Freedom From Religion Foundation Inc. et al v. Mercer County Board of Education et al
Filing
46
MEMORANDUM OPINION AND ORDER granting, without prejudice, the defendants' 25 MOTION to Dismiss the Amended Complaint as it relates to all defendants. While defendant, Rebecca Peery, did not join defendants' 25 MOTION to Dismiss, plaintiffs' claims are also not justiciable as they relate to Ms. Peery. Therefore, defendants' claims against Ms. Perry are also dismissed. Signed by Senior Judge David A. Faber on 11/14/2017. (cc: counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
FREEDOM FROM RELIGION
FOUNDATION, INC. et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 1:17-00642
MERCER COUNTY BOARD OF
EDUCATION et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
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.
(“FAC”) ¶ 19.
See First Amended Complaint
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.
¶ 24.
Id. at
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
2
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,
1
Defendants contend that “four [Mercer County] elementary
schools do not offer such classes.” ECF No. 26 at 3 (emphasis
in original). First, defendants fail to include Bluefield
Intermediate School as an elementary school even though it is
listed as one in its Exhibit. ECF. No. 25-2. Moreover, two
“elementary” schools included in the 19 schools only enroll prekindergarten students and do not offer BITS (Cumberland Heights
ELC and Silver Springs ELC). See id. In sum, only one Mercer
County elementary school, Athens Elementary School, did not
administer BITS between first and fifth grade. Compare Doc 252, with Bible in the Schools: About Us,
http://www.mercerbits.org/aboutus.htm (last visited Sept 21,
2017).
2
According to the BITS website, only one of five Mercer County
middle schools, Montcalm Middle School, does not administer BITS
from 7th to 8th Grade. Thus, the BITS curriculum was taught in
all sixth grade classrooms of Mercer County public schools.
Compare Mercer County Public Schools, Middle and Secondary
Schools, http://boe.merc.k12.wv.us/?q=node/6 (last visited Sept.
21, 2017), with Bible in the Schools: About Us,
http://www.mercerbits.org/aboutus.htm (last visited Sept. 21,
2017).
3
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 nontheists.”
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.
¶ 11, 29.
See FAC
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
4
classroom and other classrooms – to abstain from BITS.
39-44.
Roe was allegedly “harassed by other students” and “felt
excluded” because she did not participate in BITS.
46.
FAC ¶¶
FAC ¶¶ 45,
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.”
No. 30-1.
See ECF
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.
5
The defendant, Deborah
Akers reportedly3 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 Akers4 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
3
Deborah Akers’ statements were printed in the Bluefield
Telegraph and entered into the record by defendants. See ECF
No. 30-3.
4
Defendant, Rebecca Peery, was not included as a party to this
motion to dismiss, but instead filed a motion to dismiss for
lack of service pursuant to Fed. R. Civ. P. 4(m). See ECF No.
39.
6
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.
No. 30.
See ECF
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
5
With the courts permission.
See ECF No. 32.
7
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 contextspecific 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 context8
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.
697 F.2d 1213, 1219 (4th Cir. 1982).
See Adams v. Bain,
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
9
(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
10
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.
Delia, 709 F.3d 307, 316 (4th Cir. 2013) (emphasis added)
(citing Lujan, 504 U.S. 555, 571 n.5 (1992)).
1. Injury in Fact
To establish injury in fact, each plaintiff must show “an
invasion of a legally protected interest which is (a) concrete
and particularized and (b) actual or imminent, not conjectural
or hypothetical.”
Lujan, 504 U.S. at 560 (quotation marks and
11
citation omitted).
In cases alleging Establishment Clause
violations, a plaintiff must have “personal contact with the
alleged establishment of religion.”
131 F.3d 1083, 1086 (4th Cir. 1997).
Suhre v. Haywood County,
“[M]ere abstract objection
to unconstitutional conduct is not sufficient to confer
standing.”
Id.
Direct harm is not limited to “physical injury or pecuniary
loss,” and “noneconomic or intangible injury may suffice to make
an Establishment Clause claim justiciable.”
Id.
Thus,
“[f]eelings of marginalization and exclusion are cognizable
forms of injury . . . because one of the core objectives of
modern Establishment Clause jurisprudence has been to prevent
the State from sending a message to non-adherents of a
particular religion ‘that they are outsiders, not full members
of the political community.’”
