Complaint

In The
United States District Court
Eastern District Of Arkansas
Western Division

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Rev. Bill McLean;                                                COMPLAINT
Bishop Ken Hicks;
The Right Rev. Herbert. Donovan;
The Most Rev. Andrew j. McDonald;
Bishop Frederick C. James;
Rev. Nathan Porter, individually and as
      father and Next Friend of Joel Randolph Porter;
Rev. George W. Gunn;
Dr. Rich* d B. Hardie, Jr.;
Rev. Earl B. Carter;
Rev. George Panner;
Dr. John P. Miles;
Rev. Jerry Canada;
The American Jewish Congress;
The Union of American Hebrew Congregations;
Frances C. Roelfs;
Charles Bowlus, individually and as father
      and Next Friend of Cordelia Ann and Christopher Felix;
Lon Schultz, individually and as father and
      Next Friend of Andrea Schultz;
The Arkansas Education Association;
The National Association of Biology Teachers;
E. E. Hudson;
Mike Wilson;
The American Jewish Committee; and
National Coalition For Public Education and
      Religious Liberty,

Plaintiffs,

v.

 
The State of Arkansas;
The Arkansas Board of Education;
Wayne Hartsfield, James Chesnutt,
Harry A. Haines, Walter Turnbow, Jim Dupree,
Dr. Harry T. McDonald, Robert Newton,
Alice L. Preston, and T. C. Cogbill, Jr., in
their official capacities as members of the
Arkansas Board of Education;
Don R. Roberts, in his official capacity as
Director of the Arkansas Department of Education;
The State Textbooks and instructional Materials
Selecting Committee; Pulaski County Special
School District; and Shirley Lowery, Bob Stander,
Bob Moore, Dan Hindman, N.M. Faulkner,
Mike Ballard, and Bob Teague, in their official
capacities as members of the Board of Directors
of the defendant Pulaski County Special School
District; and Thomas E. Hardin, in his official capac-
ity as Superintendent of the Pulaski County Special
School District,
 

Defendants.

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I. JURISDICTION
 
1.   The court has jurisdiction pursuant to 28 U.S.C. §§1331,
1343 (31 and (4) for causes of action arising under the First
and Fourteenth Amendments to the Constitution of the United States
and 42 U.S.C. 51983, and 28 U.S.C. §§2201 and 2202.
 
II. NATURE OF THE ACTION
 
2.   This is an action for declaratory and injunctive relief de-
claring Act 590 of 1981, Acts of Arkansas, known as the
"Balanced Treatment For Creation-Science and Evolution-Science
Act" (hereafter, the "Creationism Act"), in violation of the
First and Fourteenth Amendments to the Constitution of the
United States, and of 42 U.S.C. §1983 and enjoining its imple-
mentation or enforcement.

3.   The Creationism Act (a) constitutes an establishment of
religion, (b) abridges the academic freedom of both teachers
and students, and (c) is impermissibly vague, all in violation
of the Constitution and laws of the United States.

4.   Plaintiffs request injunctive relief prohibiting defendants
from in any way enforcing the provisions of the Creationism Act,
including the promulgation of any rules or regulations incident
thereto, or the approval, selection, purchase or use of any
"Creationism" textbooks or materials.

5.   By initiating this action, plaintiffs are neither anti-
religion nor asserting the final truth of any theory of evolution.
Many of the plaintiffs are deeply-religious and believe religion
 

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is important in personal, family and community life. Other
plaintiffs are science professionals committed to the scientific
method of inquiry, which necessarily rejects all claims to final
truth and perpetually tests for flaws in existing scientific
theories. All Plaintiffs are united in the firm conviction that
religion is strengthened by its complete separation from govern-
ment and that government supported education in science is
strengthened by its complete separation from religious doctrine.
 
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III. PLAINTIFFS
 
6. Plaintiffs are:
   (a)   Rev. Bill McLean is a minister of the Presbyterian Church
and is the principal official of the Presbyterian Church in
Arkansas. He resides in Little Rack, Arkansas. He sues as a
citizen, a taxpayer and a religious person who supports separa-
tion of church and state.

