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

> District Court, S.D. West Virginia · March 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10729582

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** March 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729582. Public record. Not legal advice.