Legal Cases

McLean v. Arkansas Board of Education

Transcribed by Clark Dorman

[Last Update: January 30, 1996]


Decision by U.S. District Court Judge William R. Overton


Judgment

Pursuant to the Court's Memorandum Opinion filed this date, judgment is hereby
entered in favor of the plaintiffs and against the defendants. The relief prayed
for is granted.

Dated this January 5, 1982.

Injunction

Pursuant to the Court's Memorandum Opinion filed this date, the defendants and
each of them and all their servants and employees are hereby permanently
enjoined from implementing in any manner Act 590 of the Acts of Arkansas of
1981.

It is so ordered this January 5, 1982.

Memorandum Opinion


Introduction

On March 19, 1981, the Governor of Arkansas signed into law Act 590 of 1981,
entitled "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 filed (1) 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 judgments 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 (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 what ever 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 serves 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, or 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 (1948), (Opinion of Frankfurter, J., joined by Jackson,
Burton, and Rutledge, J.J.)]

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 Abbington School District v. Schempp, 374 U.S. 203,
222 (1963), Justice Clark stated that "to withstand the strictures of the
Establishment Clause there must be a secular legislative purposed 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 "[s]urely the place of the Bible as
an instrument of religion cannot be gainsaid." Id. at 224. Similarly, in Engel
v. Vitale, 370 U.S. 421 (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. 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.

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 (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 (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.]

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 the curriculum is
incorporated indirectly in virtually all biology texts. (Testimony of Mayer;
Nelkin, Px 1) (6).

In the early 1960's, there was again a resurgence of concern among
Fundamentalists about the loss of traditional values and a fear of growing
secularism in society. The Fundamentalist movement became more active and has
steadily grown in numbers and political influence. There is an emphasis among
current Fundamentalists on the literal interpretation of the Bible and the Book
of Genesis as the sole source of knowledge about origins.

The term "scientific creationism" first gained currency around 1965 following
publication of The Genesis Flood in 1961 by Whitcomb and Morris. There is
undoubtedly some connection between the appearance of the BSCS texts emphasizing
evolutionary thought and efforts of Fundamentalist to attach the theory. (Mayer)
In the 1960's and early 1970's, several Fundamentalist organizations were formed
to promote the idea that the Book of Genesis was supported by scientific data.
The terms "creation science" and "scientific creationism" have been adopted by
these Fundamentalists as descriptive of their study of creation and the origins
of man. Perhaps the leading creationist organization is the Institute for
Creation Research (ICR), which is affiliated with the Christian heritage College
and supported by the Scott Memorial Baptist Church in San Diego, California. The
ICR, through the Creation-Life Publishing Company, is the leading publisher of
creation science material. other creation science organizations include the
Creation Science Research Center (CSRC) of San Diego and the Bible Science
Association of Minneapolis, Minnesota. In 1963, the Creation Research Society
(CRS) was formed from a schism in the American Scientific Affiliation (ASA). It
is an organization of literal Fundamentalists (7) who have the equivalent of a
master's degree in some recognized area of science. A purpose of the
organization is "to reach all people with the vital message of the scientific
and historical truth about creation." Nelkin, The Science Textbook Controversies
and the Politics of Equal Time, 66. Similarly, the CSRC was formed in 1970 from
a split in the CRS. Its aim has been "to reach the 63 million children of the
United States wit h the scientific teaching of Biblical creationism." Id. at 69.
Among creationist writers who are recognized as authorities in the field by
other creationists are Henry M. Morris, Duane Gish, G. E. Parker, harold S.
Slusher, Richard B. Bliss, John W. Moore, Martin E. Clark, W. L. Wysong, Robert
E. Kofahl, and Kelly L. Segraves. Morris is Director of ICR, Gish is Associate
Director and Segraves is associated with CSRC.

Creationists view evolution as a source of society's ills, and the writings of
Morris and Clark are typical expressions of that view.

Evolution is thus not only anti-Biblical and anti-Christian, but it is utterly
unscientific and impossible as well. But it has served effectively as the
pseudo-scientific basis of atheism, agnosticism, socialism, fascism, and
numerous other false and dangerous philosophies over the past century. [Morris
and Clark, The Bible Has The Answer, (Px 31 and Pretrial Px 89) (8)]
Creationists have adopted the view of Fundamentalists generally that there are
only two positions with respect to the origins of the earth and life: belief in
the inerrancy of the Genesis story of creation and of a worldwide flood as fact,
or a belief in what they call evolution.

Henry Morris has stated, "It is impossible to devise a legitimate means of
harmonizing the Bible with evolution." Morris, "evolution and the Bible," ICR
Impact Series Number 5 (undated, unpaged), quoted in Mayer, Px 8, at 3. This
dualistic approach to the subject of origins permeates the creationist
literature.

The creationist organizations consider the introduction of creation science into
the public schools part of their ministry. The ICR has published at least two
pamphlets (9) containing suggested methods for convincing school boards,
administrators and teachers that creationism should be taught in public schools.
The ICR has urged its proponents to encourage school officials to voluntarily
add creationism to the curriculum (10).

Citizens For Fairness In Education is an organization based in Anderson, South
Carolina, formed by Paul Ellwanger, a respiratory therapist who is trained in
neither law nor science. Mr. Ellwanger is of the opinion that evolution is the
forerunner of many social ills, including Nazism, racism and abortion (Ellwanger
Depo. at 32-34). About 1977, Ellwanger collected several proposed legislative
acts with the idea of preparing a model state act requiring the teaching of
creationism as science in opposition to evolution. One of the proposals he
collected was prepared by Wendell Bird, who is now a staff attorney for ICR
(11). From these various proposals, Ellwanger prepared a "model act" which calls
for "balanced treatment" of "scientific creationism" and "evolution" in public
schools. He circulated the proposed act to various people and organizations
around the country.

Mr. Ellwanger's views on the nature of creation science are entitled to some
weight since he personally drafted the model act which became Act 590. His
evidentiary deposition with exhibits and unnumbered attachments (produced in
response to a subpoena duces tecum speaks to both the intent of the Act and the
scientific merits of creation science. Mr. Ellwanger does not believe creation
science is a science. In a letter to Pastor Robert E. Hays he states, "While
neither evolution nor creation can qualify as a scientific theory, and since it
is virtually impossible at this point to educate the whole world that evolution
is not a true scientific theory, we have freely used these terms -- the
evolution theory and the theory of scientific creationism -- in the bill's
text." (Unnumbered attachment to Ellwanger Depo., at 2.) He further states in a
letter to Mr. Tom Bethell, "As we examine evolution (remember, we're not making
any scientific claims for creation, but we are challenging evolution's claim to
be scientific..." (Unnumbered attachment to Ellwanger Depo. at 1.)