   (b)   Bishop Ken Hicks is the Bishop of the United Methodist
Church in the Arkansas area. He resides in Little Rock, Arkansas.
He tried, unsuccessfully, to testify before the Arkansas legis-
lature in opposition to the bill which became the Creationism
Act. He sues as a citizen, a taxpayer, and a religious person
who supports separation of church and state.

   (c)   The Right Rev. Herbert Donavan is the Bishop of the
Episcopal Diocese of Arkansas. He resides in Little Rock,
Arkansas. He sues as a citizen, a taxpayer, and a religious
person who supports separation of church and state.

   (d)   The Most Rev. Andrew J. McDonald is the Bishop of the
Catholic Diocese of Little Rock, Arkansas. He resides in
Little Rock, Arkansas as sues as a citizen, a taxpayer, and a
religious person who supports separation of church and state.

   (e)   Bishop Frederick C. James is Bishop of the African
Methodist Episcopal Church or Arkansas Re resides in Little Rock,
Arkansas. Be sues as a citizen, a taxpayer, and a religious
person who sup orts separation of church and state.

   (f)   Rev. Nathan Porter is a minister of the Southern, Baptist
Convention. He holds a Doctorate of Ministry and is employed by
the Southern Baptist Convention. He resides in Arkadelphia,
Arkansas. He is the father and Next Friend of Joel Randolph Porter,
 

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a minor, who is a student at Arkadelphia High School, a public
school in Arkadelphia, Arkansas. He sues as a citizen, a tax-
payer, a religious person who supports separation of church and
state, a parent, and on behalf of his minor son.

   (g)   Rev. George W. Gunn is the minister of the Pulaski
Heights Presbyterian Church in Little Rock, Arkansas. He sues
as a citizen, a taxpayer, and a religious person who supports
separation of church and state.

   (h)   Dr. Richard B. Hardie, Jr. is the minister of the
Westover Hills Presbyterian Church in Little Rock, Arkansas. He
resides in Little Rock, Arkansas. He sues as a citizen, a tax-
payer, and a religious person who supports separation of church
and state.

   (i)   Rev. Earl B. Carter is a minister of the United Methodist
Church and is Program Director of the North Arkansas Conference
of the United Methodist Church go resides in Little Rock,
Arkansas. He sues as a citizen, a taxpayer, and a religious
person who supports separation of church and state.

   (j)   Rev. George Panner is a minister of the United Methodist
Church and is Program Director of the Little Rock Conference of
the United Methodist church. He resides in Little Rock,
Arkansas. Re sues as a citizen, a taxpayer, and a religious
person who supports separation of church. and state.

   (k)   Dr. John P. Miles is the minister of St. James United
Methodist Church in Little Rock, Arkansas, and is the vice-chair
of Americans United for Separation of church and State in
Arkansas. He sues as a citizen, a taxpayer, and a religious
person who supports separation of church and state.
 

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   (l)   Rev. Jerry Canada is a minister of the United Methodist
Church, and is editor of The Arkansas Methodist. He resides in
Little Rock, Arkansas. He sues as a citizen, a taxpayer, and
a religious person who supports separation of church and state.

   (m)   The American Jewish Congress is a national organization
of American Jews founded in 1918, with members in Arkansas. Its
principal address is 15 East 84th Street, New York, New York,
10028. Among its major concerns are the preservation and protec-
tion of the separation of church and state secured by the
Establishment Clause of the First Amendment to the Constitution
of the United States. It sues on its own behalf and on behalf of
its members.

   (n)   The Union of American Hebrew Congregation is the
central body of Reform Synagogues in the United States and Canada,
including 750 congregation comprising a total membership of
1,100,000 Reform Jews, with members in Arkansas. Its principal
address is 838 Fifth Avenue, New York, New York, 10021. Since
its inception in 1873, the Union has steadfastly supported
complete separation of church and state. It sues an its own
behalf and on behalf of its members.

   (o)   Frances C. Roelfs teaches biology in Springdale High
School, a public school in Springdale, Arkansas. She resides in
Fayetteville, Arkansas. She is the mother of a child who is a
student in the Fayetteville, Arkansas public schools. She sues
as a citizen, a taxpayer, a teacher of biology, and a parent.

