Scopes II: John Doe and FFRF v. Rhea County, Tennessee Board of Education: Alvin L. Harris

By Alvin L. Harris

Attorney Alvin Harris, a Life Member of the Freedom From Religion Foundation, delivered this speech at the 27th annual national convention of the Freedom From Religion Foundation, meeting in Madison, Wis., on Oct. 30, 2004.

Thank you for inviting me to speak today; I’m honored to be here. This is my first FFRF convention. When asked about my own religious beliefs, I tell people that I’m agnostic, which is the way I’ve thought of myself for many years. But today I heard Susan Jacoby speak about Robert Ingersoll and his opinion that there’s really no difference between atheism and agnosticism. I also heard Robyn Blumner speak with such passion and confidence about being an atheist. And after listening to those speakers, it occurred to me that perhaps an agnostic is just an atheist with low self-esteem.

I live in Nashville, Tennessee, was raised in Columbus, Georgia, and my wife Kathy is from Arkansas. I want to quell the notion that many Northerners have about people from the Deep South: she is not necessarily my first cousin. My daughter Natalie, who’s here today, is probably relieved to hear that. My wife couldn’t be here today because she unfortunately came down with a severe case of PESD: that’s pre-election stress disorder.

In 1925, 15 state legislatures introduced bills that would ban the teaching of evolution in the public schools of those states. Tennessee was one of three states that actually passed this legislation. The Tennessee antievolution statute was called the Butler Act. The Butler Act made it a crime for anyone to teach any theory denying the divine creation” and which, instead, taught that man descended from the lower animals.


Attorney Alvin Harris with his daughter, Natalie
Photo by Brent Nicastro

After the Butler Act became law in Tennessee, some local citizens in the Tennessee city of Dayton came up with the idea of generating business opportunities in their community by holding a trial testing the new law. So these Dayton businessmen asked local high school biology teacher John Scopes if he was willing to stand trial in a test case of the new law. Mr. Scopes agreed and that’s how the “Scopes Monkey Trial” began.

To give you a little flavor of what Dayton, Tennessee, was like in 1925, it had a population of about 1,800, which was served by nine separate churches. H.L. Mencken, who covered the Scopes trial for The New York Times, complained in one of his reports that there was nothing to do in Dayton–no gambling, dancing or fancy women– and that for fun, the “relatively wicked” engaged in debates on theology.

So John Scopes was prosecuted for teaching evolution in a public school. He was represented by a man named Clarence Darrow who, without question, was the most prominent trial lawyer in the country at the time. Darrow had represented Leopold and Loeb, other very famous high-profile criminal defendants, and was just very well-known across the country.

The specially-appointed district attorney who was brought in to prosecute Mr. Scopes was William Jennings Bryan. If anything, Bryan was even more famous than Clarence Darrow, having been the Democratic nominee for the presidency three times, the first time being when he was only 36 years old. Bryan later served as Secretary of State under Woodrow Wilson.

So the question is, why was William Jennings Bryan asked to come to Dayton, Tennessee, to prosecute John Scopes? Although Bryan’s political career was over, he had remained in the public eye because he was among the most active, and certainly the most well-known antievolution crusader in the country. In 1921, Bryan had published a widely distributed pamphlet entitled The Menace of Darwinism. Copies of Bryan’s 1925 speech in Nashville, “Is the Bible True?,” were distributed to every Tennessee legislator by a local antievolutionist to “guide” the legislature’s deliberations on the bill that became the Butler Act. Bryan sincerely believed that the theory of evolution undermined moral and religious principles, particularly the Christian bible.

“Will all children going to hell please report to the library.”

With the addition of Clarence Darrow and William Jennings Bryan as lead lawyers in the case, the Scopes trial received a huge amount of publicity and accomplished what the Dayton business community had hoped for. Literally thousands of people came to Dayton for the trial. It was covered by a lot of newspaper reporters across the country. Some of the trial was broadcast live on the radio.

