JIMMATTOX AttorneyGeneral

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# TheAttorney General ofTexas

March 12. 1984

Honorable Oscar A.Mauzy Chairman Committee onJurisprudence Texas State Senate 

### OpinionNo.JM-134

Re: Whether certain the State Board of rules of Education P. 0. Box 12068, Capitol Station Austin, Texas 78711 concerning the treatment of the subject of evolution in textbooks violate the Establishment Clause of the United States Constitution

Dear Senator Mauzy:

You have asked whether certain rules of the State Board of Education violate the federal constitutional prohibition against laws

“respecting anestablishment of religion.” U.S. Const. amends. 1, 14. These rules. issued onSeptember 29, 1983, andeffective from October 24, 1983, provide:

(a) All adopted textbooks shall meet the following **content** requirements andlimjtations:
(1) In accordance with the Texas Education Code 112.14(c). textbooks shall contain
no material of a partisan or sectarian character.

. . . . (5) Textbooks that treat the theory of evolution shall identify it as only one of several explanations of the origins of humankind andavoid limiting young people in their search for meanings of their humanexistence. 

### (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)



### (B) introductory page that any material on evolution included in thebook is clearly presented as theory rather thanverified.

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 astatement onthe introductory page. 

### (0 The presentation of the theory of evolution shall bedone in amannerwhich is not detrimental to other theories of origin.



## aTex. 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 anArkansas statute which required public schools to“give balanced treatment to creation-science and to evolution-science.” McLeanv. 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 wasunable to avoid the conclusion that the statute “was passed with the specific purpose by the General Assembly of advancing religion,” andthus failed **the** first prong of the Supreme Court’s test, that of asecular 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. Athearings conducted before theboard inboth 1974 and 1983, the board heard testimony from proponents of both evolution andcreationism, andit is necessary toconsider the kind of controversy which was before the board in both instances. In 1983. the board heard testimony from five groups and 17individuals. See8 - 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

p. 566Honorable 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; andthey mustnot foster excessive government entanglement with religion. If a statute, or arule promulgated pursuant to astatute, violates anyof 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,” webelieve that subsequent provisions belie that statement.
Theonly aspect of “evolution” with which the rule is concerned is that which relates to “the historical origins of man.” The rule requires abiology textbook, for example, to carry adisclaimer onits introductory page to the effect that “any material on evolution” included therein is tobe regarded as theory rather than as factually verifiable. In the first place, such adisclaimer -- 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 wasbefore the board at the time of the rules’ adoption both in 1974and 1983, this singling out of one aspect of one theory of one science can be explained only as a response to pressure from creationists.

Inthe 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. SeeMcLean, supra, at 1260. the narrowness Again, the inference is inescapable from of the requirement that a concern for religious sensibilities, rather than adedication to scientific truth, was the real motivation for the rules. Finally, the rules require that atextbook identify the theory of evolution “as only one of several explanations” of humanorigins in order to “avoid limiting young people in their search for meanings of their human existence.” (Emphasis added). Such language is not conducive to anexplanation that the purpose of the rule is to insure that impressionable minds will be able to distinguish between scientific theory anddogma. The“meaning of humanexistence” is not the stuff of science but rather, the province of philosophy and religion. Byits 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 madeaneffort, 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 anarea which must be, at least in the uublic school context, Asthe court said in Wright v. strictly the province of science. Houston Independent School District, 366 F.Supp. 1208, 1211 (S.D. Tex. 1972):

Science andreligion necessarily deal with manyof 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, 96L.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 toavoid 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 asecular purpose, andhence webelieve acourt would find that they contravene the first andfourteenth amendments totheUnited States Constitution.

SUMMARY

The rules of the State Board of Education, concerning the subject of evolution, fail to demonstrate asecular purpose andare therefore in contravention of the first and fourteenth amendments totheUnited States Constitution.

JIM MATTOX Attorney General of Texas

TOMGREEN First Assistant Attorney General

p. 568Honorable Oscar H.Mauey- Page 5 (JM-134)

DAVIDIl. RICHARDS Executive Assistant Attorney General Prepared byRick Gilpin Assistant Attorney General

APPROVED: OPINIONCOMMITTEE
Rick Gilpin. Chairman JonBible Colin Carl Susan Garrison JimMoellinger Nancy Sutton

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