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 a motion to dismiss filed by

defendants Mercer County Board of Education, Mercer County

Schools, and Deborah Akers. (ECF No. 79). For the reasons that

follow, that motion is GRANTED insofar as it seeks dismissal of

plaintiff’s claim for injunctive relief.

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.

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 (“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

approving BITS lessons pursuant to Mercer County Schools’ Policy

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

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directs teachers to develop lesson plans and submit them to their

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

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 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.

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 id.

at ¶¶ 11, 29. Jane Doe alleged her intention to enroll her

daughter in the same school the following year. See id. at ¶ 29.

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

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children who do not participate [in BITS]. . . [and thus]

subject[] Jamie to the risk of ostracism from peers and even

school staff.” Id. at ¶ 33.

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

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

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

C. Suspension of BITS

On May 23, 2017, the Mercer County Board of Education voted

to suspend the BITS program for “at least a year.” See ECF No.

30-1; Deposition of Elijah Paul Hodges, Jr., September 25, 2019,

at 14-18 (hereinafter "Hodges Depo. at _____"). The Board did so

via approval of Board Memo #344 which was a memorandum from Akers

to the Board dated May 23, 2017. See Exhibit P-4 to Hodges Depo.

That memorandum provided in pertinent part:

Adopting a curriculum for the secondary schools

sets the stage for us to consider reviewing our

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elementary curriculum. The review cycle for state

required courses in the elementary schools is six

(6) years, so it makes sense to review our

elective elementary Bible curriculum at this time.

Since the Bible class is an elective, I would like

to include community members and religious leaders

along with our teachers in this process. In order

to conduct a thorough review, we need to allow at

least a year to complete the task. Therefore, I

am recommending that we suspend the elementary

Bible classes until this review is completed.

Id. On April 11, 2017, the Mercer County Board of Education

terminated the employment of all BITS teachers. See ECF No. 30-1

at ¶ 4. At a hearing on June 19, 2017, counsel for defendants

assured the court during oral argument that the BITS curriculum

of which plaintiffs complained did not exist and would not come

back. However, in a newspaper article published on April 7,

2017, Dr. 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 had not been

established. See ECF No. 30-3. According to Dr. Akers,

defendants were “vigorously contesting” the lawsuit. Id. (“We

haven’t stopped contesting it. We’re still fighting it.”).

D. Defendants’ Motion to Dismiss

Defendants, Mercer County Board of Education, Mercer County

Schools, and Deborah Akers filed a motion to dismiss and

accompanying memorandum on April 19, 2017, requesting a complete

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dismissal of plaintiffs’ claims on four grounds. See ECF No. 25.

The court granted defendants’ motion to dismiss on standing and

ripeness grounds.

E. Appeal

Plaintiffs appealed the court’s dismissal of their

complaint. On December 17, 2018, the appeals court reversed the

district court’s decision to dismiss the complaint, finding that

plaintiffs did have standing and that dismissal based upon

ripeness was erroneous. See Deal v. Mercer County Bd. of Educ.,

911 F.3d 183, 186 (4th Cir. 2018). At oral argument, counsel for

defendants argued, for the first time, that plaintiffs’ claims

were moot because of the suspension of the BITS program. See id.

at 191. The appeals court rejected defendants’s argument that

the claims were now moot. See id. According to the court:

A case becomes moot “when the issues presented are

no longer `live’ or the parties lack a legally

cognizable interest in the outcome.” Simmons v.

United Mortg. & Loan Inv., LLC, 634 F.3d 754, 763

(4th Cir. 2011) (internal quotation marks

omitted).

When a defendant voluntarily ceases a

challenged program, however, the analysis requires

additional rigor. In such a case, “[i]t is well

settled that a defendant’s voluntary cessation of

a challenged practice does not deprive a federal

court of its power to determine the legality of

the practice.” Laidlaw, 528 U.S. 189, 120 S. Ct.

693 (internal quotation marks omitted). Rather, a

party asserting mootness bears a “heavy burden of

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persuading” the court that “subsequent events

[make] it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected

to recur.” Id. (alteration omitted and emphasis

added).

* * *

The County has consistently described the

BITS program as “suspend[ed],” rather than

eliminated outright. Indeed, the County has

characterized the suspension as part of a regular

review process, a dubious suggestion in view of

the program’s uninterrupted, decades-long history.

See Already, LLC v. Nike, Inc., 568 U.S. 85, 91,

133 S. Ct. 721, 184 L. Ed. 2d 553 (2013)

(explaining that the voluntary cessation exception

prevents a defendant from “engag[ing] in unlawful

conduct, stop[ping] when sued to have the case

declared moot, then pick[ing] up where he left

off”).

Moreover, we have held that a defendant does

not meet its burden of demonstrating mootness when

it retains authority to “reassess” the challenged

policy “at any time.” Pashby, 709 F.3d at 316.