Ellwanger's correspondence on the subject shows an awareness that Act 590 is a
religious crusade, coupled with a desire to conceal this fact. In a letter to
State Senator Bill Keith of Louisiana, he says, "I view this whole battle as one
between God and anti-God forces, though I know there are a large number of
evolutionists who believe in God." And further, "... it behooves Satan to do all
he can to thwart our efforts and confuse the issue at every turn." Yet Ellwanger
suggest to Senator Keith, "IF you have a clear choice between having grassroots
leaders of this statewide bill promotion effort to be ministerial or
non-ministerial, be sure to opt for the non-ministerial. It does the bill effort
no good to have ministers out there in the public forum and the adversary will
surely pick at this point ... Ministerial persons can accomplish a tremendous
amount of work from behind the scenes, encouraging their congregations to take
the organizational and P.R. initiatives. And they can lead their churches in
storming Heaven with prayers for help against so tenacious an adversary."
(Unnumbered attachment to Ellwanger Depo. at 1.)

Ellwanger shows a remarkable degree of political candor, if not finesse, in a
letter to State Senator Joseph Carlucci of Florida:

2. It would be very wise, if not actually essential, that all of us who are
engaged in this legislative effort be careful not to present our position and
our work in a religious framework. For example, in written communications that
might somehow be shared with those other persons whom we may be trying to
convince, ti would be well to exclude our own personal testimony and/or
witness for Christ, but rather, if we are so moved, to give that testimony on
a separate attached note. (Unnumbered attachment to Ellwanger Depo. at 1.)
The same tenor is reflected in a letter by Ellwanger to Mary Ann Miller, a
member of FLAG (Family, Life, America under God) who lobbied the Arkansas
Legislature in favor of Act 590:

... we'd like to suggest that you and your co-workers be very cautious about
mixing creation-science with creation-religion ... Please urge your co-workers
not to allow themselves to get sucked into the "religion" trap of mixing the
two together, for such mixing does incalculable harm to the legislative
thrust. It could even bring public opinion to bear adversely upon the higher
courts that will eventually have to pass judgment on the constitutionality of
this new law. (Ex. 1 to Miller Depo.)

Perhaps most interesting, however, is Mr. Ellwanger's testimony in his
deposition as to his strategy for having the model act implemented:
Q. You're trying to play on other people's religious motives.

A. I'm trying to play on their emotions, love, hate, their likes, dislikes,
because I don't know any other way to involve, to get humans to become
involved in human endeavors. I see emotions as being a healthy and legitimate
means off getting people's feelings into action, and ... I believe that the
predominance of population in America that represents the greatest potential
for taking some kind of action in this area is a Christian community. I see
the Jewish community as far less potential in taking action ... but I've seen
a lot of interest among Christians and I feel, why not exploit that to get the
bill going if that's what it takes. (Ellwanger Depo. at 146-147).

Mr. Ellwanger's ultimate purpose is revealed in the closing of his letter to Mr.
Tom Bethell: "Perhaps all this is old hat to you, Tom, and if so, I'd appreciate
your telling me so and perhaps where you've heard it before -- the idea of
killing evolution instead of playing these debating games that we've been
playing for nigh over a decade already." (Unnumbered attachment to Ellwanger
Depo. at 3.)

It was out of this milieu that Act 590 emerged. The Reverend W. A. Blount, a
Biblical literalist who is a pastor of a church in the Little Rock area and was,
in February, 1981, chairman of the Greater Little Rock Evangelical Fellowship,
was among those who received a copy of the model act from Ellwanger (12).
At Reverend Blount's request, the Evangelical Fellowship unanimously adopted a
resolution to seek an introduction of Ellwanger's act in the Arkansas
Legislature. A committee composed of two ministers, Curtis Thomas and W. A.
Young, was appointed to implement the resolution. Thomas obtained from Ellwanger
a revised copy of the model act which he transmitted to Carl Hunt, a business
associate of Senator James L. Holsted, with the request that Hunt prevail upon
Holsted to introduce the act.

Holsted, a self-described "born again" Christian Fundamentalist, introduced the
act in the Arkansas Senate. He did not consult the State Department of
Education, scientists, science educators or the Arkansas Attorney General (13).
The Act was not referred to any Senate committee for hearing and was passed
after only a few minutes' discussion on the Senate floor. In the House of
Representatives, the bill was referred to the Education Committee which
conducted a perfunctory fifteen minute hearing. No scientist testified at the
hearing, nor was any representative form the State Department of Education
called to testify.

Ellwanger's model act was enacted into law in Arkansas as Act 590 with amendment
or modification other than minor typographical changes. The legislative "finding
of fact" in Ellwanger's act and Act 590 are identical, although no meaningful
fact-finding was employed the General Assembly.

Ellwanger's efforts in preparation of the model act and campaign for its
adoption in the states were motivated by his opposition to the theory of
evolution and his desire to see the Biblical version of creation taught in the
public schools. There is no evidence that the pastors, Blount, Thomas, Young, or
The Greater Little Rock Evangelical Fellowship were motivated by anything other
than their religious convictions when proposing its adoption or during their
lobbying efforts in its behalf. Senator Holsted's sponsorship and lobbying
efforts in behalf of the Act were motivated solely by his religious beliefs and
desire to see the Biblical version of creation taught in the public schools
(14).

The State of Arkansas, like a number of states whose citizens have relatively
homogeneous religious beliefs, has a long history of official opposition to
evolution which is motivated by adherence to Fundamentalist beliefs in the
inerrancy of the Book of Genesis. This history is documented in Justice Fortas'
opinion in Epperson v. Arkansas, 393 U.S. 97 (1968), which struck down Initiated
Act 1 of 1929, Ark. Stat. Ann. &&80-1627-1628, prohibiting the teaching of the
theory of evolution. To this same tradition may be attributed Initiated Act 1 of
1930, Ark. Stat. Ann. &80-1606 (Repl. 1980), requiring "the reverent daily
reading of a portion of the English Bible" in every public school classroom in
the State (15).

It is true, as defendants argue, that courts should look to legislative
statements of a statutes purpose in Establishment Clause cases and accord such
pronouncements great deference. See, e.g., Committee for Public Education &
Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973) and McGowan v. Maryland,
366 U.S. 420, 445 (1961). Defendants also correctly state the principle that
remarks by the sponsor or author of a bill are not considered controlling in
analyzing legislative intent. See, e.g., United States v. Emmons, 410 U.S. 396
(1973) and Chrysler Corp v. Brown, 441 U.S. 281 (1979).

Courts are not bound, however, by legislative statements of purpose or
legislative disclaimers. Stone v. Graham, 449 U.S. 39 (1980); Abbington School
Dist. v. Schempp, 374 U.S. 203 (1963). In determining the legislative purpose of
a statute, courts may consider evidence of the historical context of the Act,
Epperson v. Arkansas, 393 U.S. 97 (1968), the specific sequence of events
leading up to passage of the Act, departures from normal procedural sequences,
substantive departures from the normal, Village of Arlington Heights v.
Metropolitan Housing Corp., 429 U.S. 252 (1977), and contemporaneous statements
of the legislative sponsor, Fed. Energy Admin. v. Algonquin SNG Inc. 426 U.S.
548, 564 (1976).