For Darrow, Bryan and their supporters, the trial was not about whether John Scopes had taught evolution in Dayton schools, which he clearly had done. The real battle was evolutionism vs. creationism. As many of you probably remember from the play and movie “Inherit the Wind,” Darrow had planned to call expert witnesses on the subject of evolution. But, at trial, the judge refused to allow them to take the stand on the ground that their testimony was irrelevant to whether John Scopes had taught evolution and violated the Butler Act (a correct evidentiary ruling). This was a potentially devastating setback for Clarence Darrow, but he came up with the brilliant idea of stating his case for evolution by calling William Jennings Bryan to the witness stand as an expert on the bible (which he claimed to be). Despite the urgings of his co-counsel, Bryan’s ego got the better of him and he agreed to testify.

At this point, the trial recessed for the day and it was decided that because so many people were interested in hearing the trial’s conclusion, court would reconvene the next day not in the courthouse, but under a huge tent on the courthouse lawn. The next day, a reported 5,000 spectators showed up to hear Darrow examine Bryan on the witness stand, with even more listening on the radio. Darrow’s examination of the 65-year-old Bryan was grueling and lasted for hours. Darrow finally forced Bryan to concede that every word in the bible was not literally true and that the world most likely was not created in six 24-hour days, but rather six “periods” of some indeterminate length.

This admission by Bryan–that the bible is not literally true–was a great victory for Clarence Darrow and all supporters of evolution. On motion of the prosecution, the judge struck all of William Jennings Bryan’s testimony from the record. John Scopes was convicted of violating the Butler Act and fined $100. But, of course, Clarence Darrow had made his point about the theory of evolution and the whole country had heard it. As an aside, Scopes appealed all the way to the Tennessee Supreme Court, which threw out the conviction on the ground that the jury, rather than the judge, should have set the amount of the fine.

After the trial was over, William Jennings Bryan, who was very fond of the area, stayed on in Dayton for a few days. But the trial had taken a great toll on Bryan and six days later he died in his sleep. The people in the Dayton area and others around the country held Mr. Bryan in such high esteem that they raised what at the time was a grand sum of $5,000,000 to establish a college in his name in Dayton, Tennessee, which they completed in 1930. That college stands in Dayton today and it’s called William Jennings Bryan College.

In the tradition of its namesake, Bryan College is a private evangelical Christian college. Its mission statement is “Educating students to become servants of Christ to make a difference in today’s world.” All trustees, officers and members of the Bryan College faculty must subscribe to the Bryan College “Statement of Belief” which includes the following:

We believe:

that the holy Bible, composed of the Old and New Testaments, is of final and supreme authority in faith and life, and, being inspired by God, is inerrant in the original writings. . . .

that the origin of man was by fiat of God in the act of creation as related in the Book of Genesis. . . .

Some time after it was founded, Bryan College began a program called “Bible Education Ministry,” which was fondly referred to by the acronym “BEM” (pronounced “Beam”). Under the BEM Program, student volunteers from Bryan College would go into the elementary schools in Rhea County, Tennessee, and teach a bible class once a week. The BEM instructors prepared all the lesson plans for these classes under the supervision of a Bryan College faculty advisor. The Rhea County schools gave BEM Program instructors free reign to teach whatever they wanted during these classes, which were held during regular school hours. The BEM instructors had no special training in education, did not hold teaching certificates and didn’t even have to be education majors at Bryan College. No teacher, principal or administrator within the Rhea County school system ever reviewed any lesson plan or exercised any other oversight or control over the BEM Program classes.

During discovery in the lawsuit, we obtained thousands of pages of BEM Program lesson plans prepared by the Bryan College volunteers. All of the plans were on a form that was headed with the statement, “How I Plan to Help Students See The Truth.” Some of the lesson plans we obtained included:

A second grade lesson plan to teach that “God told Moses to obey through the burning bush” and then lead the children in singing “Jesus Loves Me;” A second grade lesson plan to teach that “We can worship God because he is always with us;” A second grade lesson plan to teach that it is “Easy to talk to God because his son came to earth;” A kindergarten lesson plan to teach that “God created the world, light and darkness; and to leading the children in singing “Jesus Loves Me;” A fourth grade lesson plan to teach the children to focus on having “a great relationship with God” and that you must “read God’s word to understand him;” A fifth grade lesson plan to teach that only through divinity can Jesus perform miracles and to talk about the resurrection of Jesus; A first grade lesson plan teaching the importance of obeying God and resisting temptation and then lead the children in singing “Jesus Loves Me” and “I’m in the Lord’s Army;” A first grade lesson plan teaching the creation of Adam and Eve from dirt.

