those who saw no friction between traditional religion and modern evolution, while on the other sat those who saw a fundamental conflict between the two.

The trial has been immortalized on page, stage and screen as a colossal smackdown between iconic attorneys Clarence Darrow for Scopes, and William Jennings Bryan for Tennessee. The historical facts are less thrilling – Scopes was convicted and fined $100, although his conviction was later overturned on a technicality.

A year later, Tennessee repealed its Butler Act. But other states moved in the opposite direction. In Arkan­sas, Baptists gathered at their 1926 state convention and drafted a letter to a Little Rock representative, asking for a bill banning evolution in the state’s public institutions.

The proposed bill did not fare well at first. Its explicitly religious language banning “any theory that denies the story of the divine creation of man as taught in the Bible” was given a thumbs down by the Arkan­sas House of Representatives’ Education Committee and the state chapter of the American Association of University Professors. Still, it managed to squeak through the state House but was tabled by the state Senate.

Legislators succeeded in getting the proposed law before the voters. It was overwhelmingly passed in 1928 and sat on the books – never enforced and unsuccessfully challenged three times – while Epperson grew up in a small Ozarks town outside of Little Rock.

As executive secretary of the Arkansas Education Association (AEA), Forrest Rozzell wanted to see Ar­k­ansas’ anti-evolution law repealed. Discouraged by failed repeal attempts, he counted on a legal challenge as the next course.

But in 1965, Arkansas was still smarting from the 1957 desegregation of Little Rock Central High School following the Supreme Court’s 1954 decision in Brown v. Board of Education against “separate but equal.” The “Little Rock Nine,” the high school’s first African-American students, were spat on, threatened and otherwise harassed and had to be escorted into (and quickly out of) the school by the Arkansas National Guard.

So Rozzell wanted to challenge the anti-evolution law quietly and quick­ly. He wanted a plaintiff who was local, low-key and lik­able.  That was Susan Epperson, whom Rozzell knew through her father, a science professor at the College of the Ozarks. Epperson had graduated from the school before heading to the University of Illinois for a master’s degree in zoology.  And Epperson had one more plus in Rozzell’s eyes: She was a Christian who saw no conflict between her Presbyterian faith and Darwin’s big idea.

“I think they were looking for a Christian believer,” Epperson said in a 2004 interview. “Because some people equate believing in evolution with being an atheist, the AEA wanted to demonstrate that one can believe in God and also believe all the scientific evidence for evolution.”

Because some people equate believing in evolution with being an atheist, the Arkansas Education Association wanted to demonstrate that one can believe in God and also believe all the scientific evidence for evolution.

~Susan Epperson

Susan Epperson

(Photo: Susan Epperson. Credit: Everett Collection Historical / Alamy Stock Photo)

Epperson’s husband, Jon, a math teacher and a pastor’s kid, encouraged her to accept the challenge. Her parents, who were also religious, were enthusiastic as well. She was not some Yankee communist troublemaker with long hair and tattoos carpetbagging her way through Arkan­sas, Epperson said at an evolution conference at Colorado State University in 2004. She was, she said, “the biology teacher next door.”

AEA’s case argued that it was Epperson’s job to teach what was in her school’s brand-new biology textbook, Modern Biology. Published in 1965, the book’s authors stated, “It is believed by many anthropologists that, although man evolved along separate lines from the primates, the two forms may have had a common, generalized ancestor in the remote past.”

“The mid-1960s was a time when evolution was re-emerging in textbooks as a result of Sputnik,” said Glenn Branch, deputy director of NCSE. The Russians’ satellite had kicked off the space race and an increased emphasis on science education.

“She was caught in an interesting place,” Branch said of Epperson. “The Ar­kansas law went farther than Tennessee’s Butler Act because it allowed that teachers could be fired for teaching evolution. Epperson’s bos­ses want her to teach out of this book, and if she does she could be fired. That put her in a good position to be the plaintiff.”

The controversy caught the attention of the public.

“I got more positive letters than negative ones,” Epperson said in 2004, “letters that were very supportive, from ministers, other walks of life. I also got letters that said things such as, ‘Why don’t you crawl into a den of apes and monkeys if you want to claim them as your sires. Pity the poor monkeys.’”

The trial, on April Fools’ Day 1966 before Judge Morris O. Reed of the Pulaski County Chancery Court, quick­ly became the circus Rozzell and Epperson’s attorney, Eugene War­ren, wanted to avoid. The New York Times dubbed it “the new Scopes trial,” and the small courtroom, meant to hold 60, was packed with 100 viewers, with more listening from the hall. Laughter occasionally broke out.

After a two-hour hearing, Reed ruled the high school’s biology textbook “does not constitute such a hazard to the safety, health and morals of the community that the constitutional freedoms may justifiably be suppressed by the state” and struck down the anti-evolution law as “arbitrary and vague.” Epperson was handed her first victory.