The unusual circumstances surrounding the passage of Act 590, as well as the
substantive law of the First Amendment warrant an inquiry into the stated
legislative purposes. The author of the Act has publicly proclaimed the
sectarian purpose of the proposal. The Arkansas residents who sought legislative
sponsorship of the bill did so for a purely sectarian purpose. These
circumstances alone may not be particularly persuasive, but when considered with
the publicly announced motives of the legislative sponsor made contemporaneously
with the legislative process; the lack of any legislative investigation, debate
or consultation with any educators or scientists; the unprecedented intrusion in
school curriculum (16); and official history of the State of Arkansas on the
subject, it is obvious that the statement of purpose has little, if any, support
in fact. The State failed to produce any evidence which would warrant an
inference or conclusion that at any point in the process anyone considered the
legitimate educational value of the Act. It was simply and purely an effort to
introduce the Biblical version of creation into the public school curricula. The
only inference which can be drawn from these circumstances is that the Act was
passed with the specific purpose by the General Assembly of advancing religion.
The Act therefore fails the first prong of the three-pronged test, that of
secular legislative purpose, as articulated in Lemon v. Kurtzman, supra, and
Stone v. Graham, supra.

III

If the defendants are correct and the Court is limited to an examination of the
language of the Act, the evidence is overwhelming that both the purpose and
effect of Act 590 is the advancement of religion in the public schools.
Section 4 of the Act provides:

Definitions, as used in this Act:

(a) "Creation-science" means the scientific evidences for creation and
inferences from those scientific evidences. Creation-science includes the
scientific evidences and related inferences that indicate: (1) Sudden creation
of the universe, energy, and life from nothing; (2) The insufficiency of
mutation and natural selection in bringing about development of all living
kinds from a single organism; (3) Changes only within fixed limits of
originally created kinds of plants and animals; (4) Separate ancestry for man
and apes; (5) Explanation of the earth's geology by catastrophism, including
the occurrence of a worldwide flood; and (6) A relatively recent inception of
the earth and living kinds.

(b) "Evolution-science" means the scientific evidences for evolution and
inferences from those scientific evidences. Evolution-science includes the
scientific evidences and related inferences that indicate: (1) Emergence by
naturalistic processes of the universe from disordered matter and emergence of
life from nonlife; (2) The sufficiency of mutation and natural selection in
bringing about development of present living kinds from simple earlier kinds;
(3) Emergence by mutation and natural selection of present living kinds from
simple earlier kinds; (4) Emergence of man from a common ancestor with apes;
(5) Explanation of the earth's geology and the evolutionary sequence by
uniformitarianism; and (6) An inception several billion years ago of the earth
and somewhat later of life.

(c) "Public schools" means public secondary and elementary schools.
The evidence establishes that the definition of "creation science" contained in
4(a) has as its unmentioned reference the first 11 chapters of the Book of
Genesis. Among the many creation epics in human history, the account of sudden
creation from nothing, or creatio ex nihilo, and subsequent destruction of the
world by flood is unique to Genesis. The concepts of 4(a) are the literal
Fundamentalists' view of Genesis. Section 4(a) is unquestionably a statement of
religion, with the exception of 4(a)(2) which is a negative thrust aimed at what
the creationists understand to be the theory of evolution (17).

Both the concepts and wording of Section 4(a) convey an inescapable religiosity.
Section 4(a)(1) describes "sudden creation of the universe, energy and life from
nothing." Every theologian who testified, including defense witnesses, expressed
the opinion that the statement referred to a supernatural creation which was
performed by God.

Defendants argue that : (1) the fact that 4(a) conveys idea similar to the
literal interpretation of Genesis does not make it conclusively a statement of
religion; (2) that reference to a creation from nothing is not necessarily a
religious concept since the Act only suggests a creator who has power,
intelligence and a sense of design and not necessarily the attributes of love,
compassion and justice (18); and (3) that simply teaching about the concept of a
creator is not a religious exercise unless the student is required to make a
commitment to the concept of a creator.

The evidence fully answers these arguments. The idea of 4(a)(1) are not merely
similar to the literal interpretation of Genesis; they are identical and
parallel to no other story of creation (19).

The argument that creation from nothing in 4(a)(1) does not involve a
supernatural deity has no evidentiary or rational support. To the contrary,
"creation out of nothing" is a concept unique to Western religions. In
traditional Western religious thought, the conception of a creator of the world
is a conception of God. Indeed, creation of the world "out of nothing" is the
ultimate religious statement because God is the only actor. As Dr. Langdon
Gilkey noted, the Act refers to one who has the power to bring all the universe
into existence from no0thing. The only "one" who has this power is God (20).
The leading creationist writers, Morris and Gish, acknowledge that the idea of
creation described in 4(a)(1) is the concept of creation by God and make no
pretense to the contrary (21). The idea of sudden creation from nothing, or
creatio ex nihilo, is an inherently religious concept. (Vawter, Gilkey, Geisler,
Ayala, Blount, Hicks.)

The argument advanced by defendants' witness, Dr. Norman Geisler, that teaching
the existence of God is not religious unless the teaching seeks a commitment, is
contrary to common understanding and contradicts settled case law. Stone v.
Graham, 449 U.S. 39 (1980), Abbington School District v. Schempp, 374 U.S. 203,
222 (1963).

The facts that creation science is inspired by the Book of Genesis and that
Section 4(a) is consistent with a literal interpretation of Genesis leave no
doubt that a major effect of the Act is the advancement of particular religious
beliefs. The legal impact of this conclusion will be discussed further at the
conclusion of the Court's evaluation of the scientific merit of creation
science.

IV(A)

The approach to teaching "creation science" and "evolution-science" found in Act
590 is identical to the two-model approach espoused by the Institute for
Creation Research and is taken almost verbatim from ICR writings. It is an
extension of Fundamentalists' view that one must either accept the literal
interpretation of Genesis or else believe in the godless system of evolution.
The two model approach of the creationists is simply a contrived dualism (22)
which has not scientific factual basis or legitimate educational purpose. It
assumes only two explanations for the origins of life and existence of man,
plants and animals: it was either the work of a creator or it was not.
Application of these two models, according to creationists, and the defendants,
dictates that all scientific evidence which fails to support the theory of
evolution is necessarily scientific evidence in support of creationism and is,
therefore, creation science "evidence" in support of Section 4(a).

IV(B)

The emphasis on origins as an aspect of the theory of evolution is peculiar to
the creationist literature. Although the subject of origins of life is within
the province of biology, the scientific community does not consider origins of
life a part of evolutionary theory. The theory of evolution assumes the
existence of life and is directed to an explanation of how life evolved.
Evolution does not presuppose the absence of a creator or God and the plain
inference conveyed by Section 4 is erroneous (23).

