JIM MATTOX 

Attorney General 

Supreme Court Building 

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Austin. TX. 76711. 2546 

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An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

March 12. 1984 

Honorable Oscar A. Mauzy 

Chairman 

Committee on Jurisprudence 

Texas State Senate 

Opinion No. 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 an establishment of religion.” U.S. Const. amends. 1, 14. 

These rules. issued on September 29, 1983, and effective from October 

24, 1983, provide: 

(a) All adopted textbooks shall meet the 

following content requirements and limjtations: 

(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 and avoid limiting young people 

in their search for meanings of their 

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 

p. 565 . 
Honorable Oscar H. Mauzy - Page 2 (JM-134) 

(B) 

introductory page that any material on 

evolution included in the book is clearly 

presented as theory rather than verified. 

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 

p. 566 
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. 

the narrowness 

Again, the inference is inescapable from 

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. 

p. 567 
Honorable Oscar II. Mauzy - Page 4 (JM-134) 

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, As the court 

said in Wright v. 

strictly the province of science. 

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 

p. 568 
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 

p. 569