text:
    DYMYTRYSHYN et al. v. ESPERDY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE.
    No. 380.
    Decided October 21, 1968.

      John J. Abt for appellants.

      Solicitor General Griswold, Assistant Attorney General Vinson, and Philip R. Monahan for appellee.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CHEMICAL TANK LINES, INC. v. HOLSTINE.
    No. 195.
    Decided October 21, 1968.
    /. Campbell Palmer III and Albert L. Bases for appellant.

      Robert H. C. Kay and Stanley E. Preiser for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

Mr. Justice Black dissents.


text:
    CONTINENTAL OIL CO. v. UNITED STATES.
    No. 206.
    Decided October 21, 1968.

      David T. Searls, Harry M. Reasoner, and Lloyd F. Thanhouser for appellant.

      Solicitor General Griswold, Assistant Attorney General Zimmerman, and Lawrence W. Somerville for the United States.
   Per Curiam.

Being convinced on the record before us that Maleo Refineries, Inc., was not a “failing company,” United States v. Third National Bank, 390 U. S. 171, 183 (1968); International Shoe Co. v. FTC, 280 U. S. 291 (1930), and that the record otherwise supports the decree, United States v. Pabst Brewing Co., 384 U. S. 546 (1966), we affirm the judgment of the District Court.

Mr. Justice Harlan, believing that this case involves issues of fact and law which should not be decided without plenary consideration, would note probable jurisdiction and set the case for argument.

Mr. Justice Marshall took no part in the consideration or decision of this case.


author: Per Curiam. Mr. Justice Black Mr. Justice Douglas,

text:
    FULLER v. ALASKA.
    No. 249.
    Decided October 28, 1968.

      George Kaujmann for petitioner.
   Per Curiam.

Petitioner was convicted of shooting with intent to kill or wound and was sentenced to 10 years in prison. Over petitioner’s objection that it was obtained in violation of § 605 of the Federal Communications Act, 48 Stat. 1103, 47 U. S. C. § 605, the prosecution introduced in evidence a telegram allegedly sent by petitioner to an accomplice. The Supreme Court of Alaska affirmed, holding that it did not need to decide whether § 605 had actually been violated since the evidence was in any event admissible in state trials under Schwartz v. Texas, 344 U. S. 199.

In Lee v. Florida, 392 U. S. 378, we overruled Schwartz v. Texas and held that evidence violative of § 605 is not admissible in state criminal trials. The decision of the Alaska Supreme Court cannot stand, therefore, if Lee is to be applied retroactively. We hold, however, that the exclusionary rule of Lee is to be given prospective application, and, accordingly, we affirm.

Prospective application of Lee is supported by all of the considerations outlined in Stovall v. Denno, 388 U. S. 293, 297. The purpose of Lee was in no sense to “enhance the reliability of the fact-finding process at trial.” Johnson v. New Jersey, 384 U. S. 719, 729. Like Mapp v. Ohio, 367 U. S. 643, Lee was designed to enforce the federal law. Linkletter v. Walker, 381 U. S. 618, 639. And evidence seized in violation of the federal statute is no less relevant and reliable than that seized in violation of the Fourth Amendment to the Constitution. Moreover, the States have justifiably relied upon the explicit holding of Schwartz that such evidence was admissible.

Retroactive application of Lee would overturn every state conviction obtained in good-faith reliance on Schwartz. Since this result is not required by the principle upon which Lee was decided, or necessary to accomplish its purpose, we hold that the exclusionary rule is to be applied only to trials in which the evidence is sought to be introduced after the date of our decision in Lee.

The petition for a writ of certiorari is granted, and the judgment of the Supreme Court of Alaska is affirmed.

Mr. Justice Black

dissents for the reasons set out in his dissenting opinion in Linkletter v. Walker, 381 U. S. 618, 640. But see his dissent in Lee v. Florida, 392 U. S. 378, 387.

Mr. Justice Douglas,

believing that the rule of Lee v. Florida, 392 U. S. 378, which was applied retroactively in that case, should be applied retroactively in other cases, too, dissents.

       These considerations were more recently applied in DeStefano v. Woods, 392 U. S. 631, 633, in which we concluded that the right to a jury trial in state criminal prosecutions under Duncan v. Louisiana, 391 U. S. 145, and Bloom v. Illinois, 391 U. S. 194, was prospective only.

        Lee v. Florida, 392 U. S., at 386-387:
      “We conclude, as we concluded in Elkins and in Mapp, that nothing short of mandatory exclusion of the illegal evidence will compel respect for the federal law ‘in the only effectively available way— by removing the incentive to disregard it.’ Elkins v. United States, 364 U. S., at 217.”


text:
    MENGELKOCH et al. v. INDUSTRIAL WELFARE COMMISSION et al.
    No. 375.
    Decided October 28, 1968.

      Marguerite Rawalt for appellants.

      Thomas C. Lynch, Attorney General of California, and Edward M. Belasco, Jay L. Linderman, and William L. Zessar, Deputy Attorneys General, for appellees.
   Per Curiam.

A three-judge federal court, convened pursuant to 28 U. S. C. § 2281, determined that “there is no jurisdiction for a three-judge court” and entered an order dissolving itself. 284 F. Supp. 950, 956. The single district judge in whose court the case was originally filed considered further and dismissed the case without prejudice under the doctrine of abstention, stating in his memorandum opinion that “[t]he order dissolving the three-judge court is incorporated in this memorandum by reference.” 284 F. Supp. 956, 957. Appellants appeal from both judgments. In these circumstances, we have no jurisdiction to entertain a direct appeal from the decision of the single judge; such jurisdiction is possessed only by the appropriate United States Court of Appeals. 28 U. S. C. § 1291. Moreover, we have held that when, as here, a three-judge court dissolves itself for want of jurisdiction, an appeal lies to the appropriate Court of Appeals and not to this Court. Wilson v. Port Lavaca, 391 U. S. 352.

Although the appellants have lodged in the Court of Appeals for the Ninth Circuit a protective appeal from the decision of the single judge, it does not appear from the record that such, an appeal has been filed with respect to the three-judge order. Therefore, we vacate the order of the three-judge court and remand the case to the District Court so that a timely appeal may be taken to the Court of Appeals. See Wilson v. Port Lavaca, supra; Utility Comm’n v. Pennsylvania R. Co., 382 U. S. 281, 282. The appeal from the decision of the single judge is dismissed for want of jurisdiction.

It is so ordered.

        We think it makes no difference in principle that in Wilson v. Port Lavaca the single judge actually adopted the opinion of the three-judge court as his own.


text:
    OVERTON v. NEW YORK.
    No. 212.
    Decided October 28, 1968.

      Melvin L. Wulf and David C. Gilberg for petitioner.

      Carl A. Vergari and James J. Duggan for respondent.
   Per Curiam.

The petition for a writ of certiorari is granted. The judgment of the Appellate Term of the Supreme Court of New York is vacated, and the case is remanded for further consideration in the light of Bumper v. North Carolina, 391 U. S. 543 (1968).

Mr. Justice Black dissents and would affirm the judgment of conviction here.


text:
    LICHTEN et al. v. TEXAS.
    No. 414.
    Decided October 28, 1968.

      Chris Dixie for appellants.

      Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Ca-rubbi, Jr., Executive Assistant Attorney General, and Hawthorne Phillips, Gilbert J. Pena, and Alio B. Crow, Jr., Assistant Attorneys General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.

Mr. Justice Harlan is of the opinion that probable jurisdiction should be noted and the case set for argument.


author: Mr. Justice Douglas

text:
    BALTIMORE & OHIO RAILROAD CO. et al. v. ABERDEEN & ROCKFISH RAILROAD CO. et al.
    No. 13.
    Argued October 17, 1968.
    Decided November 12, 1968.