Two of my favorites were a fifth grade lesson plan to have the children work from their “Jesus Last Words Activity Sheet,” and a second grade lesson plan to show a video about Jesus’ birth and explain the true meaning of Christmas. I’ve always wondered where they came up with that video.

The content of the lesson plans was something straight out of a Christian Sunday school.

The BEM Program went unchallenged for decades until the Freedom From Religion Foundation and its Rhea County members decided that they didn’t want their children exposed to these practices in Rhea County elementary schools. So on April 26, 2001, a lawsuit was filed in the United States District Court for the Eastern District of Tennessee in Chattanooga by the Foundation and its individual members, John Doe, Mary Roe and their children A. Roe, B. Roe and C. Roe.

We filed the lawsuit using pseudonyms primarily because John Doe was worried about potential repercussions against his children, and, as we learned during the course of this case, his concerns were well-founded. A local high-school principal was quoted as saying “Do you want to cause your family trouble?” and “Attack religion and the Crusades begin.”

Letters to the editor of the Rhea County Herald about the lawsuit included comments like, “Unknown people are either cowards or nonbelievers that will be taken care of which is you,” and “You are cowards because you won’t give your name. You know the people in Rhea County would come up to your face and tell you what we think of you. I would love to come face to face with you because yes, I would tell you what I thought of you and I would let my sons tell you too. You have hurt my sons and I will not let no one hurt one of my children. We might not know you but someone higher does and yes you will answer to him.” Based on the potential harm to the minor plaintiffs, the court agreed to allow the individual plaintiffs to proceed anonymously.

We took six depositions in the lawsuit: Sue Porter, the Rhea County Schools superintendent; John Mincy, who was a member of the Rhea County School Board; Travis Ricketts, the Bryan College faculty advisor for the BEM Program; and each principal of the three elementary schools in Rhea County. We learned that neither the principals nor teachers in the schools reviewed or approved any of the BEM lesson plans and that the school board had never reviewed the BEM Program curriculum, although it did periodically vote to continue what they understood to be “a bible class” in the elementary schools. Ironically, the Rhea County Board of Education Policy Manual expressly prohibits religious studies that “foster any particular religious belief.”

Although the defendants took the position that the BEM classes were voluntary, we learned in discovery that the students were never told that they could “opt out” of the BEM classes, that none of the three principals knew of a single child who had “opted out” of the classes, and that the schools never obtained parental consent or even notified parents that the BEM classes were being taught in the schools.

As a matter of law, it didn’t matter whether BEM classes were “voluntary” because the BEM Program, which was taught in the schools during regular school hours, was an unconstitutional use of public resources. My own feeling is that when you’re talking about children as young as kindergarteners, asking a small minority of children to “opt out” is like announcing over the school loudspeaker, “Will all children going to hell please report to the library.”

After getting literally thousands of lesson plans, information about the BEM Program and Bryan College and taking the depositions I mentioned, we moved for summary judgment. Summary judgment is a procedural mechanism by which one party seeks to win the case without having to go to trial which is only available if the facts that are important to the court’s decision are not in dispute. In this case, there was no dispute about the content of the lesson plans, who taught the classes, when they were taught and the lack of supervision by the school system over the BEM Program. We went for summary judgment rather than a trial for a couple of reasons. First, it was cheaper and faster than going to trial, and second there was some possibility that the court would require us to reveal our clients’ identities if we went to trial.

Because the facts were undisputed, the judge’s decision on our motion boiled down to a question of constitutional law, specifically a question of whether the BEM Program violated the Establishment Clause of the First Amendment. One of the tests that is applied to Establishment Clause cases, and the test applied by the district court in our case, is called the Lemon Test, named after a 1971 U.S. Supreme Court case, Lemon v. Kurtzman. Under the Lemon Test, the government must show three things in order for their activity to be held constitutional: one, the government must show that the activity in question has a secular purpose. Two, the government must show that the primary effect of the activity neither advances nor inhibits religion. And three, the government must show that the activity does not foster an excessive entanglement with religion.