   (p)   Charles Bowlus is an Assistant Professor the Depart-
ment of History of the University of Arkansas at Little Rock. He
resides in Little Rock, Arkansas. He is the father and Next
Friend of Cordelia Ann, and Christopher Felix, minors, both of
whom are students in public schools in defendant Pulaski County
 

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special School District in Pulaski County, Arkansas. He sues as
a citizen, a taxpayer, a parent, and on behalf of his minor
children.

   (q)   Lon Schultz is the father and Next Friend of Andrea
Schultz, a minor, who will be a student in the public schools in
Cederville, Arkansas during the 1981 academic year. He resides
in Cederville, Arkansas. He sues as a citizen, a taxpayer, a
parent, and on behalf of his minor daughter.

   (r)   Arkansas Education Association is a not for profit
corporation organized under the laws of Arkansas. It is located
in Little Rock, Arkansas. It represents 18,000 public secondary
and, primary school teachers and other employees of public
schools in Arkansas, including biology teachers and other
teachers who teach subjects that might be covered by the
Creationism Act. It sues on its own behalf and on behalf of its
members.

   (s)   The National Association of Biology Teachers, Inc., is
a nationwide organization of biology teachers chartered as a
non-profit corporation under the laws of Illinois. Its member-
ship includes teachers of biology in public and private secondary
schools and colleges, including secondary public schools in
Arkansas. Evolution is usually taught in secondary schools as
part of the biology curriculum. Biology teacher and the
Association thus have a vital interest in all laws affecting the
biology curriculum. The Association has adopted the position
that Creationism is not a science and has no scientific basis or
merit. The Association sues on its own behalf and on behalf of
its members.
 

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   (t)   E. E. Hudson is Associate Professor of Biological
Sciences at Arkansas Technical University. He resides in
Russellville, Arkansas. He sues as a citizen and taxpayer.

   (u)   Mike Wilson is an attorney at law, and is a duly
elected member of the House of the Arkansas Legislature, where
he voted against enactment of the Creationism Act. He resides
in Jacksonville, Arkansas. He sues as a citizen, and taxpayer.

   (v)   The American Jewish Committee is a national organization
of Jews founded in 1906, with members in Arkansas. Its principal
address is 165 East 56th Street, New York, New York, 10022. It
strongly supports separation of church and state. It sues on
its own behalf and on behalf of its members.

   (w)   National Coalition For Public Education and Religious
Liberty (National PEARL), Is a coalition of religious, educational,
charitable and other organizations, all of which believe in
separation of church and state. Its principal address is
Suite 613, 1201 Sixteenth Street, N.W., Washington, D.C., 20036.
National PEARL and its participating organizations have members
in Arkansas.
 

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IV. DEFENDANTS
 

7. Defendants are:

   (a)   Defendant State of Arkansas has by its legislature and
Governor enacted the Creationism Act.

   (b)   Defendant State of Arkansas Board of Education (here-
after, the "Board") is established and functions pursuant to the
laws of Arkansas. The Board appoints the Director of the Arkansas
Department of Education (hereafter "ADE"), and exercises general
supervisory authority over the ADZ. Arkansas law provides that
the Director of the ADE and the Board shall manage the purchase
and distribution. of textbooks (Ark. Stats. Ann. §80-1701 through
1737), and that they appoint state textbook and Instructional
materials selecting committees.

   (c)   Defendants Wayne Hartsfield, Mrs. James W. Chesnutt,
Barry A. Raines, Walter Turnbow, Jim Dupree, Dr. Harry T. McDonald,
Robert Newton, Alice L. Preston, and T. C. Cogbill, Jr., are sued
in their official capacities as members of the Board.

   (d)   Defendant Don R. Roberts is sued in his official capacity
as the Director and chief administrative officer of the ADE, with
responsibility to administer its day to day affairs.

   (e)   Defendant State Textbook and Instructional Materials
Selecting Committee (hereafter the "Textbook Committee") has been
established by the ADE and is responsible for approving biology
and other textbooks for purchase by the State of Arkansas for use
the public schools. Its activities are supervised by defendant
Roberts, who appoints its members.

   (f)   Defendant Pulaski County Special School District is a
Public school district created by and operating pursuant to state
law in Pulaski County, Arkansas. It has the largest enrollment
of students of any school district In the State of Arkansas.
 

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Pursuant to state law, it is managed by its Board of Directors,

   (g)   Defendants Shirley Lowery, Bob Stender, Bob Moore,
Don Hindman, R. M. Faulkner, Mike Ballard and Bob Teague, are
sued in their official capacities as members at the Board of
Directors of defendant Pulaski County Special School District.

