CHAPTER THREE

IN DEFENSE OF INDIVIDUAL LIBERTY

ACTIVISTS WITH THE American Civil Liberties Union did not dismiss the enactment of the Tennessee law against teaching evolution as an insignificant occurrence in some remote intellectual backwater. More critically, they did not view the antievolution crusade in isolation; if they had, they probably would have ignored it along with countless other laws and movements to advance Protestant culture then prevalent throughout the United States. Prior to the Scopes trial, the ACLU did not display any particular interest in challenging government efforts to protect or promote religious beliefs. To the contrary, Quakers played a major role in founding and financing the organization during the First World War as a vehicle to protect religiously motivated pacifists from compulsory military service. Yet ACLU leaders saw the new Tennessee statute in a different light, one that made it stand out as a threat to freedom and individual liberty in the broader American society.

A fashionable new book of the era, The Mind in the Making by James Harvey Robinson of the left-wing New School for Social Research in New York City, captured the reactionary mood of the times as perceived by many of the socially prominent, politically radical New Yorkers who led the ACLU during the early twenties. According to this book, which incorporated an evolutionary view of intellectual and social history, a systematic assault on personal liberty in the United States began during the First World War; various state and local authorities had limited freedom prior to this period, to be sure, but these earlier restrictions represented isolated incidents and could be dealt with accordingly. The war changed everything.¹

“It is a terrible thing to lead this great and peaceful people into war,” President Wilson declared in his 1917 war message to Congress. He then added to the terror of some by warning that “a firm hand of stern repression” would curtail domestic disloyalty during wartime.² At Wilson’s request, Congress imposed a military draft, enacted an Espionage Act that outlawed both obstructing the recruitment of troops and causing military insubordination, and authorized the immigration service to denaturalize and deport foreign-born radicals. The federal Justice Department broadly construed the Espionage Act to cover statements critical of the war effort, while the postal service revoked mailing privileges for publications it considered to “embarrass or hamper the government in conducting the war.”³ In 1918, Congress responded to mounting domestic opposition to the war by expanding the Espionage Act to bar “disloyal” or “abusive” statements about the American form of government. Several states outlawed teaching German in public schools. Public and private institutions of higher education throughout the United States, including Columbia University, in the ACLU’s backyard, dismissed tenured faculty members for opposing American intervention in the war.

The National Civil Liberties Bureau was established in 1917 to defend conscientious objectors and antiwar protesters. It initially grew out of the American Union Against Militarism (AUAM), an organization formed by wealthy pacifists to oppose American entry into World War I, but it soon acquired a separate existence under the leadership of Roger Baldwin, a Harvard-educated social worker with an aristocratic pedigree and radical leanings. “We are interested in preserving civil liberties in America,” Baldwin explained at the time, “first, for the sake of democracy itself, and second, for the rights of the people to discuss peace terms and war policies. The rights of both individuals and minorities are being grossly violated throughout the country.”⁴

Such violations struck close to home for the fledgling organization and helped shape its libertarian philosophy toward free speech. Within weeks of the bureau’s formation, the postal service banned from the mail twelve different antiwar pamphlets the bureau had prepared for mass distribution. Anticipating this problem, Baldwin sought prepublication approval for mailing the pamphlets and secured the aid of Clarence Darrow to negotiate a settlement with the Postmaster General, but to no avail. One of the banned pamphlets, authored by bureau officer and future American Socialist leader Norman M. Thomas, articulated the view of democracy and liberty then taking hold among bureau activists. President Wilson, who hailed from the same liberal establishment that gave birth to the bureau, maintained a majoritarian view of democracy that justified restrictions on free speech and other minority rights once Congress declared war. In the bureau pamphlet, Thomas countered that the majority should never assert control over matters of individual conscience. “Democracy degenerates into mobocracy unless the rights of minorities are respected,” Thomas wrote.⁵ Triggered both by this encounter with the postal service and by the bureau’s subsequent defense of the radical Industrial Workers of the World (IWW), federal agents began spying on bureau activities. In 1918, Justice Department officials raided the bureau’s headquarters and threatened to indict organization leaders. Later that year, Baldwin began a year in prison for refusing to comply with the Selective Service Act.

Bureau leaders initially tried to cooperate with officials in the Wilson administration, many of whom also came from elite backgrounds. Indeed, prior to 1918, Baldwin naively supplied sensitive bureau information to his friends in high government positions, confident that this would ease official suspicions about the organization and its supporters; instead, it led to mass arrests. At the time of his own imprisonment, Baldwin could only comfort his mother by writing that “my guardian [is] a fine young Yale man.”⁶

These bitter experiences gradually changed the outlook toward democratic government held by Baldwin and other members of the bureau’s executive committee. “Largely oblivious to civil liberties considerations before the war, the wartime crisis forced them to abandon their faith in the inevitability of social progress and their majoritarian view of democracy,” the ACLU historian Samuel Walker concluded. “They now began to see that majority rule and liberty were not necessarily synonymous and

thus discovered the First Amendment as a new principle for advancing human freedom.”⁷ This new antimajoritarian impulse, forged in the crucible of wartime mass hysteria, profoundly influenced the ACLU’s response to the antievolution crusade.