As found by Judge Edgar in Chattanooga, the BEM Program failed all three prongs of the Lemon Test. It had no secular purpose (although the defendants argued otherwise); its primary effect was clearly to advance religion, in this case the fundamentalist Christian religion of Bryan College; and by making a place for the BEM Program in the Rhea County Elementary Schools during the regular school day and allowing Bryan College evangelical Christians to create lesson plans and teach without the oversight required by Tennessee law, the defendants created an excessive entanglement between Rhea County Schools and religion. For good measure, Judge Edgar also held the BEM Program unconstitutional under the so-called “Endorsement Test,” which came from a line of U.S. Supreme Court cases that examined whether a reasonable observer would conclude that the governmental activity effectively “endorsed” religion.

The defendants made a number of arguments in an effort to keep the BEM Program alive in Rhea County. For example, they claimed that they were unfairly hindered by the fact that our individual plaintiffs were not required to sue under their true identities. Judge Edgar disagreed, holding that there was no prejudice to the defendants, since all normal discovery procedures were available to them, but that they had chosen not to conduct any discovery.

Another defense that I mentioned earlier was the defendants’ claim that the BEM Program was not unconstitutional because, according to defendants, it was optional. As Judge Edgar stated in his written opinion, however, the BEM Program was, in fact, not optional and even if it had been, students may not be required to choose between the right to a public education and their religious beliefs.

Another defense thrown out by the defendants was their claim that the Foundation and its members didn’t have standing to sue. The court dismissed this argument by stating that, clearly, the students themselves and their parents had been directly affected by the BEM Program and, therefore, had standing to bring the lawsuit.

The Texas Republican Party “affirms that the United States of America is a Christian Nation.”

One of the more interesting arguments the defendants raised was that the BEM Program was not really religious instruction, but rather amounted to “character education.” This argument stemmed from the requirement under Tennessee law that all school curricula contain a “character education” component. The State has certain guidelines that must be followed to meet this requirement and all local school systems must submit information to the State to show that they comply. The problem with the defendants’ “character education” argument was that the school system superintendent, Sue Porter, admitted that Rhea County had a completely separate program of character education that had nothing to do with the BEM Program, and that they had never submitted any information about BEM to the State. It was also pretty obvious that the content of the lesson plans was something straight out of a Christian Sunday school.

At the hearing on the motion for summary judgment, defense counsel admitted that the bible was being taught as “the truth” during BEM Program classes. He also came up with a pretty creative argument to justify this practice constitutionally. According to defense counsel, because “Rhea County is a place where people respect the bible,” their schools ought to be able to teach it as the truth. He tried to analogize to schools in the North that taught about Canada and cross-country skiing, and his own Tennessee elementary school that placed special emphasis on Daniel Boone. Although the judge didn’t buy any of this, I took the opportunity at the hearing to point out that the constitutional principle of church/state separation did not mention separation of cross-country skiing and state or Daniel Boone and state.

Shortly after the hearing in January of 2002, Judge Edgar rendered his decision banning the BEM Program as unconstitutional and granting summary judgment in favor of the Foundation and its Rhea County members on all issues in the case. As you might imagine, there were vocal protests by many of the citizens of Rhea County. At the next meeting of the Rhea County school board, there was a reported standing-room-only crowd of 300 people wanting to hear whether the school board was going to appeal. One of the school board members was quoted as telling the crowd at the meeting, “We can tell the bible as history or allegory. But what we want is to teach our children that the bible is the truth. Our only course is to appeal.” June Griffith, a well-known Ten Commandments activist (and gadfly candidate for the United States Senate) was also at the hearing wearing a T-shirt bearing the slogan, “Impeach Judge Edgar.”

So the defendants appealed the case to the Sixth Circuit Court of Appeals in early March 2002. The Sixth Circuit is unbelievably bogged down because of a large number of unfilled vacancies on that court. As a result, after the appeal was filed in March 2002 and the parties filed their appellate briefs later that year, we didn’t get to give oral arguments until December 2003, and didn’t get a decision until June of 2004! Sometimes the wheels of justice turn slowly. The Sixth Circuit affirmed all aspects of the district court’s decision.

After the Sixth Circuit ruled, the chairman of the school board was quoted in the Rhea County Herald as saying that they accepted the Sixth Circuit’s decision but that they would try to reformulate the BEM Program in a way that was constitutional. On the other hand, June Griffith showed up at the next school board meeting and told the board, “You don’t have to obey these judges.”

