United States District Court, S.D. West Virginia, Bluefield
FREEDOM FROM RELIGION FOUNDATION, INC. et al., Plaintiffs,
MERCER COUNTY BOARD OF EDUCATION et al., Defendants.
AMENDED MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge
civil action questions the constitutionality of a
longstanding Bible in the Schools (“BITS”)
program administered in many of the elementary and middle
schools throughout Mercer County, West Virginia. Plaintiffs,
Freedom From Religion Foundation, Inc., Jane Doe and her
child Jamie Doe, and Elizabeth Deal and her child Jessica
Roe, allege the BITS program violates the Establishment
Clause and request an injunction prohibiting defendants from
administering BITS in the future. Elizabeth Deal and Jessica
Roe also seek nominal damages.
reasons that follow, defendants' motion to dismiss, ECF
No. 25, is GRANTED without prejudice.
Bible in the Schools (BITS)
years ago, elementary and middle school students began
participating in a public school Bible curriculum in Mercer
County, West Virginia. See First Amended Complaint
(“FAC”) ¶ 19. In 1986, the Mercer County
Board of Education assumed responsibility for adopting and
administering the BITS curriculum. See FAC ¶
22. A nonprofit organization, Bluefield Bible Study Fund,
Inc., financed the program's expenses. Id. at
¶ 24. Defendant, Mercer County Board of Education
created, approved, and oversees the BITS curriculum, employs
specific Bible teachers, and reviews the curriculum every
five years. Id. at ¶¶ 90-94. Defendant,
Mercer County Schools, provides written lessons to BITS
teachers. Id. at ¶ 25. Over her 25-year tenure,
Deborah Akers, Superintendent of Mercer County Schools,
allegedly implemented all Mercer County School policies and
programs, including BITS. Id. at ¶¶ 97-98,
106. Defendant, Rebecca Peery, principal of Memorial Primary
School was allegedly responsible for school policies and
instruction at Memorial Primary School, located in Mercer
County (where the plaintiff Jessica Roe previously attended),
including approving BITS lessons pursuant to Mercer County
Schools' Policy I-45. See id. at ¶ 99.
Mercer County School Policy I-45 directed teachers to develop
BITS lesson plans and submit them to their school principals
for review. Id. at ¶¶ 101, 106.
Mercer County elementary,  intermediate, and middle schools,
administer BITS. Compare Doc 25-2, with
http://www.mercerbits.org/aboutus.htm. BITS classes are
taught weekly for 30 minutes in elementary schools and 45
minutes in middle schools by Bible teachers that are required
to possess “a degree in Bible.” See FAC
¶¶ 53, 54, 62.
First Amended Complaint, filed on March 28, 2017, included
five (5) plaintiffs: two parents, their two children, and
Freedom from Religion Foundation (“FFRF”).
Plaintiff parents, “Jane Doe” and Elizabeth Deal
sued individually and on behalf of their children
“Jamie Doe” and “Jessica Roe, ”
respectively. See FAC ¶¶ 8-17. Jane Doe is
the only individual plaintiff who is a member of FFRF, a
national group that “defends the constitutional
principle of separation between state and church and educates
the public about the views of non-theists.” FAC ¶
date of suit, January 18, 2017, Jamie Doe, daughter of Jane
Doe, attended a Mercer County school as a kindergarten
student where BITS was offered to first-grade students.
See FAC ¶ 11, 29. Jane Doe alleged her
intention to enroll her daughter in the same school the
following year. Id. Jane Doe brought the instant
lawsuit to escape “two untenable choices . . . either
[Jamie Doe will] be forced to attend bible indoctrination
classes against the wishes and conscience of Jane Doe, or
Jamie Doe will be the only child or one of only a few
children who do not participate [in BITS]. . . [and thus]
subject Jamie to the risk of ostracism from peers and even
school staff.” FAC ¶ 33.
