Meltzer v. Board of Public Instruction of Orange County, Fla.

• Decision Date: 31 July 1978
• Docket Number: No. 75-1423,75-1423
• Citation: 577 F.2d 311
• Parties: Marvin MELTZER, Individually and as father and next friend of David Meltzer, 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

Page 311

577 F.2d 311

Marvin MELTZER, Individually and as father and next friend of David Meltzer, et al., Plaintiffs-Appellants, v. BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY, FLORIDA, etc.,

et al., Defendants-Appellees.

No. 75-1423.

United States Court of Appeals,

Fifth Circuit.

July 31, 1978.

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, TUTTLE, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit Judges.

PER CURIAM:

The panel decision, Meltzer v. Board of Public Instruction of Orange County, Florida, 5 Cir., 1977, 548 F.2d 559, rehearing en banc granted, 553 F.2d 1008, sets out the factual and procedural posture of this lawsuit. The Court en banc considered the following issues: (1) whether the District Court correctly denied relief on the constitutional challenge to the Orange County school board's resolution requiring daily morning devotionals of Bible reading and prayer in the public schools; ¹ (2) whether the District Court correctly denied relief on the constitutional challenge to the Orange County school board's guidelines for the distribution of religious literature at designated locations on the school premises; ² (3) whether the District Court's denial of relief on the constitutional challenge to Fla. Stat. Sec. 231.09(2) (the "Christian virtue" statute which requires teachers to inculcate Christian virtues in their students) presents a case or controversy. ³ The Court en banc adopts the portion of the panel opinion which reverses the District Court on issue (1) and which holds the morning devotional unconstitutional. The Court en banc affirms by an equally divided vote the District Court's holding on issues (2) and (3). ⁴

See, e. g., School Board of City of Richmond v. State Board of Education, 1973, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771; Rice v. Sioux City Cemetery, 1954, 348 U.S. 880, 75 S.Ct. 122, 99 L.Ed. 693, on rehearing, 1955, 349 U.S. 70, 73, 75 S.Ct. 614, 99 L.Ed. 897; United States v. Holmes, 5 Cir., 1976, 537 F.2d 227; Carter v. United States, 5 Cir., 1963, 325 F.2d 697, cert. denied, 1964, 377 U.S. 946, 84 S.Ct. 1353, 12 L.Ed. 308; 5 Am.Jur.2d, Appeal and Error, Sec. 902, pp. 338, 339.

REVERSED IN PART: AFFIRMED IN PART.

JOHN R. BROWN, Chief Judge, with whom TUTTLE, GOLDBERG, GODBOLD and LEWIS R. MORGAN, Circuit Judges join, dissenting in part:

For reasons set out in the panel's decision and amplified here, I must respectfully dissent as to issues (2) and (3).

With its equally divided vote affirming the District Court the en banc Court today reaches an extraordinary result and countenances activity which harms the principles of religious liberty embodied in the Constitution and rooted firmly in our Nation's heritage. The distribution of religious literature, particularly massive quantities of one faith's sacred scripture, through the public schools to impressionable children advances religion and encourages excessive government entanglement with religion in contravention of the Establishment Clause. ¹ Similarly, Fla.Stat. § 231.09(2) ² which in mandatory terms directs teachers to inculcate "Christian virtues" in their young pupils is unconstitutional. Although a poorly developed and occasionally sparse record plagues this case, the uncontradicted portions of the record and the facts as set out in the panel decision below, 548 F.2d 559, amply delineate the existence of constitutional transgression.

I. Meltzer Mise-en-scene

A brief summary of the facts of this case reveals that the equally divided en banc Court's decision is plainly at odds with the First Amendment's principles of religious freedom. On August 24, 1970, the Orange County Board of Public Instruction held a meeting at which a member of the Gideon Camp asked permission to distribute Gideon Bibles to the students at the public schools. The request was approved. At this meeting the Board also adopted a resolution calling for a five to seven minute morning exercise in every school to consist of prayer and Bible reading. At the next meeting of the Board, on September 15, 1970, the eventual plaintiffs in this case complained to the Board that the morning exercise devotional and the distribution of Gideon Bibles violated their religious rights.