As a statement of the theory of evolution, Section 4(b) is simply a hodgepodge
of limited assertions, many of which are factually inaccurate.
For example, although 4(b)(2) asserts, as a tenet of evolutionary theory,
"sufficiency of mutation and natural selection in bringing about development of
present living kinds from simple earlier kinds," Drs. Ayala and Gould both
stated that biologists know that these two processes do not account for all
significant evolutionary change. The testified to such phenomena as
recombination, the founder effect, genetic drift and the theory of punctuated
equilibrium, which are believed to play important evolutionary roles. Section
4(b) omits any reference to these. Moreover, 4(b) utilizes the term "kinds"
which all scientists have said is not a word of science and has no fixed
meaning. Additionally, the Act presents both evolution and creation science as
"package deals." Thus, evidence critical to some aspect of what the creationists
define as evolution is taken as support for a theory which includes a worldwide
flood and a relatively young earth (24).

IV(C)

In addition to the fallacious pedagogy of the two model approach, Section 4(a)
lacks legitimate educational value because "creation-science" as defined in that
section is simply not science. Several witnesses suggested definitions of
science. A descriptive definition was said to be that science is what is
"accepted by the scientific community" and is "what scientists do." The obvious
implication of this description is that, in a free society, knowledge does not
require the imprimatur of legislation in order to become science.
More precisely, the essential characteristics of science are:

(1) It is guided by natural law;
(2) It has to be explanatory by reference to nature law;
(3) It is testable against the empirical world;
(4) Its conclusions are tentative, i.e. are not necessarily the final word; and
(5) Its is falsifiable. (Ruse and other science witnesses).

Creation science as described in Section 4(a) fails to meet these essential
characteristics. First, the section revolves around 4(a)(1) which asserts a
sudden creation "from nothing." Such a concept is not science because it depends
upon a supernatural intervention which is not guided by natural law. It is not
explanatory by reference to natural law, is not testable and is not falsifiable
(25).

If the unifying idea of supernatural creation by God is removed from Section 4,
the remaining parts of the section explain nothing and are meaningless
assertions.

Section 4(a)(2), relating to the "insufficiency of mutation and natural
selection in bringing about development of all living kinds from a single
organism," is an incomplete negative generalization directed at the theory of
evolution.

Section 4(a)(3) which describes "changes only within fixed limits of originally
created kinds of plants and animals" fails to conform to the essential
characteristics of science for several reasons. First, there is no scientific
definition of "kinds" and none of the witnesses was able to point to any
scientific authority which recognized the term or knew how many "kinds" existed.
One defense witness suggested there may may be 100 to 10,000 different "kinds."
Another believes there were "about 10,000, give or take a few thousand." Second,
the assertion appears to be an effort to establish outer limits of changes
within species. There is no scientific explanation for these limits which is
guided by natural law and the limitations, whatever they are, cannot be
explained by natural law.

The statement in 4(a)(4) of "separate ancestry of man and apes" is a bald
assertion. It explains nothing and refers to no scientific fact or theory (26).
Section 4(a)(5) refers to "explanation of the earth's geology by catastrophism,
including the occurrence of a worldwide flood." This assertion completely fails
as science. The Act is referring to the Noachian flood described in the Book of
Genesis (27). The creationist writers concede that any kind of Genesis Flood
depends upon supernatural intervention. A worldwide flood as an explanation of
the world's geology is not the product of natural law, nor can its occurrence be
explained by natural law.

Section 4(a)(6) equally fails to meet the standards of science. "Relatively
recent inception" has no scientific meaning. It can only be given in reference
to creationist writings which place the age at between 6,000 and 20,000 years
because of the genealogy of the Old Testament. See, e.g., Px 78, Gish (6,000 to
10,000); Px 87, Segraves(6,000 to 20,000). Such a reasoning process is not the
product of natural law; not explainable by natural law; nor is it tentative.

Creation science as defined in Section 4(a), not only fails to follow the canons
of dealing with scientific theory, it also fails to fit the more general
descriptions of "what scientists think" and "what scientists do." The scientific
community consists of individuals and groups, nationally and internationally,
who work independently in such varied fields as biology, paleontology, geology,
and astronomy. Their work is published and subject to review and testing by
their peers. The journals for publication are both numerous and varied. There
is, however, not one recognized scientific journal which has published an
article espousing the creation science theory described in Section 4(a). Some of
the State's witnesses suggested that the scientific community was "close-minded"
on the subject of creationism and that explained the lack of acceptance of the
creation science arguments. Yet no witness produced a scientific article for
which publication has been refused. Perhaps some members of the scientific
community are resistant to new ideas. It is, however, inconceivable that such a
loose knit group of independent thinkers in all the varied fields of science
could, or would, so effectively censor new scientific thought.

The creationists have difficulty maintaining among their ranks consistency in
the claim that creationism is science. The author of Act 590, Ellwanger, said
that neither evolution or creationism was science. He thinks that both are
religious. Duane Gish recently responded to an article in Discover critical of
creationism by stating:

Stephen Jay Gould states that creationists claim creation is a scientific
theory. This is a false accusation. Creationists have repeatedly stated that
neither creation nor evolution is a scientific theory (and each is equally
religious). (Gish, letter to editor of Discover, July, 1981, App. 30 to
Plaintiffs' Pretrial Brief)

The methodology employed by creationists is another factor which is indicative
that their work is not science. A scientific theory must be tentative and always
subject to revision or abandonment in light of facts that are inconsistent with,
or falsify, the theory. A theory that is by its own terms dogmatic, absolutist,
and never subject to revision is not a scientific theory.

The creationists' methods do not take data, weigh it against the opposing
scientific data, and thereafter reach the conclusions stated in Section 4(a).
Instead, they take the literal wording of the Book of Genesis and attempt to
find scientific support for it. The method is best explained in the language of
Morris in his book (Px 31) Studies in The Bible and Science at page 114:

... it is ... quite impossible to determine anything about Creation through a
study of present processes, because present processes are not creative in
character. If man wished to know anything about Creation (the time of
Creation, the duration of Creation, the order of Creation, the methods of
Creation, or anything else) his sole source of true information is that of
divine revelation. God was there when it happened. We were not there ...
Therefore, we are completely limited to what God has seen fit to tell us, and
this information is in His written Word. This is our textbook on the science
of Creation!

The Creation Research Society employs the same unscientific approach to the
issue of creationism. Its applicants for membership must subscribe to the belief
that the Book of Genesis is "historically and scientifically true in all of the
original autographs" (28). The Court would never criticize or discredit any
person's testimony based on his or her religious beliefs. While anybody is free
to approach a scientific inquiry in any fashion they choose, they cannot
properly describe the methodology as scientific, if they start with the
conclusion and refuse to change it regardless of the evidence developed during
the course of the investigation.

