656 F.2d 999 (5th Cir. 1981), 80-7302, Hall v. Board of School Com'rs of Conecuh County

Docket Nº:80-7302.
Citation:656 F.2d 999
Party Name:Rufus O. HALL, et al., Plaintiffs-Appellants, v. BOARD OF SCHOOL COMMISSIONERS OF CONECUH COUNTY, et al., Defendants-Appellees.
Case Date:September 21, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 999

656 F.2d 999 (5th Cir. 1981)

Rufus O. HALL, et al., Plaintiffs-Appellants,

v.

BOARD OF SCHOOL COMMISSIONERS OF CONECUH COUNTY, et al.,

Defendants-Appellees.

No. 80-7302.

Unit B

United States Court of Appeals, Fifth Circuit

September 21, 1981

Page 1000

Blacksher, Menefee & Stein, Larry T. Menefee, Mobile, Ala., for plaintiffs-appellants.

Robert D. Segall, Montgomery, Ala., for Anti-Defamation League of B'Nai B'Rith.

Robert G. Kendall, Mobile, Ala., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before MORGAN, RONEY and KRAVITCH, Circuit Judges.

RONEY, Circuit Judge:

Rufus Hall, a resident of Conecuh County, Alabama, individually and on behalf of his children enrolled in the Conecuh County public school system, brought suit under 42 U.S.C.A. § 1983 challenging two activities at Repton High School as being violative of the Establishment Clause of the First Amendment of the Constitution: (1) permitting students to conduct morning devotional readings over the school's public address system, and (2) teaching an elective Bible Literature course in a manner which advanced religion.

The district court after trial dismissed the action as moot because defendants had voluntarily ceased the morning devotionals after learning a lawsuit was going to be filed and because the Bible Literature course was not then being taught at Repton High School. Despite this jurisdictional holding, the court made findings of fact on the merits of plaintiffs' claims and concluded that the morning devotionals were unconstitutional, but that plaintiffs failed to prove that the Bible Literature course was taught in a way that advanced religion. The court further ruled that plaintiffs were not entitled to attorney's fees as prevailing parties under 42 U.S.C.A. § 1988.

On appeal we hold the action is not moot, the practices complained of violate the Establishment Clause, and plaintiffs are entitled to declaratory and injunctive relief.

Morning Devotionals

Everyone seems to be in substantial agreement that the conducting of morning devotionals was unconstitutional under established law. See School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Meltzer v. Board of Public Instruction, 577 F.2d 311 (5th Cir. 1978) (en banc), cert. denied, 439 U.S. 1089, 99 S.Ct. 872, 59 L.Ed.2d 56 (1979). The district court so held, and the defendants state they have discontinued the practice. The critical issue here is whether the plaintiffs were entitled to some affirmative relief. We think they were.

Defendants permitted the longstanding practice to continue until the filing of this lawsuit was imminent in 1979, despite the fact that such religious readings in public schools were declared unconstitutional as early as 1963. See School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). Defendants disputed the constitutionality of the practice up to the day of trial, when defense counsel for the first time indicated they had no intention of reviving the devotionals. Although the superintendent of schools testified he was aware the activity was unconstitutional and had so advised the various school principals, no further attempt had been made to ensure the practice...

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