Untitled Texas Attorney General Opinion

The Attorney General of Texas
March 12. 1984
JIM MATTOX
Attorney General
Supreme Court Building Honorable Oscar A. Mauzy Opinion No. JM-134
P. 0. Box 12546 Chairman
Austin. TX. 76711. 2546 Committee on Jurisprudence Re: Whether certain rules of
5121475.2501
Texas State Senate the State Board of Education
Telex 910/674-1367
Telecopier 51214750266 P. 0. Box 12068, Capitol Station concerning the treatment of the
Austin, Texas 78711 subject of evolution in text-
books violate the Establishment
714 JXk50”. suw 700 Clause of the United States
Dallas. TX. 75202.4506
Constitution
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Dear Senator Mauzy:
4624 Afberta Ave.. Suite 160
El Paso. TX. 799052793 You have asked whether certain rules of the State Board of
915l533.3464
Education violate the federal constitutional prohibition against laws
“respecting an establishment of religion.” U.S. Const. amends. 1, 14.
1001 Texas. Suite 7W These rules. issued on September 29, 1983, and effective from October
HOUSIOII. TX. 77002-311, 24, 1983, provide:
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(a) All adopted textbooks shall meet the
following content requirements and limjtations:
606 Broadway. Suite 312
Lubbock, TX. 79401.3479
6061747.5236 (1) In accordance with the Texas Education
Code 112.14(c). textbooks shall contain
no material of a partisan or sectarian
4309 N. Tenth. Suile B
McAllen. TX. 76501.1665
character.
5121662.4547
. . . .
200 Main Plaza, Suite 400 Textbooks that
(5) treat the theory of
San Antonio. TX. 76205.2797
evolution shall identify it as only one
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of several explanations of the origins of
humankind and avoid limiting young people
An Equal Opportunity/ in their search for meanings of their
Affirmative Action Employer human existence.
(A) Textbooks presented for adoption which
treat the subject of evolution
substantively in explaining the
historical origins of man shall be
edited, if necessary, to clarify that the
treatment is theoretical rather than
factually verifiable. Furthermore, each
textbook must carry a statement on an
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Honorable Oscar H. Mauzy - Page 2 (JM-134)
introductory page that any material on
evolution included in the book is clearly
presented as theory rather than verified.
(B) Textbooks presented for adoption which do
not treat evolution substantively as an
instructional topic, but make reference
to evolution indirectly or by
implication. must be modified, if
necessary. to ensure thst the reference
is clearly to a theory and not to a
verified fact. These books will not need
to carry a statement on the introductory
page.
(0 The presentation of the theory of
evolution shall be done in a manner which
is not detrimental to other theories of
origin.
a Tex. Reg. 3988.
In Epperson v. Arkansas, 393 U.S. 97 (1968). the United States
Supreme Court struck down an Arkansas statute that forbade the
teaching of evolution. Hore recently. a federal district court
invalidated an Arkansas statute which required public schools to “give
balanced treatment to creation-science and to evolution-science.”
McLean v. Arkansas Board of Education, 529 F. Supp. 1255, 1256 (E.D.
Ark. 1982). Although the stated purpose of this statute was to
provide a “balanced” treatment of the teaching of evolution, the court
found it necessary to look behind this stated purpose to consider the
historical context of the statute, the specific sequence of events
leading up to its passage, and contemporaneous statements of the
legislative sponsor. 529 F. Supp. at 1263-64. Examining these
circumstances, the court was unable to avoid the conclusion that the
statute “was passed with the specific purpose by the General Assembly
of advancing religion,” and thus failed the first prong of the Supreme
Court’s test, that of a secular legislative purpose. 529 F. Supp. at
1264.
The rule under consideration here represents a slight
modification of a 1974 state board rule which in turn derived from a
still earlier version. At hearings conducted before the board in both
1974 and 1983, the board heard testimony from proponents of both
evolution and creationism, and it is necessary to consider the kind of
controversy which was before the board in both instances. In 1983.
the board heard testimony from five groups and 17 individuals. -See 8
Tex. Reg., (October 7. 1983), at 3986-87.
Under the federal Constitution, laws suspected of violating the
Establishment Clause of the first amendment are subjected to a
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Honorable Oscar H. Mauzy - Page 3 (JM-134)
three-pronged test formulated by the Supreme Court in Lemon v.