      Edward A. Kaier argued the cause for appellants in No. 13. With him on the briefs were Joseph F. Eshel-

      man, Richard B. Montgomery, Jr., Eugene E. Hunt, Kenneth H. Lundmark, and Kemper A. Dobbins. Arthur J. Cerra argued the cause for appellant in No. 15. With him on the brief was Robert W. Ginnane.

      Howard J. Trienens argued the cause for the Southern railroad appellees. With him on the brief were Ashton Phelps, George L. Saunders, Jr., John W. Adams, Phil C. Beverly, James A. Bistline, James W. Hoeland, John E. McCullough, and Donal L. Turkal. Carl E. Sanders argued the cause for appellees Southern Governors’ Conference et al. With him on the brief was Walter R. McDonald.

      Together with No. 15, Interstate Commerce Commission v. Aberdeen & Rockfish Railroad Co. et al., on appeal from the same court.

   Mr. Justice Douglas

delivered the opinion of the Court.

In these cases the Interstate Commerce Commission undertook to prescribe just, reasonable, and equitable divisions of joint rates pursuant to § 15 (6) of the Interstate Commerce Act, 24 Stat. 384, as amended. The Commission found that existing divisions violated § 15 (6) because they allocated to Northern lines a lesser share of the revenues from the joint rates than would be warranted by their share of the expenditures made in providing the joint service. 325 I. C. C. 1, 50.

The Southern lines brought suit before a three-judge District Court to enjoin and to set aside the Commission’s order. The District Court set aside the Commission’s order and remanded the case for further proceedings. 270 F. Supp. 695. We noted probable jurisdiction. 390 U. S. 940.

Both Northern and Southern lines used Rail Form A as their basic formula, that form being a rail freight formula for determining freight service costs which utilizes the expenses and statistics for a given year as reported to the Commission by the carriers and supplemented by special studies of the'carriers.

The Southern lines proposed 12 adjustments, five of which the Commission accepted and seven of which it rejected. The year 1956 was the one both Southern and Northern lines used in the final cost analysis. The cost level for that year, said the Commission, was higher in the North than in the South for like services; and it concluded that that situation would most likely continue in the immediate future. In that year the Northern lines received 44.64% of the revenues while incurring 46.35318% of the fully distributed costs. Accordingly, the Commission prescribed new divisions based on the fully distributed costs and divided the revenues in the same proportion to those costs. The shift in revenues resulting from the new divisions was approximately $8,000,000 a year, giving the Northern lines an overall increase in revenues from the traffic involved of 3.5% and reducing the revenues of Southern lines by about 3%.

When the Southern lines sued to set aside the new divisions, the Northern lines intervened as defendants. The District Court held that the Commission’s order was not supported by substantial evidence and reasoned findings within the meaning of §§ 8 (b) and 10 (e) of the Administrative Procedure Act and, as noted, remanded the case for further proceedings.

The present problem of divisions deals only with North-South traffic which represents 6% of the total traffic of the North and 21.4% of the total traffic of the South. The costs of that North-South traffic are not isolated in the findings. The average costs used relate to all Northern traffic and to all Southern traffic. Nearly 80% of the total Northern traffic is intra-territorial and handled entirely in the North, and it is therefore argued that that traffic has the dominant influence on the Northern average. As the District Court said, it is difficult to maintain that these intra-territorial Northern costs are the same or approximately the same as Northern costs in handling traffic between North and South. In another divisions case, the Commission ruled that territorial average costs are entitled to little weight in determining the costs of handling particular movements. Increased Freight Rates, 1967, 332 I. C. C. 280, 303. The use of “unsifted averages” of costs does not necessarily establish greater costs either in rate cases (ICC v. Mechling, 330 U. S. 567, 583) or in divisions cases. The ruling of the District Court was, not that territorial average costs were irrelevant or that Rail Form A was not a usable and useful tool for cost determination, but that territorial average costs could not be used consistently with the statutory requirements for precise and relevant findings without any evidence relating the territorial average costs to North-South trafile. While Southern lines had offered evidence showing the costs of handling North-South traffic in the South, there was not always any such Northern offer; nor did the Commission always exercise its undoubted authority to gather it on its own.

On the question whether territorial average costs represent costs of the North-South traffic, the Commission only replies that where particular traffic uses physical facilities and employees’ services in common with other traffic “and has been shown to have no distinguishing characteristics,” the application of Rail Form A costs is proper. Yet the Commission stated “its exclusive standard” for resolving this divisions question to be “the relevant cost of handling the specific freight traffic to which the divisions apply.” 270 F. Supp., at 710.

We agree with the District Court that there is no substantial evidence that territorial average costs are necessarily the same as the comparative costs incurred in handling North-South freight traffic. If we were to reverse the District Court, we would in effect be saying that the expertise of the Commission is so great that when it says that average territorial costs fairly represent the costs of North-South traffic, the controversy is at an end, even though the record does not reveal what the nature of that North-South traffic is. The requirement for administrative decisions based on substantial evidence and reasoned findings — which alone make effective judicial review possible — would become lost in the haze of so-called expertise. Administrative expertise would then be on its way to becoming “ ‘a monster which rules with no practical limits on its discretion.’ ” Burlington Truck Lines v. United States, 371 U. S. 156, 167. That is impermissible under the Administrative Procedure Act. If indeed that lax procedure were sanctioned in a North-South divisions case, whose solution turns solely on costs, the class rate discrimination in favor of the North and against the South which we condemned in New York v. United States, 331 U. S. 284, could well flourish in another form.

Rail Form A was used in Chicago & N. W. R. Co. v. Atchison, T. & S. F. R. Co., 387 U. S. 326, and we approved its use. Moreover, ever since the New England Divisions Case, 261 U. S. 184, at 196-197, it has been held that mathematical exactness in dividing each rate of each carrier is not necessary, because practical necessities demand otherwise. In addition we repeat what we said in Chicago & N. W. R. Co. v. Atchison, T. & S. F. R. Co., supra, at 358, that there are no “mechanical restrictions on the range of remedies from which the Commission may choose” in solving a divisions case or making its expert judgment as to what scale of costs should be used in making the allocation. Precision and exactitude in the mathematical sense are not possible. Yet the nature and volume of the traffic in question must be known and exposed, if the costs of other traffic are to govern a division of rates. Moreover, where Rail Form A costs are shown to be a distortion when applied to the particular traffic over which the divisions dispute arises, some effort must be exerted to make an adjustment which fairly reflects the difference in the costs or to make clear that there is in fact no basic, material difference. The Commission states to us that it cannot be expected to know whether peculiar characteristics may exist respecting the traffic involved in the divisions dispute or whether special studies may be needed. Yet if that is true, the Commission’s expertise is not equal to the task and the opposed carriers must be directed to expose the various versions of the conflict so that the Commission may make its informed decision. That was done on aspects of the present cases (325 I. C. C., at 25) and no reason is apparent why it cannot be done on other aspects of the controversy.

The Commission in its argument before us said that Rail Form A territorial average costs were “adjusted” to reflect the costs attributable to the North-South traffic issue, which is true as respects five of the 12 adjustments proposed by the Southern lines.

On remand of the cases to the Commission we think specific findings must be made on the several items of so-called “adjustment” of average territorial costs to which we now turn.

One is the question of commuter deficits, which swell the average territorial costs in the North while they are less important in the South that does not yet have substantial commuter operations. Passenger deficits generally are considered as part of the costs of providing freight service, since the common facilities that support each must be maintained for both types of service. There is, however, evidence that in some territories as much as one-half of the track facilities are maintained solely because of the company’s suburban service and even a larger proportion of other facilities such as stations, terminals, coach yards, and repair shops is maintained exclusively for commuter service.