   (h)   Defendant Thomas E. Hardin is sued in his official
capacity as the Superintendent and chief administrative officer
of the Pulaski County Special School District.

8.   At all times relevant herein, each, defendant acted and
continues to act under color of state law, custom or usage.
 

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V.   FIRST CAUSE OF ACTION
 

9.   On or about March 18, 1981, the General Assembly of the
State of Arkansas enacted, and on March 19, 1981, the Governor
signed, the Creationism Act, a copy of which is attached hereto
and incorporated herein.

10.   The Creationism Act defines two subjects, which it labels
"creation-science" and "evolution-science" The Act does not
require that either be taught, but provides that if either is
taught, there must be "balanced treatment" of the other in all
public secondary and elementary schools (hereafter, "public
schools"). The Creationism Act authorizes implementation of its
provisions immediately and requires implementation of its pro-
visions during the school year beginning in the Fall of 1982. On
information and belief, relying upon the Creationism Act, some
public schools will begin teaching "creation-science" immediately
and, under compulsion of the Act, some public schools will teach
"creation-science" during the 1982 school year.

11.   The Creationism Act purports to make "Legislative Findings of
Fact.". However, the legislature did not engage in any fact-
finding process, and no testimony or evidence of any kind was
presented to the legislature in support of any of the alleged
findings of fact. To the contrary, the entire legislative process
was hasty and ill-considered:

(a)   the Senate hold no hearings whatsoever;

(b)   the House hold only a perfunctory 15 minute
        hearing at which some opponents of the pro-
        posed enactment were not permitted to testify;
 

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(c)   there were no legislative studies or reports;

(d)   there was no legislative consultation with
        defendant ADZ, or its Director, concerning
        the scientific or educational merits of the
        Creationism Act, and, on information and be-
        Life, defendant ADE and its Director do not
        believe the Creationism Act has any scientific
        or educational merit.

12.   The Creationism Act was not drafted by any Arkansas legis-
lator or legislative employee. To the contrary, it was conceived
and drafted by employees of "Creationism" organizations, who
subscribe to a "fundamentalist" religious belief that the universe
energy and life were all created suddenly by a Divine Creator,
as described in Genesis. These same "Creationism" organizations
produce and sell for profit "Creationism" textbooks and materials,
and would therefore profit financially from the passage and imple-
mentation of the Creationism Act. In furtherance of these reli-
gious and financial objectives, these "Creationism" organizations
are vigorously promoting legislation virtually identical to the
Creationism Act in many other states.

13.   The Creationism Act is the latest attempt in a long-standing
pattern and practice of the State of Arkansas to promote religion
in its public, schools, to establish a particular religious dogma,
and to disparage science when it is deemed to conflict with or be
antagonistic to that religious dogma.
 

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14.   In 1929, for example, Arkansas enacted Arkansas Statutes
Annotated §§80-1627 and 1628 which. made it unlawful and criminal
for any public school or university teacher "to teach the theory
or doctrine that mankind ascended or descended from a lower order
at animals," and unlawful and criminal. to select or use textbooks
or materials mentioning the theory of evolution. In 1968, the
United States Supreme Court ruled that the Arkansas anti-evolution
statute was "an attempt to blot out a particular theory because
of its supposed conflict with the Biblical account, literally-
read," and therefore "plainly" constituted an establishment of
religion, in violation of the First and Fourteenth Amendments.
Epperson v. Arkansas, 393 U.S. 97, 109 (1968). The Creationism
Act is directly inconsistent with the principles established in
Epperson.

15.   The Creationism Act, like the Arkansas statute held unconsti-
tutional in Epperson, supra at 98 and 108, is the "product of the
upsurge of 'fundamentalist' religious fervor," and "that fundamentalist
sectarian conviction was and is the law's reason for existence."

16.   The words "creation" and creation-science," as used in the
Creationism Act, constitute religious doctrine. They embody and
reflect particular religious beliefs not shared by adherents of
latter religious beliefs, or by those who hold no religious
beliefs,

17.   'Creation," as used in the Creationism Act, necessarily
encompasses the concept of a supernatural Creator. "Creation-
 

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science," is used in the Creationism Act, necessarily encompasses
the concept of a supernatural Creator.