Kurtsman, 403 U.S. 602 (1971), and later applied in Stone v. Graham,
449 U.S. 39 (1980): kaws must have a secular purpose; they must
neither advance nor hinder religion in their primary effect; and they
must not foster excessive government entanglement with religion. If a
statute, or a rule promulgated pursuant to a statute, violates any of
these principles, it must be struck down under the Establishment
Clause. See Stone v. Graham, supra. In our opinion, the board’s
rules on their face fail to satisfy at least the first prong of the
Lemon test, in that they fail to demonstrate a secular purpose.
Although, like the statute at issue in McLean, see 529 F. Supp. at
1272. the board’s rule prohibits any %aterialYf a partisan or
sectarian character,” we believe that subsequent provisions belie that
statement.
The only aspect of “evolution” with which the rule is concerned
is that which relates to “the historical origins of man.” The rule
requires a biology textbook, for example, to carry a disclaimer on its
introductory page to the effect that “any material on evolution”
included therein is to be regarded as theory rather than as factually
verifiable. In the first place, such a disclaimer -- which might make
sense if applied to all scientific theories -- is limited to one
aspect -- man’s origix -- of one theory -- evolution -- of one
science -- biology. In the context of the controversy between
evolutionists and creationists which was before the board at the time
of the rules’ adoption both in 1974 and 1983, this singling out of one
aspect of one theory of one science can be explained only as a
response to pressure from creationists.
In the second place,,the “theory of evolution,” as it is commonly
treated in biology texts, is a comprehensive explanation of the
development of the various plant and animal species. Only a
relatively minor portion is concerned with the “historical origins of
men.” The latter subject is the primary interest of creationists.
See McLean, supra, at 1260. Again, the inference is inescapable from
the narrowness of the requirement that a concern for religious
sensibilities, rather than a dedication to scientific truth, was the
real motivation for the rules.
Finally, the rules require that a textbook identify the theory of
evolution “as only one of several explanations” of human origins in
order to “avoid limiting young people in their search for meanings of
their human existence.” (Emphasis added). Such language is not
conducive to an explanation that the purpose of the rule is to insure
that impressionable minds will be able to distinguish between
scientific theory and dogma. The “meaning of human existence” is not
the stuff of science but rather, the province of philosophy and
religion. By its injection into the rules language which is clearly
outside the scope of science, the board has revealed the non-secular
Purpose of its rules.
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Clearly, the board made an effort, as it has stated, to “insure
neutrality Ian the treatment of subjects upon which beliefs and
viewpoints differ dramatically.” In our opinion, however, the board,
in its desire not to offend any religious group. has injected
religious considerations into an area which must be, at least in the
uublic school context, strictly the province of science. As the court
said in Wright v. Houston Independent School District, 366 F. Supp.
1208, 1211 (S.D. Tex. 1972):
Science and religion necessarily deal with many of
the same questions, and they may frequently
provide conflicting answers. But, as the Supreme
Court wrote twenty years ago. it is not the
business of government to suppress real or
imagined attacks upon a particular religious
doctrine. Burstyn v. Willson, 343 U.S. 495. 505,
72 S. Ct. 777, 96 L. Ed. 1098 (1952). Teachers of
science in the public schools should not be
expected to avoid the discussion of every
scientific issue on which some religion claims
expertise. (Emphasis added).
If the board feels compelled to legislate in this area, it
should, in order to avoid the constitutional prohibition, promulgate a
rule which is of general application to all scientific inquiry, which
does not single out for its requirement of a disclaimer a single
theory of one scientific field, and which does not include language
suggesting inquiries which lie totally outside the realm of science.
The rules submitted, however, when considered in the context of the
circumstances of their adoption, fail to evidence a secular purpose,
and hence we believe a court would find that they contravene the first
and fourteenth amendments to the United States Constitution.
SUMMARY
The rules of the State Board of Education,
concerning the subject of evolution, fail to
demonstrate a secular purpose and are therefore in
contravention of the first and fourteenth
amendments to the United States Constitution.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
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Honorable Oscar H. Mauey - Page 5 (JM-134)
DAVID Il. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
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