Moss v. Spartanburg Cty. Sch.
Dist. Seven, 683 F.3d 599, 607 (4th Cir. 2012) (quoting McCreary
County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 860
(2005)).
Additionally, a plaintiff is not required to take
affirmative steps to avoid the challenged religious exercise.
Instead, standing exists when plaintiffs “were subjected to
unwelcome religious exercises or were forced to assume special
burdens to avoid them.”
Valley Forge Christian Coll. v. Ams.
12
United for Separation of Church & State, Inc., 454 U.S. 464, 487
n.22 (1982).
Even with this abstract definition of direct harm, courts
“must guard against efforts to use this principle to derive
standing from the bare fact of disagreement with government
policy, even passionate disagreement premised on Establishment
Clause principles.
Such disagreement, taken alone, is not
sufficient to prove spiritual injury.”
Moss, 683 F.3d at 605
(citing Valley Forge, 454 U.S. at 486-87 & n.22).
In doing so,
the injury must remain “concrete in both a qualitative and
temporal sense . . . as opposed to merely abstract.”
Whitmore
v. Arkansas, 495 U.S. 149, 155 (1990) (citations and quotations
omitted).
2. Traceability and Redressability
The second and third prongs require the court to determine
whether a plaintiff’s injuries are traceable to defendant’s
conduct and whether a favorable decision would likely redress
such injuries.
The traceability prong is satisfied when it is
“likely that the injury was caused by the conduct complained of
and not by the independent action of some third party not before
the court.”
Friends of the Earth, Inc. v. Gaston Copper
Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000) (citing
Lujan, 504 U.S. at 561).
13
Additionally, redressability insists that plaintiffs
demonstrate that the remedy they seek will likely cure the
injury in fact of which they complain.
Doe v. Virginia Dep’t of
State Police, 713 F.3d 745, 755 (4th Cir. 2013) (quoting Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 181 (2000) (“Laidlaw”)).
3. Analysis
a. Elizabeth Deal and Jessica Roe
Jessica Roe attended a Mercer County school for three years
where BITS was a part of the curriculum.
See FAC ¶¶ 34-47.
Elizabeth Deal alleges that other students and faculty harassed
her daughter due to her failure to participate in BITS classes.
See FAC ¶ 45.
Before the 2016-17 school year, Elizabeth Deal
transferred her daughter to a neighboring school for her fourthgrade year.
FAC ¶ 40.
While Deal contends that BITS was a “major reason” for her
child’s removal to a neighboring school, FAC ¶ 48, the Amended
Complaint includes no contention that the removal of BITS would
lead toward the re-enrollment of Jessica Roe in Memorial Primary
School or any other Mercer County public school.
Each plaintiff “must demonstrate standing separately for
each form of relief sought.”
Freedom from Religion Foundation
v. New Kensington Arnold Sch. Dist., 832 F.3d 469, 482 (3d Cir.
2016) (Smith, J. concurring dubitante) (“New
14
Kensington”)(quoting Laidlaw, 528 U.S. at 185).
The court's
review of Elizabeth Deal’s and Jessica Roe’s claims for relief
illustrate that standing does not exist for their claims for
prospective relief.
i. Injunctive and declaratory relief
To have standing to seek injunctive relief, a plaintiff
must demonstrate a likelihood of repeated injury or future harm
to the plaintiff in the absence of the relief requested.
See
City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1982)
(describing the standing requirement for injunctive relief to
require that the “threat to the plaintiffs” of future injury be
“sufficiently real and immediate”); see also Deshawn E. by
Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (“A
plaintiff seeking injunctive or declaratory relief cannot rely
on past injury to satisfy the injury requirement but must show a
likelihood that he or she will be injured in the future.”).
The injunctive and declaratory relief requested by
Elizabeth Deal and Jessica Roe is available only if it can
redress her grievances.
O'Shea v. Littleton, 414 U.S. 488, 495
(1974) (“Past exposure to illegal conduct does not in itself
show a present case or controversy if unaccompanied by any
continuing, present adverse effects.”).