Proponents of civil liberties expected conditions to improve after the armistice in 1918, but to them the repression appeared only to intensify. “The war brought with it a burst of unwanted and varied animation.… It was common talk that when the foe, whose criminal lust for power had precipitated the mighty tragedy, should be vanquished, things would ‘no longer be the same,’” Robinson wrote. “Never did bitter disappointment follow such high hopes. All the old habits of nationalistic policy reasserted themselves at Versailles.… Then there emerged from the autocracy of the Tsars the dictatorship of the proletariat, and in Hungary and Germany various startling attempts to revolutionize hastily and excessively.” From these developments the so-called Red Scare ensued. “War had naturally produced its machinery for dealing with dissenters,… and it was the easiest thing in the world to extend the repression to those who held exceptional or unpopular views, like the Socialists and members of the I.W.W.,” Robinson reasoned. “But suspicion went further so as to embrace members of a rather small, thoughtful class who, while rarely socialistic, were confessedly skeptical in regard to the general beneficence of existing institutions, and who failed to applaud at just the right points to suit the tastes of the majority of their fellow-citizens.”⁸ Robinson identified with this latter class, as did many bureau activists and their friends. As a progressive reformer prior to the war, for example, Baldwin campaigned for many majoritarian reforms, such as the initiative and referendum process, but increasingly he shifted his zeal to the defense of individual rights as he suffered under the excesses of majority rule.

Events drove the Red Scare. An unprecedented number of strikes paralyzed large sectors of American business during 1919 as an epidemic of labor unrest swept the country following the war. A general strike in Seattle and a police strike in Boston threatened public safety. Race riots broke out in several cities—including Knoxville, just down the road from the future site of the Scopes trial. Terrorist bombings rocked the home of U.S. Attorney General A. Mitchell Palmer and mail bombs were sent to dozens of other political and business leaders. Newly formed domestic Communist parties defended violent revolution abroad and labor militancy at home, the two seeming to blur in the minds of many frightened Americans. “The circumstances of our participation in the World War and the rise of Bolshevism convinced many for the first time that at last society and the Republic were actually threatened,” Robinson observed.⁹

The government reacted swiftly. Most states outlawed the possession or display of either the red flag of communism or the black flag of anarchism. They also enacted and strictly enforced tough new “criminal syndicalism” laws against organized violent or unlawful activities designed to disrupt commercial or governmental activities. In the bureau’s home state, the legislature formed a special panel known as the Lusk Committee to combat revolutionary radicalism. This committee’s massive report relied partially on confiscated bureau files to expose, as the report described them, “various forces now at work in the United States, and particularly within the state of New York, which are seeking to undermine and destroy, not only the government under which we live, but also the very structure of American society.”¹⁰ The Lusk Committee swept with a broad broom. Its report condemned socialism, communism, anarchism, bolshevism, pacifism, the international labor movement, and, of course, the bureau, which was called “a supporter of all subversive groups.”¹¹ Its chief counsel arrested hundreds of New Yorkers associated with these movements.

The Wilson administration in Washington supplemented such state actions with a series of coordinated police raids that ransacked the homes and offices of alleged radicals across the country and led to the arrest and prolonged detention of thousands of suspects, often without valid warrants or court orders. Late in 1919, the Justice Department deported to the Soviet Union a shipload of denaturalized Communists. Radical labor leaders bore the brunt of these assaults. Yet the liberal Democratic administration of Woodrow Wilson did not go far enough for many Americans. Republicans recaptured the White House in 1920 with a presidential candidate who promised a “return to normalcy” and a vice presidential candidate who had broken the Boston police strike and championed the cause of immigration restriction. Civil liberties remained in jeopardy.

“Well, of course, it was a time of tremendous labor unrest, high-lighted by the two general strikes in the steel mills and coal mines. And it was also, and I guess above all, a time of intense radical agitation, brought on by the Russian Revolution,” Roger Baldwin later recalled. “So by the time the World War was over we had a new war on our hands—a different one. Then, instead of arresting and persecuting opponents of the war, we were arresting and persecuting friends of Russia.”¹² Thus events stood when Baldwin left prison and reassumed leadership of the National Civil Liberties Bureau. He promptly concluded, as he stated in a memorandum to the executive committee, that the bureau should be “reorganized and enlarged to cope more adequately with the invasions of civil liberties incident to the industrial struggle which had followed the war.” Direct action to protect labor unions would replace legal maneuvers on behalf of pacifists as the bureau’s principal focus. The bureau assumed a new name to go with its new mission: the American Civil Liberties Union. “The cause we now serve is labor,” Baldwin proclaimed at the time, and labor included public school teachers.¹³

The new cause and methods adopted by the ACLU set the stage for how it would handle the Scopes trial. It remained an elitist organization dominated by liberal, educated New Yorkers who had grown wary of majoritarianism. Instinctively they opposed popular movements to restrict academic freedom, such as the antievolution crusade, but failure to achieve judicial redress for their grievances, especially on behalf of labor unions, led them increasingly to resort to direct action tactics designed to enlighten public opinion. Litigation in and of itself did not hold much promise for protecting minority rights.

The bureau enjoyed some success in providing legal counsel to conscientious objectors during the war, but it failed to make any headway in court toward protecting freedom of expression for antiwar protestors. The ACLU fared no better in its initial courtroom efforts to defend labor organizers following the war. In fact, at the time of the Scopes trial in 1925, the ACLU was still looking for its first court victory. From a legal standpoint, the problem was twofold: states and municipalities imposed many of the objectionable restrictions on speech and assembly, particularly against labor unions, but First Amendment guarantees for freedom of speech, press, assembly, and religion only applied to restrictions by the federal government. The Fourteenth Amendment, however, forbade states from depriving “any person of life, liberty, or property, without due process of law.” Supreme Court justice John M. Harlan had long maintained that the “liberty” protected against state action by the

Fourteenth Amendment incorporated the basic freedoms enumerated in the First Amendment and other provisions within the Bill of Rights. The full Court did not begin to adopt this position until 1925. That year, in the ACLU-handled appeal of New York Communist leader Benjamin Gitlow’s conviction under state law, it selectively incorporated the First Amendment freedoms of speech and press into, as the Court wrote, “the fundamental personal freedoms and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.”¹⁴ This decision occurred too late and in a too-limited fashion to bolster the ACLU’s legal case against the Tennessee antievolution statute in the Scopes trial. Indeed, this potentially momentous development in constitutional jurisprudence did not even help Gitlow, who still lost the case.