The Commission, however, ruled that costs of commuter service include “common costs which must be incurred to provide freight service or intercity passenger service” and that the deficit from suburban operations was properly included in “the constant costs.” The Commission on the other hand found that “many individual items of suburban service can be considered solely related ... to suburban service.” 325 I. C. C., at 78. How these two findings can be reconciled is not apparent. The Commission in its argument before us rests primarily on revenue needs — -“Such losses must be recovered from railroad freight operations if railroads are to remain solvent.” Section 15 (6) makes plain that revenue needs come into focus in divisions cases. Revenue problems under § 15 (6) at times have resulted in putting a part of one area’s transportation costs upon other sections of the country. See New England Divisions Case, 261 U. S. 184, 191-195. But that issue is not presented in these cases. The issue in the present cases was costs, not revenue. The allocation either to the North or to the South of costs peculiar to its territorial traffic is a task with which the Commission is familiar. Thus in these very cases it excluded certain platform deficits incurred by the Northern lines because they were not related to North-South freight traffic. 325 I. C. C., at 56. There is no apparent reason why costs related solely to commuter service in the North cannot be determined.

As to the costs of interchanging cars in North-South traffic at territorial border points, there is evidence in the record that the interchange operations performed by Northern lines are no more costly than those performed by Southern lines. Yet the Commission allowed the Northern lines a border interchange cost that is 58% higher than the one allowed the Southern lines. That apparently was done solely because Rail Form A showed higher interchange costs when all territorial interchanges were considered. We cannot bridge the gap by blind reliance on expertise which in this instance would be a mere assertion that no difference means a substantial difference.

The empty freight car return ratios is another example of deficient findings. There is evidence that higher costs of Northern lines result from the Commission’s use of higher Northern territorial average empty return ratios. There was no attempt made to show that the latter were at all applicable to North-South traffic. The problem arises in the North by reason of boxcars on shuttle from Detroit to automobile plants, most of which are in the North. These shuttle boxcars return empty to Detroit. We know from the record that this is a major cost item as 800,000 carloads of automobile parts move out of Detroit each year. The record does not show the extent to which these empty returns swell the territorial average costs in the North, though it does show that Northern use of these shuttle boxcars is substantially higher than the Southern proportion. The District Court concluded the territorial average boxcar empty return ratios could not be said, absent specific findings, to reflect the costs of the North-South freight traffic relevant to this problem of divisions.

There are other proposed adjustments on which we think the Commission’s findings are adequate.

The judgment of the District Court is modified and as modified it is

Affirmed.

       49 U. S. C. §15 (6) provides in relevant part:
      “Whenever . . . the Commission is of opinion that the divisions of joint rates, fares, or charges, applicable to the transportation of passengers or property, are or will be unjust, unreasonable, inequitable, or unduly preferential . . . the Commission shall by order prescribe the just, reasonable, and equitable divisions thereof to be received by the several carriers .... In so prescribing and determining the divisions of joint rates, fares, and charges, the Commission shall give due consideration, among other things, to the efficiency with which the carriers concerned are operated, the amount of revenue required to pay their respective operating expenses, taxes, and a fair return on their railway property held for and used in the service of transportation, and the importance to the public of the transportation services of such carriers; and also whether any particular participating carrier is an originating, intermediate, or delivering line, and any other fact or circumstance which would ordinarily, without regard to the mileage haul, entitle one carrier to a greater or less proportion than another carrier of the joint rate, fare, or charge.”

       Section 8 (b), 60 Stat. 242, now 5 U. S. C. §567 (c) (1964 eel., Supp. Ill), provides in relevant part:
      “The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of—
      “(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and
      “(B) the appropriate rule, order, sanction, relief, or denial thereof.”

       Section 10 (e), 60 Stat. 243, now 5 U. S. C. §706 (1964 ed., Supp. Ill), provides in relevant part:
      “The reviewing court shall . . .
      “(2) hold unlawful and set aside agency action, findings, and conclusions found to be . . .
      “(E) unsupported by substantial evidence . . . .”

       These five constituted way and through train separation, platform costs, switching and terminal companies, short lines (Class II railroads), train tonnage adjustment — all as discussed in Appendix B to the Commission’s opinion. 325 I. C. C., at 55 et seq.

       On revenue needs the Commission said:
      “We find that no affirmative reasons appear in this record which would warrant any adjustment of the divisions in question over and above the relative costs of service, either on the grounds of greater revenue needs or otherwise.” 325 I. C. C., at 49.

        Car costs. The Southern lines sought to substitute average car costs for the entire country in lieu of Rail Form A territorial average. The Commission concluded that the “use of a national average car cost conceals territorial differences in cost which are important in the consideration of divisions between the two involved territories.” 325 I. C. C., at 64.

        Cars interchanged between rail and water carriers at ports. The Southern and Northern lines submitted opposed evidence and views and the Commission concluded that the count of cars in Rail Form A was warranted. 325 I. C. C., at 58-60.

        Transit commodities. They move under a single published rate and receive some kind of storage or processing in transit and the rate covers the movement of the raw material into and the movement of the finished product beyond the transit or processing point. The Southern lines would include deficits on pulpwood and wet phosphate rock which they claim to be related in transit to the outbound movement of paper products and dry phosphate rock. But these were intraterritorial costs of the Southern lines which the Commission found were not properly transferable to the interterritorial costs, the only costs pertinent to this divisions case. 325 I. C. C., at 80.

        Switching costs. The Southern lines made special studies of switching costs which the Commission reviewed at length. 325 I. C. C., at 71-77. The Northern lines sought to discredit the studies and the sample on which they rested. The Commission took Rail Form A territorial average switching costs as the most accurate measure of the relative switching costs, saying:
      “Territorial average costs are particularly appropriate to the traffic in this case because it is a large and varied body of traffic moving to and coming from terminals in all parts of both territories. In our opinion, and we so find, the depressing effect, if any, of volume switching commodities on the average would affect both territories and, for purposes of comparison, would be largely offsetting.” 325 I. C. C., at 76. Contrary to the District Court, we believe these are adequate findings.


author: Me. Justice Fortas Mr. Justice Black, Mr. Justice Harlan, Mr. Justice Stewart,

text:
    EPPERSON et al. v. ARKANSAS.
    No. 7.
    Argued October 16, 1968.
    Decided November 12, 1968.

      Eugene R. Warren argued the cause for appellants. With him on the brief was Bruce T. Bullion.

      Don Langston, Assistant Attorney General of Arkansas, argued the cause for appellee. With him on the brief was Joe Purcell, Attorney General.
    Briefs of amici curiae, urging reversal, were filed by Leo Pfeffer, Melvin L. Wulf, and Joseph B. Robison for the American Civil Liberties Union et al., and by Philip J. Hirschkop for the National Education Association of the United States et al.
   Me. Justice Fortas

delivered the opinion of the Court.

I.

This appeal challenges the constitutionality of the “anti-evolution” statute which the State of Arkansas adopted in 1928 to prohibit the teaching in its public schools and universities of the theory that man evolved from other species of life. The statute was a product of the upsurge of “fundamentalist” religious fervor of the twenties. The Arkansas statute was an adaptation of the famous Tennessee “monkey law” which that State adopted in 1925. The constitutionality of the Tennessee law was upheld by the Tennessee Supreme Court in the celebrated Scopes case in 1927.

The Arkansas law makes it unlawful for a teacher in any state-supported school or university “to teach the theory or doctrine that mankind ascended or descended from a lower order of animals,” or “to adopt or use in any such institution a textbook that teaches” this theory. Violation is a misdemeanor and subjects the violator to dismissal from his position.

The present case concerns the teaching of biology in a high school in Little Rock. According to the testimony, until the events here in litigation, the official textbook furnished for the high school biology course did not have a section on the Darwinian Theory. Then, for the academic year 1965-1966, the school administration, on recommendation of the teachers of biology in the school system, adopted and prescribed a textbook which contained a chapter setting forth “the theory about the origin ... of man from a lower form of animal.”