In the stark absence of
a contention that Roe intends to return to Memorial Primary
School, Elizabeth Deal and Jessica Roe are not entitled to
15
prospective relief because they do not have a concrete interest
in the resolution of those claims.
Additionally, this case is distinguishable from New
Kensington, 832 F.3d 469, a case where the United States Court
of Appeals for the Third Circuit decided that a plaintiff
parent’s decision to send her child to another school did not
deprive the parent of standing to seek injunctive relief
regarding the removal of a Ten Commandments monument at Valley
High School.
See id. at 481.
In that case, the court
specifically noted that if the Ten Commandments monument was
removed from Valley High School, the parent “avow[ed]” that she
would permit her child to enroll at the school.
Id. at 474.6
There is no allegation in the Amended Complaint that
Jessica Roe would return to school in Mercer County if the Bible
in the Schools program was enjoined.
For this reason, the court
has no reason to believe that the prospective relief sought by
Deal and Roe would redress their grievances.
This is especially
true where, as here, the Amended Complaint does not allege that
the Bible in the Schools program was the only reason for sending
Roe to a school outside Mercer County.
See id. at 476 (“In
assessing standing, our primary project is to separate those
6
The court also mentioned that the student had expressed an
interest in attending classes at another facility on the high
school campus that would put her in contact with the monument.
See id. at 481 n.13.
16
with a true stake in the contreversy from those asserting ‘the
generalized interest of all citizens in constitutional
governance.’”) (quoting Valley Forge, 454 U.S. at 483).
ii. Nominal Damages
Elizabeth Deal and Jessica Roe also seek an award of
nominal damages.
While the Supreme Court and Fourth Circuit
have not issued an explicit directive as to whether nominal
damages may alone suffice to confer standing, the Supreme Court
has recognized that plaintiffs must “personally [ ] benefit in a
tangible way from the court’s intervention,” consistent with the
federal court’s directive of limited jurisdiction.
Seldin, 422 U.S. 490, 508 (1975).
Warth v.
After reviewing applicable
case law from other circuits, the court does not believe that
the nominal damages claim of Deal and Roe is sufficient to
confer standing.
This case is similar to Morrison v. Board of Education of
Boyd County, 21 F.3d 602, 610 (6th Cir. 2008), cert. denied, 555
U.S. 1171.
In that case, before the 2004-05 school year, Boyd
County High School instituted a written policy prohibiting its
students from making stigmatizing or insulting comments about
another student’s sexual orientation.
Id. at 605.
In February
2005, Timothy Morrison, a high school student, sued the school
board, alleging the policy chilled his religious beliefs as a
Christian in violation of numerous constitutional provisions.
17
Id. at 606-07.
In August 2005, the school board revised its
policy in that “anti-homosexual speech would not be prohibited
unless it was sufficiently severe or pervasive” such that it
created a hostile environment.
Id. at 607.
Morrison continued
to seek nominal damages because his speech was chilled the
previous school year.
The court dismissed Morrison’s claim
stating, “nominal damages . . . would have no effect on the
parties’ legal rights.”
Id. at 611.
Additionally, the Sixth
Circuit Court of Appeals expressed the trivial nature of
engaging in an advisory opinion for the sake of nominal damages
as follows: “Allowing [this case] to proceed to determine the
constitutionality of an abandoned policy--in the hope of
awarding the plaintiff a single dollar vindicates no interest
and trivializes the important business of the federal courts.”
Id. at 611.
This court agrees.
The court also finds the concurrence of Judge Smith in New
Kensington 832 F.3d at 482 (concurring dubitante), persuasive.
In assessing whether nominal damages alone may confer standing,
Judge Smith wrote, “I am doubtful that a claim for nominal
damages alone suffices to create standing to seek backwardlooking relief.”
Id. at 482.
As another judge put it, “[w]here
. . . the challenged past conduct did not give rise to a
compensable injury and there is no realistic possibility of
recurrence, nominal damages have no more legal effect than would
18
injunctive or declaratory relief in the same case.”
Utah Animal
Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248 (2004)
(McConnell, J. concurring)7.8
Plaintiffs contend that this court should instead look to
Covenant Media of South Carolina, LLC v. City of North
Charleston, 493 F.3d 421 (4th Cir. 2007).