Gitlow’s defeat highlighted the second legal barrier obstructing the ACLU’s efforts to secure free speech rights for antiwar protesters and labor organizers. Federal courts gave little meaning to the First Amendment. The first constitutional challenge to the federal Espionage Act reached the U.S. Supreme Court in 1919, when a unanimous bench upheld the conviction of the Socialist leader Charles T. Schenck for encouraging draft-age men to resist conscription. On the extent of constitutional protection for political speech, the great progressive jurist Oliver Wendell Holmes wrote for the Court, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has a right to prevent.” Congress had a right to protect recruitment and conscription of troops during wartime, the aged Civil War veteran reasoned, and because Schenck’s words had a “tendency” to frustrate that effort, the government could stop them.¹⁵

This sort of reasoning offered scant protection to speech because—as Holmes acknowledged in a letter to New York federal judge Learned Hand, who had close ties to the ACLU—free speech “stands no differently than freedom from vaccination,” a freedom that the majority could freely override for the general good.¹⁶ Hand and the ACLU vehemently argued that free speech merited special protection from the majority owing to its unique role in a democracy. Holmes came around to this position in another 1919 Espionage Act decision, Abrams v. United States, in which he proposed supplementing his “clear and present danger” test with the qualification, “It is only the present danger of immediate evil… that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.” According to Holmes’s revised view, the “free trade of ideas” in a democracy required protection for political speech unless “an immediate check is required to save the country.”¹⁷ Holmes now wrote in dissent, however. A majority of the Court clung to the old view of the First Amendment.

The prevailing judicial interpretation of the First and Fourteenth Amendments offered little prospect that the ACLU could protect free speech through the courts; therefore it adopted other means. “By demonstrations, publicity, pamphlets, legal aid, bail, test cases in courts, financial appeals—by all these methods of daily service the friends of progress to a new social order make common cause,” the ACLU’s first annual report declared. “The chief activity necessary is publicity in one form or other, for ours is a work of propaganda—getting facts across from our point-of-view.”¹⁸ The ACLU ended up fighting many of its battles in court solely because that was where the government took those whom the ACLU sought to defend. The first instinct of the ACLU’s founders was to join labor organizers on the picket lines and at mass meetings. Before reassuming leadership of the ACLU, for example, Baldwin spent three months as a laborer in a series of different working-class jobs as a means to study labor conditions firsthand.

The legal community played a surprisingly small role in founding the ACLU. Only three attorneys served on the organization’s initial executive committee, and all three supported direct action (rather than litigation) in the fight for civil liberties. During the early 1920s, ACLU representatives spoke at union meetings, organized labor demonstrations, investigated efforts to break strikes, published reports on the plight of workers, and sought legislation to limit antilabor court injunctions and end wartime restrictions on free speech. Baldwin, who was not a lawyer, went so far as to maintain that courts would never guarantee civil liberties because rights “are not granted” by those in power.¹⁹ Political radicals and civil rights leaders generally shared this perspective; no public interest law firms existed at the time, and the other early civil rights groups—the NAACP, the Anti-Defamation League, and the American Jewish Congress—mostly relied on publicity and organization to advance their causes. This view of civil liberties litigation—that at most it could publicize an injustice—would shape the ACLU’s legal strategy in the Scopes trial.

The most influential lawyer on the ACLU executive committee at the time of the Scopes trial, Arthur Garfield Hays, personified the direct action approach to the fight for civil liberties. A left-wing Park Avenue attorney named by his Republican father after a string of conservative presidents, Hays grew rich and bored representing major corporations and famous entertainers. ACLU activities served as his major diversion for three decades. As Hays wrote in his autobiography, these activities “brought me in contact with a variety of circles, usually poor, defenseless, and unpopular, always the dissenter and persecuted.” Championing their right to be heard, Hays advocated an absolutist position on free speech that opposed all government restrictions on “the expression of opinion of any kind, at any time, by anyone or anywhere.”²⁰ This became his mission. “To-day you can talk on any subject you please,” Hays wrote in the twenties, “except on a subject which, as a burning issue, would most profit by untrammeled discussion. Speech and assembly are free in New Jersey, West Virginia and Pennsylvania, except to union men in time of strike. If you talk labor unionism then, you land in jail. I know it because I’ve tried it and I landed in jail.”²¹

Hays’s personal commitment to direct action on behalf of free speech made him a key actor in many of the ACLU’s legendary exploits during the twenties and thirties. He peddled banned books with the writer H. L. Mencken on the Boston Commons in public defiance of a censorship law. Despite a threat that “they’ll tar and feather you and castrate you,” he confronted mine owners in a strike-bound West Virginia coal town following the murder of three union officials. He defied a ban on public meetings by the strike-busting mayor of Jersey City by delivering an impassioned plea for free speech from atop a car. These experiences made Hays deeply distrustful of majoritarianism and contemptuous of the courts. “We should bear in mind the fact that there may be no greater oppression than by rule of majority,” Hays observed at the time. “Tyranny no less exists when imposed by part of a written constitution.”²² In one extreme example of politicized litigation and an act of personal courage for someone of Jewish ancestry, he once ventured into Nazi Germany to defend radicals accused of burning the Reichstag. “Hays was cynical about the legal process and saw court proceedings as a platform for broad and philosophical statements, an opportunity to educate both the judge and the public,” Walker observed. “He was simultaneously idealistic about the Bill of Rights and cynical about the courts.”²³ Significantly, Hays served as chief ACLU counsel at the Scopes trial.