Susan Epperson, a young woman who graduated from Arkansas’ school system and then obtained her master’s degree in zoology at the University of Illinois, was employed by the Little Rock school system in the fall of 1964 to teach 10th grade biology at Central High School. At the start of the next academic year, 1965, she was confronted by the new textbook (which one surmises from the record was not unwelcome to her). She faced at least a literal dilemma because she was supposed to use the new textbook for classroom instruction and presumably to teach the statutorily condemned chapter; but to do so would be a criminal offense and subject her to dismissal.

She instituted the present action in the Chancery Court of the State, seeking a declaration that the Arkansas statute is void and enjoining the State and the defendant officials of the Little Rock school system from dismissing her for violation of the statute’s provisions. H. H. Blanchard, a parent of children attending the public schools, intervened in support of the action.

The Chancery Court, in an opinion by Chancellor Murray O. Reed, held that the statute violated the Fourteenth Amendment to the United States Constitution. The court noted that this Amendment encompasses the prohibitions upon state interference with freedom of speech and thought which are contained in the First Amendment. Accordingly, it held that the challenged statute is unconstitutional because, in violation of the First Amendment, it “tends to hinder the quest for knowledge, restrict the freedom to learn, and restrain the freedom to teach.” In this perspective, the Act, it held, was an unconstitutional and void restraint upon the freedom of speech guaranteed by the Constitution.

On appeal, the Supreme Court of Arkansas reversed. Its two-sentence opinion is set forth in the margin. It sustained the statute as an exercise of the State’s power to specify the curriculum in public schools. It did not address itself to the competing constitutional considerations.

Appeal was duly prosecuted to this Court under 28 U. S. C. § 1257 (2). Only Arkansas and Mississippi have such “anti-evolution” or “monkey” laws on their books. There is no record of any prosecutions in Arkansas under its statute. It is possible that the statute is presently more of a curiosity than a vital fact of life in these States. Nevertheless, the present case was brought, the appeal as of right is properly here, and it is our duty to decide the issues presented.

II.

At the outset, it is urged upon us that the challenged statute is vague and uncertain and therefore within the condemnation of the Due Process Clause of the Fourteenth Amendment. The contention that the Act is vague and uncertain is supported by language in the brief opinion of Arkansas’ Supreme Court. That court, perhaps reflecting the discomfort which the statute’s quixotic prohibition necessarily engenders in the modern mind, stated that it “expresses no opinion” as to whether the Act prohibits “explanation” of the theory of evolution or merely forbids “teaching that the theory is true.” Regardless of this uncertainty, the court held that the statute is constitutional.

On the other hand, counsel for the State, in oral argument in this Court, candidly stated that, despite the State Supreme Court’s equivocation, Arkansas would interpret the statute “to mean that to make a student aware of the theory . . . just to teach that there was such a theory” would be grounds for dismissal and for prosecution under the statute; and he said “that the Supreme Court of Arkansas’ opinion should be interpreted in that manner.” He said: “If Mrs. Epperson would tell her students that ‘Here is Darwin’s theory, that man ascended or descended from a lower form of being,’ then I think she would be under this statute liable for prosecution.”

In any event, we do not rest our decision upon the asserted vagueness of the statute. On either interpretation of its language, Arkansas’ statute cannot stand. It is of no moment whether the law is deemed to prohibit mention of Darwin’s theory, or to forbid any or all of the infinite varieties of communication embraced within the term “teaching.” Under either interpretation, the law must be stricken because of its conflict with the constitutional prohibition of state laws respecting an establishment of religion or prohibiting the free exercise thereof. The overriding fact is that Arkansas’ law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis by a particular religious group.

III.

The antecedents of today’s decision are many and unmistakable. They are rooted in the foundation soil of our Nation. They are fundamental to freedom.

Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.

As early as 1872, this Court said: “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” Watson v. Jones, 13 Wall. 679, 728. This has been the interpretation of the great First Amendment which this Court has applied in the many and subtle problems which the ferment of our national life has presented for decision within the Amendment’s broad command.

Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. Our courts, however, have not failed to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief. By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. On the other hand, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools,” Shelton v. Tucker, 364 U. S. 479, 487 (1960). As this Court said in Keyishian v. Board of Regents, the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.” 385 U. S. 589, 603 (1967).

The earliest cases in this Court on the subject of the impact of constitutional guarantees upon the classroom were decided before the Court expressly applied the specific prohibitions of the First Amendment to the States. But as early as 1923, the Court did not hesitate to condemn under the Due Process Clause “arbitrary” restrictions upon the freedom of teachers to teach and of students to learn. In that year, the Court, in an opinion by Justice McReynolds, held unconstitutional an Act of the State of Nebraska making it a crime to teach any subject in any language other than English to pupils who had not passed the eighth grade. The State’s purpose in enacting the law was to promote civic cohesiveness by encouraging the learning of English and to combat the “baneful effect” of permitting foreigners to rear and educate their children in the language of the parents’ native land. The Court recognized these purposes, and it acknowledged the State’s power to prescribe the school curriculum, but it held that these were not adequate to support the restriction upon the liberty of teacher and pupil. The challenged statute, it held, unconstitutionally interfered with the right of the individual, guaranteed by the Due Process Clause, to engage in any of the common occupations of life and to acquire useful knowledge. Meyer v. Nebraska, 262 U. S. 390 (1923). See also Bartels v. Iowa, 262 U. S. 404 (1923).

For purposes of the present case, we need not re-enter the difficult terrain which the Court, in 1923, traversed without apparent misgivings. We need not take advantage of the broad premise which the Court’s decision in Meyer furnishes, nor need we explore the implications of that decision in terms of the justiciability of the multitude of controversies that beset our campuses today. Today’s problem is capable of resolution in the narrower terms of the First Amendment’s prohibition of laws respecting an establishment of religion or prohibiting the free exercise thereof.

There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma. In Everson v. Board of Education, this Court, in upholding a state law to provide free bus service to school children, including those attending parochial schools, said: “Neither [a State nor the Federal Government] can pass laws which aid one religion, aid all religions, or prefer one religion over another.” 330 U. S. 1, 15 (1947).

At the following Term of Court, in McCollum v. Board of Education, 333 U. S. 203 (1948), the Court held that Illinois could not release pupils from class to attend classes of instruction in the school buildings in the religion of their choice. This, it said, would involve the State in using tax-supported property for religious purposes, thereby breaching the “wall of separation” which, according to Jefferson, the First Amendment was intended to erect between church and state. Id., at 211. See also Engel v. Vitale, 370 U. S. 421 (1962); Abington School District v. Schempp, 374 U. S. 203 (1963). While study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amendment’s prohibition, the State may not adopt programs or practices in its public schools or colleges which “aid or oppose” any religion. Id., at 225. This prohibition is absolute. It forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma. As Mr. Justice Clark stated in Joseph Burstyn, Inc. v. Wilson, “the state has no legitimate interest in protecting any or all religions from views distasteful to them . . . .” 343 U. S. 495, 505 (1952). The test was stated as follows in Abington School District v. Schempp, supra, at 222: “[W]hat are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.”

These precedents inevitably determine the result in the present case. The State’s undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment. It is much too late to argue that the State may impose upon the teachers in its schools any conditions that it chooses, however restrictive they may be of constitutional guarantees. Keyishian v. Board of Regents, 385 U. S. 589, 605-606 (1967).

In the present case, there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man. No suggestion has been made that Arkansas’ law may be justified by considerations of state policy other than the religious views of some of its citizens. It is clear that fundamentalist sectarian conviction was and is the law’s reason for existence. Its antecedent, Tennessee’s “monkey law,” candidly stated its purpose: to make it unlawful “to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language. It eliminated Tennessee's reference to “the story of the Divine Creation of man” as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, “denied” the divine creation of man.