2012-2016 (kindergarten to third-grade), Jessica Roe,
daughter of Elizabeth Deal, attended Memorial Primary School
in Mercer County, but her mother declined to allow her to
participate in the program. FAC ¶¶ 34-38. Instead,
Jessica Roe allegedly was sent to different school locations
- back of the classroom and other classrooms - to abstain
from BITS. FAC ¶¶ 39-44. Roe was allegedly
“harassed by other students” and “felt
excluded” because she did not participate in BITS. FAC
¶¶ 45, 46. In August 2016, for her fourth-grade
year and before the lawsuit was filed, Jessica Roe
transferred to a “neighboring school” that did
not sponsor BITS. FAC at ¶ 48. According to Elizabeth
Deal, the BITS program was a “major reason” for
Jessica's transfer. Id. at 48.
Suspension of BITS
23, 2017, the Mercer County Board of Education voted to
suspend the teaching of BITS for “at least a
year.” See ECF No. 30-1. Defendants
represented that this suspension ensures that “the
Mercer County Board of Education undertakes a thorough review
of and modification to the [BITS] curriculum.”
Defendants' Reply Brief at 6 (ECF No. 30). On April 11,
2017, the Mercer County Board of Education terminated the
employment of all BITS teachers. See ECF No. 30-1 at
¶ 4. Finally, at the hearing on the motion to dismiss
held on June 19, 2017, counsel for defendants assured the
court during oral argument that the BITS curriculum of which
plaintiffs are complaining does not exist and will not come
statements of defendants in the newspapers indicate
defendants' desire to resurrect the BITS program after a
thorough review. See ECF No. 30. The defendant,
Deborah Akers reportedly emphasized “Mercer County Schools
is continuing its efforts to keep the Bible in the Schools
program, ” although a timetable for a new BITS program
has not been established. See ECF No. 30-3.
Defendants' Motion to Dismiss
Mercer County Board of Education, Mercer County Schools, and
Deborah Akers filed their motion to dismiss and
accompanying memorandum on April 19, 2017, requesting a
complete dismissal of plaintiffs' claims on four grounds.
ECF No. 25 First, defendants allege that plaintiffs do not
have standing to bring this lawsuit. Id. Second,
they argue the Amended Complaint does not state a cognizable
legal claim, because it asks the court to institute an
absolute ban on Bible classes in Mercer County public
schools, which defendants contend is not permitted.
Id. Third, the Amended Complaint fails to state a
proper claim against Deborah Akers. Id. Fourth and
finally, according to defendants, plaintiffs fail to
adequately plead violations of 42 U.S.C § 1983 against
Mercer County Board of Education and Mercer County Schools.
Id. Plaintiffs responded in opposition on May 10,
2017. ECF No. 28. Defendants submitted their reply brief on
May 24, 2017, declaring for the first time that the BITS
program had been suspended. See ECF No. 30. As a
result,  plaintiffs submitted a sur-reply brief on
June 9, 2017. ECF No. 33. After defendants confirmed the
suspension of BITS at oral argument on June 19, 2017, the
court requested additional briefing on the issue of ripeness,
and both parties filed memoranda. ECF Nos. 43 and 44.
Clause jurisprudence colors the court's considerations
regarding whether this case is ripe for review. Supreme Court
jurisprudence has by no means established an absolute bar to
the Bible being taught and studied in the public school
system. In the seminal case of School of Abington
Tp., Pa. v. Schempp, the Supreme Court stated:
Nothing we have said here indicates that such study of the
Bible or of religion, when presented objectively as part of a
secular program of education, may not be effected
consistently with the First Amendment.
374 U.S. 203, 225 (1963). In evaluating whether religious
programs in public schools violate the Establishment Clause,
courts employ the three-pronged Lemon test, which
requires that (1) the activity have a secular purpose, (2)
the activity has a principal or primary effect, which neither
advances nor inhibits religion, and (3) the activity does not
foster excessive entanglement with religion. See Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971); see also
Edwards v. Aguillard, 482 U.S. 578, 584 (1987);
Schemmp, 374 U.S. at 226 (“In the relationship
between man and religion, the State is firmly committed to a
position of neutrality”).
federal courts have consistently employed the Lemon
test to both allow and enjoin Bible
curriculum in the public school system. See, e.g.,
Gibson v. Lee County School Bd., 1 F.Supp.2d 1426
(M.D. Fl. 1998) (denying a preliminary injunction as to the
School Board's Old Testament curriculum and granting a
preliminary injunction as to its New Testament curriculum);
Crockett v. Sorenson, 568 F.Supp. 1422, 1431 (W.D.
