Hunt v. Board of Education of County of Kanawha, Civ. A. No. 70-225.

• Court: United States District Courts. 4th Circuit. Southern District of West Virginia
• Writing for the Court: John O. Kizer, Campbell, Love, Woodroe & Kizer, Charleston, W. Va., for defendants
• Citation: 321 F. Supp. 1263
• Parties: Dale HUNT and Gale Hunt, by next friend, their parent, Mrs. Levi Hunt, Barbara Williams, by next friend, her parent, Mrs. Harvey Williams, Donna Stewart, by next friend, her parent, Mr. Carl Stewart, Jackie Blake, by next friend, her parent, Mrs. L. A. Blake, Eddie Long, by next friend, his parent, Mr. William Long, Plaintiffs, v. The BOARD OF EDUCATION OF the COUNTY OF KANAWHA, Albert Anson, Jr., President, in his official capacity, the Department of Education of the State of West Virginia, Daniel B. Taylor, Superintendent, in his official capacity, Defendants.
• Decision Date: 18 January 1971
• Docket Number: Civ. A. No. 70-225.

321 F. Supp. 1263

Dale HUNT and Gale Hunt, by next friend, their parent, Mrs. Levi Hunt, Barbara Williams, by next friend, her parent, Mrs. Harvey Williams, Donna Stewart, by next friend, her parent, Mr. Carl Stewart, Jackie Blake, by next friend, her parent, Mrs. L. A. Blake, Eddie Long, by next friend, his parent, Mr. William Long, Plaintiffs,
v.
The BOARD OF EDUCATION OF the COUNTY OF KANAWHA, Albert Anson, Jr., President, in his official capacity, the Department of Education of the State of West Virginia, Daniel B. Taylor, Superintendent, in his official capacity, Defendants.

Civ. A. No. 70-225.

United States District Court, S. D. West Virginia, Charleston Division.

January 18, 1971.

John L. Boettner, Jr., Charleston, W. Va. (Appalachian Research and Defense Fund, Inc.), for plaintiffs.

John O. Kizer, Campbell, Love, Woodroe & Kizer, Charleston, W. Va., for defendants.

MEMORANDUM ORDER

JOHN A. FIELD, Jr., Chief Judge.

This action was instituted by six students of Herbert Hoover High School in Kanawha County seeking to enjoin and restrain the defendants from prohibiting the plaintiffs to meet voluntarily on the premises of the school for the purpose of engaging in group prayer and for a declaratory judgment that these acts of the defendants violate the rights of the plaintiffs under the first and 14th amendments to the Constitution of the United States. The plaintiffs also moved for a preliminary injunction to enjoin the defendants from interference with the said activities of the plaintiffs, and a hearing was held and evidence taken relative to this motion on November 16, 1970. On December 1, 1970, an order was entered denying the motion of the plaintiffs for the preliminary injunction. The defendant, Daniel B. Taylor, Superintendent of the Department of Education of the State of West Virginia, has filed a motion for summary judgment and his affidavit in support thereof. The other defendants, the Board of Education of the County of Kanawha, and Albert Anson, Jr., President of the Board, filed an answer to

321 F. Supp. 1264

the complaint and also a motion to dismiss the action upon a multiplicity of grounds, including the ground that the complaint fails to state a claim against these defendants upon which relief can be granted. It appears to me to be appropriate in the interests of justice, in passing upon the dismissal motion, to consider not only the pleadings, but the affidavit of Walter F. Snyder, Superintendent of Kanawha County Schools, as well as the evidence presented at the hearing on the motion for a temporary injunction, and accordingly the motion to dismiss will be treated as one for summary judgment and disposed of as provided in Rule 56 of the Federal Rules of Civil Procedure. Upon the pleadings, the affidavits and the evidence presented with respect to the motion for the temporary injunction, I am satisfied that there is no genuine issue as to any material or operative fact and that accordingly summary disposition is appropriate

The undisputed facts are as follows. The plaintiffs are citizens of the United States and residents of the town of Elkview, Kanawha County, West Virginia, and are regularly enrolled as students at Herbert Hoover High School in said County. The Board of Education of the County of Kanawha is a corporation under the laws of the State of West Virginia and is charged with the administration of the public schools of Kanawha County, and Albert Anson, Jr., is a member of the Board of Education and is president of the Board. During or prior to the year 1956, the Board of Education prepared and adopted a Manual of Administration, copies of which Manual were delivered to all supervisory and administrative personnel of the school system for their guidance in following the approved policies and procedures for the administration of the public schools in Kanawha County.

Included in the Manual are the following sections which were duly approved and adopted by the Board and have been at all times pertinent to this litigation in full force and effect.

Section 11.212—"Requests for the use of school buildings for religious purposes shall not be granted. However, baccalaureate services may be held provided the major purpose of such baccalaureate service is teaching and stressing moral and ethical values and is not religious."

Section 2.117—"School Conduct and Discipline

"* * * No student shall be in a school building without the supervision of a teacher."

Section 2.1117—"Pupils at School Before and After Hours

"When the weather and the condition of the school grounds are favorable, it is usually better from a

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