IV(D)

In efforts to establish "evidence" in support of creation science, the
defendants relied upon the same false premise as the two model approach
contained in Section 4, i.e., all evidence which criticized evolutionary theory
was proof in support of creation science. For example, the defendants
established that the mathematical probability of a chance chemical combination
resulting in life from non-life is as remote that such an occurrence is almost
beyond imagination. Those mathematical facts, the defendants argue, are
scientific evidences that life was the product of a creator. While the
statistical figures may be impressive evidence against the theory of chance
chemical combinations as an explanation of origins, it requires a leap of faith
to interpret those figures so as to support a complex doctrine which includes a
sudden creation from nothing, a worldwide flood, separate ancestry of man and
apes, and a young earth.

The defendants' argument would be more persuasive if, in fact, there were only
two theories or idea about the origins of life and the world. That there are a
number of theories was acknowledge by the State's witnesses, Dr. Wickramasinghe
and Dr. Geisler. Dr. Wickramasinghe testified at length in support of a theory
that life on earth was "seeded" by comets which delivered genetic material and
perhaps organisms to the earth's surface from interstellar dust far outside the
solar system. The "seeding" theory further hypothesizes that the earth remains
under the continuing influence of genetic material from space which continues to
affect life. While Wickramasinghe's theory (29) about the origins of life on
earth has not received general acceptance within the scientific community, he
has, at least, used scientific methodology to produce a theory of origins which
meets the essential characteristics of science.

The Court is at a loss to understand why Dr. Wickramasinghe was called in behalf
of the defendants. Perhaps it was because he was generally critical of the
theory of evolution and the scientific community, a tactic consistent with the
strategy of the defense. Unfortunately for the defense, he demonstrated that the
simplistic approach of the two model analysis of the origins of life is false.
Furthermore, he corroborated the plaintiffs' witnesses by concluding that "no
rational scientist" would believe the earth's geology could be explained by
reference to a worldwide flood or that the earth was less than one million years
old.
The proof in support of creation science consisted almost entirely of efforts to
discredit the theory of evolution through a rehash of data and theories which
have been before the scientific community for decades. The arguments asserted by
the creationists are not based upon new scientific evidence or laboratory data
which has been ignored by the scientific community.

Robert Gentry's discovery of radioactive polonium haloes in granite and
coalified woods is, perhaps, the most recent scientific work which the
creationists use as argument for a "relatively recent inception" of the earth
and a "worldwide flood." The existence of polonium haloes in granite and
coalified wood is thought to be inconsistent with radiometric dating methods
based upon constant radioactive decay rates. Mr. Gentry's findings were
published almost ten years ago and have been the subject of some discussion in
the scientific community. The discoveries have not, however, led to the
formulation of any scientific hypothesis or theory which would explain a
relatively recent inception of the earth or a worldwide flood. Gentry's
discovery has been treated as a minor mystery which will eventually be
explained. It may deserve further investigation, but the National Science
Foundation has not deemed it to be of sufficient import to support further
funding.

The testimony of Marianne Wilson was persuasive evidence that creation science
is not science. Ms. Wilson is in charge of the science curriculum for Pulaski
County Special School District, the largest school district in the State of
Arkansas. Prior to the passage of Act 590, Larry Fisher, a science teacher in
the District, using materials from the ICR< convinced the School Board that it
should voluntarily adopt creation science as part of its science curriculum. The
District Superintendent assigned Ms. Wilson the job of producing a creation
science curriculum guide. Ms. Wilson's testimony about the project was
particularly convincing because she obviously approached the assignment with an
open mind and no preconceived notions about the subject. She had not heard of
creation science until about a year ago and did not know its meaning before she
began her research.

Ms. Wilson worked with a committee of science teachers appointed from the
District. They reviewed practically all of the creationist literature. Ms.
Wilson and the committee members reached the unanimous conclusion that
creationism is not science; it is religion. They so reported to the Board. The
Board ignored the recommendation and insisted that a curriculum guide be
prepared.

In researching the subject, Ms. Wilson sought the assistance of Mr. Fisher who
initiated the Board action and asked professors in the science departments of
the University of Arkansas at Little Rock and the University of Central Arkansas
(30) for reference material and assistance, and attended a workshop conducted at
Central Baptist College by Dr. Richard Bliss of the ICR staff. Act 590 became
law during the course of her work so she used Section 4(a) as a format for her
curriculum guide.

Ms. Wilson found all available creationists' materials unacceptable because they
were permeated with religious references and reliance upon religious beliefs.
It is easy to understand why Ms. Wilson and other educators find the
creationists's textbook material and teaching guides unacceptable. The materials
misstate the theory of evolution in the same fashion as Section 4(b) of the Act,
with emphasis on the alternative mutually exclusive nature of creationism and
evolution. Students are constantly encouraged to compare and make a choice
between the two models, and the material is not presented in an accurate manner.
A typical example is Origins (Px 76) by Richard B. Bliss, Directory of
Curriculum Development of the ICR. The presentation begins with a chart
describing "preconceived idea about origins" which suggests that some people
believe that evolution is atheistic. Concepts of evolution, such as "adaptative
radiation" are erroneously presented. At page 11, figure 1.6 of the text, a
chart purports to illustrate this "very important" part of the evolution model.
The chart conveys the idea that such diverse mammals as a whale, bear, bat and
monkey all evolved from a shrew through the process of adaptive radiation. Such
a suggestion is, of course, a totally erroneous and misleading application of
the theory. Even more objectionable, especially when viewed in light of the
emphasis on asking the student to elect one of the models, is the chart
presentation at page 17, figure 1.6. That chart purports to illustrate the
evolutionists' belief that man evolved from bacteria to fish to reptile to
mammals and, thereafter, into man. The illustration indicates, however, that the
mammal which evolved was a rat.

Biology, A Search For Order in Complexity (31) is a high school biology text
typical of creationists' materials. The following quotations are illustrative:
Flowers and roots do not have a mind to have purpose of their own: therefore,
this planning must have been done for them by the Creator. (at page 12)
The exquisite beauty of color and shape in flowers exceeds the skill of poet,
artist, and king. Jesus said (from Matthew's gospel), "Consider the lilies in
the field, how they grow; they toil not, neither do they spin ..." (Px 129 at
page 363)

The "public school edition" texts written by creationists simply omit Biblical
references but the content and message remain the same. For example, Evolution
-- The Fossils Say No! (32) contains the following:

Creation. By creation we mean the bringing into being by a supernatural
Creator of the basic kinds of plants and animals by the process of sudden, or
fiat, creation.

We do not know how the Creator created, what processes He used, for he used
processes which are not now operating anywhere in the natural universe. This
is why we refer to creation as Special Creation. We cannot discover by
scientific investigation anything about the creative processes used by the
Creator. (page 40)

Gish's book also portrays the large majority of evolutionists as "materialistic
atheists or agnostics."

