Berry v. Cooper

577 F.2d 322

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 31, 1978
• Docket: No. 76-3682
• Status: Published

Opinions

PER CURIAM:

The panel decision, Meltzer v. Board of Public Instruction of Orange County, Florida, 5 Cir., 1977, 548 F.2d 559, rehearing en banc granted, 553 F.2d 1008, sets out the factual and procedural posture of this lawsuit. The Court en banc considered the following issues: (1) whether the District Court correctly denied relief on the constitutional challenge to the Orange County school board’s resolution requiring daily morning devotionals of Bible reading and prayer in the public schools;¹ (2) whether the District Court correctly denied relief on the constitutional challenge to the Orange County school board’s guidelines for the distribution of religious literature at designated locations on the school premises; ² (3) whether the District Court’s denial of relief on the constitutional challenge to Fla.Stat. § 231.09(2) (the “Christian virtue” statute which requires teachers to inculcate Christian virtues in their students) presents a case or controversy.³ The Court en banc adopts the portion of the panel opinion which reverses the District Court on issue (1) and which holds the morning devotional unconstitutional. The Court en banc affirms by an equally divided vote the District Court’s holding on issues (2) and (3).⁴

REVERSED IN PART: AFFIRMED IN PART.

1 . See the panel’s discussion of this issue, 548 F.2d at 572-74.

2 . Id. at 572, 574-76.

3 . Id. at 572, 576-79.

4 . See, e. g., School Board of City of Richmond v. State Board of Education, 1973, 412 U.S. 92, 93 S.ct. 1952, 36 L.Ed.2d 771; Rice v. Sioux City Cemetery, 1954, 348 U.S. 880, 75 S.Ct. 122, 99 L.Ed. 693, on rehearing, 1955, 349 U.S. 70, 73, 75 S.Ct. 614, 99 L.Ed. 897; United States v. Holmes, 5 Cir., 1976, 537 F.2d 227; Carter v. United States, 5 Cir., 1963, 325 F.2d 697, cert. denied, 1964, 377 U.S. 946, 84 S.Ct. 1353, 12 L.Ed.2d 308; 5 Am.Jur.2d, Appeal and Error, § 902, pp. 338, 339.