Hall v. Board of School Com'rs of Conecuh County

• Decision Date: 21 September 1981
• Docket Number: No. 80-7302,80-7302
• Citation: 656 F.2d 999
• Parties: Rufus O. HALL, et al., Plaintiffs-Appellants, v. BOARD OF SCHOOL COMMISSIONERS OF CONECUH COUNTY, et al., Defendants-Appellees. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 999

656 F.2d 999

Rufus O. HALL, et al., Plaintiffs-Appellants, v. BOARD OF SCHOOL COMMISSIONERS OF CONECUH COUNTY, et al Defendants-Appellees.

No. 80-7302.

United States Court of Appeals, Fifth Circuit.

Unit B

Sept. 21, 1981.

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 had been discontinued in all Conecuh County schools.

The recognized rule is that "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot." United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). Jurisdiction may abate if there is no reasonable expectation the alleged violations will recur and if intervening events have completely and irrevocably eradicated the effects of the alleged violations. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979); City of Waco v. Environmental Protection Agency, 620 F.2d 84, 87 (5th Cir. 1980). To defeat jurisdiction on this basis, however, defendants must offer more than their mere profession that the conduct has ceased and will not be revived. See United States v. W. T. Grant Co., 345 U.S. at 632-33, 73 S.Ct. at 897.

Under the circumstances in this case, the action was not mooted by defendants' cessation of the morning devotionals and the plaintiffs were entitled to injunctive relief that would be binding upon the institutions, regardless of changes in personnel.

Bible Literature Course

The Bible Literature course was not being taught at the time of trial. Testimony at trial was, however, that the course was not offered during the 1979-1980 school year because of scheduling problems, not because of admitted unconstitutionality, as with the morning devotionals. Defendants did not argue to the trial court that the issue was moot, but vigorously asserted the validity of the course. They did not intimate an intention not to offer the course in the future. Under the above stated law, the district court erred in dismissing the challenge to this course as moot.

The district court made findings of fact and conclusions of law on the merits of plaintiffs' claims, perhaps anticipating the possibility of reversal on the mootness question. Based upon the district court's own findings, which neither party challenges on appeal, it appears that it erred in deciding the course as taught did not violate the Constitution under the established law on this subject.

The district court found as follows:

5. The State of Alabama, through the State Board of Education has approved a course entitled "Bible Literature" as an elective to be offered at the option of the individual schools. The course offering was formulated through procedures outlined for the State Courses of Study Committee. Ala.Code §§ 16-36-1 to 16-36-5.

6. The Bible Literature course utilizes a state approved textbook entitled The Bible for Youthful Patriots, Parts I and II. The textbook is approved through the procedures of the State Textbook Committee. Ala.Code §§ 16-36-1 to 16-36-5. The book was written and published by E. B. Warren of Orrville, Alabama, and Sadie Caine of Selma, Alabama, in 1971.

7. According to the principal Holy Bibles were issued to students in the Bible Literature class who did not have a Bible but who desired one. The Bible issued to James Hall bore the inscription "Presented to James Hall by Repton High School." The Bibles were provided by Mrs. William R. Carter, an interested, local citizen.

8. The only reading materials or "text" assigned in the Bible Literature course were from the state approved textbook and the Bible.

9. The Bible Literature course was taught by Burt Wiggers in Repton High School for the first time in the 1978-79 school year. Mr. Wiggers is an ordained Baptist minister and has a congregation near Evergreen, Alabama. Mr. Wiggers has been a duly qualified teacher at Repton High School for approximately ten (10) years.

10. The Bible Literature course consisted entirely of a Christian religious perspective and within that a fundamentalist and/or evangelical doctrine. Although there appears to be no requirement that any particular translation or version of the Bible be used, the King James version has been most frequently used....

11. Plaintiffs called two expert witnesses from the English faculty at the University of South Alabama, Mr. Charles Harwell and Dr. Daniel McDonald. They testified that the course materials, including the textbook, suggested a strong religious motivation as opposed to literary study on the part of the defendants; that the materials reflect a fundamentalist, evangelical, protestant...