I spoke with John Doe this week. He recently moved away from Dayton. He’s not here this weekend but I’m hoping that we can persuade him to come to a future convention. When the trial court granted summary judgment in February 2002, in addition to enjoining the defendants from continuing to allow the BEM Program, he awarded attorney’s fees and $1.00 as nominal damages. Ever since that time, John Doe would call me periodically and ask me, “Where is my damn dollar!” After the Sixth Circuit opinion this summer, I sent John Doe a dollar, but I told him he was going to have to figure out how to divide it among his family members. And Dan Barker told me this weekend that he also sent John Doe a “clean” dollar bill without “In God We Trust” on it. So he actually got two dollars!

It’s amazing to me that many of the same issues that people fought about in the Scopes trial are still being argued over today. For example, the official platform of the Texas Republican Party, the party of our sitting president, contains the following: (1) a statement that the Texas Republican Party opposes any restriction on displaying the Ten Commandments in public buildings; (2) a statement that the Texas Republican Party “pledges to exert its influence to . . . dispel the myth of the separation of Church and State;” and (3) that the Texas Republican Party “affirms that the United States of America is a Christian Nation.”

Within the last couple of weeks, two things came in the mail that I found relevant to my speaking at your convention. First, my daughter, who is getting solicitation letters from various colleges around the country, received this letter from Jerry Falwell’s Liberty University. This is the same Jerry Falwell who, I read recently, is starting his own law school and who has denounced William Jennings Bryan for his concession that the bible is not literally true. This is pretty scary stuff for Halloween.

The other piece of mail was this month’s issue of National Geographic, which I’m holding up, and I hope you can see the cover, which asks the question, “Was Darwin Wrong?” I imagine that George W. Bush was pretty fired up to see this issue, since he’s been quoted as saying the jury’s still out on evolution. Oops, I’m sorry. I forgot that President Bush prides himself on not reading newspapers or magazines. Or as Bush himself might put it, “You can’t spell ‘W’ without ‘Duh’!” Of course, if Bush had opened the issue to the article itself, he would have seen on the first page that the answer to the question on the cover is “No. The evidence for evolution is overwhelming.”

Has Dayton changed much since 1925? H.L. Mencken would want to know whether there’s any gambling, dancing or fancy women. I don’t know the answer to that, but I do know that Bryan College exercises enormous influence in that community. One night a week, there is actually billed a “Gospel Night” at the local McDonald’s, and apparently this is a big draw. You might have seen news reports this summer about how the Rhea County Commissioners passed a resolution purporting to make homosexuality illegal in Rhea County. They later sheepishly withdrew that resolution after being informed that they didn’t have authority to do that.

If you ever get a chance to visit Dayton, I encourage you to visit the courthouse. There’s an interesting little museum in the basement with information about the Scopes trial. The main courtroom is maintained in its 1925 condition. If you go in there when nothing is going on and approach the bench, you’ll find a framed Congressional resolution from some time back declaring some month or the other as “The Month of the Bible.” And within that resolution is a recitation of the Ten Commandments. Perhaps that’s a case for another day.

A lawyer doesn’t get very many chances to be involved in a case like this and it was a real treat for me. I feel like it was a real honor and privilege for me to represent the Foundation, John Doe, Mary Roe and their family in this case. And to them, Dan, Anne, Annie Laurie and all of you, thank you.

Alvin Harris represented the Freedom From Religion Foundation in its successful lawsuit suing Rhea Co. (Dayton), Tennessee, over religious instruction in its public schools, in a case won before the Sixth Circuit Court of Appeals in 2004.

He earned a B.A. in Philosophy from Vanderbilt University in 1981, graduating magna cum laude. He earned his law degree at Vanderbilt University in 1985 and was associate editor of the Vanderbilt Law Review. He clerked for the Honorable R. Lanier Anderson III, U.S. Court of Appeals, Eleventh Circuit, 1985-86. Since 1986 he has been in private practice, primarily commercial and civil litigation. He is a partner of Hubbard, Berry, Doughty, Harris & Barrick.

He was born in Georgia, is married to Kathy Harris and they have two children, Jeffrey, 19, and Natalie, 16.

Freedom From Religion Foundation