Meltzer v. Board of Public Instruction of Orange County, Fla.
| Decision Date | 11 March 1977 |
| Docket Number | No. 75-1423,75-1423 |
| Citation | 548 F.2d 559 |
| Parties | Marvin MELTZER, etc., et al., Plaintiffs-Appellants, v. BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY, FLORIDA, etc., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jerome J. Bornstein, Orlando, Fla., for plaintiffs-appellants.
William M. Rowland, Jr., John W. Bowen, Orlando, Fla., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before BROWN, Chief Judge, and TUTTLE and GEE, Circuit Judges.
In this, their second visit 1 to the Court of Appeals in this case, the plaintiff-appellants, parents of children attending public schools in Orange County, Florida, appeal from the dismissal of their case by the District Court. We find that the District Court properly denied injunctive relief to plaintiffs, but improperly denied declaratory relief. Accordingly, we reverse.
The facts of this case are undisputed. On August 24, 1970, Defendant, the Orange County Board of Public Instruction, held a meeting and adopted a resolution calling for a five minute to seven minute morning exercise in every school to consist of "a period of meditation which shall include the opportunity for individual prayer and Bible reading or devotional or meditation presented by groups or organizations or an individual," followed by a patriotic exercise. At the same meeting, a member of the Gideon Camp asked for permission to distribute At the next meeting of the Board, on September 15, 1970, the eventual plaintiffs in this case complained to the Board that the August 24 resolution violated their religious rights. The Board deferred action on the complaints until it could conduct a survey to determine exactly how the August 24 resolution was being implemented and to obtain the opinion of its counsel regarding the legality of those policies and their implementation.
Gideon Bibles to the students at the public schools. The request was approved.
At the third Board meeting, the survey ordered in the September 15 meeting was released. This survey revealed that 70 of the 97 schools in Orange County were practicing daily Bible reading, generally read aloud to a class by a student or the classroom teacher. In some public schools, the Bible reading was given over the school public-address system. In some, the Lord's Prayer was recited. The survey showed that only four of the County's 97 schools had neither prayer nor Bible reading.
The Board thereupon refused to modify its policy regarding opening day exercises or to direct any change in its implementation.
On October 7, 1970, the Board issued guidelines concerning the distribution of Bibles or other religious literature. 3
On October 16, the plaintiffs filed their complaint as a class action, alleging (i) that On November 4, 1970, the District Court held a hearing to determine whether a temporary restraining order should issue. The plaintiffs presented the testimony of one parent who complained of the morning exercise; that of two rabbis who testified that reading the Bible to "religious minorities" is harmful to them, especially without interpretation, and that the Bible reading is blasphemous to Jews, even in a secular context because the Bible is inherently religious to Jews; and the testimony of a psychologist, who testified to the detrimental psychological effect on "religious minorities" of having readings from a book of a major religion. During this hearing, the constitutionality of § 231.09(2) was not put in issue.
§ 231.09(2) is unconstitutional on its face because it commands the inculcation of Christian virtue; (ii) that the August 24 resolution and the morning exercises conducted pursuant to it are unconstitutional; (iii) that the distribution of Gideon Bibles is unconstitutional; and (iv) that a Southern Baptist program at the school planned for October 19 and 20 is unconstitutional, all being in violation of the First Amendment religion clauses, as made applicable to the states through the Fourteenth Amendment. The complaint sought both declaratory and injunctive relief and requested the convening of a three-judge court. 4
On December 4, 1970, the District Court issued its order denying the temporary restraining order, on the grounds that the plaintiffs had failed to adduce sufficient evidence to show the possibility of irreparable injury, or to make findings of fact as to the morning exercises and the Bible distribution. However, the order did not stop there, but went on to discuss the legality of Bible reading in the schools. The Court concluded that the school cannot sponsor Bible reading as part of a devotional program, although the school is not required to be hostile to religion. Reference to the Bible as part of an "inspirational" rather than a "devotional" program is permitted under the First Amendment if (i) the reference to the Bible is a voluntary one by an individual student, and (ii) the reference is not school or teacher sponsored. The Court also noted that a Florida case, Brown v. Orange County Board of Public Instruction, Fla.App., 1960, 128 So.2d 181, could probably be read to prohibit distribution of Bibles in the schools. 5
On January 14, 1971, the Defendants filed a statement of compliance 6 with the On March 8, 1971, the District Court held a hearing to determine whether or not Defendants had complied with its December 4 order. In the hearing, the plaintiffs asked the District Court to order the Board to modify its August 24, 1970 resolution concerning morning exercises, and expressed its confidence that a change in the resolution would be sufficient to correct minor illegalities in some of the morning exercises. Defendant agreed to change the wording of the resolution from "devotional" to "inspirational."
District Court's order of December 4, but on February 26, 1971, plaintiffs filed a statement alleging that the Board's policy had not been changed and was still in operation.
At the March 8 hearing, the plaintiffs requested a three-judge court to consider the constitutionality of the statute. The defendants argued that they were not the right defendants to sue concerning the statute but the plaintiffs responded that the resolution was passed pursuant to the statute. No action was taken at the hearing by the Court.
On March 16, 1971, defendant filed a second statement of compliance, 7 this time truthfully representing that it had changed the word "devotional" in the resolution to "inspirational." Plaintiff again filed a statement of noncompliance, 8 disclaiming any agreement not to appeal.
On December 8, 1971, the District Court issued a second order, in which it found that On May 24, 1972, the District Court issued a third order. The Court apparently changed its mind about convening a three-judge court, and decided to dispose of the issues itself. After discussing the principles of Younger v. Harris, 9 the Court decided that Younger did not apply in this case. However, the Court held that there was no likelihood that the statute would be enforced, and therefore there was no case or controversy remaining as to the constitutionality of the statute. The Court further stated that the voluntary cessation of misconduct by the Board after the suit was filed deprived the plaintiffs of any right to declaratory relief as to the morning exercises or Bible distribution issues.
there had been no evidence of any violations in the morning exercises or in the distribution of Bibles since its December 4 order. Therefore, the Court stated, the attack on the statute must await the convening of a three-judge court, which it said it would request.
The plaintiffs appealed to the Fifth Circuit from the May 24 order and judgment.
On June 5, 1973, the Fifth Circuit decided that the record was deficient, and so remanded the case to the District Court to update the record, make findings of fact on the nature of the morning exercises and the extent of the school system's participation in the distribution of Gideon Bibles, and to clarify the exact nature of the District Court's December 4 order denying a temporary restraining order to which the Board had stipulated it was conforming. Meltzer v. Board of Public Instruction of Orange County, 5 Cir., 1973, 480 F.2d 552. On the three-judge court issue, the court held that there was no evidence that the statute had been or would be applied, and thus there had been no showing of irreparable injury necessary to obtain an injunction. Finally, the court remanded to the District Court for a determination of whether the likelihood that the statute would be enforced was so miniscule as to present no case or controversy, thus robbing the District Court of jurisdiction to grant even a declaratory judgment, or whether there was still a case or controversy present even though the danger of harm was not great and imminent enough to warrant an injunction.
On December 4, 1973, the District Court held a hearing following remand. At this hearing, the Board moved for dismissal on the grounds that there was no case or controversy presented by the facts. The Court postponed ruling on the motion until the close of the evidence, which consisted of the following. The first witness was one of ...
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