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

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

Pending before the court is defendant Rebecca Peery’s motion

to dismiss. See ECF No. 137. Plaintiffs filed a response in

opposition to the motion to dismiss. See ECF No. 140. Peery did

not file a reply in support of her motion. For the reasons

discussed below, the motion to dismiss is DENIED.

I. Background

This civil action arises out of a longstanding Bible in the

Schools (“BITS”) program previously administered in many of the

elementary and middle schools in 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. By Memorandum Opinion and Order dated

March 31, 2020, the court granted defendants' motion to dismiss

insofar as it sought dismissal of plaintiffs' claim for

injunctive relief. Only the claim for nominal damages remains

pending.

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 (“the Board” or

“BOE”) assumed responsibility for administering the BITS

curriculum. See id. at ¶ 22. A nonprofit organization,

Bluefield Bible Study Fund, Inc., financed the program’s

expenses. See id. at ¶ 24. According to the First Amended

Complaint, “[t]he Mercer County Board of Education has taken on

all responsibilities for the program except financing.” Id. at ¶

23.

Over her 25-year tenure, Deborah Akers, Superintendent of

Mercer County Schools, allegedly implemented all Mercer County

School policies and programs, including BITS. See 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

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approving BITS lessons pursuant to Mercer County Schools’ Policy

I-45. See id. at ¶¶ 99-103. Mercer County School Policy I-45

directs teachers to develop lesson plans and submit them to their

school principals for review. See id. at ¶¶ 101, 106.

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 id. at ¶¶ 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.” Id. at ¶ 8.

From 2012 to 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. See id. at ¶¶ 34-38. Roe was

allegedly “harassed by other students” and “felt excluded”

because she did not participate in BITS. Id. at ¶¶ 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

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not sponsor BITS. Id. at ¶ 48. According to Elizabeth Deal, the

BITS program was a “major reason” for Jessica’s transfer. Id.

Peery alleges that the case should be dismissed as to her

because plaintiffs have failed to state a claim upon which relief

may be granted. Peery also argues that she should be dismissed

from the lawsuit because she is protected by qualified immunity.

II. Standard of Review

"[A] motion to dismiss for failure to state a claim for

relief should not be granted unless it appears to a certainty

that the plaintiff would be entitled to no relief under any state

of facts which could be proved in support of his claim." Rogers

v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.

1989) (citation omitted) (quoting Conley v. Gibson, 355 U.S. 41,

48 (1957), and Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.

1969)). "In considering a motion to dismiss, the court should

accept as true all well-pleaded allegations and should view the

complaint in a light most favorable to the plaintiff." Mylan

Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993);

see also Ibarra v. United States, 120 F.3d 474, 474 (4th Cir.

1997).

In evaluating the sufficiency of a pleading, the cases of

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.

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Iqbal, 556 U.S. 662 (2009), provide guidance. When reviewing a

motion to dismiss, under Federal Rule of Civil Procedure

12(b)(6), for failure to state a claim upon which relief may be

granted, a court must determine whether the factual allegations

contained in the complaint “give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests,”

and, when accepted as true, “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555 (quoting Conley v.

Gibson, 355 U.S. 41, 47 (1957); 5 Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

“[O]nce a claim has been stated adequately, it may be supported

by showing any set of facts consistent with the allegations in

the complaint.” Twombly, 127 S. Ct. at 1969. As the Fourth

Circuit has explained, “to withstand a motion to dismiss, a

complaint must allege ‘enough facts to state a claim to relief

that is plausible on its face.’” Painter’s Mill Grille, LLC v.

Brown, 716 F.3d 342, 350 (4th Cir. 2013) (quoting Twombly, 550

U.S. at 570).

According to Iqbal and the interpretation given it by our

appeals court,

[L]egal conclusions, elements of a cause of action, and

bare assertions devoid of further factual enhancement

fail to constitute well-pled facts for Rule 12(b)(6)

purposes. See Iqbal, 129 S.Ct. at 1949. We also

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decline to consider “unwarranted inferences,

unreasonable conclusions, or arguments.” Wahi v.

Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.

26 (4th Cir. 2009); see also Iqbal, 129 S. Ct. at

1951-52.

Ultimately, a complaint must contain “sufficient

factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Iqbal, 129

S.Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Facial plausibility is established once the factual

content of a complaint “allows the court to draw the

reasonable inference that the defendant is liable for

the misconduct alleged.” Id. In other words, the

complaint's factual allegations must produce an

inference of liability strong enough to nudge the

plaintiff's claims “‘across the line from conceivable

to plausible.’” Id. at 1952 (quoting Twombly, 550 U.S.

at 570, 127 S.Ct. 1955).

Satisfying this “context-specific” test does not

require “detailed factual allegations.” Id. at 1949-50

(quotations omitted). The complaint must, however,

plead sufficient facts to allow a court, drawing on

“judicial experience and common sense,” to infer “more

than the mere possibility of misconduct.” Id. at 1950.

Without such “heft,” id. at 1947, the plaintiff's

claims cannot establish a valid entitlement to relief,

as facts that are “merely consistent with a defendant's

liability,” id. at 1949, fail to nudge claims “across

the line from conceivable to plausible.” Id. at 1951.

