EPPERSON v. ARKANSAS

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Argument of Eugene R. Warren

Chief Justice Earl Warren: Number 7, Susan Epperson Et Al, Dallas versus Arkansas.

Mr. Warren.

Mr. Warren: Mr. Chief Justice, may it please the Court.

This case involves the constitutionality of the Arkansas anti-evolution law.

Mrs. Susan Epperson, a teacher an H.H. Blanchard, the father of two would be learners challenged the constitutionality of the Initiated Act number 1 of 1926, which was the so-called monkey bill of the anti-evolution law.

A challenge was based upon the contention that the Act violated and collided with the First Amendment freedoms to freedom of speech, the freedom to teach and to learn, the freedom and the question of freedom of religion, the question of the Establishment Clause of the First Amendment.

We have briefed these points as well as we possibly can.

We have the benefit of supporting briefs of amicus to excellent briefs and I shall not burden or impose upon the time of the patient of this Court to argue to any great extent the question of the First Amendment Freedom is what I would like to discuss with emphasis -- greater emphasis that in our brief, the question of the vagueness of the Act that is the failure of the Act to meet the permissible statutory vagueness of the Due Process Clause.

From the time that this Act was enacted or adopted, teachers were in Arkansas were in -- have been and are genuinely confused and concerned, uncertain as to whether or not the language of the Act which forbid the teacher to teach the theory or doctrine that man ascended or descended from a lower form of animals.

Whether that language forbid the teacher to discuss the matter or permit the theory or permit a classroom from discussion of the theory or whether the actual meaning of the Act was that the teacher could not teach that the theory was -- had been established or it was true.

Now, at the time of the trial of this case and the lower court, the plaintiff Mrs. Epperson testified that she did not wish to teach that the theory was true but simply to explain it because it was contained in a chapter in the Biology of book that had been furnished to her by the Local School District.

May I say that in my -- as I understand it, there is simply is no Biology textbook that does not have some references or some explanation of the theory of the evolution of man.

Judge Reed, the trial judge committed on the question of whether or not the language of the Act permitted a discussion of the Act of whether it forbid the teaching of the, that the theory was true.

We devoted 12 pages in our brief and the Arkansas Supreme Court to a discussion of statutory vagueness under the Due Process Clause.

It -- the Supreme Court of Arkansas in a two line opinion, memorandum opinion held that this was a proper exercise or valid exercise, this Act was a valid exercise of the power of state to control the curriculum of the schools.

Justice William J. Brennan: Mr. Warren may I ask?

Mr. Warren: Yes sir.

Justice William J. Brennan: Would you be taking the same position under the First Amendment if these statute --

Mr. Warren: Yes.--

Justice William J. Brennan: Which as I -- as I read it, it says that it's unlawful to teach in any University college, normal public schools and so forth.

If instead it had just said that it would be unlawful to teach children in Grades, primary grades one through six.

Would you take the same position on the first term?

Mr. Warren: I would take the same position but not quite as strongly.

Justice William J. Brennan: I don't understand.

Mr. Warren: Well, I think that the case of the Bartels, an Iowa case where the -- that was the Iowa case and the Nebraska case, Meyer case that those statute prohibiting the teaching of German only applied to the elementary schools and this Court in those two cases struck down those axe under the Due Process Clause.

Unknown Speaker: But those were private schools?

Mr. Warren: The -- in Meyer case was a public school.

Unknown Speaker: Well, that's right, my --

Justice William J. Brennan: But you're familiar, I don't know that you cited it with -- old decisions in the obscenity area, for example in the Ginsburg case of last term and the --

Mr. Warren: Yeah.

Justice William J. Brennan: Buffer and Michigan and those cases.

But at least in that area have drawn some lines depending upon the ages of the children exposed to the material that involved and you don't think --

Mr. Warren: Yes Mr. Justice Brennan, I would think --

Justice William J. Brennan: You don't take that same kind of line could be drawn?

Mr. Warren: No sir I take the position that the curriculum of the public schools even the elementary grade is not a matter for the ballot but is a matter of for the proper educational officers.

Justice William J. Brennan: Well, I suppose you had a statute that just said that it shall be unlawful to teach in Grades one through six depending on the color of the skin, one race is inferior to another race.