Va. 1983) (holding public school Bible program violated the
Establishment Clause); Wiley v. Franklin, 497
F.Supp. 390, 396 (E.D. Tenn 1980) (refusing to enjoin Bible
study courses taught by the City of Chattanooga, but
enjoining Bible study courses taught in Hamilton County
considering whether a Bible curriculum passes muster under
the Establishment Claus, courts are tasked with a
context-specific and fact-intensive analysis. Staley v.
Harris Cty., Tex., 485 F.3d 305, 307 (5th Cir. 2007) (en
banc) (“[W]e emphasize that Establishment Clause
analysis is context- specific and fact-intensive.”);
Schempp, 374 U.S. 203, 225 (1963) (holding
school-sponsored prayer unconstitutional but reaffirming the
principle that the “Bible is worthy of study for its
literary and historic qualities” and may be
“presented objectively as a secular program of
education”); see also Wiley, 497 F.Supp. at
392 (“the ultimate test of the constitutionality of any
course of instruction founded upon the Bible must depend upon
classroom performance.”); Gibson, 1 F.Supp.2d
at 1433 (same).
courts “are required to be deferential to a state's
articulation of a secular purpose, [and] it is required that
the statement of such purpose be sincere and not a
sham.” Aguillard, 482 U.S. at 587.
Standard of Review
move to dismiss this case pursuant to Federal Rule of Civil
Procedure 12(b)(1). A motion to dismiss an action under Rule
12(b)(1) raises the question of the federal court's
subject matter jurisdiction over the action. See Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). A Rule
12(b)(1) motion may attack subject matter jurisdiction in two
ways. First, a Rule 12(b)(1) motion may attack the complaint
on its face by contending that the complaint “fails to
allege facts upon which subject matter jurisdiction can be
based.” Campbell v. United States, Civil
Action No. 2:09-0503, 2010 WL 696766, at *7 (S.D. W.Va. Feb.
24, 2010) (Copenhaver, J.) (citing Adams, 697 F.2d
at 1219). Second, the defendant can assert that the
allegations in the complaint establishing jurisdiction are
not true. Id.
motion questioning subject matter jurisdiction must be
considered before other challenges because the court must
find it has jurisdiction before determining the validity of
any claims brought before it. Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999). “It is the
duty of the Court to see to it that its jurisdiction is not
exceeded; and this duty, when necessary, the Court should
perform on its own motion.” Spence v.
Saunders, 792 F.Supp. 480, 482 (S.D. W.Va. 1992) (Faber,
J.) (citation omitted).
motion to dismiss pursuant to Rule 12(b)(1), the plaintiff
bears the burden of showing that federal jurisdiction is
appropriate when challenged by the defendant. McNutt v.
Gen. Motors Acceptance Corp., 298 U.S. 178, 189
federal court system is limited to adjudicating actual cases
and controversies. U.S. Const. art. III, § 2. As a
result, standing “focuses on the party seeking to get
his complaint before a federal court and not on the issues he
wishes to have adjudicated.” Flast v. Cohen,
392 U.S. 83, 99 (1968). “Generally, challenges to
standing are addressed under Rule 12(b)(1) for lack of
subject matter jurisdiction.” Payne v. Chapel Hill
North Props., LLC, 947 F.Supp.2d 567, 572 (M.D. N.C.
2013) (citing CGM, LLC v. Bell South Telecomms.,
Inc., 664 F.3d 46, 52 (4th Cir. 2011)).
establish standing, each plaintiff must demonstrate three
elements: (1) an injury in fact that is “concrete and
particularized” and “actual or imminent, not
conjectural or hypothetical, ” (2) a causal connection
between the injury and defendant's actions, and (3) that
a favorable decision is likely to redress the injury.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992) (plurality opinion) (“Lujan”).
analyzing standing, the court “assume[s] that on the
merits the plaintiffs would be successful in their
claims.” Cooksey v. Futrell, 721 F.3d 226, 239
(4th Cir. 2013) (quoting City of Waukesha v. EPA,
320 F.3d 228, 235 (D.C. Cir. 2003)). With this framework in
mind, courts assess whether each plaintiff has standing
when the lawsuit is filed. Pashby v. ...