The ACLU helped set the stage for a show trial in Dayton not only with confrontational methods of promoting free speech but also by its commitment to defend the rights of organized labor. This tie to labor kept the ACLU in close contact with the nation’s premier legal defender of radical labor leaders, Clarence Darrow. “I owe the Union more than variety and excitement, more than tang and the ‘salt’ of life,” Hays later recalled. “There began my association with Clarence Darrow. Nothing in life do I treasure more than that, nothing has been more inspiring or humanly helpful than his company, his example, and his friendship.”²⁴

By the twenties, Darrow unquestionably stood out as the most famous—some would say infamous—trial lawyer in America. Born into an educated, working-class family in rural Ohio, Darrow first gained public notice in the 1890s as a Chicago city attorney and popular speaker for liberal causes. He secured the Democratic nomination to Congress in 1896, but spent most of his time campaigning for the party ticket, headed by presidential nominee William Jennings Bryan, and lost by about one hundred votes. Darrow took up the cause of labor about this time, beginning with the defense of the famed Socialist labor leader Eugene V. Debs against criminal charges growing out of the 1894 Pullman strike. “For the next fifteen years Clarence Darrow was the country’s outstanding defender of labor, at a time when labor was more militant and idealistic and employers more hardened and desperate than ever before or since,” the liberal Nation observed during the Scopes litigation. “The cases he was called upon to defend were almost invariably criminal prosecutions in bitterly hostile communities.”²⁵ The final such case, a dramatic 1911 murder trial involving two union leaders accused of blowing up the Los Angeles Times building, tarnished Darrow’s reputation with labor when the defendants confessed their guilt after Darrow had professed their innocence.

Thereafter, Darrow gradually shifted his practice to criminal law, defending an odd mix of political radicals and wealthy murderers. Both types of cases kept Darrow’s name in the national headlines. The former type also connected the Chicago attorney with the New York-based ACLU: they joined forces to defend Benjamin Gitlow, for example. The latter type generated the most publicity, such as the 1924 Leopold–Loeb case, one of the most sensational trials in American history, in which Darrow used arguments of psychological determinism to save two wealthy and intelligent Chicago teenagers from execution for their cold-blooded murder of an unpopular schoolmate, a crime that the defendants apparently committed for no other reason than to see if they could get away with it. Although Darrow’s defense outraged many Americans who believed in individual responsibility, it reflected his long-standing and oft-proclaimed repudiation of free will.²⁶

Clarence Darrow at the time of the Scopes trial. (Courtesy of Bryan College Archives)

Darrow was not content with simply questioning popular notions of criminal responsibility, but delighted in challenging traditional concepts of morality and religion. One historian described Darrow as “the last of the ‘village atheists’ on a national scale,” and in this role he performed for America the same part that his father once played in his hometown.²⁷ “He rebelled, just as his father had rebelled, against the narrow preachments of ‘do gooders,’” Darrow biographer Kevin Tierney concluded. “He regarded Christianity as a ‘slave religion,’ encouraging acquiescence in injustice, a willingness to make do with the mediocre, and complacency in the face of the intolerable.”²⁸ In the courtroom, on the Chautauqua circuit, in public debates and lectures, and through dozens of popular books and articles, Darrow spent a lifetime ridiculing traditional Christian beliefs. He called himself an agnostic, but in fact he was effectively an atheist. In this he imitated his intellectual mentor, the nineteenth-century American social critic Robert G. Ingersoll, who wrote, “The Agnostic does not simply say, ‘I do not know [if God exists].’ He goes another step, and he says, with great emphasis, that you do not know.… He is not satisfied with saying that you do not know—he demonstrates that you do not know, and he drives you from the field of fact.”²⁹

Good intentions underlay Darrow’s efforts to undermine popular religious faith. He sincerely believed that the biblical concept of original sin for all and salvation for some through divine grace was, as he described it, “a very dangerous doctrine”—“silly, impossible and wicked.”³⁰ Darrow once told a group of convicts, “It is not the bad people I fear so much as the good people. When a person is sure that he is good, he is nearly hopeless; he gets cruel—he believes in punishment.”³¹ During a public debate on religion, he added, “The origin of what we call civilization is not due to religion but to skepticism.… The modern world is the child of doubt and inquiry, as the ancient world was the child of fear and faith.”³²

Darrow often invoked the idea of organic evolution to support his arguments, but it was never central to his thinking. He claimed to understand modern biology but mixed up Darwinian, Lamarckian, and mutation-theory concepts in his arguments, utilizing whichever best served his immediate rhetorical purposes. He frequently appealed to science as an objective arbitrator of truth, but would only present scientific evidence that supported his position. In short, he was a lawyer. In public debates on religious topics, for example, when confronted with the popular defenses of theism offered by such leading scientists as Arthur Eddington, James Jeans, and Robert Millikan, Darrow would dismiss their expertise as not involving religion and their evidence as hearsay. In contrast, Darrow readily embraced the antitheistic implications of Darwinism.³³

Darrow’s social views shaped his scientific ideas rather that the other way around, and the theory of evolution proved most helpful in his efforts to debunk the biblical notions of creation, design, and purpose in nature. “From where does man get the [selfish] idea of his importance? He gets it from Genesis, of course,” Darrow wrote in his autobiography. “In fact, man never was made. He was evolved from the lowest form of life.” This view, Darrow maintained, provided a better basis for morality than traditional Christian concepts of eternal salvation and damnation by observing, “No one can feel this universal [evolutionary] relationship without being gentler, kindlier, and more humane toward all the infinite forms of beings that live with us, and must die with us.”³⁴ Of course, Darrow could present a different face in court, such as during the Leopold–Loeb case, when he sought mercy for the defendants by attributing their actions to misguided Social Darwinist thinking.