However, plaintiffs’
focus on Covenant Media is misplaced because that case does not
squarely address the issue before this court: whether a claim
for nominal damages, standing alone, is sufficient to confer
Article III standing.
Although the Covenant Media court
suggested that a claim for nominal damages might provide
standing,9 in that case the plaintiff was seeking both
compensatory and nominal damages.
See id. at 429 n.4.
7
Interestingly, Judge McConnell wrote both the majority and
concurring opinion in this case in an effort to remain
consistent with Tenth Circuit precedent while urging en banc or
Supreme Court review of this issue. See id. at 1263.
8
Judge McConnell’s concurrence provides an extensive history of
the purpose of nominal damages claims. In the past, “[l]awyers
might have asserted a claim for nominal damages to get the issue
before the court in the days before declaratory judgements were
recognized.” Id. at 1265 (quoting 13A Wright, Miller & Cooper,
Federal Practice and Procedure § 3533.3, at 266 (2d ed. 1984)).
Now however, the Declaratory Judgment Act has enlarged the
available “range of remedies in the federal courts . . .” Id.
(quoting Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667,
671 (1950)).
9
See id. at 429 (“Because Covenant alleges a personal injury . .
. that is redressable by nominal damages, we conclude that the
district court erred in determining Covenant lacked standing.”).
19
Thus, the nominal damages claim will “not remedy the injury
suffered [and] cannot bootstrap [Deal and Roe] into federal
court,” undermining standing’s redressability requirement.
New
Kensington, 832 F.3d at 483 (quoting Steel Co., 523 U.S. at 107
(1998)).
Since nominal damages will not redress any past injury
caused by BITS, Elizabeth Deal’s and Jessica Roe’s claim for
nominal damages is dismissed for lack of standing.
b. Doe Plaintiffs and FFRF
Defendants assert that the chain of possibilities in which
Jane Doe and her kindergarten child allege injury is a “mere
speculative chain of possibilities,” which fails to suffice for
the direct harm necessary for standing.
See ECF No. 30 at 8.
Defendants declare that the actual suspension of BITS further
confirms the speculative nature of Doe’s child attending and
being harmed by BITS classes.
See id.
The facts at issue, compared with defendants reliance upon
Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013), are night and
day.
In Clapper, plaintiffs – attorneys and human rights,
labor, legal, and media organizations – challenged the
constitutionality of the Foreign Intelligence Surveillance Act,
50 U.S.C. § 1881a, which authorized the electronic government
surveillance of non-U.S. persons outside the United States.10
10
It is important to note the rigors of the Supreme Court’s
standing analysis when “review[ing] the actions of political
20
The court held plaintiff’s fear rested upon a “highly attenuated
chain of possibilities”11 that the respondents had been harmed by
the government’s potential monitoring of foreign citizens
located abroad, which respondents may have had communications.
In stark contrast, for over 75 years, public schools in Mercer
County have offered Bible classes to its students and, since
1986, the Bible in the Schools program has been administered by
the Mercer County Board of Education.
See FAC ¶¶ 18, 22.
The longstanding and unabated nature of the BITS program,
coupled with the fact that Jamie Doe already attended a Mercer
branches in the fields of intelligence gathering and foreign
affairs.” Id. at 409 (collecting cases); e.g. United States v.
Richardson, 418 U.S. 166, 167-169 (1974); Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 208, 209-211 (1974);
Laird v. Tatum, 408 U.S. 1, 11–16 (1972).
11
In full, the speculative nature of respondent’s claims
required the following:
(1) the Government will decide to target the
communications of non-U.S. persons with whom they
communicate; (2) in doing so, the Government will
choose to invoke its authority under § 1881a rather
than utilizing another method of surveillance; (3) the
Article III judges who serve on the Foreign
Intelligence Surveillance Court will conclude that the
Government's proposed surveillance procedures satisfy
§ 1881a's many safeguards and are consistent with the
Fourth Amendment; (4) the Government will succeed in
intercepting the communications of respondents'
contacts; and (5) respondents will be parties to the
particular communications that the Government
intercepts.
Id. at 410.
21
County school that sponsored BITS and would herself encounter
the program in seven months, is sufficiently temporally concrete
to convey Article III standing.
See Lee v. Weisman, 505 U.S.