Mr. Warren: Well, I think --

Justice William J. Brennan: Do you think that would be unconstitutional?

Mr. Warren: Yes I think that clearly be unconstitutional, I certainly do.

Justice William J. Brennan: So you don't think any lines can be drawn at all depending upon the level of --

Mr. Warren: Of the age.

Justice William J. Brennan: --of the education, primary versus high school and so on.

Mr. Warren: I must say that I believe that these are matters for educators and not for the ballot but as I have to go back when the Supreme -- when this case was decided by the Supreme Court of Arkansas, it made the statement in the second line that the Court -- that we do not decide whether the Act forbids the discussion or explanation of the theory are forbids whether the theory was true.

Now, this is -- this in itself condemns the Act, certainly makes it vague.

The teacher should not be required particularly where this is a penal Act at -- where conviction requires that the dismissal of the teacher from the school from her profession, from her job.

The teachers shouldn't be required to take this gamble.

Justice Mr. Justice Portas: But there's also a fine, isn't there?

Mr. Warren: A $500.00 fine, yes sir.

Justice Mr. Justice Portas: Has there been any prosecution under this statute that is -- was it, 1923?

Mr. Warren: 26.

Justice Mr. Justice Portas: 26.

The general -- this prosecution --

Mr. Warren: Mr. Justice Portas, to my knowledge there has not been.

There has been - there have been threats of prosecution and there have been some cases started but I don't think they will ever conclude it.

One other field of uncertainly in the --

Justice Hugo L. Black: 0833

Mr. Warren: Sir?

Justice Hugo L. Black: Maybe there's enough 0837

Mr. Warren: I don't know Mr. Justice Black, I just really hate to say whether there was any danger or not, there was a lot -- there's a lot of uncertainty and a lot of fright.

I think the Act was used mostly for bogyman.

In a number of Districts in Arkansas, the subject of Biology is not even taught.

In other Districts in Arkansas, of course the Biology book does have a chapter, all Biology books I understand do have a chapter.

When the teacher reaches that chapter, the teacher simply skips it unless the teacher happens to be one of those ingenious people that wants to be sure that the student actually reads it, a teacher analysis that that the reading of this chapter is illegal and of course I think all of the children immediately would want to read and probably get more from that chapter than any other chapter in the book.

The language of the Act also forbids the teacher to use a textbook in which this theory is -- as the access a textbook which teaches the theory or doctrine.

Now, as I understand the word use if the teacher refers a student to a particular book or a textbook, the teacher is using that book not only the student that actually consults the book but also the teacher by referring the student to it.

Well, our Webster is an international dictionary, contains an explanation.

Webster's Collegiate Dictionary obtains an explanation.

All the Encyclopedia is the world book, the book of knowledge.

All the source reference books, general reference book in every schools library contains an explanation of this theory.

When I -- if the Act has that sort of meaning then that means that every school has got to rid library of all of these books and that just plain ridiculous.

That's book burning at its worst.

Unknown Speaker: Well, did you say -- has the statute been constituted to which you're referring, the teachers referring to --

Mr. Warren: Well, the statute has not been -- has not been -- at school those --

Unknown Speaker: On its face it seems -- on its face it seems that we generally makes it unlawful for any teacher to adapt or use in the institution.

Mr. Warren: To use, a teacher to use or a textbook commissioned to adapt.

Unknown Speaker: Well, does not mean like, ordinarily our textbooks formally adapted for use in the given class or by -- in the teaching of a given course?

Mr. Warren: Well, the dictionary in Arkansas has been adapted as a textbook and is furnished under the textbook law.

So, that a teacher couldn't refer under that -- under that construction of that which is clearly vague, clearly uncertain a teacher couldn't refer a student to the dictionary for fear that that student inadvertently might turn to the page that had the explanation of evolution on it and then the teacher is subject to dismissal from her position and we say that the Act is clearly clearly vague, clearly unconstitutional.

May I reserve --

Unknown Speaker: Do you see any different before you sit down Mr. Warren, do you see any difference between -- is it a matter of law between this case Meyer against Nebraska?

Mr. Warren: I see no difference, not much was.

Thank you.

Chief Justice Earl Warren: Mr. Langston.

Argument of Don Langston

Mr. Langston: May it please the Court.

