DOE BY DOE v. Shenandoah County School Bd.

• Decision Date: 17 May 1990
• Docket Number: Civ. A. No. 90-0128-H.
• Citation: 737 F. Supp. 913
• Court: U.S. District Court — Western District of Virginia
• Parties: J. DOE, a minor, by his next friend and mother, Martha DOE, et al., Plaintiffs, v. SHENANDOAH COUNTY SCHOOL BOARD, et al., Defendants.

737 F. Supp. 913

J. DOE, a minor, by his next friend and mother, Martha DOE, et al., Plaintiffs, v. SHENANDOAH COUNTY SCHOOL BOARD, et al., Defendants.

Civ. A. No. 90-0128-H.

United States District Court, W.D. Virginia, Harrisonburg Division.

May 17, 1990.

Sebastian K.D. Graber, American Civ. Liberties Union of Virginia Foundation, Wolftown, Va., and Stephen B. Pershing, American Civ. Liberties Union of Virginia, Richmond, Va., for plaintiffs.

Phillip C. Stone, Douglas L. Guynn, Roy W. Ferguson, Wharton, Aldhizer & Weaver, Harrisonburg, Va., for defendants.

MEMORANDUM OPINION

MICHAEL, District Judge.

Plaintiffs in this case are a minor child, who is a student in the defendants' schools, and his mother. The defendants are the county school board and several of its employees. Plaintiffs allege that the defendants, their employees, or agents have permitted or engaged in conduct which violates plaintiffs' rights under the Free Exercise and Establishment Clauses of the First Amendment. Plaintiffs bring this action under 42 U.S.C. § 1983. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) and (4). Plaintiffs have filed a verified complaint which seeks monetary damages as well as injunctive and declaratory relief and attorney's fees. Currently before the court is plaintiffs' motion for a temporary restraining order. A hearing was held on May 11, 1990 at which time the court heard argument from counsel for both parties. Plaintiffs and Defendants have both submitted memoranda. After the hearing the court took plaintiffs' motion under advisement; that motion is now ready for disposition.

I

Plaintiff J. Doe is a third grade student at W.W. Robinson Elementary School in Woodstock, Virginia. Plaintiff Martha Doe is J. Doe's mother.¹ W.W. Robinson Elementary is a public school operated by the defendants which provides instruction to students in kindergarten through grade four. The defendant Shenandoah County School Board (the "Board") is a local governmental agency which operates the public schools in Shenandoah County Virginia. The individual defendants are the Division Superintendent of Schools and the Principal of W.W. Robinson Elementary School.

Weekday Religious Education, Inc. ("WRE") is a private sectarian organization which seeks to indoctrinate young children in the tenets of the Christian Faith. It has operated in Virginia and other states for a substantial period of time. WRE carries out its mission by providing religious education to students who have been released from their regular academic duties during the course of the school day. Prior to 1982 WRE had conducted religious education classes inside the school buildings in Shenandoah County. After being advised of the constitutional infirmity of this practice the Board required WRE to conduct its classes off the school premises.

In response to this WRE commenced using remodelled school buses owned by WRE for classrooms. These buses are in all outward appearances identical to the school buses used by the defendant except that they lack a school system identification on the sides of the bus, have regular license plates as opposed to official municipal plates, and have a sign on the front which states "SHENCO WRE." These buses have been parked at varying locations over time. It is alleged in the verified complaint that the buses have parked in the school parking lot and at different locations on the road passing directly in front of the school entrance. Photographic exhibits tendered by the plaintiffs show the WRE bus parked directly in front of what appears to be the main entrance to the school and only a matter of inches from the curb. The parking of the buses in such proximity to the school is alleged to have occurred over at least a two year period, and from what appears in the record may actually be an eight year period. While any particular group of students is in the bus for only an hour, groups of students rotate in and out over the course of a day with the result that the bus is parked in front of the school for the majority of the school day.

Defendants have submitted various affidavits as well as a resolution of the Board dated May 14, 1990, in support of their opposition to the request for emergency relief. None of these documents denies that the buses have parked in these locations or indicates any intention to prohibit the buses from parking there in the future.