577, 584 (1992) (holding that recent middle school graduate who
later enrolled at Classical High School had standing to
challenge the school’s practice of inviting clergy to give
invocations and benedictions at high school graduations because
plaintiff was “enrolled as a student at Classical High School in
Providence and from the record it appears likely, if not
certain, that an invocation and benediction will be conducted at
her high school graduation.”);12 Babbitt v. United Farm Workers
Nat. Union, 442 U.S. 289, 298 (1979) (“A plaintiff who
challenges a statute must demonstrate a realistic danger of
sustaining a direct injury as a result of the statute's
operation or enforcement.”); New Kensington, 832 F.3d at 473-74,
480-81 (recognizing standing of a parent to seek the removal of
a Ten Commandments monument at a high school which parent’s
child would not attend for approximately two years).
Moreover, the court’s conclusion that the Does’ injury was
sufficiently concrete and particularized to confer standing is
not undermined by defendants’ voluntary suspension of BITS.
12
A
Indeed, the Weismans actually filed their lawsuit
approximately a month after the student’s middle school
graduation, and therefore, four years before she would graduate
from high school. See id. at 584.
22
plaintiff’s standing is tested at the time the complaint is
filed.
See Laidlaw, 528 U.S. at 189 (2000) (“The requisite
personal interest that must exist at the commencement of the
litigation (standing) must continue throughout its existence
(mootness).”) (citation omitted); Lujan, 504 U.S. at 570 n.5
(“[S]tanding is to be determined as of the commencement of
suit.”); cf. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S.
826, 830 (1989) (“The existence of federal jurisdiction
ordinarily depends on the facts as they exist when the complaint
is filed.”).
The BITS program had been taught since 1986
without interruption, and it was only suspended after the
lawsuit was filed.13
To the extent that defendants argue that the Does lack
standing because Jamie Doe could attend another elementary
school in Mercer County where Bible in the Schools was not
offered or simply remain at the same school but “opt out” of the
program, that argument is without merit.
In evaluating standing, the Supreme Court has
never required plaintiffs to take affirmative steps to
avoid contact with challenged displays or religious
exercises. The student plaintiffs in Schempp had the
option to leave the classroom during the Bible reading
and prayer they protested. These plaintiffs chose not
to assume this special burden, yet the Supreme Court
readily found that they had standing to challenge the
practice.
13
Defendants do not argue that plaintiffs’ claims are moot
because of the temporary suspension of the Bible in the Schools
program.
23
Suhre v. Haywood County, 131 F.3d 1083, 1088 (4th Cir.
1997)(“[N]either Supreme Court precedent nor Article III imposes
such a change-in-behavior requirement.”); Schempp, 374 U.S. at
224-25 (“Nor are these required exercises mitigated by the fact
that individual students may absent themselves upon parental
request."); see also Mellen v. Bunting, 327 F.3d 1083, 1088 (4th
Cir. 2003) (“VMI cannot avoid Establishment Clause problems by
simply asserting that a cadet’s attendance at supper and his or
her participation in the supper prayer are voluntary.
In the
words of the Supreme Court, the government may no more use
social pressure to enforce orthodoxy than it may use more direct
means.”) (internal citations and quotations omitted).
The court’s conclusion that Jane Doe and her child have
standing also leads the court to conclude that FFRF also has
standing on behalf of its member, Jane Doe.
See Hunt v.
Washington State Apple Advertising Comm’n, 432 U.S. 333, 343
(1977); see also Moss v. Spartanburg County School Dist. Seven,
683 F.3d 599, 606 (4th Cir. 2012) (“For an organization to have
standing, it must establish that at least one identifiable
member has suffered or would suffer harm from the defendant’s
conduct . . . . Because Tillett is a member of the Foundation
and the Foundation has relied exclusively on her alleged injury
to support its standing, its claim to standing rise or falls
24
with Tillett.”) (internal citations and quotation marks
omitted).
Thus, because Jane Doe has standing, so too does
FRFF.
D. Ripeness
“The doctrine of ripeness prevents judicial consideration of
issues until a controversy is presented in ‘clean-cut and
concrete form.’”
Miller v. Brown, 462 F.3d 312, 318–19 (4th
Cir. 2006) (quoting Rescue Army v. Mun. Court of L.A., 331 U.S.
