Meltzer v. BOARD OF PUB. INSTRUCTION OF ORANGE CTY., FLA., 72-2614.

• Decision Date: 05 June 1973
• Docket Number: No. 72-2614.,72-2614.
• Citation: 480 F.2d 552
• 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

480 F.2d 552 (1973)

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. 72-2614.

United States Court of Appeals, Fifth Circuit.

June 5, 1973.

Jerome J. Bornstein, Orlando, Fla., for plaintiffs-appellants.

William M. Rowland, Jr., Orlando, Fla., for defendants-appellees.

Before AINSWORTH, GODBOLD and CLARK, Circuit Judges.

PER CURIAM:

This action was brought by 39 parents of children attending the public schools of Orange County, Florida, complaining of certain activities of the school system which the plaintiffs believe violate the religious freedom guarantees of the First Amendment. The parents complain that the daily opening exercises conducted in Orange County Public School System constitute a religious observance. In addition, plaintiffs contend that the school system improperly participated in the distribution of Gideon Bibles to students on the school campus. The plaintiffs' last attack is on the constitutionality of Section 231.09(2) of the Florida Statutes, F.S.A., which in literal terms requires the teaching of "Christian virtue."¹ We remand to the district court with directions to bring the record up to date and make additional findings of fact and conclusions of law.

The several orders of the district court, while concluding that the school's activities are not inconsistent with constitutional standards, make no findings of fact as to the nature of these day-opening devotional or inspirational exercises. Thus, on the record before us, we cannot determine whether or not the practices are prohibited by the Constitution. See Hawkins v. Coleman, 475 F.2d 1278 (5th Cir. 1973). Nor has the court furnished us any guide as to the nature or extent of the school system's participation in the distribution of Gideon Bibles to school children on campus.

In addition, the plaintiffs sought the appointment of a three-judge district court to review the constitutionality of Fla.Stat. § 231.09(2), F.S.A. After first indicating that a request would be submitted to the Chief Judge of the circuit for designation of a three-judge court, the district court reversed its position and found that there was no case or controversy requiring submission to a three-judge court. In so ruling it concluded that "plaintiffs' only complaint is with the way in which the statute is written and not with its present application." Counsel for plaintiffs has been unable to direct this court's attention to any facts tending to show that the statute has been or will be applied. In short, the plaintiffs have made no showing whatsoever of any foreseeable irreparable injury which would merit injunctive relief. Construing the three-judge court statutes strictly and technically as we must, Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1941), we therefore affirm the decision of the district court that the complaint does not raise a substantial constitutional question requiring the convening of a three-judge court. See Hunt v. Rodriguez, 462 F.2d 659, on rehearing, 468 F.2d 615 (5th Cir. 1972); Tyler v. Russel, 410 F.2d 490 (10th Cir. 1969).

Insofar as the complaint seeks a judgment declaring the statute unconstitutional, as opposed to injunctive relief, the cause must be remanded to the district court. Having properly determined that the face of the complaint would not support injunctive relief and thus that there was no...