The verified complaint alleges that on at least three occasions in the past WRE religious instructors entered the school building for the purposes of recruiting students. On one of these occasions, when the plaintiff was in the second grade, a WRE instructor entered the plaintiff's classroom, distributed enrollment cards to each of the students, and told the students, while holding up a bag of candy, that each student would receive a prize if all of the cards were returned. When plaintiff failed to return his card, he was subjected to substantial pressure by other students, as well as his teacher, to return the card. In particular, the students were told that they would not get their candy unless all the cards were returned. The WRE instructor made a second visit to the classroom, again with the bag of candy, and told the children that she had their reward but could not give it to them because some of the children had not returned their cards.

On another occasion the WRE instructor came into the classroom and, without having prior parental permission, removed all of the school children including the plaintiff, and escorted them to the WRE bus parked in the school parking lot. Once on the bus the children were recruited to join the WRE program.

The verified complaint also alleges that public school teachers have assisted the WRE program by passing out and collecting enrollment cards. It also alleges that public school teachers have verbally encouraged both of the plaintiffs to ensure that these cards were completed and returned. It also appears from the complaint that WRE instructors have entered the classrooms at W.W. Robinson to call out the names of enrolled students and escort them to the WRE bus.

The defendants do not deny that these events took place. They offer in response an affidavit stating that their policy forbids at least some of these activities and that to the extent they or their employees violated this policy it would have been corrected had it been brought to their attention. However, when the principal received a letter from the plaintiff's mother regarding the parking of school buses near the school and the visits of the WRE instructors to the classroom, the principal agreed, in his reply letter dated July 5, 1989, that these activities had occurred, while in some instances disputing the precise facts, and that some were "approved" by him. Thus, it appears that such activities do not violate the defendants' policy.

The factual allegations consume some twelve pages of the complaint and the court, at this stage, has made no attempt to set them forth fully. The above recitation is intended to do no more than give a flavor of the situation currently under consideration.

II

The standard this court must use when determining whether to enter a temporary restraining order ("TRO") is the balance-of-hardships test. Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Mfg. Co., Inc., 550 F.2d 189, 196 (4th Cir. 1977). The district court may consider four factors: petitioner's likelihood of prevailing on the merits; whether the petitioner will suffer irreparable harm without injunctive relief; whether issuance of such injunctive relief would substantially harm the defendants; and whether the issuance of the injunction is in the public interest. Id. at 192, 196. However, the factors of paramount importance which the court must balance are those of harm to the petitioner and harm to the respondent. Id. at 196; Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir.1978). As the court made clear in Blackwelder and later cases, there is something of a sliding-scale relationship between the harm to the plaintiff and the necessity of showing a likelihood of success on the merits. Blackwelder, 550 F.2d at 196; Johnson, 586 F.2d at 995. If the balance of harms is struck in favor of the plaintiff "it is enough that grave or serious questions are presented; and plaintiff need not show a likelihood of success." Id.

Violations of First Amendment rights constitute per se irreparable injury. Johnson, 586 F.2d at 995. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976).² This is true even where the impairment exists for only a minimal period of time. Joyner v. Lancaster, 553 F.Supp. 809, 815 (M.D.N.C. 1982). See also, Quaker Action Group v. Hickel, 421 F.2d 1111, 1116 (D.C.Cir.1969) ("any delay in the exercise of First Amendment rights constitutes an irreparable injury," (emphasis added)); Int'l Soc. for Krishna Consciousness v. Hays, 438 F.Supp. 1077, 1081 (S.D.Fla.1977) ("it is well established that the denial of First Amendment freedoms even for a day inflicts irreparable injury"). However, even in light of this, under Blackwelder the court must still make some investigation into the plaintiff's likelihood of success in a case such as the present one since the finding of First Amendment violations, and hence irreparable injury, must "depend at a minimum on the probable soundness of the plaintiff's allegations of violation of constitutional rights and not merely on the allegations." Id. See Delaware & H. Ry. Co. v. United Transportation Union, 450 F.2d 603, 619-620 (D.C.Cir.), cert. denied, 403 U.S. 911, 91 S.Ct. 2209, 29 L.Ed.2d 689 (1971). With these rules in mind the court will analyze the four elements.

Assuming for the moment that the plaintiffs' allegations are sound, it is beyond dispute that they will suffer irreparable harm should the court withhold injunctive relief. Johnson, 586 F.2d at 995. It is well...