Scientific Creationism (Public School Edition) by Morris, is another text
reviewed by Ms. Wilson's committee and rejected as unacceptable. The following
quotes illustrate the purpose and theme of the text:

Forward

Parents and youth leaders today, and even many scientists and educators, have
become concerned about the prevalence and influence of evolutionary philosophy
in modern curriculum. Not only is the system inimical to orthodox Christianity
and Judaism, but also, as many are convinced, to a healthy society and true
science as well. (at page iii)
The rationalist of course finds the concept of special creation insufferably
naive, even "incredible". Such a judgment, however, is warranted only if one
categorically dismisses the existence of an omnipotent God. (at page 17)
Without using creationist literature, Ms. Wilson was unable to locate one
genuinely scientific article or work which supported Section 4(a). In order to
comply with the mandate of the Board she used such materials as an article from
Readers Digest about "atomic clocks" which inferentially suggested that the
earth was less than 4 1/2 billion years old. She was unable to locate any
substantive teaching material for some parts of Section 4 such as the worldwide
flood. The curriculum guide which she prepared cannot be taught and has no
education value as science. The defendants did not produce any text or writing
in response to this evidence which they claimed was usable in the public school
classroom (33).

The conclusion that creation science has no scientific merit or educational
value as science has legal significance in light of the Court's previous
conclusion that creation science has, as one major effect, the advancement of
religion. The second part of the three-pronged test for establishment reaches
only those statutes as having their primary effect the advancement of religion.
Secondary effects which advance religion are not constitutionally fatal. Since
creation science is not science, the conclusion is inescapable that the only
real effect of Act 590 is the advancement of religion. The Act therefore fails
both the first and second portions of the test in Lemon v. Kurtzman, 403 U.S.
602 (1971).

IV(E)

Act 590 mandates "balanced treatment" for creation science and evolution
science. The Act prohibits instruction in any religious doctrine or references
to religious writings. The Act is self-contradictory and compliance is
impossible unless the public schools elect to forego significant potions of
subjects such as biology, world history, geology, zoology, botany, psychology,
anthropology, sociology, philosophy, physics and chemistry. Presently, the
concepts of evolutionary theory as described in 4(b) permeate the public
textbooks. There is no way teachers can teach the Genesis account of creation in
a secular manner.

The State Department of Education, through its textbook selection committee,
school boards and school administrators will be required to constantly monitor
materials to avoid using religious references. The school boards, administrators
and teachers face an impossible task. How is the teacher to respond to questions
about a creation suddenly and out of nothing? How will a teacher explain the
occurrence of a worldwide flood? How will a teacher explain the concept of a
relatively recent age of the earth? The answer is obvious because the only
source of this information is ultimately contained in the Book of Genesis.
References to the pervasive nature of religious concepts in creation science
texts amply demonstrate why State entanglement with religion is inevitable under
Act 590. Involvement of the State in screening texts for impermissible religious
references will require State officials to make delicate religious judgments.
The need to monitor classroom discussion in order to uphold the Act's
prohibition against religious instruction will necessarily involve
administrators in questions concerning religion. These continuing involvements
of State officials in questions and issues of religion create an excessive and
prohibited entanglement with religion. Brandon v. Board of Education, 487 F.Supp
1219, 1230 (N.D.N.Y.), aff'd., 635 F.2d 971 (2nd Cir. 1980).

V

These conclusions are dispositive of the case and there is no need to reach
legal conclusions with respect to the remaining issues. The plaintiffs raised
two other issues questioning the constitutionality of the Act and, insofar as
the factual findings relevant to these issues are not covered in the preceding
discussion, the Court will address these issues. Additionally, the defendants
raise two other issues which warrant discussion.

V(A)

First, plaintiff teachers argue the Act is unconstitutionally vague to the
extent that they cannot comply with its mandate of "balanced" treatment without
jeopardizing their employment. The argument centers around the lack of a precise
definition in the Act for the word "balanced." Several witnesses expressed
opinions that the word has such meanings as equal time, equal weight, or equal
legitimacy. Although the Act could have been more explicit, "balanced" is a word
subject to ordinary understanding. The proof is not convincing that a teacher
using a reasonably acceptable understanding of the word and making a good faith
effort to comply with the Act will be in jeopardy of termination. Other portions
of the Act are arguably vague, such as the "relatively recent" inception of the
earth and life. The evidence establishes, however, that relatively recent means
from 6,000 to 20,000 years, as commonly understood in creation science
literature. The meaning of this phrase, like Section 4(a) generally, is, for
purposes of the Establishment Clause, all too clear.

V(B)

The plaintiffs' other argument revolves around the alleged infringement by the
defendants upon the academic freedom of teachers and students. It is contended
this unprecedented intrusion in the curriculum by the State prohibits teachers
from teaching what they believe should be taught or requires them to teach that
which they do not believe is proper. The evidence reflects that traditionally
the State Department of Education, local school boards and administration
officials exercise little, if any, influence upon the subject matter taught by
classroom teachers. Teachers have been given freedom to teach and emphasize
those portions of subjects the individual teacher considered important. The
limits to this discretion have generally been derived from the approval of
textbooks by the State Department and preparation of curriculum guides by the
school districts.

Several witnesses testified that academic freedom for the teacher means, in
substance, that the individual teacher should be permitted unlimited discretion
subject only to the bounds of professional ethics. The Court is not prepare to
adopt such a broad view of academic freedom in the public schools.
In any event, if Act 590 is implemented, many teachers will be required to teach
materials in support of creation science which they do not consider academically
sound. Many teachers will simply forego teaching subjects which might trigger
the "balanced treatment" aspects of Act 590 even though they think the subjects
are important to a proper presentation of a course.

Implementation of Act 580 will have serious and untoward consequences for
students, particularly those planning to attend college. Evolution is the
cornerstone of modern biology, and many courses in public schools contain
subject matter relating to such varied topics as the age of the earth, geology
and relationships among living things. Any student who is deprived of
instruction as to the prevailing scientific thought on these topics will be
denied a significant part of science education. Such a deprivation through the
high school level would undoubtedly have an impact upon the quality of education
in the State's colleges and universities, especially including the
pre-professional and professional programs in the health sciences.

V(C)

The defendants argue in their brief that evolution is, in effect, a religion,
and that by teaching a religion which is contrary to some students' religious
views, the State is infringing upon the student's free exercise rights under the
First Amendment. Mr. Ellwanger's legislative findings, which were adopted as a
finding of fact by the Arkansas Legislature in Act 590, provides:
Evolution-science is contrary to the religious convictions or moral values or
philosophical beliefs of many students and parents, including individuals of
many different religious faiths and with diverse moral and philosophical
beliefs. Act 590, &7(d).

The defendants argue that the teaching of evolution alone presents both a free
exercise problem and an establishment problem which can only be redressed by
giving balanced treatment to creation science, which is admittedly consistent
with some religious beliefs. This argument appears to have its genesis in a
student note written by Mr. Wendell Bird, "Freedom of Religion and Science
Instruction in Public Schools," 87 Yale L.J. 515 (1978). The argument has no
legal merit.

If creation science is, in fact, science and not religion, as the defendants
claim, it is difficult to see how the teaching of such a science could
"neutralize" the religious nature of evolution.