549, 584 (1947)).
Therefore, ripeness concerns the appropriate
timing of judicial intervention.
“A claim is not ripe for
adjudication if it rests upon ‘contingent future events that may
not occur as anticipated, or indeed may not occur at all.’”
Texas v. United States, 523 U.S. 296, 300 (1998) (quoting 13A
Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal
Practice and Procedure § 3532, p. 112 (1984)).
If the appropriate timing is not present in an action, a
claim should be dismissed if the plaintiff has not suffered any
injury and future impact remains “wholly speculative.”
Gasner
v. Bd. of Supervisors, 103 F.3d 351, 361 (4th Cir. 1996); Abbott
Labs. v. Gardner, 387 U.S. 136, 148–49 (1967).
threat is not enough.”
“A hypothetical
United Pub. Workers of Am. (C.I.O.) v.
Mitchell, 330 U.S. 75, 90 (1947).
Simply and appropriately
stated by the D.C. Circuit, the ripeness doctrine “ensures that
Article III courts make decisions only when they have to, and
25
then, only once.”
Am. Petroleum Inst. v. E.P.A., 683 F.3d 382,
387 (D.C. Cir. 2012).
“Quite different from standing, which a party always
possesses once it is established, ‘ripeness can be affected by
events occurring after the case is filed’ and thus may be gained
or lost throughout a case.”
Eternal Word Television Network,
Inc. v. Sebelius, 935 F. Supp. 2d 1196, 1220 (N.D. Ala. 2013)(
quoting Yacht Club on the Intracoastal Condo. Ass'n v. Lexington
Ins. Co., 509 Fed.Appx. 919, 922 (11th Cir. 2013)); see also
Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974)
(“[R]ipeness is peculiarly a question of timing, it is the
situation now rather than the situation at [an earlier time]
that must govern.”).
Abbott Labs. v. Gardner created a two-prong test to
determine whether an issue “is sufficiently definite and clear
to permit sound review by this court.”
387 U.S. at 148-149.
These prongs require the court to balance “(1) the fitness of
the issues for judicial decision and (2) the hardship to the
parties of withholding court consideration.”
Id. at 149.
1. Fitness for Judicial Review
The fitness analysis focuses upon whether the issues sought
to be adjudicated remain contingent on future events.
151.
Id. at
Courts remain hesitant to factually analyze a question
which would result in the issuance of an advisory opinion,
26
instead shielding itself behind the supposition that “[i]f we do
not decide the [case] now, we may never need to.”
Am. Petroleum
Inst., 683 F.3d at 387; National Park Hospitality Ass'n v.
Department of the Interior, 538 U.S. 803, 804 (2003) (dismissing
the case as not ripe when “further factual development would
significantly advance the court’s ability to deal with the
issues presented and therefore adjudication should await a
concrete dispute . . .”)(brackets omitted).
The Fifth Circuit’s en banc decision in Staley v. Harris
County, Texas is particularly instructive.
485 F.3d 305, 307
(5th Cir. 2007), cert. denied, 552 U.S. 1038.
In that case,
plaintiff sought to enjoin Harris County, Texas from displaying
a Bible inside a monument located on county courthouse grounds.
Id. at 307.
The district court ordered the Bible removed and a
panel of the Fifth Circuit affirmed.
Id. at 307.
However, two
months before oral argument was heard en banc, the court learned
that the county courthouse had been closed for renovations and
that the monument would be placed in storage for at least two
years.
Id.
Doing so made the case both no longer ripe for
review (and also moot) because:
[A]ny dispute over a probable redisplay of the
Mosher monument is not ripe because there are no facts
before us to determine whether such a redisplay might
violate the Establishment Clause. Indeed, no decision
has been made regarding any aspect of the future
display. In the absence of this evidence, we are
27
unable to conduct the fact-intensive and contextspecific analysis required . . .
Id. at 309.
The same uncertainties exist in this case because the court
is unable to evaluate the content of future BITS classes because
they do not exist.
As noted supra, a public school Bible class
does not establish an automatic violation of the Establishment
Clause.
Instead, the court must engage in a case-by-case
adjudication of whether the content of the class is consistent
with Lemon v. Kurtzman, 403 U.S. 602.