Darrow welcomed the hullabaloo surrounding the antievolution crusade. It rekindled interest in his legalistic attacks on the Bible, which once appeared hopelessly out of date in light of modern developments in mainline Christian thought. In response to 1923 comments about evolution by William Jennings Bryan, for example, Darrow could again make front-page headlines in the Chicago Tribune by simply asking Bryan questions such as, “Did Noah build the ark?” and if so, “how did Noah gather [animals] from all the continents?”³⁵ Leading Chicago ministers complained that both Bryan’s comments and Darrow’s questions missed the point, but the public loved it.³⁶ So did Darrow. When the Scopes trial arose two years later, Darrow volunteered his service for the defense—the only time he ever offered free legal aid—seeing a chance to grab the limelight and debunk Christianity. “My object,” Darrow later wrote, “was to focus the attention of the country on the programme of Mr. Bryan and the other fundamentalists in America.”³⁷

Neither Scopes in particular nor free speech in general mattered much to Darrow, and this troubled many within the ACLU leadership. Baldwin wanted the focus on academic freedom. Acting chair John Haynes Holmes, a liberal Unitarian minister, later complained that Darrow “in the thought processes [regarding religion] was a mid-Victorian arrived too late on the scene.”³⁸ During the twenties, the ACLU executive committee was never openly hostile toward religion per se, and several of its members feared that Darrow’s militant agnosticism would imperil Scopes’s defense. In his autobiography, Hays clearly took the ACLU’s opposition to antievolution laws out of an antireligious context when he wrote, “We have insisted upon the propagandizing rights of various groups—Communists, IWW’s, evolutionists, birth-controllers, union organizers, industrialists, freethinkers, Jehovah’s Witnesses, and even of Fascists, Nazis, and Lindbergh.”³⁹ Yet in Darrow he saw a soulmate who could turn a small Tennessee courtroom into an international grandstand. Together they went to Dayton.

The ACLU’s commitment to civil liberties for workers did more to influence the course of the Scopes trial than simply bringing together Darrow and Hays; it also fired the organization’s opposition to antievolution laws. Henry R. Linville, president of the Teachers Union of New York City, served on the ACLU executive committee throughout the twenties. Linville held a doctorate in zoology from Harvard University and chaired the biology department at New York’s DeWitt Clinton High School when that institution developed the modern secondary school biology curriculum. George W. Hunter, author of the book at issue in the Scopes trial, had been Linville’s colleague at Clinton and his successor as chair of the school’s biology department. Linville’s own high school texts stressed evolutionary concepts and presented humans within the context of their biological environment.⁴⁰ Linville brought to the ACLU both a biology teacher’s firsthand experience with instruction in evolution and a labor leader’s commitment to protecting free speech and academic freedom for all public school teachers.

Academic freedom had been an ongoing concern of the ACLU from the organization’s inception; naturally, it related to free speech, yet the interest ran even deeper. The pacifists who helped form the National Civil Liberties Bureau abhorred wartime efforts to promote patriotism and militarism in the schools. They defended teachers fired for opposing American involvement in the war and fought against efforts to purge the public school curriculum of German influences. After the war, when the ACLU turned its attention to defending unpopular speakers, its efforts widened to include fighting classroom restrictions on unpopular ideas. “The attempts to maintain a uniform orthodox opinion among teachers should be opposed,” the ACLU’s initial position statement declared. “The attempts of education authorities to inject into public schools and colleges instruction propaganda in the interest of any particular theory of society to the exclusion of others should be opposed.”⁴¹

This statement primarily reflected the ACLU’s opposition to school patriotism programs. Building on wartime developments in New York, the Lusk Committee proposed legislation in 1920 to dismiss public school teachers who “advocated, either by word of mouth or in writing, a form of government other than the government of the United States.”⁴² The ACLU helped persuade New York governor Al Smith to veto this bill in 1921, but Smith’s successor signed similar legislation into law a year later. Dozens of other states required public school teachers and college professors to sign loyalty oaths. Powerful patriotic organizations, including the American Legion, lobbied for promoting “Americanism” in the public schools by mandatory patriotic exercises (typically a flag salute) and through classroom use of education materials that praised the military and disparaged all things “foreign” (often including the international labor movement). Publicity generated by the ACLU forestalled these programs in some places, but an ACLU lawsuit challenging compulsory military training for male students attending the state University of California at Los Angeles failed. The rise of a militantly anti-Catholic Ku Klux Klan during the early 1920s led to ACLU efforts to protect both Catholic teachers from mass firings in Klan-dominated school districts and the free-speech rights of the Klan in Catholic communities. Repeatedly, the ACLU was drawn into courtrooms over education. Indeed, during the 1920s, it had to go to court to protect its own right to sponsor programs in New York City schools after the local board of education barred all ACLU representatives from “talking in school buildings” under a general regulation requiring classroom speakers to “be loyal to American institutions.”⁴³

Attempts to propagandize public education did not begin in the twenties. In fact, Massachusetts Puritans founded America’s first public schools during the colonial era partly to promote their distinctive religious and political system. The common-school movement spread during the nineteenth century (at least in part) as a means to indoctrinate into American ways the large number of non-English immigrants entering the United States. Most public school curricula traditionally included American civics, Bible reading, and daily prayers. “Schools were not established to teach and encourage the pupil to think,” Clarence Darrow wrote of his own nineteenth-century education. “From the first grade to the end of the college course [students] were taught not to think, and the instructor who dared to utter anything in conflict with ordinary beliefs and customs was promptly dismissed, if not destroyed.”⁴⁴