The state appealed, and the Arkan­sas Supreme Court sided with government officials in June 1967. The 1928 law was a “valid exercise” of the state’s right to control its own curricula, the court declared. But it declined to rule on whether the law banned the teaching of evolution or just the teaching of it as “true.” That essentially kicked the can down the road on appeal to the U.S. Supreme Court.

At the high court, Fortas was a key figure in bringing the case to the national stage. In a memo on the case, Fortas’ law clerk, Peter L. Zimroth, recommended against accepting Epperson’s petition for a hearing. “This case is not the proper vehicle for the Court to elevate the monkey to his proper position,” Zimroth wrote.

But Fortas wanted to hear the case. He had grown up in Tennessee and was a 15-year-old high school student during the Scopes trial. In his book about Scopes, Summer of the Gods, historian Edward J. Larson traced Fortas’ interest in Epperson to being “a working-class Jewish boy growing up in the Baptist citadel of Memphis.”

The court heard oral arguments on Oct. 16, 1968. The proceedings were, again, brief. Eugene Warren took only 10 minutes to present Epperson’s argument, and Don Langs­ton, assistant attorney general for Arkansas, seemed to sense what was coming. According to Randy Moore, who wrote about Epperson v. Arkan­sas for the National Association of Biology Teachers, “Langston knew that he would lose the case.”

He did. On Nov. 12, 1968, the Sup­reme Court struck down Arkan­sas’ 1928 anti-evolution law in a 9-0 ruling. The majority opinion was writ­ten by Fortas and joined by Chief Justice Earl Warren and Associate Justices William O. Douglas, Thurgood Marshall, William J. Brennan Jr. and Byron White. (Justices Hugo Black, John M. Harlan II and Potter Stewart wrote separate concurring opinions.)

“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,” Fortas wrote. “[N]o 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. It is clear that fundamentalist sectarian conviction was and is the law’s reason for existence.”

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.

~Supreme Court Justice Abe Fortas

Epperson marked the end of what Branch calls the “first wave” of anti-evolution laws – the “ban it” strategy. But anti-evolutionists regrouped and crafted second-wave “balance it” laws.

“If you can’t ban evolution, then maybe you can balance it,” Branch said, describing the strategy of evolution foes. The first such law, out of Tennessee, required teachers to “balance” evolution with biblical creationism. It was quashed in 1975. In quick order, Arkansas and Louisiana passed laws requiring pairing evolution with “creation science” – an attempt to put a scientific gloss on claims that the Earth was created in six days about 6,000 years ago.

Those types of laws were invalidated by the Supreme Court in 1987 in Edwards v. Aguillard. Like Epperson, the ruling struck down the laws as violations of church-state separation, but it also said that teaching “a variety of scientific theories” about human origins was legally acceptable.

That led to the emergence of “intelligent design” (ID) among creationists, the idea that human beings and other creatures are so complex they must have had an “intelligent designer,” usually identified as God.

Americans United and allied groups challenged the teaching of ID in Dover, Pa., public schools in 2005. In a 139-page decision in Kitzmiller v. Dover Area Schools, Judge John E. Jones III of the U.S. District Court for the Middle District of  Pennsylvania wrote, “The overwhelming evidence at trial established that ID is a religious view, a mere re-labeling of creationism, and not a scientific theory.”

The ruling marked the end of the second-wave “balance” laws. Now, Branch said, a third wave of anti-evolution laws has emerged. “If you can’t ban it and you can’t balance it, then belittle it,” Branch said. “That has been very popular since 2005.”

These types of laws prod teachers to describe evolution as “controversial” (a characterization the vast majority of scientists do not agree with) under the banner of academic freedom. About 70 such laws have been introduced at the state level, according to Branch, with three enacted – in Mississippi, Louisiana and Tennessee.

The issue remains alive, with disputes over the teaching of evolution currently playing out in Arizona and New Mexico.

Epperson went on to teach chemistry and biology at the university level in Colorado. She’s now retired, but the case that bears her name still resonates. On the website of the University of Colorado at Colorado Springs, where Epperson taught, she is lauded for her work.

“There is no way the Biology Department can appropriately express our gratitude for Sue’s contributions to the department, let alone what she has done for biology education across the US,” says the site. “Her influence on the field is simply immeasurable as her landmark case went all the way to the US Supreme Court.”

NCSE’s Branch agrees: “The Epperson decision reshaped the legal landscape and has had a continuing impact not only on jurisprudence but also in what is being taught in evolution,” Branch said. “Biology teachers, whether they know it or not, have benefitted from Susan Epperson standing up for teaching it. She made it easier to teach evolution in communities that may be unreceptive or hostile to it.”

The Epperson decision reshaped the legal landscape and has had a continuing impact not only on jurisprudence but also in what is being taught in evolution. Biology teachers, whether they know it or not, have benefitted from Susan Epperson standing up for teaching it.

~Glenn Branch, deputy director of the National Center for Science Education