Here, news reports submitted to the district court

by the County itself emphasized that the County

was “still vigorously contesting” this suit and

“fighting” to retain the BITS program. Rather

than enhancing the County’s case, these press

reports reveal the precise problem with relying on

a party’s voluntary cessation of unconstitutional

activity to establish mootness. Indeed, we have

routinely found such evidence insufficient. See

Porter, 852 F.3d at 364-65 (collecting cases).

Nor do we find compelling the fact that BITS

teachers received a notice from the Mercer County

Board of Education that their employment might be

terminated. To the extent this has persuasive

value, it is undercut by Superintendant Akers’

description of the notices as a “precautionary

measure” driven solely by this litigation and the

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school district’s “mandatory timelines” for

informing teachers of their ongoing employment

status. Such equivocal evidence cannot save the

County’s mootness claims.

In sum, the County has not carried its burden

of showing that subsequent events make it

“absolutely clear” that the suspended version of

the BITS program will not return in identical or

materially indistinguishable form. Laidlaw, 528

U.S. at 189. 120 S. Ct. 693. Appellants’ current

claims are therefore not moot.

Id. at 191-92. The court went on to say this its decision “does

not prevent the district court from addressing mootness in the

future if presented with that issue.” Id. at 192. The case was

remanded to this court for further proceedings.

F. Post-Appeal

On January 3, 2019, by a vote of 3 to 2, the Board

adopted a resolution terminating the BITS program. That

resolution provided:

WHEREAS, the Board of Mercer County Schools (MCS)

suspended the Bible in the Schools (BITS) program

on May 23, 2017, pending a review of its

curriculum; and,

WHEREAS, the Board of MCS, on May 24, 2017,

initiated a thorough review of its options

concerning the BITS program, to last at least a

year, including evaluating of other curricula,

gauging community interest, and interviewing key

stakeholders; and,

WHEREAS, the Board of MCS terminated the

employment contracts of all BITS teachers for the

2017-2018 school year as of April 11, 2017, and

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did not extend any contracts to BITS teachers for

the 2018-2019 school year, while its thorough

review was pending; and,

WHEREAS, the Board of MCS did not offer the BITS

program at the elementary level during school

years 2017-2018, 2018-2019 (including to the

present); and,

WHEREAS, as a result of the review of the BITS

program, it is clear to the Board of MCS that the

BITS program is no longer compatible with the

educational mission of MCS;

THEREFORE, We, the Board of Mercer County Schools,

hereby RESOLVE that its schools will never offer

or employ the BITS program in any of its schools.

Further RESOLVED: MCS does not now or in the

future intend to offer a Bible elective curriculum

in any of its elementary schools.

Further RESOLVED: MCS will not now or in the

future employ teachers for the purpose of teaching

a Bible elective curriculum in any of its

elementary schools.

ECF No. 79-1. On April 10, 2019, defendants the BOE, Mercer

County Schools, and Akers filed the instant motion to dismiss

arguing that the case was now moot based upon the resolution

terminating the BITS program. The court granted plaintiffs’

motion for limited discovery on the issue of mootness.

Regarding review of the BITS program, Amanda Aliff, the

Coordinator of Pupil Services for Mercer County Schools

spearheaded a committee charged with reviewing the BITS program

“to see if there was any way to deliver the curriculum in an

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appropriate manner.” Deposition of Amanda Aliff, September 25,

2019, at 12 (hereinafter "Aliff Depo. at _____"); see also Aliff

Depo at 23-25. That committee, which Ms. Aliff described as “ad

hoc”, consisted of Aliff, several school members, as well as

members of the community. See id. at 12. Ms. Aliff testified

that she was instructed to form this committee by Dr. Akers, see

id. at 26-27; see also Deposition of Dr. Deborah Akers, September

25, 2019, at 32 (hereinafter "Akers Depo. at _____"), and that it

was formed in May of 2017. See Aliff Depo. at 31. According to

Aliff, the committee was “looking at a way to offer the [BITS]

program within the confines of the law.” Id. at 27. Ms. Aliff

testified that ultimately the committee concluded that the BITS

program as it existed was “inappropriate” and that the committee

“didn’t have the expertise to revamp that program to make it

appropriate.” Id. at 28; see also id. at 30, 38. According to

Ms. Aliff, the ad hoc committee came to its conclusion that the

BITS program could not be salvaged pretty quickly after forming.

See id. at 38.1 Ms. Aliff ultimately conveyed the committee’s

1 Q: When did that committee reach its consensus that the

elementary classes were not appropriate as they

previously existed?

A: It happened pretty quickly after the committee was

formed. I think we may have met twice, the first time

just to talk about our task. The second time we

determined that we didn’t have the expertise.

Q: To revamp the program?

A: Yes.

