McLean v. Arkansas Documentation Project

In The

United States District Court

Eastern District Of Arkansas

Western Division

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.

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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    (1)    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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