This approach to education led to a de facto establishment of Christianity within American public schools. About the time of the Scopes trial, for example, the Georgia Supreme Court dismissed a Jewish taxpayer’s complaint against Christian religious exercises in public schools with the observation, “The Jew may complain to the court as a taxpayer just exactly when and only when a Christian may complain to the court as a taxpayer, i.e., when the Legislature authorizes such reading of the Bible or such instruction in the Christian religion in the public schools as give one Christian sect a preference over others.”⁴⁵ The Tennessee legislature codified a similar practice in 1915 when it mandated the daily reading of ten Bible verses in public schools but prohibited any comment on the readings.⁴⁶ This suggestion that constitutional limits on the establishment of religion simply forbad the government from giving preference to any one church denomination reflected a traditional view of religious freedom that dated at least as far back as the great federalist U.S. Supreme Court justice Joseph Story.⁴⁷ By the 1920s, however, an increasing number of liberally educated Americans, including leaders of the ACLU, rejected the idea that public education should promote any particular political, economic, or religious viewpoint—even one broadly defined as democratic, capitalistic, or Christian.

The drive to free the American academy from outside political and religious influences began with higher education. Americans originally formed their colleges and universities on the English model, which did not incorporate modern concepts of tenure and academic freedom. At

Oxford and Cambridge, for example, faculty members ultimately served under the authority of the Church of England and every college conducted daily Anglican chapel services for students. Similarly, in nineteenth-century America, professors at most public and private institutions of higher education served at the pleasure of the institution’s president and trustees, many of whom were ordained ministers, and even Thomas Jefferson’s University of Virginia held student chapel services. This did not mean that conservative religious and political ideas held sway on all American campuses—Harvard came under the influence of Unitarianism early in the century, while Oberlin later became famous for its radical egalitarianism and Bryn Mawr for its feminism—but a party line tended to prevail within each institution. Late nineteenth-century populists, progressives, and radicals often accused college administrators of suppressing classroom teaching of alternative economic and political theories. A few highly publicized cases of alleged religious censorship also arose. Coincidentally, the most famous such case took place in Tennessee, where in 1878 the fledgling, southern Methodist-controlled Vanderbilt University terminated the part-time lecturing position of the famed geologist Alexander Winchell for suggesting that humans lived on earth before the biblical Adam. Winchell was an evolutionist, and his firing soon became a cause célèbre in the perceived warfare between science and religion.⁴⁸

The effort to maintain orthodoxy on American campuses encountered increasing resistance around the turn of the century. The historian George M. Marsden linked this development to the rise of pragmatism, flowing from the theories of the French philosopher Auguste Comte. “In Comte’s construction of history,” Marsden observed, “humans were rising from a religious stage in which questions were decided by authority, through a metaphysical stage in which philosophy ruled, to a positive stage in which empirical investigation would be accepted as the only reliable road to truth.”⁴⁹ Empirical methods quickly came to dominate academic research in both the sciences and the humanities.

New principles of free academic inquiry and discussion logically folowed from these new methods for acquiring knowledge. The Johns

Hopkins University and the University of Chicago were founded during the late nineteenth century on the model of German universities, which incorporated basic concepts of professorial tenure and academic freedom. Several existing institutions, including Harvard, Columbia, and Cornell, quickly adopted a similar model. By the 1896 edition of his A History of the Warfare of Science with Theology in Christendom, the former Cornell University president Andrew Dickson White could write of the Winchell affair that Vanderbilt had “violated the fundamental principles on which any institution worthy of the name [university] must be based.”⁵⁰ About this time, the national professional associations for economists, political scientists, and sociologists formed standing committees to investigate individual cases of alleged assaults on academic freedom.

These developments took a decisive turn in 1913, when Lafayette College dismissed the philosophy professor John Mecklin for teaching that social evolution, rather than revealed truth, shaped the development of religious ideas. The American Philosophical Association and American Psychological Association appointed a special committee, chaired by the Hopkins philosophy professor Arthur O. Lovejoy, to investigate the dismissal. Lafayette College defended its action on the grounds that as a denominational institution it could enforce orthodoxy within its curriculum. The committee grudgingly accepted this position, but maintained that “American colleges and universities fall into two classes”: either they guaranteed academic freedom or they served as “institutions of denominational or political propaganda,” with Lafayette placing itself into the latter class.⁵¹ To give substance to this distinction and thereby promote the rights of faculty members in the former class of institutions, Lovejoy immediately set about forming the American Association of University Professors (AAUP).

With Lovejoy as its first secretary, the AAUP assumed the role of a national guild for university professors. Minutes of the association’s organizational meeting reported that members voted “to bring about a merging in a new committee of the committees already created by the economics, political science and sociology associations to deal with the subject of academic freedom.”⁵² Lovejoy served on this new committee on academic freedom, which presented its General Declaration of Principles at the AAUP’s first annual meeting in 1915. Endorsing the distinction emerging from the Lafayette College affair, this document recognized two types of institutions. “The simplest case is that of a proprietary school or college designed for the propagation of specific doctrines prescribed by those who have furnished its endowment,” the committee wrote. These institutions, which included many trade schools as well as such church colleges as Lafayette, need not offer academic freedom to their faculty. Institutions receiving support from the government or through appeals to the general public, however, fell into a different category. “Trustees of such institutions or colleges have no moral right to bind the reason or conscience of any professor,” the committee asserted, in defiance of traditional practices. To justify this new principle, the committee observed, “In the earlier stages of a nation’s intellectual development, the chief concern of educational institutions is to train the growing generation and to defuse the already accepted knowledge.” In twentieth-century America, however, “The modern university is becoming more and more the home for scientific research. There are three fields of human inquiry in which the race is only beginning: natural science, social science, and philosophy and religion.” In earlier times, the committee added, “the chief menace to academic freedom was ecclesiastical, and the disciplines chiefly affected were philosophy and the natural sciences. In more recent times the danger zone has been shifted to the political and social sciences—though we still have sporadic examples of the former class of cases in some of our smaller institutions.”⁵³ The coming antievolution crusade would refocus attention on this former class.