I think to start off with, it should be noted that from the record in this case that this action was originated.

In 1965 prior to the administration of the present Attorney General and was defended by him in the States Courts, the present administration took over the defense of this lawsuit after it was decided by the Supreme Court of Arkansas and was appealed to this Court.

I think I --

Unknown Speaker: What was the significance with that?

Mr. Langston: I was just -- just background Your Honor.

Unknown Speaker: Oh, I just thought you were telling us your administration doesn't like the statute either.

Mr. Langston: No Your Honor, I'm not here prepared to say that.

Unknown Speaker: It might not be too late you know.

Mr. Langston: The reason -- the reason the State of Arkansas is involved in this lawsuit as you would recall from the record, the plaintiff sued the Little Rock School District and its superintendent.

The reason the State of Arkansas intervened in the lawsuit is that under our Declaratory Judgment Act under which Mrs. Epperson assault to declare the statute unconstitutional.

The statute number is 34-2510 in our code, it -- shall our declaratory act, declaratory judgment action statutes that when a declaratory relief is sought in a proceeding seeking to have any state statute declared unconstitutional, the Attorney General of the state shall be served with a copy of the proceeding and is entitled to be heard, so that is the reason why an Attorney General's office is involved in this lawsuit at this stage.

Unknown Speaker: Indefinitely even the class this year?

Mr. Langston: Yes, we have always interpreted that domain that we are to defend the constitutionality of this statute Your Honor.

I think it should also be noted from the record that the Chancery Court of Alaska County filed and rendered a what I would call a rather lengthy opinion for a trial court in Arkansas and we have the benefit of its reasoning in this Court.

However, the Supreme Court of Arkansas which ordinarily and an almost all of its cases renders an opinion with reasoning to back it up as failure to -- I shouldn't say a failure to but has not filed an opinion which is usually written by one of its Justices with reasoning for its decision.

They merely issued a per curiam opinion in this case which they very rarely do and I do not know why they did not file a written opinion with reasoning, so therefore this Court --

Unknown Speaker: Maybe they couldn't Mr. Langston.

Mr. Langston: I have heard rumors to that effect but I did not think it's true.

Of course sir, the second sentence in the per curiam opinion which one of the Justices said he thought was irrelevant to the decision of the case.

If a case was brought to prosecute a teacher under this action I would say that the statute -- that the opinion of the Supreme Court and the statute would be interpreted to mean that to make the student aware of the theory not to teach whether it was true or untrue but just to teach that there was such a theory would be the grounds for the prosecution under the statute and that the Supreme Court of Arkansas' opinion should be interpreted in that manner.

Unknown Speaker: Should be interpreted to the effect that there is a criminal offense for a teacher to make students aware that there is such a theory?

Mr. Langston: That is correct Your Honor.

In our opinion, teach means to make the student aware that there is such a theory and not whether it is true or untrue.

Unknown Speaker: So you think we should take the Arkansas statute as meaning that --

Mr. Langston: Yes Your Honor.

Is to mean that --

Unknown Speaker: And as meaning that it does really -- it does -- it does reach the teaching about as well as affirmatively teaching the rightness of something?

Mr. Langston: If I get your question correct --

Unknown Speaker: I mean it would cover a teacher telling about -- telling about Darwin --

Mr. Langston: Yes.

Unknown Speaker: -- as well as -- as well as teaching that Darwin was right?

Mr. Langston: That's correct.

If she said that Mrs. Epperson would tell her students that here is Darwin Theory that man ascended or descended from a lower form of being well, then I think that she would be, under this statute would be liable for prosecution.

Unknown Speaker: Well, I have some trouble with that and the same as to my -- you mean you get that out of the second sentence, the Court expresses no opinion on the question.

Mr. Langston: I am saying that I think that the lower Courts of Arkansas would interpret, would hold that Senate's irrelevant Your Honor and say that, although the Supreme Court of Arkansas did not and I think if the Supreme Court of Arkansas would present it with the prosecution under this case that they would disobey that second sentence in the per curiam opinion.

Unknown Speaker: Well, I mean, this has only been suggested to you on problem I take it is to decide the constitutional question on the basis of the authoritative interpretation of the statute by the highest state court, isn't it?

Mr. Langston: Yes Your Honor.