Arkansas’ law cannot be defended as an act of religious neutrality. Arkansas did not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law’s effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First, and in violation of the Fourteenth, Amendment to the Constitution.

The judgment of the Supreme Court of Arkansas is

Reversed.

Mr. Justice Black,

concurring.

I am by no means sure that this case presents a genuinely justiciable case or controversy. Although Arkansas Initiated Act No. 1, the statute alleged to be unconstitutional, was passed by the voters of Arkansas in 1928, we are informed that there has never been even a single attempt by the State to enforce it. And the pallid, unenthusiastic, even apologetic defense of the Act presented by the State in this Court indicates that the State would make no attempt to enforce the law should it remain on the books for the next century. Now, nearly 40 years after the law has slumbered on the books as though dead, a teacher alleging fear that the. State might arouse from its lethargy and try to punish her has asked for a declaratory judgment holding the law unconstitutional. She was subsequently joined by a parent who alleged his interest in seeing that his two then school-age sons “be informed of all scientific theories and hypotheses . . . But whether this Arkansas teacher is still a teacher, fearful of punishment under the Act, we do not know. It may be, as has been published in the daily press, that she has long since given up her job as a teacher and moved to a distant city, thereby escaping the dangers she had imagined might befall her under this lifeless Arkansas Act. And there is not one iota of concrete evidence to show that the parent-intervenor’s sons have not been or will not be taught about evolution. The textbook adopted for use in biology classes in Little Rock includes an entire chapter dealing with evolution. There is no evidence that this chapter is not being freely taught in the schools that use the textbook and no evidence that the intervenor’s sons, who were 15 and 17 years old when this suit was brought three years ago, are still in high school or yet to take biology. Unfortunately, however, the State’s languid interest in the case has not prompted it to keep this Court informed concerning facts that might easily justify dismissal of this alleged lawsuit as moot or as lacking the qualities of a genuine case or controversy.

Notwithstanding my own doubts as to whether the case presents a justiciable controversy, the Court brushes aside these doubts and leaps headlong into the middle of the very broad problems involved in federal intrusion into state powers to decide what subjects and schoolbooks it may wish to use in teaching state pupils. While I hesitate to enter into the consideration and decision of such sensitive state-federal relationships, I reluctantly acquiesce. But, agreeing to consider this as a genuine case or controversy, I cannot agree to thrust the Federal Government’s long arm the least bit further into state school currículums than decision of this particular case requires. And the Court, in order to invalidate the Arkansas law as a violation of the First Amendment, has been compelled to give the State’s law a broader meaning than the State Supreme Court was willing to give it. The Arkansas Supreme Court’s opinion, in its entirety, stated that:

“Upon the principal issue, that of constitutionality, the court holds that Initiated Measure No. 1 of 1928, Ark. Stat. Ann. § 80-1627 and § 80-1628 (Repl. 1960), is a valid exercise of the state’s power to specify the curriculum in its public schools. The court expresses no opinion on the question whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true; the answer not being necessary to a decision in the case, and the issue not having been raised.”

It is plain that a state law prohibiting all teaching of human development or biology is constitutionally quite different from a law that compels a teacher to teach as true only one theory of a given doctrine. It would be difficult to make a First Amendment case out of a state law eliminating the subject of higher mathematics, or astronomy, or biology from its curriculum. And, for all the Supreme Court of Arkansas has said, this particular Act may prohibit that and nothing else. This Court, however, treats the Arkansas Act as though it made it a misdemeanor to teach or to use a book that teaches that evolution is true. But it is not for this Court to arrogate to itself the power to determine the scope of Arkansas statutes. Since the highest court of Arkansas has deliberately refused to give its statute that meaning, we should not presume to do so.

It seems to me that in this situation the statute is too vague for us to strike it down on any ground but that: vagueness. Under this statute as construed by the Arkansas Supreme Court, a teacher cannot know whether he is forbidden to mention Darwin’s theory at all or only free to discuss it as long as he refrains from contending that it is true. It is an established rule that a statute which leaves an ordinary man so doubtful about its meaning that he cannot know when he has violated it denies him the first essential of due process. See, e. g., Connally v. General Construction Co., 269 U. S. 385, 391 (1926). Holding the statute too vague to enforce would not only follow long-standing constitutional precedents but it would avoid having this Court take unto itself the duty of a State’s highest court to interpret and mark the boundaries of the State’s laws. And, more important, it would not place this Court in the unenviable position of violating the principle of leaving the States absolutely free to choose their own curriculums for their own schools so long as their action does not palpably conflict with a clear constitutional command.

The Court, not content to strike down this Arkansas Act on the unchallengeable ground of its plain vagueness, chooses rather to invalidate it as a violation of the Establishment of Religion Clause of the First Amendment. I would not decide this case on such a sweeping ground for the following reasons, among others.

1. In the first place I find it difficult to agree with the Court’s statement that “there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man.” It may be instead that the people’s motive was merely that it would be best to remove this controversial subject from its schools; there is no reason I can imagine why a State is without power to withdraw from its curriculum any subject deemed too emotional and controversial for its public schools. And this Court has consistently held that it is not for us to invalidate a statute because of our views that the “motives” behind its passage were improper; it is simply too difficult to determine what those motives were. See, e. g., United States v. O’Brien, 391 U. S. 367, 382-383 (1968).

2. A second question that arises for me is whether this Court’s decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an “anti-religious” doctrine to schoolchildren? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible’s story of creation; so too have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines? Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court’s opinion.

3. I am also not ready to hold that a person hired to teach school children takes with him into the classroom a constitutional right to teach sociological, economic, political, or religious subjects that the school s managers do not want discussed. This Court has said that the rights of free speech “while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.” Cox v. Louisiana, 379 U. S. 536, 554; Cox v. Louisiana, 379 U. S. 559, 574. I question whether it is absolutely certain, as the Court’s opinion indicates, that “academic freedom” permits a teacher to breach his contractual agreement to teach only the subjects designated by the school authorities who hired him.

Certainly the Darwinian theory, precisely like the Genesis story of the creation of man, is not above challenge. In fact the Darwinian theory has not merely been criticized by religionists but by scientists, and perhaps no scientist would be willing to take an oath and swear that everything announced in the Darwinian theory is unquestionably true. The Court, it seems to me, makes a serious mistake in bypassing the plain, unconstitutional vagueness of this statute in order to reach out and decide this troublesome, to me, First Amendment question. However wise this Court may be or may become hereafter, it is doubtful that, sitting in Washington, it can successfully supervise and censor the curriculum of every public school in every hamlet and city in the United States. I doubt that our wisdom is so nearly infallible.

I would either strike down the Arkansas Act as too vague to enforce, or remand to the State Supreme Court for clarification of its holding and opinion.

Mr. Justice Harlan,

concurring.

I think it deplorable that this case should have come to us with such an opaque opinion by the State’s highest court. With all respect, that court’s handling of the ease savors of a studied effort to avoid coming to grips with this anachronistic statute and to “pass the buck” to this Court. This sort of temporizing does not make for healthy operations between the state and federal judiciaries. Despite these observations, I am in agreement with this Court’s opinion that, the constitutional claims having been properly raised and necessarily decided below, resolution of the matter by us cannot properly be avoided. See, e. g., Chicago Life Insurance Co. v. Needles, 113 U. S. 574, 579 (1885).

I concur in so much of the Court’s opinion as holds that the Arkansas statute constitutes an “establishment of religion” forbidden to the States by the Fourteenth Amendment. I do not understand, however, why the Court finds it necessary to explore at length appellants’ contentions that the statute is unconstitutionally vague and that it interferes with free speech, only to conclude that these issues need not be decided in this ease. In the process of not deciding them, the Court obscures its otherwise straightforward holding, and opens its opinion to possible implications from which I am constrained to disassociate myself. .