At a third meeting of the Board, counsel for the Board gave his opinion that the morning exercises were not unlawful. To support his opinion counsel cited Chapter 231.09(2) of the Florida Statutes. ³ The Board thereupon refused to modify its policy regarding opening day exercises. The morning exercise program was found to be unconstitutional by the panel and this result is affirmed by the en banc Court. Notwithstanding this affirmance of the panel, the unconstitutional morning devotional is relevant here to the extent it implicates the Florida "Christian virtue" statute and to the extent it reflects the general predilection of the Board to encourage an institutionalized form of religion in the public schools.

Following this third meeting, on October 7, 1970, the Board did issue guidelines for the distribution of Bibles or other religious literature. ⁴ Prior to the issuance of the The October 7th guidelines were designed ostensibly to quell the religious minorities' cries of protest. Under the guidelines a location within the school facilities would be designated for the distribution of religious literature supplied by outside groups. The guidelines, however, applied only to religious literature, and permitted the periodic announcement to the pupils that the literature was available. No similar invitation was issued to other pressure interest groups such as the United States Chamber of Commerce, N.A.A.C.P., AFL-CIO, Ripon Society, Americans for Democratic Action or others who have a legitimate interest in advancing their causes through the capture of young minds. The guidelines were adopted nine days before the lawsuit was filed.

guidelines, groups of Gideons would go from classroom to classroom walking up and down the aisles distributing Bibles to those students who indicated they would like one. In this fashion 15,000 Bibles were distributed to the school children during class.

Although the guidelines might appear as a concession to the religious minorities by allowing all religions to distribute literature, as applied only the Gideons took advantage of the arrangement. More importantly, they took advantage of the guidelines to the tune of 33,000 additional Bibles distributed after adoption of the guidelines. Apparently the distribution was made at locations highly visible to the students, such as cafeterias, by the Gideons themselves. ⁵ Finally, it is unclear whether the Board's January 14, 1971 Compliance Statement ⁶ which restricted distribution to school libraries has been implemented.

Today's decision jeopardizes fundamental First Amendment values. As Justice Clark, speaking for the Supreme Court in School District of Abington Township v. Schempp, 1967, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844, 858, recognized, history teaches "that powerful sects or groups might bring about a fusion of governmental and religious functions or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or Our decision today permits young, impressionable students to receive influential dosages of one group's beliefs through repeated and massive distribution of the Bible. The children cannot help but view the school system's formal tolerance of such distribution as the placement of the community's imprimatur on this particular movement and all that it embodies. This is precisely what the Establishment Clause prohibits. One does not need to be a prophet to realize that after this Court's holding today some children in Florida schools will be coerced, pressured, or influenced into accepting one faith over others not as fortunate to receive state approval.

of all orthodoxies. This the Establishment Clause prohibits." The Board's October 7 guidelines unjustifiably encroach upon this long-accepted notion of the First Amendment's guarantee of religious liberty.

The Court's decision allows outsiders to influence the theological beliefs of pupils through subtle and unchecked efforts to proselytize. Although the constitutional obligation of separation of church and state is not so narrow a channel that the slightest deviation from a straight course leads to condemnation, here the course is well charted by precedent. We turn now to examine and apply the jurisprudential themes which underlie the Establishment

Clause and which envelop this controversy. II. The

Constitutionality Of The 1970 Guidelines For The

Distribution Of Religious Literature In

Public Schools

Each state effort to promote or accommodate religion is measured against a three-tiered Establishment Clause standard. To pass muster under the Constitution the state action ⁷ in question must reflect a clearly secular purpose, have a primary effect that neither advances nor inhibits religion, and avoid excessive government entanglement with religion. Wolman v. Walter, 1977, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714; Roemer v. Maryland Public Works Board, 1976, 426 U.S. 736, 748, 96 S.Ct. 2337, 49 L.Ed.2d 179; Meek v. Pittenger, 1975, 421 U.S. 349, 358, 95 S.Ct. 1753, 44 L.Ed.2d 217; Committee for Public Education and Religious Liberty v. Nyquist, 1973, 413 U.S. 756, 773, 93 S.Ct. 2955, 37 L.Ed.2d 948. ⁸ The Supreme Court views these criteria as "guidelines with which to identify instances in which the objectives of the Religion Clauses have been impaired." Tilton v. Richardson, 1971, 403 U.S. 672, 678, 91 S.Ct. 2091, 2095, 29 L.Ed.2d 790; Nyquist, supra, 413 U.S. at...