I think --

Unknown Speaker: Now, what are we to take to be the authoritative interpretation of this statute for the Supreme Court of Arkansas?

Mr. Langston: I take the first sentence of the per curiam opinion Your Honor.

Unknown Speaker: And that is that it's a valid exercise or the state's power to specify the quick 1839 public schools?

Mr. Langston: Yes Your Honor and they have not --

Unknown Speaker: Well, --

Mr. Langston: And they have not decided the question that I have said.

Unknown Speaker: No, but what concerns me, going back to the question I asked your adversary earlier, are we to take this to mean that as much as I have said is this statute is valid as regarding -- as regards to quick limit at public schools meaning primary schools or does this mean that if valid as regards to teaching and in the University College, Normal Public School or other institutions?

Mr. Langston: I think any text supported school in Arkansas will be covered.

Unknown Speaker: So public schools here include University College, Normal --

Mr. Langston: That's correct.

Graduate schools --

Unknown Speaker: Well then, may I ask you the question I asked your adversary earlier.

If that's the interpretation against which we're to test the constitution in the First Amendment.

Do you see a difference between that kind of prohibition in dealing with adults at Universities, College, Normal and Public School and that kind of prohibition dealing with children in the primary grades?

Mr. Langston: No sir I do not.

Unknown Speaker: See none.

You don't think Butler and Michigan has any analogy here too, that's the one in which we held at in the area of obscenity, you can't measure the reading of adults by the standard of what's fit for children to read.

Mr. Langston: Of course, I guess what you're getting at is the impression of modern -- of younger children --

Unknown Speaker: Yeah.

Mr. Langston: --and the children in this but I do not see any distinction in this.

I think that anyone from Kindergarten and up is not in the public schools are not suppose to be made aware of this theory in Arkansas and it makes no difference how the student is.

Unknown Speaker: Well, I know what you're defending it on the ground that it's constitutional do deny any teachers the right to teach this even the Normal School of College, don't you?

Mr. Langston: Yes sir.

As to whether this statute is vague and uncertain or not, of course we alluded to this in our brief and in our basis for argument on this is that our statute was passed with the case of Scopes versus Tennessee in Maryland where in their statute was held valid and met the requirement that it was not vague and uncertain.

We think that our statute is even better worded than theirs and so therefore in the light of that decision in our statute we think that it meets the constitutional test to due process.

Unknown Speaker: What is the State interest that you're protecting through the statute?

Mr. Langston: Well, we feel that that the state has a right to set the curriculum in its schools and that's the -- that's our main point Your Honor that the state can prescribe it's curriculum in schools and don't have chaos and explains to that nature whenever in the teaching of this courses there.

I could -- another point that could be made there is on our -- we say that this is a religious neutrality act here, it could keep the discussion of the Darwin theory versus the Bible story out of the teachings of the public schools and keep them outside of that form in private forms and that could go to the orderly management of the Arkansas students.

Unknown Speaker: Would you in the same ground defend the statute to prohibit the teaching of the theory that some races are inferior to others?

Mr. Langston: I would think that that should be prohibited, yes sir.

Unknown Speaker: That that could constitutionally be done?

Mr. Langston: To be consistent with my argument, I would have to say that I, of course, I think that the state in prescribing the courses in the schools could say what theories can and cannot be taught there.

Unknown Speaker: And I suppose --

On that -- on that theory, would you think that the state could provide the index mathematical courses would be illegal to mention or teach geometry?

Mr. Langston: Of course I've -- there's -- don't have to be a line drawn here somewhere but -- of course I wouldn't move the children of Arkansas to --

Unknown Speaker: That's our problem too.

Mr. Langston: I might say that I'm glad that your problem and my --[Laughs]

Unknown Speaker: Apparently the Supreme Court of Arkansas felt the same way.[Laughs]

Mr. Langston: That could be another rumor Your Honor.

The State of Arkansas realizes that the trend in this Court and the lower federal courts and to some extent in the State Courts as to struck down legislation of this sort which infringes somewhat have own private rights but here we think that we have a -- we have reason to believe that as to teaching geometry or anything of that nature, we may not reasonably do it but here we think that we have not been unreasonable and that the judgment and opinion of the Supreme Court of Arkansas should be affirmed.

