Evolution and Creation Science in Your School: "the Monkey Business Continues . . . ."

• Jurisdiction: United States,Federal
• Citation: Vol. 79
• Publication year: 2021

79 Nebraska L. Rev. 901. Evolution and Creation Science in Your School: "The Monkey Business Continues . . . ."

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Rex R. Schultze*

Evolution and Creation Science in Your School: "The Monkey Business Continues . . . ."

"It took God only six days to create the universe -- it's gonna take the court two weeks to decide if it should be taught."1

THE "GENESIS" (pun intended)

In March of 1925, the state of Tennessee enacted a law that made it

unlawful for any teacher in any of the universities, normals or other public schools of the State, which are supported in whole or in part by the public school funds of the State, to teach any theory that denies the story of divine creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.2

Shortly thereafter, George Rappelyea, a mining engineer, had a conversation with Thomas Scopes, a twenty-four year old science teacher in Dayton, Tennessee. The conversation involved the new antievolution law; specifically, Rappelyea suggested that Scopes teach the forbidden subject to his biology class, thereby securing for Dayton the honor of being the first test case. Scopes agreed. By arrangement, he taught evolution to his class, his friends told the authorities and Scopes was indicted.3

News of the "monkey trial" spread rapidly throughout the country. William Jennings Bryan volunteered to assist the prosecution headed by Attorney General E.T. Stewart. Bryan, as informal head of the fundamentalist movement, had traveled throughout the south urging the adoption of antievolution laws. His offer was enthusiastically ac

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cepted. The ACLU took up Scopes's defense and had its own volunteer, Clarence Darrow.4

The trial began on July 10, 1925. Toward the end of the trial, after Bryan had offered himself as an expert witness, the judge presiding over the case allowed Darrow to cross-examine Bryan on his qualifications outside the presence of the jury. The jurors were the only ones to miss it, as the whole world heard the show by telegraph.5 The point of Bryan's willingness to testify, and Darrow's presence at the trial were summed up by the participants in the following exchange:

General Stewart: I want to interpose another objection. What is the purpose of this examination?

Mr. Bryan: The purpose is to cast ridicule on everybody who believes in the Bible, and I am perfectly willing that the world shall know that these gentlemen have no other purpose than ridiculing every Christian who believes in the Bible.

Mr. Darrow: We have the purpose of preventing bigots and ignoramuses from controlling the education of the United States and you know it, and that is all.6

The trial ended in Scopes's conviction and a fine, but was later reversed by the Tennessee Supreme Court on a legal technicality.7 The Court did, however, uphold the authority of the state to regulate the public school curriculum, stating that if the Legislature thinks that "the cause of education and the study of science generally will be promoted by forbidding the teaching of evolution in the schools of the state, we can conceive of no grounds to justify the court's interference."8

THE "EXODUS"

The exodus of the theory of evolution through legislation and the courts over the seventy-five years since the Scopes trial has had at least two distinct stages: the prohibition stage and the equal treatment stage.9 The issue now appears to be heading into a third stage involving various collateral attacks on the teaching of the theory of evolution in America's classrooms.

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STAGE 1 - Prohibition

The first stage involved legislative prohibitions against teaching evolution. Between 1921 and 1929 fundamentalists introduced antievolution bills into twenty state legislatures. States such as Mississippi, Arkansas, Florida, and Texas passed such legislation.10 Under the Tennessee Supreme Court's decision in Scopes, it was presumably legal to ban teaching the theory of evolution in public schools.11

In 1928, the Arkansas Legislature enacted a statute making 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."12 Violation of the statute was a misdemeanor and grounds for dismissal.13 That statute hibernated for almost forty years, during which time the theory of evolution became a staple in the curriculum of most classrooms in the United States.

In 1965, nearly forty years later, Susan Epperson, a biology teacher at Little Rock Central High School, filed suit challenging the constitutionality of the statute.14 In 1968, the Supreme Court ruled that the statute violated the First Amendment because it "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."15 In striking down the Arkansas statute, the Supreme Court stated: "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."16

STAGE 2 - Equal Treatment

The second stage in the legislative and judicial "evolution" of Dar-win's theory did not take forty years; it quickly followed the decision in Epperson. Since legislators could not prohibit the teaching of evolution by statute, lawmakers sought to make sure that creationism was given "equal treatment," by giving it the same emphasis and attention whenever evolution theory was taught.17 The Tennessee Legislature was again in the forefront of "evolution" legislation, passing an act which required that whenever any textbook discussed theories of the origins or creation of human beings, it must give "an equal amount of See Epperson v. Arkansas, 393 U.S. 97, 102 n.8 (1968).

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emphasis on the origins and creation of man and his world as the same is recorded in . . . the Genesis account in the Bible."18

The Sixth Circuit Court of Appeals addressed the constitutionality of the Tennessee statute in 1975 in Daniel v. Waters.19 In Daniel, the court found that the statute violated the First Amendment because it gave a "clearly defined preferential position for the biblical version of creation."20 The apparent problem with the statute's conformity to the First Amendment was its specific reference to the Genesis account of creation. To overcome this hurdle, a case needed to be made for the position that the Genesis account was more than a religious belief and that it was as "scientific" as the theory of evolution.21

To meet this challenge, several fundamentalist Christian organizations began to promote the idea that the Genesis account is supported by scientific data and referred to it as "creation science" or "scientific creationism." The legislatures of two states, Arkansas and Louisiana, accepted that idea and each state's legislature enacted a Balanced Treatment Act in 1981.22

When "creation science" reached the federal courts, however, it was not accepted as "science," but was deemed to be simply the advancement of religion.23

McLean v. Arkansas Board of Education24

In McLean, the federal district court in Arkansas applied the longstanding "Lemon test"25 finding that the statute was not adopted for a secular purpose and that it primarily advanced religion.26 The court found that the creation science law was "simply and purely an effort to introduce the biblical version of creation into the public school curric-ula."27 Finding that creation science was based on the first eleven chapters of Genesis, the court rejected the contention that "creation science" is a science, and that "since creation-science is not science,

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the conclusion is inescapable that the only real effect of (the act) is the advancement of religion."28

Aguillard v. Treen29

The Louisiana Balanced Treatment Act received similar treatment by the federal courts in Louisiana. In Aguillard, the plaintiffs prevailed on their motion for summary judgment because the statute had no secular purpose and its primary effect "promotes the beliefs of some theistic sects to the detriment of others" and thus ". . . violates the fundamental First Amendment principle that a state must be neutral in its treatment of religion."30 In affirming the district court, the Fifth Circuit Court of Appeals held that "the Act violates the Establishment Clause of the First Amendment because the purpose of the statute is to promote a religious belief."31 In June of 1987, the Supreme Court affirmed the Fifth Circuit Court decision stating:

The Louisiana Creationism Act advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety. The Act violates the Establishment Clause of the First Amendment because it seeks to employ the symbolic and financial support of government to achieve a religious purpose.32

Following the decision in Aguillard, the second stage in the travels of the "monkey" theory came to an end. As one commentator noted, "[s]tates could neither prohibit the teaching of evolution nor could they require creationism to be taught if evolution was covered."33

STAGE 3 - Collateral Attack

With the striking down of equal treatment legislation and the prohibition against teaching creation science, one would think that issues relating to the teaching of evolution in the schools were as dead as the dinosaurs (except those found in Jurassic Park, of course). One should think again! Those opposed to the teaching of the theory of evolution in public schools have sought means of collaterally...