18.   The concept of a supernatural Creator is itself an inherently
religious belief. "Creation-science" cannot be taught without
reference to that religious belief in a Creator. The writings,
textbooks and materials of proponents of Creationism consistently
acknowledge that the concepts of "Creation" and of a Divine
Creator are inextricably intertwined.

19.   The so-called "creation-science" defined in the Creationism
Act is not science. Any scientific statement must be subject to
disproof. Because Creationism posits or concludes a supernatural
Creator and supernatural processes, it is not subject to disproof.
The writings, textbooks and materials of proponents of Creationism
consistently so acknowledge.

20.   The Creationism Act constitutes an establishment of religion
in violation of the First and Fourteenth Amendments to the
Constitution of the United States. The Creationism Act does not
have a secular legislative purpose. Its principal and primary
affect is to advance religion. It fosters excessive government
entanglement with religion, and creates the potential for
Political divisiveness along religious lines.

21.   Declaratory and injunctive relief are necessary because
plaintiffs have no adequate remedy at law.
 

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SECOND CAUSE OF ACTION

22.   Plaintiffs repeat and reallege paragraphs 1 through 21 hereof.

23.   The Creationism Act abridges the constitutionally protected
academic freedom rights of both teachers and students.

24.   The Creationism Act requires the plaintiff teachers and
other teachers to teach as science a doctrine which they, as
professionals, believe has no scientific basis or merit. And by
requiring "balanced treatment" of "creation-science" and
"evolution-science", it prohibits the plaintiff teachers and
other teachers from expressing, and students from learning, the
teachers' professional opinions concerning the relative scientific
strengths or weaknesses of either.

25.   On information and belief, in order to avoid having to teach
"creation-science," a substantial number of teachers will refrain
from teaching "evolution-science" as well, thereby depriving
their students of the constitutionally protected right to
acquire useful knowledge.

THIRD CAUSE OF ACTION

26.   Plaintiffs repeat and reallege paragraphs I through 25 hereof.

27.   The Creationism Act is unconstitutionally vague. Although
the Creationism Act affects sensitive First Amendment rights, it
is not narrowly tailored to achieve a compelling governmental
interest in the least restrictive manner, its provisions are
internally inconsistent, it does not give teachers fair notice of
 

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what can or cannot be taught, and it gives to school officials
virtually unfettered discretion arbitrarily and capriciously to
enforce its provisions.

   WHEREFORE, Plaintiffs respectfully request:

   1.   An order declaring the Creationism Act unconsti-
         tutional in violation of the First and Fourteenth
         Amendments to the Constitution of the United-States;

   2.   An injunction prohibiting defendants and their
         agents, successors, and employees, from taking
         any steps to implement the Creationism Act, in-
         cluding the promulgation of any rules or regula-
         tions incident thereto, or the approval, selec-
         tion, purchase or use of any "Creationism" text-
         books or materials;

   3.   An order granting plaintiffs costs and reasonable
         attorneys, fees; and

   4.   Such other and further relief as to the Court
         seems just and proper.
 

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                    Yours'. etc.
 
 
May 27, 1981
 
 
 
        [Signed]
_____________________   ........................
Bruce J. Ennis, Jr.                Robert M. Cearley, Jr.
 
               Cearley, Gitchel, Mitchell
               and Bryant, P.A.
               1014 West 3rd
               Little Rock, Arkansas 72201
               (501) 378-7870
 
        [Signed]
_____________________
Jack D. Novik

American Civil Liberties Union
     Foundation
132 West 43rd Street
New York, New York 10036
(212) 944-9800
 
                              ........................
                              Philip E. Kaplan
                              Kaplan, Brewer and
                              Bilheime , P.A.
                              Tower Building, Suite 955
                              Fourth and Center Streets
                              Little Rock, Arkansas 72201
                              (501) 372-0400
 
                              Cooperating attorneys for the
                              Arkansas Civil Liberties Union
                              Box 2832
                              Little Rock, Arkansas 72203
                              (501) 374-2660
 
 

Attorneys for Plaintiffs
 
 
Of - Counsel:
 
   Gary Crawford
   Peggy L. Kerr
   Nathan Z. Dershowitz
 
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