Mr. Justice Stewart,

concurring in the result.

The States are most assuredly free “to choose their own curriculums for their own schools.” A State is entirely free, for example, to decide that the only foreign language to be taught in its public school system shall be Spanish. But would a State be constitutionally free to ■punish a teacher for letting his students know that other languages are also spoken in the world? I think not.

It is one thing for a State to determine that “the subject of higher mathematics, or astronomy, or biology” shall or shall not be included in its public school curriculum. It is quite another thing for a State to make it a criminal offense for a public school teacher so much as to mention the very existence of an entire system of respected human thought. That kind of criminal law, I think, would clearly impinge upon the guarantees of free communication contained in the First Amendment, and made applicable to the States by the Fourteenth.

The Arkansas Supreme Court has said that the statute before us may or may not be just such a law. The result, as Me. Justice Black points out, is that “a teacher cannot know whether he is forbidden to mention Darwin’s theory at all.” Since I believe that no State could constitutionally forbid a teacher “to mention Darwin’s theory at all,” and since Arkansas may, or may not, have done just that, I conclude that the statute before us is so vague as to be invalid under the Fourteenth Amendment. See Cramp v. Board of Pub. Instruction, 368 U. S. 278.

       Chapter 27, Tenn. Acts 1925; Tenn. Code Ann. §49-1922 (1966 Repl. Vol.).

         Scopes v. State, 154 Tenn. 105, 289 S. W. 363 (1927). The Tennessee court, however, reversed Scopes’ conviction on the ground that the jury and not the judge should have assessed the fine of $100. Since Scopes was no longer in the State’s employ, it saw “nothing to be gained by prolonging the life of this bizarre case.” It directed that a nolle prosequi be entered, in the interests of “the peace and dignity of the State.” 154 Tenn., at 121,289 S. W., at 367.

       Initiated Act No. 1, Ark. Acts 1929; Ark. Stat. Ann. §§ 80-1627, 80-1628 (1960 Repl. Vol.). The text of the law is as follows:
      “§ 80-1627. — Doctrine of ascent or descent of man from lower order of animals prohibited. — It shall be unlawful for any teacher or other instructor in any University, College, Normal, Public School, or other institution of the State, which is supported in whole or in part from public funds derived by State and local taxation to teach the theory or doctrine that mankind ascended or descended from a lower order of animals and also it shall be unlawful for any teacher, textbook commission, or other authority exercising the power to select textbooks for above mentioned educational institutions to adopt or use in any such institution a textbook that teaches the doctrine or theory that mankind descended or ascended from a lower order of animals.
      “§ 80-1628. — Teaching doctrine or adopting textbook mentioning doctrine — Penalties—Positions to be vacated. — Any teacher or other instructor or textbook commissioner who is found guilty of violation of this act by teaching the theory or doctrine mentioned in section 1 hereof, or by using, or adopting any such textbooks in any such educational institution shall be guilty of a misdemeanor and upon conviction shall be fined not exceeding five hundred dollars; and upon conviction shall vacate the position thus held in any educational institutions of the character above mentioned or any commission of which he may be a member.”

       The-opinion of the Chancery Court is not officially reported.

       The Chancery Court analyzed the holding of its sister State of Tennessee in the Scopes case sustaining Tennessee’s similar statute. It refused to follow Tennessee’s 1927 example. It declined to confine the judicial horizon to a view of the law as merely a direction by the State as employer to its employees. This sort of astigmatism, it held, would ignore overriding constitutional values, and “should not be followed,” and it proceeded to confront the substance of the law and its effect.

       242 Ark. 922, 416 S. W. 2d 322 (1967).

       “Per Curiam. Upon the principal issue, that of constitutionality, the court holds that Initiated Measure No. 1 of 1928, Ark. Stat. Ann. §80-1627 and §80-1628 (Repl. 1960), is a valid exercise of the state’s power to specify the curriculum in its public schools. The court expresses no opinion on the question whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true; the answer not being necessary to a decision in the case, and the issue not having been raised.
      “The decree is reversed and the cause dismissed.
      “Ward, J., concurs. Brown, J., dissents.
      “Paul Ward, Justice, concurring. I agree with the first sentence in the majority opinion.
      “To my mind, the rest of the opinion beclouds the clear announcement made in the first sentence.”

       Miss. Code Ann. §§6798, 6799 (1942). Ark. Stat. Ann. §§80-1627, 80-1628 (1960 Repl. Vol.). The Tennessee law was repealed in 1967. Oklahoma enacted an anti-evolution law, but it was repealed in 1926. The Florida and Texas Legislatures, in the period between 1921 and 1929, adopted resolutions against teaching the doctrine of evolution. In all, during that period, bills to this effect were introduced in 20 States. American Civil Liberties Union (ACLU), The Gag on Teaching 8 (2d ed., 1937).

       Clarence Darrow, who was counsel for the defense in the Scopes trial, in his biography published in 1932, somewhat sardonically pointed out that States with anti-evolution laws did not insist upon the fundamentalist theory in all respects. He said: “I understand that the States of Tennessee and Mississippi both continue to teach that the earth is round and that the revolution on its axis brings the day and night, in spite of all opposition.” The Story of My Life 247 (1932).

       It. Hofstadter & W. Metzger, in The Development of Academic Freedom in the United States 324 (1955), refer to some of Darwin’s opponents as “exhibiting a kind of phylogenetic snobbery [which led them] to think that Darwin had libeled the [human] race by discovering simian rather than seraphic ancestors.”

       In Scopes v. State, 154 Tenn. 105, 126, 289 S. W. 363, 369 (1927), Judge Chambliss, concurring, referred to the defense contention that Tennessee’s anti-evolution law gives a “preference” to “religious establishments which have as one of their tenets or dogmas the instantaneous creation of man.”

        Everson v. Board of Education, 330 U. S. 1, 18 (1947); McCollum v. Board of Education, 333 U. S. 203 (1948); Zorach v. Clauson, 343 U. S. 306, 313-314 (1952); Fowler v. Rhode Island, 345 U. S. 67 (1953); Torcaso v. Watkins, 367 U. S. 488, 495 (1961).

       See the discussion in Developments in The Law — Academic Freedom, 81 Harv. L. Rev. 1045, 1051-1055 (1968).

       The case involved a conviction for teaching “the subject of reading in the German language” to a child of 10 years.

       Former Dean Leflar of the University of Arkansas School of Law has stated that “the same ideological considerations underlie the anti-evolution enactment” as underlie the typical blasphemy statute. He says that the purpose of these statutes is an “ideological” one which “involves an effort to prevent (by censorship) or punish the presentation of intellectually significant matter which contradicts accepted social, moral or religious ideas.” Leflar, Legal Liability for the Exercise of Free Speech, 10 Ark. L. Rev. 155, 158 (1956). See also R. Hofstadter & W. Metzger, The Development of Academic Freedom in the United States 320-366 (1955) (passim); H. Beale, A History of Freedom of Teaching in American Schools 202-207 (1941); Emerson & Haber, The Scopes Case in Modem Dress, 27 U. Chi. L. Rev. 522 (1960); Waller, The Constitutionality of the Tennessee Anti-Evolution Act, 35 Yale L. J. 191 (1925) (passim); ACLU, The Gag on Teaching 7 (2d ed., 1937); J. Scopes & J. Presley, Center of the Storm 45-53 (1967).