Moreover, the standards
set forth by numerous district courts guide public schools as to
how a Bible curriculum may comply with the Establishment Clause.
See supra.
As noted earlier, the Bible in the Schools program of which
plaintiffs’ complain is not currently offered nor will it be
offered in the future.
Furthermore, should a Bible in the
Schools curriculum reemerge, the court has no information before
it to determine the content of such a class.
With “no facts
before us to determine whether the [BITS program] might violate
the Establishment Clause,” Staley v. Harris County, Tex., 485
F.3d at 309, the court is left unable to engage in the contextdependent inquiry of a future BITS curriculum.
Therefore, until
the Bible in the Schools curriculum that Jamie Doe will actually
encounter “is presented in clean-cut and concrete form,” Rescue
28
Army, 331 U.S. at 584, this action is not ripe for judicial
review.
2. Hardship to the Parties
The hardship prong of our ripeness analysis is “measured by
the immediacy of the threat and the burden imposed on the
petitioner who would be compelled to act under threat of
enforcement of the challenged law.”
Charter Fed. Sav. Bank v.
Office of Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992)
(citing Abbott Labs., 387 U.S. at 149).
“To outweigh the[ ]
institutional interests in the deferral of review, any hardship
caused by that deferral must be immediate and significant.
Considerations of hardship that might result from delaying
review will rarely overcome the fitness problems inherent in
attempts to review tentative positions.”
Am. Petroleum Inst.,
683 F.3d at 388 (internal quotations omitted).
In doing so, the
court reviews the harmful effects of withholding consideration
of the past BITS program.
Abbott Labs., 387 U.S. at 149 (1967).
The court is mindful of the ambiguity and future harm which
faces plaintiffs concerning whether the BITS program will be
resurrected in future years.
Indeed the school has stated its
intention to resurrect the BITS program.
See ECF No. 30-3.
However, defendants represented to the court in writing and
during oral argument that it has discontinued the present BITS
program and that the BITS curriculum of which plaintiffs
29
complain does not exist and will not come back.
The court takes
defendants’ representations14 as a binding commitment that the
past BITS program no longer exists and that BITS has been
altogether suspended for at least one year.
See ECF No. 30-1;
ECF No. 30 at 6.
Additionally, the remedies available to the court do not
include an absolute ban on a future BITS curriculum.
Schempp, 374 U.S. at 225.
See
Indeed, whether or not this court
were to undergo an (albeit incomplete) factual analysis of the
past BITS program, defendants might remain capable of
developing, adopting, and teaching a new BITS curriculum in
conformity with Establishment Clause jurisprudence.
As a result, the clouded future of BITS classes in Mercer
County would hang over the heads of the Does regardless of the
court's substantive review.
Nevertheless, as the Supreme Court
reminded plaintiffs in Texas v. United States, if BITS returns
and it is clear the new BITS program violates constitutional
law, this district is more than capable of granting a
preliminary injunction.
523 U.S. at 302.
14
The court does not blindly trust defendants’ representations,
but also relies upon the fact that the BITS teachers have been
terminated from their employment by the Mercer County Board of
Education, see ECF 30-1 at ¶ 4, putting the court at ease that a
new BITS program is incapable of returning without putting
plaintiffs and the court on notice.
30
This court finds “it too speculative whether the problem
[the Does] present[] will ever need solving; we find the legal
issues [the Does] raise[] not fit for our consideration, and the
hardship to [the Does] of biding [their] time insubstantial.”
Id.
Based on the Abbott Laboratories factors, this court has
determined that Does’ and FRFF’s claims are not ripe for review.
III. CONCLUSION
The court GRANTS the defendants’ Motion to Dismiss the
Amended Complaint without prejudice as it relates to all
defendants.15
ECF No. 25.
The court DIRECTS the Clerk to send a
copy of this Memorandum Opinion and Order to counsel of record.
IT IS SO ORDERED this 14th day of November, 2017.
ENTER:
David A. Faber
Senior United States District Judge
15
While defendant,
motion to dismiss,
not justiciable as
defendants’ claims
Rebecca Peery, did not join defendants’
see ECF No. 25, plaintiffs’ claims are also
they relate to Ms. Peery. Therefore,
against Ms. Peery are also dismissed.
31
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