McLean v. Arkansas Bd. of Ed.

• Decision Date: 05 January 1982
• Docket Number: No. LR C 81 322.,LR C 81 322.
• Citation: 529 F. Supp. 1255
• Parties: Rev. Bill McLEAN, et al., Plaintiffs, v. The ARKANSAS BOARD OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

529 F. Supp. 1255

Rev. Bill McLEAN, et al., Plaintiffs, v. The ARKANSAS BOARD OF EDUCATION, et al., Defendants.

No. LR C 81 322.

United States District Court, E. D. Arkansas, W. D.

January 5, 1982.

Robert M. Cearley, Jr., Cearley, Gitchel, Mitchell & Roachell, Philip E. Kaplan, Kaplan, Hollingsworth & Brewer, P.A., Little Rock, Ark., Bruce Ennis, Jack Novik, ACLU Foundation, Anthony Siano, Gary Crawford, David Klasfeld, Skadden, Arps, Slate, Meagher & Flom, New York City, for plaintiffs.

Steve Clark, Atty. Gen., David L. Williams, Deputy Atty. Gen., Frederick K. Campbell, Callis Childs, Asst. Attys. Gen., Little Rock, Ark., for defendants.

MEMORANDUM OPINION

OVERTON, District Judge.

Introduction

On March 19, 1981, the Governor of Arkansas signed into law Act 590 of 1981, entitled the "Balanced Treatment for Creation-Science and Evolution-Science Act." The Act is codified as Ark.Stat.Ann. § 80-1663, et seq. (1981 Supp.). Its essential mandate is stated in its first sentence: "Public schools within this State shall give balanced treatment to creation-science and to evolution-science." On May 27, 1981, this suit was filed¹ challenging the constitutional validity of Act 590 on three distinct grounds.

First, it is contended that Act 590 constitutes an establishment of religion prohibited by the First Amendment to the Constitution, which is made applicable to the states by the Fourteenth Amendment. Second, the plaintiffs argue the Act violates a right to academic freedom which they say is guaranteed to students and teachers by the Free Speech Clause of the First Amendment. Third, plaintiffs allege the Act is impermissibly vague and thereby violates the Due Process Clause of the Fourteenth Amendment.

The individual plaintiffs include the resident Arkansas Bishops of the United Methodist, Episcopal, Roman Catholic and African Methodist Episcopal Churches, the principal official of the Presbyterian Churches in Arkansas, other United Methodist, Southern Baptist and Presbyterian clergy, as well as several persons who sue as parents and next friends of minor children attending Arkansas public schools. One plaintiff is a high school biology teacher. All are also Arkansas taxpayers. Among the organizational plaintiffs are the American Jewish Congress, the Union of American Hebrew Congregations, the American Jewish Committee, the Arkansas Education Association, the National Association of Biology Teachers and the National Coalition for Public Education and Religious Liberty, all of which sue on behalf of members living in Arkansas.²

The defendants include the Arkansas Board of Education and its members, the Director of the Department of Education, and the State Textbooks and Instructional Materials Selecting Committee.³ The Pulaski County Special School District and its Directors and Superintendent were voluntarily dismissed by the plaintiffs at the pre-trial conference held October 1, 1981.

The trial commenced December 7, 1981, and continued through December 17, 1981. This Memorandum Opinion constitutes the Court's findings of fact and conclusions of law. Further orders and judgment will be in conformity with this opinion.

I.

There is no controversy over the legal standards under which the Establishment Clause portion of this case must be judged. The Supreme Court has on a number of occasions expounded on the meaning of the clause, and the pronouncements are clear. Often the issue has arisen in the context of public education, as it has here. In Everson v. Board of Education, 330 U.S. 1, 15-16, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947), Justice Black stated:

"The `establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church-attendance or non-attendance. No tax, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause ... was intended to erect `a wall of separation between church and State.'"

The Establishment Clause thus enshrines two central values: voluntarism and pluralism. And it is in the area of the public schools that these values must be guarded most vigilantly.

"Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in the strife of sects. The preservation of the community from divisive conflicts, of Government from irreconcilable pressures by religious groups, of religion from censorship and coercion however subtly exercised, requires strict confinement of the State to instruction other than religious, leaving to the individual's church and home, indoctrination in the faith of his choice."

McCollum v. Board of Education, 333 U.S. 203, 216-217, 68 S.Ct. 461, 468, 92 L.Ed. 649 (1948), (Opinion of Frankfurter, J., joined by Jackson, Burton and Rutledge, JJ.).

The specific formulation of the establishment prohibition has been refined over the years, but its meaning has not varied from the principles articulated by Justice Black in Everson. In Abington School District v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844 (1963), Justice Clark stated that "to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." The Court found it quite clear that the First Amendment does not permit a state to require the daily reading of the Bible in public schools, for "surely the place of the Bible as an instrument of religion cannot be gainsaid." Id. at 224, 83 S.Ct. at 1572. Similarly, in Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), the Court held that the First Amendment prohibited the New York Board of Regents from requiring the daily recitation of a certain prayer in the schools. With characteristic succinctness, Justice Black wrote, "Under the First Amendment's prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity." Id. at 430, 82 S.Ct. at 1266. Black also identified the objective at which the Establishment Clause was aimed: "Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion." Id. at 431, 82 S.Ct. at 1267.

Most recently, the Supreme Court has held that the clause prohibits a state from requiring the posting of the Ten Commandments in public school classrooms for the same reasons that officially imposed daily Bible reading is prohibited. Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980). The opinion in Stone relies on the most recent formulation of the Establishment Clause test, that of Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971):

"First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ...; finally, the statute must not foster `an excessive government entanglement with religion.'"

Stone v. Graham, 449 U.S. at 40, 101 S.Ct. at 193.

It is under this three part test that the evidence in this case must be judged. Failure on any of these grounds is fatal to the enactment.

II.

The religious movement known as Fundamentalism began in nineteenth century America as part of evangelical Protestantism's response to social changes, new religious thought and Darwinism. Fundamentalists viewed these developments as attacks on the Bible and as responsible for a decline in traditional values.

The various manifestations of Fundamentalism have had a number of common characteristics,⁴ but a central premise has always been a literal interpretation of the Bible and a belief in the inerrancy of the Scriptures. Following World War I, there was again a perceived decline in traditional morality, and Fundamentalism focused on evolution as responsible for the decline. One aspect of their efforts, particularly in the South, was the promotion of statutes prohibiting the teaching of evolution in public schools. In Arkansas, this resulted in the adoption of Initiated Act 1 of 1929.⁵

Between the 1920's and early 1960's, anti-evolutionary sentiment had a subtle but pervasive influence on the teaching of biology in public schools. Generally, textbooks avoided the topic of evolution and did not mention the name of Darwin. Following the launch of the Sputnik satellite by the Soviet Union in 1957, the National Science Foundation funded several programs designed to modernize the teaching of science in the nation's schools. The Biological Sciences Curriculum Study (BSCS), a nonprofit organization, was among those receiving grants for curriculum study and revision. Working with scientists and teachers, BSCS developed a series of biology texts which, although emphasizing different aspects of biology, incorporated the theory of evolution as a major theme. The success of the BSCS effort is shown by the fact that fifty percent of American school children currently use BSCS books directly and...