       The following advertisement is typical of the public appeal which was used in the campaign to secure adoption of the statute:
      “THE BIBLE OR ATHEISM, WHICH?
      “All atheists favor evolution. If you agree with atheism vote against Act No. 1. If you agree with the Bible vote for Act No. 1. . . . Shall conscientious church members be forced to pay taxes to support teachers to teach evolution which will undermine the faith of their children? The Gazette said Russian Bolshevists laughed at Tennessee. True, and that sort will laugh at Arkansas. Who cares? Vote FOR ACT NO. 1.” The Arkansas Gazette, Little Rock, Nov. 4, 1928, p. 12, cols. 4-5.
      Letters from the public expressed the fear that teaching of evolution would be “subversive of Christianity,” id., Oct. 24, 1928, p. 7, col. 2; see also id., Nov. 4, 1928, p. 19, col. 4; and that it would cause school children “to disrespect the Bible,” id., Oct. 27, 1928, p. 15, col. 5. One letter read: “The cosmogony taught by [evolution] runs contrary to that of Moses and Jesus, and as such is nothing, if anything at all, but atheism. ... Now let the mothers and fathers of our state that are trying to raise their children in the Christian faith arise in their might and vote for this anti-evolution bill that will take it out of our tax supported schools. When they have saved the children, they have saved the state.” Id., at cols. 4-5.

       Arkansas’ law was adopted by popular initiative in 1928, three years after Tennessee’s law was enacted and one year after the Tennessee Supreme Court’s decision in the Scopes case, supra.

       In its brief, the State says that the Arkansas statute was passed with the holding of the Scopes case in mind. Brief for Appellee 1.

      Short of reading the Arkansas Supreme Court’s opinion to have proceeded on the premise that it need not consider appellants’ “establishment” contention, clearly raised in the state courts and here, in view of its holding that the State possesses plenary power to fix the curriculum in its public schools, I can perceive no tenable basis for remanding the case to the state court for an explication of the purpose and meaning of the statute in question. I am unwilling to ascribe to the Arkansas Supreme Court any such quixotic approach to constitutional adjudication. I take the first sentence of its opinion (ante, at 101, n. 7) to encompass an overruling of appellants’ “establishment” point, and the second sentence to refer only to their “vagueness” claim.


text:
    WHYY, INC. v. BOROUGH OF GLASSBORO et al.
    No. 10.
    Argued October 17, 1968.
    Decided November 12, 1968.

      James M. Marsh argued the cause for appellant. With him on the briefs were Grover C. Richman, Jr., and Lewis Weinstock.

      John W. Trimble argued the cause and filed a brief for appellee Borough of Glassboro.
   Per Curiam.

The appellant is a nonprofit corporation organized under the laws of Pennsylvania. Under a license issued by the Federal Communications Commission, it operates a noncommercial television station which broadcasts cultural, recreational, and educational programs. The broadcasting facilities for one of the television channels allocated to the appellant are in New Jersey; on its 50-acre plot in the Borough of Glassboro in that State appellant has erected a transmittal station and a tower. Signals on this channel reach approximately 8,000,000 people in the Delaware Valley area, of whom 29.5% are estimated to live in New Jersey. Some of the programs are designed to appeal especially to the residents of New Jersey. In accordance with New Jersey law, the appellant has registered and qualified to transact business in the State.

In November of 1963 the appellant wrote to the Glassboro Council requesting exemption, as a nonprofit organization, from state real and personal property taxes on its land and facilities for 1964. The request was denied, as was a similar petition to the Gloucester County Tax Board. The Division of Tax Appeals upheld the County Board, and the appellant took a further appeal to the Superior Court. That court held that while the appellant qualified for the exemption in all other respects, the statute exempted only those nonprofit corporations which were incorporated in New Jersey. 91 N. J. Super. 269, 219 A. 2d 893. On appeal to the Supreme Court of New Jersey, the appellant argued for the first time that the statute denied it equal protection of the laws in violation of the Fourteenth Amendment to the Constitution by discriminating against it solely on the basis of its foreign incorporation. The Supreme Court noted that it had discretion not to consider a question not raised in the lower court, but nevertheless proceeded to decide the constitutional question because of its widespread importance. It concluded that the classification was not wholly irrational and sustained the denial of exemption. 50 N. J. 6, 231 A. 2d 608. We noted probable jurisdiction to consider the constitutional question thus raised. 390 U. S. 979. Cf. Raley v. Ohio, 360 U. S. 423, 436.

This Court has consistently held that while a State may impose conditions on the entry of foreign corporations to do business in the State, once it has permitted them to enter, “the adopted corporations are entitled to equal protection with the state’s own corporate progeny, at least to the extent that their property is entitled to an equally favorable ad valorem, tax basis.” Wheeling Steel Corp. v. Glander, 337 U. S. 562, 571-572. See Reserve Life Ins. Co. v. Bowers, 380 U. S. 258; Hanover Fire Ins. Co. v. Harding, 272 U. S. 494; Southern R. Co. v. Greene, 216 U. S. 400. Yet New Jersey has denied the appellant a tax exemption which it accords other nonprofit corporations solely because of the appellant’s foreign incorporation. This is not a case in which the exemption was withheld by reason of the foreign corporation’s failure or inability to benefit the State in the same measure as do domestic nonprofit corporations. Compare Board of Education v. Illinois, 203 U. S. 553. Nor have the appellees advanced any other distinction between this appellant and domestic nonprofit corporations which would justify the inequality of treatment.

The New Jersey Supreme- Court concluded that the legislative purpose could reasonably have been to avoid the administrative burden which the taxing authorities would bear if they had to examine the laws of other jurisdictions in order to determine whether a corporation with nonprofit status under those laws would also satisfy New Jersey requirements. But this burden would exist only if a foreign corporation sought exemption in New Jersey on the basis of its nonprofit status at home. It is one thing for a State to avoid this extra burden by refusing to grant such an automatic exemption. It is quite another to deny a foreign corporation an opportunity equivalent to that of a domestic corporation to demonstrate that it meets the requirements for a nonprofit corporation under local law. Neither the New Jersey Supreme Court nor the appellees have suggested that there is any greater administrative burden in evaluating a foreign than a domestic corporation under New Jersey law. We must therefore conclude, as we did in Wheeling, that the appellant has not been “accorded equal treatment, and the inequality is not because of the slightest difference in [New Jersey’s] relation to the decisive transaction, but solely because of the different residence of the owner.” 337 U. S., at 572.

The judgment of the New Jersey Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Mr. Justice Black dissents from the reversal of this case and would affirm it.

       N. J. Stat. Arm. § 14:15-2 requires a foreign corporation, in order to obtain a certificate of authorization to transact business in the State, to file with the Secretary of State a copy of its charter and a statement setting forth the amounts of its authorized and issued capital stock, the character of the business to be transacted in the State, the place of the principal office within the State, and the name of a resident agent for the service of process.

       N. J. Stat. Ann. §54:4r-3.6 provides in pertinent part that the “exemptions shall apply only where the association, corporation or institution claiming the exemption owns the property in question and is incorporated or organized under the laws of this State and authorized to carry out the purposes on account of which the exemption is claimed.”
      By Chapter 24 of the Laws of 1967, N. J. Stat. Ann. §54:4-3.6a was added. It provides an exemption for the following property: “All buildings and structures located in this State and used exclusively by a nonprofit association or corporation organized under the laws of this or another State for the production and broadcasting of educational television; the land whereon the buildings and structures are erected and which may be necessary for the fair enjoyment thereof, and which is devoted to the foregoing purpose, and no other purpose, and does not exceed 30 acres in extent; the furniture, equipment and personal property in said buildings and structures if used and devoted to the foregoing purpose.” The amendment applies only “to taxes payable in 1968 and thereafter.”

       Because it concluded that the appellant was not entitled to an exemption in any event, the New Jersey Supreme Court noted that it did not have to decide whether the failure of the appellant to comply with the normal procedure for claiming an exemption under N. J. Stat. Ann. § 54:4^4.4 should preclude it from asserting an exempt status.


text:
    SMITH v. YEAGER, WARDEN.
    No. 399.
    Decided November 12, 1968.