Assuming for the purposes of argument, however, that evolution is a religion or
religious tenet, the remedy is to stop the teaching of evolution, not establish
another religion in opposition to it. Yet it is clearly established in the case
law, and perhaps also in common sense, that evolution is not a religion and that
teaching evolution does not violate the Establishment Clause, Epperson v.
Arkansas, supra, Willoughby v. Stever, No. 15574-75 (D.D.C. May 18, 1973);
aff'd. 504 F.2d 271 (D.C. Cir. 1974), cert. denied , 420 U.S. 924 (1975); Wright
v. Houston Indep. School Dist., 366 F. Supp. 1208 (S.D. Tex 1978), aff.d. 486
F.2d 137 (5th Cir. 1973), cert. denied 417 U.S. 969 (1974).

V(D)

The defendants presented Dr. Larry Parker, a specialist in devising curricula
for public schools. He testified that the public school's curriculum should
reflect the subjects the public wants in schools. The witness said that polls
indicated a significant majority of the American public thought creation science
should be taught if evolution was taught. The point of this testimony was never
placed in a legal context. No doubt a sizeable majority of Americans believe in
the concept of a Creator or, at least, are not opposed to the concept and see
nothing wrong with teaching school children the idea.

The application and content of First Amendment principles are not determined by
public opinion polls or by a majority vote. Whether the proponents of Act 590
constitute the majority or the minority is quite irrelevant under a
constitutional system of government. No group, no matter how large or small, may
use the organs of government, of which the public schools are the most
conspicuous and influential, to foist its religious beliefs on others.

The Court closes this opinion with a thought expressed eloquently by the great
Justice Frankfurter:

We renew our conviction that "we have stake the very existence of our country
on the faith that complete separation between the state and religion is best
for the state and best for religion." Everson v. Board of Education, 330 U.S.
at 59. If nowhere else, in the relation between Church and State, "good fences
make good neighbors." [McCollum v. Board of Education, 333 U.S. 203, 232
(1948)]

An injunction will be entered permanently prohibiting enforcement of Act 590.
It is ordered this January 5, 1982.

-- William R. Overton in the U.S. District Court, Eastern District of Arkansas,
Western Division

Notes

1. The complaint is based on 42 U.S.C. &1983, which provides a remedy against
any person who, acting under color of state law, deprives another of any right,
privilege or immunity guaranteed by the United States Constitution or federal
law. This Court's jurisdiction arises under 28 U.S.C. &&1331, 1343(3) and
1343(4). The power to issue declaratory judgments is expressed in 28 U.S.C.
&&2201 and 2202.

2. The facts necessary to establish the plaintiff's standing to sue are
contained in the joint stipulation of facts, which is hereby adopted and
incorporated herein by reference. There is no doubt that the case is ripe for
adjudication.

3. The State of Arkansas was dismissed as a defendant because of its immunity
from suit under the Eleventh Amendment. Hans v. Louisiana, 134 U.S. 1 (1890).

4. The authorities differ as to generalizations which may be made about
Fundamentalism. For example, Dr. Geisler testified to the widely held view that
there are five beliefs characteristic of all Fundamentalist movements, in
addition, of course, to the inerrancy of Scripture: (1) belief in the virgin
birth of Christ, (2) belief in the deity of Christ, (3) belief in the
substitutional atonement of Christ, (4) belief in the second coming of Christ,
and (5) belief in the physical resurrection of all departed souls. Dr. Marsden,
however, testified that this generalization, which has been common in religious
scholarship, is now thought to be historical error. There is no doubt, however,
that all Fundamentalists take the Scriptures as inerrent and probably most take
them as literally true.

5. Initiated Act 1 of 1929, Ark. Stat. Ann. &80-1627 et seq., which prohibited
the teaching of evolution in Arkansas schools, is discussed infra at text
accompanying note 26.

6. Subsequent references to the testimony will be made by the last name of the
witness only. References to documentary exhibits will be by the name of the
author and the exhibit number.

7. Applicants for membership in the CRS must subscribe to the following
statement of belief: "(1) The Bible is the written Word of God, and because we
believe it to be inspired thruout [sic], all of its assertions are historically
and scientifically true in all of the original autographs. To the student of
nature, this means that the account of origins in Genesis is a factual
presentation of simple historical truths. (2) All basic types of living things,
including man, were made by direct creative acts of God during Creation Week as
described in Genesis. Whatever biological changes have occurred since Creation
have accomplished only changes within the original created kinds. (3) The great
Flood described in Genesis, commonly referred to as the Noachian Deluge, was an
historical event, worldwide in its extent and effect. (4) Finally, we are an
organization of Christian men of science, who accept Jesus Christ as our Lord
and Savior. The account of the special creation of Adam and Eve as one man and
one woman, and their subsequent Fall into sin, is the basis for our belief in
the necessity of a Savior for all mankind. Therefore, salvation can come only
thru [sic] accepting Jesus Christ as our Savior." (Px 115)

8. Because of the voluminous nature of the documentary exhibits, the parties
were directed by pre-trial order to submit their proposed exhibits for the
Court's convenience prior to trial. The numbers assigned to the pre-trial
submissions do not correspond with those assigned to the same documents at trial
and, in some instances, the pre-trial submissions are more complete.
9. Px 130, Morris, Introducing Scientific Creationism Into the Public Schools
(1975), and Bird, "Resolution for Balanced Presentation of Evolution and
Scientific Creationism." ICR Impact Series No. 71, App. 14 to Plaintiff's
Pretrial Brief.

10. The creationists often show candor in their proselytization. Henry Morris
has stated, "Even if a favorable statute or court decision is obtained, it will
probably be declared unconstitutional, especially if the legislation or
injunction refers to the Bible account of creation." In the same vein he notes,
"The only effective way to get creationism taught properly is to have it taught
by teachers who are both willing and able to do it. Since most teachers now are
neither willing nor able, they must first be both persuaded and instructed
themselves." Px 130, Morris, Introducing Scientific Creationism Into the Public
Schools (1975)(unpaged).

11. Mr. Bird sought to participate in this litigation by representing a number
of individuals who wanted to intervene as defendants. The application for
intervention was denied by this Court. McLean v. Arkansas, ____ F.Supp. ______,
(E.D. Ark. 1981), aff'd. per curiam, Slip Op. No. 81-2023 (8th Cir. Oct. 16,
1981).

12. The model act had been revised to insert "creation science" in lieu of
creationism because Ellwanger had the impression people thought that creationism
was too religious a term. (Ellwanger Depo. at 79)
13. The original model act had been introduced in the South Carolina
Legislature, but had dies without action after the South Carolina Attorney
General had opined that the act was unconstitutional.

14. Specifically, Senator Holsted testified that he holds to a literal
interpretation of the Bible; that the bill was compatible with his religious
beliefs; that the bill does favor the position of literalists; that his
religious convictions were a factor in his sponsorship of the bill; and that he
stated publicly to the Arkansas Gazette (although not on the floor of the
Senate) contemporaneously wit h the legislative debate that the bill does
presuppose the existence of a divine creator. There is no doubt that Senator
Holsted knew he was sponsoring the teaching of a religious doctrine. His view
was that the bill did not violate the First Amendment because, as he saw it, it
did not favor one denomination over another.

