                                           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
2141742.0944

                                         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:
7131223.5666
                                                     (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
 5121225.4191
                                                                       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.




                                            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,    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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