Nemet Chevrolet, LTD v. Consumeraffairs.com, Inc., 591 F.3d 250,

255-56 (4th Cir. 2009); see also Midgal v. Rowe Price-Fleming

Int’l, Inc., 248 F.3d 321, 326 (4th Cir. 2001) (“The presence of

a few conclusory legal terms does not insulate a complaint from

dismissal under Rule 12(b)(6) when the facts alleged in the

complaint cannot support the legal conclusion.”).

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III. Analysis

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. at 612-613 (1971); see also

Edwards v. Aguillard, 482 U.S. 578, 584 (1987). The court finds

that plaintiffs have stated a facially plausible Establishment

Clause claim and that the claims against Peery are not subject to

dismissal for failure to state a claim.

Plaintiffs have alleged that, at all relevant times, Rebecca

Peery was the principal of Memorial Primary School. See FAC ¶

17. They have further alleged that, in that role, Peery “was

responsible for school policies and managing instruction at

Memorial Primary School while Jessica Roe was enrolled as a

student there.” Id. at ¶ 99. According to the FAC, “Peery was

aware of the religious content of the Bible in the Schools

program while Jessica Roe was a Memorial Primary School student.”

Id. at ¶ 100. As well, “[p]ursuant to Mercer County Board of

Education Policy I-45, teachers are required to develop lesson

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plans for each subject they are responsible for teaching and they

are directed to submit those plans to the school principal for

review.” Id. at ¶ 101. Therefore, Peery either “approved of

lessons related to the Bible in the Schools program or failed to

review such lessons.” Id. at ¶ 103. Even after Elizabeth Deal

complained about the BITS program, Peery allowed it to continue

at Memorial Primary. See id. at ¶ 14. Because of her mother’s

objection to BITS, Jessica Roe was removed from her classroom

under Peery’s leadership. See id. at ¶ 15. Plaintiffs contend

that “Mercer County Schools, Deborah Akers, and school

principals, such as Rebecca Peery, worked in concert to implement

and administer religious instruction to students.” Id. at ¶ 106.

Plaintiffs’ allegations, “along with the reasonable and

favorable inferences that flow from” them, must be accepted on a

motion pursuant to Federal Rule of Civil Procedure 12(b)(6).

Good v. American Water Works Co., Inc., Civil Action No. 2:14-

01374, 2015 WL 3540509, *4 (S.D.W. Va. June 4, 2015) (Copenhaver,

J.). Accepting Plaintiffs' allegations as true and drawing all

reasonable inferences in their favor, at this juncture, the court

cannot conclude that plaintiffs have failed to state a claim

against Peery.

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Peery also argues that she is entitled to qualified

immunity. The defense of qualified immunity shields a government

official from liability if the official's conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known. See Mellen v.

Bunting, 327 F.3d 355, 365 (4th Cir. 2003). To determine whether

a complaint should survive a qualified immunity-based motion to

dismiss, a court considers (1) whether a constitutional violation

occurred and (2) whether the right violated was clearly

established. See Pearson v. Callahan, 555 U.S. 223, 236 (2009);

Saucier v. Katz, 533 U.S. 194, 200 (2001); Melgar v. Greene, 593

F.3d 348, 353 (4th Cir. 2010). A court may consider either prong

of the qualified immunity analysis first. Sims v. Labowitz, 885

F.3d 254, 260 (4th Cir. 2018). “The defense does not shield

officials, however, when they have acted ‘incompetent[ly]’ or

have ‘knowingly violate[d] the law.” Owens v. Baltimore City

State’s Attorneys Office, 767 F.3d 379, 395 (4th Cir. 2014)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

“A qualified immunity defense can be presented in a Rule

12(b)(6) motion, but, as the Second Circuit has noted, when

asserted at this early stage in the proceedings, ‘the defense

faces a formidable hurdle’ and ‘is usually not successful.’” Id.

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at 396 (quoting Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167,

191-92 (2d Cir. 2006)). “This is so because dismissal under Rule

12(b)(6) is appropriate only if a plaintff fails to state a claim

that is plausible on its face.” Id. (emphasis in original).

At this stage, it is impossible to determine if Peery is

entitled to qualified immunity. Significantly, Peery’s brief

assumes certain facts that not are alleged in the complaint and

makes inferences that are neither favorable nor reasonable to the

allegations that are actually in the complaint. The resolution

of these factual disputes is best resolved via a motion for

summary judgment. See Atheists of Florida v. City of Lakeland,

Fla., 779 F. Supp. 2d 1330, 1343 (M.D. Fl. 2011) (denying motion

to dismiss because if defendant knowingly violated the law the

qualified immunity defense would be unavailable to him and motion

for summary judgment was proper mechanism to resolve factual

disputes). The court is not definitively saying that Peery is

not entitled to qualified immunity. Rather, the court is

determining that the existence of this affirmative defense is not

clear on the face of the complaint.

For all these reasons, defendant’s motion to dismiss is

DENIED. The court DIRECTS the Clerk to send a copy of this

Memorandum Opinion and Order to counsel of record.

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IT IS SO ORDERED this 26th day of March, 2021.

ENTER:

David A. Faber

Senior United States District Judge

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