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Epperson v. Arkansas: It’s Illegal to Ban Evolution, How About Intelligent Design?

Casey Luskin

Epperson v. Arkansas was the first case regarding the teaching of evolution to reach the U.S. Supreme Court. The decision was handed down in 1968, where the Court effectively declared it illegal to ban the teaching of evolution.

1. Summary
An Arkansas statute descended from the Tennessee “Monkey Law” made it a criminal misdemeanor for teachers in state-supported schools to teach evolution and to use textbooks that taught the theory.28 Despite this law, in 1965 the Little Rock, Arkansas School Board gave biology teacher Susan Epperson a new textbook containing material on evolution.29 To avoid criminal penalty and dismissal, she sought a declaration that the Arkansas statute was unconstitutional.30 The U.S. Supreme Court sided with Epperson and held that the prohibition against teaching evolution violated the Establishment Clause.31 The Court found that the law existed because evolution conflicted with “a particular interpretation of the Book of Genesis by a particular religious group,” and thus it unconstitutionally tailored the curriculum to fit with the teachings of a certain religious viewpoint.32 The Court wrote:

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.33

This finding was bolstered by assessing religious concerns expressed in advertisements and other public advocacy for the law at the time it was passed in 1928.34 The Court also emphasized the importance of government neutrality in matters involving religion:

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.35

2. Importance and Commentary
Epperson effectively made it illegal to prohibit the teaching of evolution, as such an action would be viewed with severe suspicion as having been motivated by religion. Epperson’s inquiry into the religious motives underlying the Arkansas statute also provided precedent for the “purpose prong” of the Lemon test that was constructed just a few years later. Additionally, this case provides the oft-quoted or rephrased language regarding the importance of preventing Establishment Clause violations in public schools: “[T]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”36

In his concurring opinion, Justice Black foresaw that the failure of courts to recognize that evolution conflicts with the religious beliefs of many Americans would cause much public controversy over this issue in the years to come:

A second question that arises for me is whether this Court’s decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an “anti-religious” doctrine to schoolchildren? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or antireligious view over another. The Darwinian theory is said to challenge the Bible’s story of creation; so too have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. . . . Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court’s opinion.37

As will be seen, what followed Justice Black’s portending words was a string of cases seeking to declare evolution unconstitutional on the grounds that it was an “anti-religious” doctrine. Justice Black’s warning also anticipates the current state of affairs where most school districts teach only the scientific evidence supporting Darwin, causing division and controversy among many Americans. Judicially sanctioned methods of defusing this community controversy caused by the teaching of evolution will be discussed below in the reviews of later cases.38

Epperson’s requirement of “neutrality” in matters of religion may also have implications for those who favor promoting evolution by exposing students to pro-evolution theological views in the science classroom.39 Simply put, teachers who favor theological views that support evolution likely violate Epperson’s mandate that public schools maintain “neutrality between religion and religion.”40

Finally, the Epperson majority explained that “the state has no legitimate interest in protecting any or all religions from views distasteful to them.”41 While such language is undoubtedly partial towards lawsuits against religiously motivated policies that oppose the teaching of evolution, one can also imagine this language being quoted in a brief opposing an atheist plaintiff alleging that teaching scientific critique of evolution, or the teaching of alternatives to evolution such as intelligent design, established theistic religion. Would courts accept such an argument?

[Editor’s Note: This survey of Epperson v. Arkansas is an excerpt from the article “Does Challenging Darwin Create Constitutional Jeopardy? A Comprehensive Survey of Case Law Regarding the Teaching of Biological Origins,” Hamline University Law Review, Vol. 32(1):1-64 (Winter, 2009), published by Hamline University School of Law. This excerpt covers the case Epperson v. Arkansas; the full article can be read here.]

References Cited
[28.] Epperson v. Arkansas, 393 U.S. 97, 103 (1968) at 99.
[29.] Id. at 100.
[30.] Id.
[31.] Id. at 110.
[32.] Id. at 103.
[33.] Epperson, 393 U.S. at 103.
[34.] Id. at 105.
[35.] Id. at 103-104.
[36.] Id. at 104 (quoting Shelton v. Tucker, 364 U.S. 479, 487 (1960)).
[37.] Id. at 113 (Black, J., concurring).
[38.] See infra notes 194-195, 347-349, 366-370 and accompanying text.
[38.] For example, in 2007 PBS-NOVA released a Briefing Packet for Educators, available at to the NOVA docudrama about the Kitzmiller v. Dover trial that instructs teachers to introduce religion into science classes with discussion questions like “Can you accept evolution and still believe in religion? A: Yes. The common view that evolution is inherently antireligious is simply false.” Eugenie Scott of the National Center for Science Education similarly recommends that teachers expose students to theological views that favor evolution. See Eugenie Scott, Dealing with Antievolutionism, see also John G. West, Darwin Day In America 227-230 (2007).
[40.] Epperson, 393 U.S. at 104.
[41.] Id. at 107 (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 505 (1952)).


Casey Luskin

Associate Director, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.



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