Unknown Speaker: What do you say about the rest of the --

Justice Thurgood Marshall: Mr. Langston, since the -- your Supreme Court dispose of the lower court's opinion in two sentences, would you object as disposing of that one in one strength?

Mr. Langston: According to how did -- I say Your Honor that it does not establish or this establish it that as I stated in my brief that it is a Neutrality Act and keeps from discussing the Darwin theory and its opposing theories in the law, in the schools.

Unknown Speaker: It says anything about its opposing theory, does it?

Mr. Langston: No it does not Your Honor.

Unknown Speaker: It simply forbids the teaching of -- to say the Darwinian Theory, doesn't it?

Isn't it rather similar to statute what so -- what if Arkansas would forbid the -- forbid teaching the theory that the world is round for instance?

Mr. Langston: Well, I would first of all hope that the Courts would -- our people would think that that would be an unreasonable encroachment upon --

Unknown Speaker: But why?

Why should we get into the school or any school --

Mr. Langston: Well, of course our position is that the Courts should restrain from doing so as much as possible because it should be left up to the local school boards and the local people as to how their schools should be run and to what curriculum should be taught yesterday.

Unknown Speaker: Well, this isn't a kind of a case that would be presented.

If Arkansas had provided that all the public schools teach American History or teach the History of Arkansas, or it teach mathematics, or teach a foreign language, or teach a chemistry, or English grammar, this hasn't to have to do with subjects to be taught, this has to do with a particular theory that shall not be taught?

Mr. Langston: That's correct.

Unknown Speaker: How about the subject sex, does Arkansas have any prohibitions on teaching in the field of sex?

Mr. Langston: I have heard none Your Honor, I do not know.

Unknown Speaker: Mr. Langston I appreciate your problem here.

Appreciate the way you presented this to us but I wanted to ask you just one question.

Do you see any way in which this case can be distinguished from Meyer against Nebraska which this Court decided in the 1923?

Mr. Langston: Is that the --

Unknown Speaker: German Language?

Mr. Langston: English Language?

Unknown Speaker: Yeah.

Mr. Langston: The only way I could do it Your Honor would be the reason at least and unreasonable aspect of it.

The teaching of German or teaching in English I think in the schools could be held to be unreasonable or as keeping the Darwin theory out of the schools could be reasonable to keep from getting in --

Unknown Speaker: Why?

Mr. Langston: --to maybe the religious aspects of the theory.

Unknown Speaker: Well, I thought a few moments ago maybe at worse and then invoking some maybe I misunderstood you but I thought a few moments ago you said that you indicated the reason for privating the teaching of the Darwinian theory was so that it would not collide with the -- what I believe you referred to as the bible story in which I assume you mean the literal reading of the Book of Genesis?

Mr. Langston: Yes sir.

Unknown Speaker: And it is -- does the state concede that that is a purpose of this prohibition?

If it does, it run right into the question of the First Amendment, wouldn't you?

Mr. Langston: Yes sir, Your Honor.

No, we don't take that position that it -- that this has a religious aspect to it.

Do you think the position that has any purpose -- was there any purpose?

I mean, if it doesn't serve a religious purpose, what purpose does it serve?

Mr. Langston: Well it, of course whenever I say religious purpose I mean that it could keep the discussion of the Bible story versus the Darwinian story out of the schools and in the private forms between scientist and your --

Unknown Speaker: So that the Bible story couldn't be discussed in the schools?

Mr. Langston: I supposed of the --

Unknown Speaker: In other words, as My Brother Stewart I think suggested, there's no general prohibition as there against discussing how man came to be and his origins has no general prohibition.

So that theories such as including the Bible that literal reading of Genesis could be discussed in the schools and the other theory if there is any other except for the Darwin and theories, is that right?

Mr. Langston: Evidently, all the other theories --

Unknown Speaker: In other words, out of that whole area of the origin of man, Arkansas has excised only a segment.

That segment being the Darwinian Theory, is that correct?

Mr. Langston: That is correct.

Thank you sir.

Chief Justice Earl Warren: Mr. Warren.

Rebuttal of Eugene R. Warren

Mr. Warren: Mr. Chief Justice, with your permission may we submit the case as is.

Chief Justice Earl Warren: Alright.