      Edward, Bennett Williams, Steven M. Umin, and Stephen F. Lichtenstein for petitioner.
   Per Curiam.

This petition for a writ of certiorari presents the question whether petitioner’s relinquishment of an evidentiary hearing in a federal habeas corpus proceeding taking place prior to Townsend v. Sain, 372 U. S. 293, bars him from obtaining such a hearing on a subsequent application made after Townsend was decided.

In 1957, petitioner was convicted of first-degree murder in a New Jersey court, and sentenced to death. The Supreme Court of New Jersey affirmed the conviction, State v. Smith, 27 N. J. 433, 142 A. 2d 890, and subsequently affirmed the denial of a motion for a new trial. State v. Smith, 29 N. J. 561, 150 A. 2d 769.

Petitioner thereafter sought a writ of habeas corpus in the United States District Court for the District of New Jersey. During oral argument before the District Court on June 5, 1961, petitioner’s counsel, referring to the then recent decision in Rogers v. Richmond, 365 U. S. 534, stated:

“The United States Supreme Court says your Honor may hold a hearing de novo if need be to go into the historical facts behind this case. I don’t think it is necessary here.
“I think if your Honor limits himself to the record, I think that the error, the fundamental constitutional error in this case is so overwhelming that I need not stand here and argue this case at any great length.” Appendix to Petition 69a.

The District Court did not conduct an evidentiary hearing. Relying on the state trial record, it denied the application, holding, inter alia, that petitioner’s confession, introduced at his trial, was not the product of coercion. United States ex rel. Smith v. New Jersey, 201 F. Supp. 272. The Court of Appeals affirmed. 322 F. 2d 810.

In 1965, petitioner again sought habeas corpus in the District Court, requesting an evidentiary hearing. As supplemented, the application alleged facts relevant to the admissibility of the confession which were not brought out at trial, and which, if proved, presented a stronger case that the confession was coerced. The District Court denied the application without conducting an evidentiary hearing, noting that the issue of coercion had been adjudicated in the prior habeas proceeding. The Court of Appeals affirmed per curiam, Judge Biggs dissenting. Referring to the above-quoted statement by petitioner’s counsel, and to some remarks of the District Court at an earlier stage of the 1961 proceeding, the Court of Appeals concluded that petitioner had waived his claim to an evidentiary hearing in 1961. 395 F. 2d 245. Rehearing en banc was denied, Judge Freedman dissenting, and this petition for certiorari followed.

We note initially that the usual principles of res judi-cata are inapplicable to successive habeas corpus proceedings. Salinger v. Loisel, 265 U. S. 224; cf. Sanders v. United States, 373 U. S. 1. Whatever the standards for waiver may be in other circumstances, the essential question here is whether the petitioner “deliberately withheld the newly asserted ground” in the prior proceeding, or “otherwise abused the writ.” 28 U. S. C. § 2244 (b) (1964 ed., Supp. III).

At the time of the 1961 proceeding, Brown v. Allen, 344 U. S. 443, indicated that a District Court’s discretion to hold an evidentiary hearing was to be exercised only in “unusual circumstances,” 344 U. S., at 463, or where a “vital flaw” existed in the state procedure. 344 U. S., at 506 (opinion of Mr. Justice Frankfurter). Townsend v. Sain, supra, had not yet been decided. This Court recognized in Townsend “that the opinions in Brown v. Allen ... do not provide answers for all aspects of the hearing problem for the lower federal courts, which have reached widely divergent, in fact often irreconcilable, results,” 372 U. S., at 310, and established criteria for the granting of evidentiary hearings “which must be considered to supersede, to the extent of any inconsistencies, the opinions in Brown v. Allen . . . 372 U. S., at 312. Townsend v. Sain substantially increased the availability of evidentiary hearings in habeas corpus proceedings, and made mandatory much of what had previously been within the broad discretion of the District Court. See also Fay v. Noia, 372 U. S. 391.

It is at least doubtful whether petitioner could have obtained an evidentiary hearing as the law stood in 1961. Indeed, at the time, the State argued to the District Court with some cogency that petitioner presented “no unusual circumstances calling for a hearing.” We do not believe that petitioner should be placed in a worse position because his then counsel asserted that he had a right to an evidentiary hearing and then relinquished it. Whatever counsel’s reasons for this obscure gesture of noblesse oblige, we cannot now examine the state of his mind, or presume that he intentionally relinquished a known right or privilege, Johnson v. Zerbst, 304 U. S. 458, 464, when the right or privilege was of doubtful existence at the time of the supposed waiver. In short, we conclude that petitioner’s failure to demand an evi-dentiary hearing in 1961, followed by such a demand after the decision in Townsend v. Sain, supra, constitutes no abuse of the writ of habeas corpus.

“If, for any reason not attributable to the inexcusable neglect of petitioner . . . evidence crucial to the adequate consideration of the constitutional claim was not developed at the state hearing, a federal hearing is compelled.” Townsend v. Sain, supra, at 317. Petitioner’s assertion that he comes within this principle is not controverted by respondent or by the record below. We do not, however, pass on this question, or on the other questions presented in the petition. These, as well as other issues appropriately raised below, may be considered by the District Court. We hold only that petitioner has not, by reason of anything that occurred during the 1961 habeas proceeding, waived his claim to an eviden-tiary hearing in the District Court.

The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for proceedings consistent with this opinion. /£ {s so ordered.

Mb. Justice White dissents and would grant certiorari and set the case for oral argument.

       Petitioner has sought, and was denied, certiorari in this Court on three previous occasions — twice to the state courts, 361 U. S. 861; 379 U. S. 1005, once to the United States Court of Appeals in the prior habeas corpus proceeding, 376 U. S. 928. It is worth noting that the present pleadings below substantially expand and clarify the claims heretofore presented by petitioner.

       The allegations, which include claims of physical harassment by the police, are set out in Judge Biggs’ dissenting opinion below, 395 F. 2d 245, 253, n. 12.

       On May 15, 1961, during argument on the State’s motion to strike petitioner’s “Amended and/or Supplemental Petition,” the District Court indicated its concern that the record be complete to the satisfaction of both parties. The Court of Appeals construed this as an offer to conduct an evidentiary hearing. No explicit mention of an evidentiary hearing was made, however. A reading of the entire colloquy in the District Court, though not unambiguous, suggests, as Judge Biggs noted in dissent below, that the discussion was concerned only with “the issue of whether or not the case would proceed upon the original petition for habeas corpus and answer, the supplemental petition for habeas corpus and answer, or on both sets of pleadings.” 395 F. 2d 245, 249, n. 4.

       Judge Biggs did not participate.

       For this reason, if no other, the fact that Townsend v. Sain was decided before the Court of Appeals’ decision in the first proceeding, and considered by the Court of Appeals there in denying rehearing en banc, is not dispositive of the present case.

       As the State pointed out during the 1961 hearing, Rogers v. Richmond, supra, the case chiefly relied on by petitioner, does not appear to support his claim to an evidentiary hearing. See especially 365 U. S., at 547.


text:
    ATLANTIC OCEAN PRODUCTS, INC., et al. v. LETH, DIRECTOR, DEPARTMENT OF AGRICULTURE OF OREGON, et al.
    No. 417.
    Decided November 12, 1968.

      Thomas H. Tongue for appellants.

      Robert Y. Thornton, Attorney General of Oregon, and Harold E. Burke, Assistant Attorney General, for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.


text:
    DOOLIN, dba NATIONAL NOVELTY CO., et al. v. KORSHAK, DIRECTOR OF REVENUE, et al.
    No. 439.
    Decided November 12, 1968.

      Owen Rail for appellants.

      William G. Clark, Attorney General of Illinois, and John J. O’Toole, Assistant Attorney General, for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    CROSS et al. v. COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, et al.
    No. 533,
    Misc.
    Decided November 12, 1968.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.