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Freedom From Religion Foundation Inc. v. Mercer County Board of Education

United States District Court, S.D. West Virginia, Bluefield

November 14, 2017

FREEDOM FROM RELIGION FOUNDATION, INC. et al., Plaintiffs,
v.
MERCER COUNTY BOARD OF EDUCATION et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David A. Faber Senior United States District Judge

         This 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.

         For the reasons that follow, defendants' motion to dismiss, ECF No. 25, is GRANTED without prejudice.

         I. BACKGROUND

         A. Bible in the Schools (BITS)

         Over 70 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.

         Of 21 Mercer County elementary, [1] intermediate, and middle schools, [2] 19 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.

         B. Plaintiffs

         The 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 ¶ 8.

         On the 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.

         From 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.

         C. Suspension of BITS

         On May 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 back.

         Nevertheless, 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[3] 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.

         D. Defendants' Motion to Dismiss

         Defendants, Mercer County Board of Education, Mercer County Schools, and Deborah Akers[4] 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, [5] 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.

         II. DISCUSSION

         A. Establishment Clause

         Establishment 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”).

         Lower 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 elementary schools).

         In 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).

         Finally, 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.

         B. Standard of Review

         Defendants 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.

         A 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).

         In a 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 (1936).

         C. Standing

         The 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)).

         The 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”).

         When 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. ...


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