Despite the prediction that most disputes over academic freedom would involve issues of political and economic ideology, the committee’s General Declaration of Principles placed the AAUP on a collision course with the antievolution crusade. Tennessee was again at the center of the storm. Bryan, of course, crusaded against Darwinism in state universities as well as in public schools. After the Kentucky legislature nearly passed an antievolution bill in 1922, the University of Tennessee president Harcourt A. Morgan asked the education professor J. W. Sprowls not to assign Robinson’s Mind in the Making, which presented an evolutionary view of social progress. Morgan, who included evolutionary concepts in his own biology classes, reportedly told Sprowls that “Tennessee was threatened with legislation such as has recently been proposed in Kentucky, and that it was necessary to ‘soft-pedal’ the teaching of evolution in the University in order to prevent the enactment of such a law by the Tennessee legislature.”⁵⁴ Sprowls acquiesced, but soon learned that his annual teaching contract would not be renewed due to deficiencies in his fieldwork, an essential part of his job. Sprowls claimed that he was fired for teaching evolution, however, and soon the campus was in an uproar. Each member of the Tennessee faculty then served under individual one-year contracts and by the time the dust settled, four additional professors were sacked for agitation in defense of Sprowls. At the same time (but for unrelated reasons) the university decided not to renew the contracts of two other instructors, including longtime law professor John R. Neal. AAUP investigators soon descended on Knoxville to investigate the mass firings.

The AAUP investigators criticized the university’s handling of the episode. One-year contracts for senior faculty members violated AAUP standards for tenure. The university failed to give timely notice to the four professors fired for defending Sprowls. None of the dismissed teachers received due process. The evidence on charges of religious discrimination was mixed, however. One university official allegedly said, “We are getting rid of a bunch of atheists,” but the assertion was demonstrably false and he denied ever saying it. Sprowls continued to cast himself as a martyr to the antievolution crusade, but university officials consistently gave other reasons for their actions that the investigators accepted. “Professor Sprowls’ views on evolution,” the AAUP report concluded, “were not one of the reasons—certainly not the controlling reason—which led to the decision of the authorities to discontinue his services.” The investigators disapproved of Morgan’s interference in Sprowls’s decision to assign a text on evolution, however, and the continuing public furor in and around Knoxville over the episode helped set the tone for the Scopes trial in nearby Dayton.⁵⁵

Neal’s dismissal had an additional impact on the Scopes trial, even though the AAUP investigation found that the action bore no relationship to either the Sprowls affair or teaching evolution. Neal probably missed most of the uproar over Sprowls’s dismissal because it occurred in late spring, when Neal typically taught law in Colorado. Indeed, according to his dean, Neal never spent much time on campus—often arriving late (if at all) for class, devoting class time to rambling lectures about current political issues rather than to the course subject matter, and giving all his law students a grade of 95 without reading their exams. The dean also complained about Neal’s “slovenly” dress, which later deteriorated into complete disregard for personal appearance and cleanliness. Yet Neal was a loyal Tennessee alumnus who had served two terms in the state legislature and helped secure generous appropriations for the university.⁵⁶ After his dismissal, Neal remained in Knoxville trying to establish a rival law school, stirring up a legislative investigation of Morgan, running unsuccessfully for governor, and claiming that he had been sacked for defending the teaching of evolution. When Scopes was indicted in 1925, Neal promptly offered to represent the defendant and ultimately served as local counsel for the defense throughout the case—to the growing frustration of ACLU attorneys in New York.

Although its investigation largely cleared the University of Tennessee of charges that it had suppressed teaching evolution, the AAUP remained concerned about the issue. Its president declared at the time, “Fundamentalism is the most sinister force that has yet attacked freedom of teaching,” and the association empaneled a special Committee on Freedom of Teaching in Science to further study this threat.⁵⁷ The committee issued its report in December 1924, less than three months before the Tennessee legislature banned teaching evolution. “The last few years have witnessed a revival of the spirit of intolerance which has asserted itself, especially in the opposition to the teaching of evolution,” the committee warned. The AAUP would stand against this popular onslaught. “It is, we believe, a principle to be rigidly adhered to that the decision as to what is taught,” the committee affirmed, “would be determined not by a popular vote… but by the teachers and investigators in their respective fields.”⁵⁸ During the following summer, several charter members of the AAUP volunteered to go to Dayton to support this position as expert witnesses for the defense at the Scopes trial.