15. This statute is, of course, clearly unconstitutional under the Supreme
Court's decision in Abbington School District v. Schempp, 374 U.S. 203 (1963)
16. The joint stipulation of facts establishes that the following areas are the
only information specifically required by statute to be taught in all Arkansas
schools: (1) the effects of alcohol and narcotics on the human body, (2)
conservation of national resources, (3) Bird Week, (4) Fire Prevention, and (5)
Flag etiquette. Additionally, certain specific courses, such as American history
and Arkansas history, must be completed by each student before graduation from
high school.

17. Paul Ellwanger stated in his deposition that he did not know why Section
4(a)(2) (insufficiency of mutation and natural selection) was included as an
evidence supporting creation science. He indicated that he was not a scientist,
"but these are postulates that have been laid down by creation scientists."
Ellwanger Depo. at 136.

18. Although defendants must make some effort to cast the concept of creation in
non-religious terms, this effort surely causes discomfort to some of the Act's
more theologically sophisticated supporters. The concept of a creator God
distinct from the God of love and mercy is closely similar to the Marcion and
Gnostic heresies, among the deadliest to threaten the early Christian church.
These heresies had much to do with development and adoption of the Apostle's
Creed as the official creedal statement of the Roman Catholic Church in the
West. (Gilkey.)

19. The parallels between Section 4(a) and Genesis are quite specific: (1)
"sudden creation from nothing" is taken from Genesis, 1:1-10 (Vawter, Gilkey);
(2) destruction of the world by a flood of divine origin is a notion peculiar to
Judeo-Christian tradition and is based on Chapters 7 and 8 of Genesis (Vawter);
(3) the term "kinds" has no fixed scientific meaning, but appears repeatedly in
Genesis (all scientific witnesses); (4) "relatively recent inception" means an
age of the earth from 6,000 to 10,000 years and is based on the genealogy of the
Old Testament using the the rather astronomical ages assigned to the patriarchs
(Gilkey and several of the defendants' scientific witnesses); (5) separate
ancestry of man and ape focuses on the portion of the theory of evolution which
Fundamentalists find most offensive, Epperson v. Arkansas, 393 U.S. 97 (1968)
20. "[C]oncepts concerning ... a supreme being of some sort are manifestly
religious ... These concepts do not shed that religiosity merely because they
are presented as philosophy or as a science ..." Malnak v. Yogi, 440 F. Supp.
1284, 1322 (D.N.J. 1977); aff'd per curiam, 592 F.2d 197 (3d Cir. 1979).
21. See, e.g., Px 76, Morris, et. al., Scientific Creationism, 203 (1980) ("If
creation really is a fact, this means there is a Creator, and the universe is
his creation.") Numerous other examples of such admissions can be found in the
many exhibits which represent creationist literature, but no useful purpose
would be served here by a potentially endless listing.

22. Morris, the Director of ICR and one who first advocated the two model
approach, insists that a true Christian cannot compromises with the theory of
evolution and that the Genesis version of creation and the theory of evolution
are mutually exclusive. Px 31, Morris, Studies in the Bible & Science, 102-103.
The two model approach was the subject of Dr. Richard Bliss's doctoral
dissertation. (Dx 35). It is presented in Bliss, Origins: Two Models -
Evolution, Creation (1978). Moreover, the two model approach merely casts in
educationalist language the dualism which appears in all creationist literature
-- creation (i.e. God) and evolution are presented as two alternative and
mutually exclusive theories. See, e.g., Px 75, Morris, Scientific Creationism
(1974) (public school edition); Px 59, Fox, Fossils: Hard Facts from the Earth.
Particularly illustrative is Px 61, Boardman, et. al., Worlds Without End (1971)
a CSRC publication: One group of scientists, known as creationists, believe that
God, in a miraculous manner, created all matter and energy ...

"Scientists who insist that the universe just grew, by accident, from a mass of
hot gases without the direction or help of a Creator are known as
evolutionists."

23. The idea that belief in a creator and acceptance of the scientific theory of
evolution are mutually exclusive is a false premise and offensive to the
religious views of many. (Hicks) Dr. Francisco Ayala, a geneticist of
considerable reknown and a former Catholic priest who has the equivalent of a
Ph.D. in theology, pointed out that many working scientists who subscribe to the
theory of evolution are devoutly religious.

24. This is so despite the fact that some of the defense witnesses do not
subscribe to the young earth or flood hypotheses. Dr. Geisler stated his belief
that the earth is several billion years old. Dr. Wickramasinghe stated that no
rational scientist would believe the earth is less than one million years old or
that all the world's geology could be explained by a worldwide flood.
25. "We do not know how the Creator created, what processes He used, for he used
processes which are not now operating anywhere in the natural universe. This is
why we refer to creation as Special Creation. We cannot discover by scientific
investigation anything about the creative processes used by God." Px 78, Gish,
Evolution -- The Fossils Say No! (42) (3d ed. 1979) (emphasis in original).
26. The evolutionary notion that man and some modern apes have a common ancestor
somewhere is the distant past has consistently been distorted by
anti-evolutionists to say that man descended from modern monkeys. As such, this
idea has long been more offensive to Fundamentalists. See, Epperson v. Arkansas,
393 U.S. 97 (1968)

27. Not only was this point acknowledged by virtually all the defense witnesses,
it is patent in the creationist literature. See, e.g., Px 89, Kofahl & Segraves,
The Creation Explanation, 40: "The Flood of Noah brought about vast changes in
the earth's surface, including vulcanism, mountain building, and the deposition
of the major part of sedimentary strata. This principle is called 'Biblical
catastrophism."'

28. See n. 7, supra, for the full test of the CRS creed.

29. The theory is detailed in Wickramasinghe's book with Sir Fred Hoyle,
Evolution from Space (1981), which is Dx 79.

30. Ms. Wilson stated that some professors she spoke with sympathized with her
plight and tried to help her find scientific materials to support Section 4(a).
Others simply asked her to leave.

31. Px 129, published by Zonderman Publishing House (1974), states that it was
"prepared by the Textbook Committee of the Creation Research Society." It has a
disclaimer pasted inside the front cover stating that it is not suitable for use
in public schools.

32. Px 77, by Duane Gish

33. The passage of Act 590 apparently caught a number of its supporters off
guard as much as it did the school district. The Act's author, Paul Ellwanger,
stated in a letter to "Dick," (apparently Dr. Richard Bliss at ICR): "And
finally, if you know of any textbooks at any level and for any subjects that you
think are acceptable to you and are also constitutionally admissible, these are
things that would be of enormous to these bewildered folks who may be cause, as
Arkansas now has been, by the sudden need to implement a whole new ball game
with which they are quite unfamiliar." [sic] (Unnumbered attachment to Ellwanger
depo.)