The drive for academic freedom gradually spread from higher education to secondary education—and here the ACLU assumed a leading role. During the 1920s, early ACLU efforts on behalf of pacifism and labor unions in public education blossomed into a broad program to defend academic freedom. Predictably, it began with the ACLU executive committee member Henry Linville, who as head of the New York City teachers union worked closely with the AAUP’s first president, Columbia University professor John Dewey. Linville prepared for the ACLU a Tentative Statement of a Plan for Initiating Work on Free-Speech Cases in Schools and Colleges in the early twenties. The Tentative Statement dealt only with teachers dismissed for expressing their political views outside the classroom, and adopted the AAUP’s distinction between publicly supported schools, where the ACLU would intervene, and proprietary schools, where it would not.⁵⁹

ACLU chair Harry F. Ward wanted to reach into the classroom. “The public mind is poisoned at its source when special interests take hold of educational institutions for their own propaganda,” Ward shot back in a memorandum. “Most conspicuous are the Lusk laws, recently repealed in New York State, the attempt to rewrite history from a nationalistic viewpoint, and the attacks of the American Legion and other organizations on both the teaching of pacifism and on pacifist students.” Although antievolution laws were not yet an express concern, Ward clearly identified “free speech in the class-room” as a potential ACLU priority. “The Union’s chief contribution in situations arising in public and private schools,” he added, “[is] with protests and with the organization of public opinion.” Formal inquiries could be left to professional associations, Ward suggested, but the ACLU should help by “giving the facts national publicity”—a strategy the ACLU would adopt in the Scopes trial.⁶⁰

In mid-1924, the ACLU issued its first public statement on academic freedom. The statement essentially combined Linville’s Tentative Statement with Ward’s memorandum and identified both men as its co-authors. In it, the ACLU offered to defend the right of public school teachers to free speech both inside and outside the classroom, and explicitly adopted AAUP’s conception of academic freedom. Significantly, the new statement added antievolution laws as a “chief issue” of ACLU concern, lumping them together with “Lusk laws” and “history text-book laws” as “cases of propagandists’ efforts to distort education.” “Whenever any such issue arises in any school or college described in this memorandum, those interested should write or wire the American Civil Liberties Union,” the statement concluded. “Aid will be furnished at once either through local correspondents, consulting attorneys or direct from the New York headquarters. In important cases a representative will be sent to the scene of trouble.”⁶¹

To supervise this effort, the ACLU formed an elite Committee on Academic Freedom, which brought longtime ACLU activists Linville, Thomas, Holmes, and Felix Frankfurter together with such prominent educators as Stanford University president emeritus David Starr Jordan. An official release announced that the new committee “will deal with laws restricting teaching, such as those attempting to prohibit the teaching of evolution,” and committed the ACLU “to go into each situation promptly, to get the facts before the public, to organize effective protests and to bring to bear national publicity on every local invasion of what we regard as the rights of students and instructors.”⁶² The release rebroadcast the earlier open offer of free assistance, but the big breakthrough required a narrowly focused appeal from ACLU headquarters in New York.

“I came across a dispatch in a Tennessee newspaper on my crowded desk which was to turn our office topsy-turvy in excitement. It was a three-inch item stating: ‘Tennessee Bars the Teaching of Evolution,’” longtime ACLU secretary Lucille Milner later recalled. “I hurriedly clipped the small article and sought Roger [Baldwin]’s advice. ‘Here’s something that ought to have our attention.… What should we do about it?’ He glanced over it and saw its import in a flash. ‘Take it to the [Executive] Board on Monday,’ he said laconically.”⁶³ Baldwin remembered the episode somewhat differently. Milner, whose job included clipping newspapers for reports of civil liberties violations, noticed an article about a proposed Tennessee law. “When we read press reports of what seemed to us a fantastic proposal pending in the Tennessee legislature to make the teaching of evolution a crime, we kept our eye on it,” Baldwin wrote. “When the governor signed the bill we at once proffered a press release for Tennessee papers, offering to defend any teacher prosecuted under it. That was the origin of probably the most widely reported trial on a public issue ever to have taken place in the United States.”⁶⁴

Baldwin’s account rings true. Enactment of the Tennessee antievolution law was a major news story—the first triumph of a four-year national crusade. Only the introduction or consideration of the Tennessee legislation would have been relegated to a small article, especially in a paper from that state. Furthermore, the ACLU closely followed the progress of antievolution legislation in various states throughout the country since the beginning of the crusade and placed them in the context of other restrictions on academic freedom. More than a week before issuing its public offer to assist any teacher in challenging the Tennessee law, the ACLU released a broad survey of restrictions on teaching in schools and colleges. Citing new statutes in seven states to “require daily Bible reading in the schools or forbid employment of radical or pacifist teachers” in addition to the Tennessee antievolution law, the survey concluded that “more restrictive laws had been enacted in the last six months than at any time in the history of the country.” In conjunction with releasing this survey, the ACLU announced, “Efforts to get court decisions on all these restrictive laws are being made through Civil Liberties Union attorneys.”⁶⁵

The ACLU press release offering to challenge the Tennessee law appeared in its entirety on May 4 in the Chattanooga Times, which had opposed enactment of the antievolution statute. “We are looking for a Tennessee teacher who is willing to accept our services in testing this law in the courts,” the release stated. “Our lawyers think a friendly test case can be arranged without costing a teacher his or her job. Distinguished counsel have volunteered their services. All we need now is a willing client.” Pursuing the story, a Chattanooga Times reporter inquired whether city schools taught evolution. “That depends on what is meant by evolution. If you have reference to the Darwinian theory, which, I suppose, was aimed at in the law passed by the Tennessee legislature, it is not,” the city school superintendent assured the reporter. “It is recognized by all our teachers that this is a debatable theory and, as such, has no place in our curriculum.” Earlier, in making similar assurances regarding his schools, the Knoxville superintendent had noted, “Our teachers have a hard enough time teaching the children how to distinguish between plant and animal life.”⁶⁶ These urban school officials clearly did not want to test the new law, but midway between these cities enterprising civic boosters in Dayton craved some attention for their struggling community, and accepted the ACLU offer.

They got more than they bargained for. Powerful social forces converged on Dayton that summer: populist majoritarianism and traditional evangelical faith versus scientific secularism and modern concepts of individual liberty. America would never be the same again—or perhaps it had changed already from the country that had nurtured Bryan and Darrow in its heartland.