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conclusions to Dr. Akers. See id. at 39-40. Ms. Aliff testified

that she did not have further discussions with Dr. Akers about

the old elementary program, i.e., BITS “because the conclusions

of the committee meant that the program would be gone.” Id. at

40. To that end, the schools no longer are in possession of the

tangible materials used in the BITS classes. See id. at 41;

Akers Depo. at 23 (Q: Do you know whether any of the [BITS]

materials have been recycled for use in other classes? A: I know

they have not.).

According to Dr. Akers, the ad hoc committee’s review of

the BITS program was conducted in the summer of 2017. See Akers

Depo. at 61. She could not recall when it was finished. See id.

On or about January 3, 2019, Dr. Akers drafted Board Memo #171 to

the Board which presented the resolution terminating the BITS

program. See id. at 55-56. Dr. Akers testified that she was in

favor of the Board’s adopting the resolution. See id. at 56. Of

her belief that the Board was bound by the resolution, Dr. Akers

testified:

Q: And was it that second meeting - - would it be fair to

say that the consensus among the committee members was

that the program, as it existed, was not appropriate?

A: Yes.

Id.

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Q: I was just trying to understand the meaning

of what a Bible elective curriculum means as

represented in this resolution.

A: Well, as represent[ed] in this resolution,

we’re not going to be teaching a Bible

elective in the elementary schools. Period.

Q: Right. I understand that. That’s what this

resolution says. I guess I’m trying to

understand - - let me ask this: Would the

BITS program be a Bible elective curriculum?

A: No, not - - not - - we’re not going to be

offering that or any verison of that in the

elementary schools. I think you are

confusing me a little bit. So the only way I

can say it is we are not going to be doing

that.

Q: The BITS program?

A: Yes.

Q: And then it goes on to say, “We’re also not

going to offer a Bible elective curriculum -

-

A: We’re not going to offer Bible in the

elementary schools. Period.

Q: Right. So I’m just trying to understand what

Bible elective curriculum means, and the best

frame of reference I would have would be this

Bible and Its Influence classes. And so I’m

just trying to understand, if by the Board’s

understanding of that language, would the

Bible [and] Its Influence classes be part of

what is being referred to?

A: No. No, what I was trying to say there was

that is a curriculum. You asked me a

question about what did I mean. That is a

curriculum, but that’s a middle school

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curriculum. There may be some elementary

curriculums out there, but whatever they are,

we’re not going to offer any Bible elective

curriculum in the elementary schools. That’s

what that means.

Q: So, is it the Board’s position that that

language would prevent you from directing Ms.

Aliff to form a committee to modify the sixth

grade class to be something that can be

taught in fifth grade?

A: Yes.

Q: This - - this - -

A: We could not do that. She could not do that.

I would not do that.

Q: Right. Based upon this resolution?

A: Yes.

Q: And is there anything preventing the Board

from adopting a resolution that would allow

you to do exactly what we just talked about?

Tell Ms. Aliff to adapt Bible [and] Its

Influence for fifth grade?

A: Well, they’ve adopted this that they are not

going to do it now or ever I think it says in

there. Never.

Q: Right. So is it the Board’s position that

that would prevent the Board - - that

language would prevent any future board from

ever taking different action?

* * *

A: Their position as a board is they will never

offer that.

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Q: So does that refer to the currently

constructed board or all future boards?

A: Well, they’re sending that message through

this resolution to future boards.

Q: Right. But future boards would be free to

adopt a resolution taking a different

position, correct?

A: Future boards can act, but I think in a

resolution they’re going to look at what has

been adopted by previous boards.

Akers Depo. at 64-67.

Mr. Hodges testified that the resolution passed by a vote

of 3 to 2 and that he had voted in favor of it. See Hodges Depo.

at 34-35. Hodges conceded that he was unaware of anything

preventing the Board “from adopting a resolution that would turn

the” resolution terminating BITS “on its head”. Id. at 44-45.

He maintained, however, there was no plan or desire to do so.

See id. at 44 (“I’m not aware of any law or anything that keeps

us from doing it, but it will not happen. I mean, we’re

intelligent people. It will not happen.”).

II. DISCUSSION

Article III, § 2, of the Constitution confines federal

courts to the decision of ‘Cases’ or ‘Controversies.’” Arizonans

for Official English v. Arizona, 520 U.S. 43, 64 (1997). As the

Court put it:

14

To be cognizable in a federal court, a suit must

be definite and concrete, touching the legal

relations of parties having adverse legal

interests. . . . It must be a real and

substantial controversy admitting of specific

relief through a decree of a conclusive character,

as distinguished from an opinion advising what the

law would be upon a hypothetical state of facts. .

. . However, moot questions require no answer. .

. . Mootness is a jurisdictional question

because the Court is not empowered to decide moot

questions or abstract propositions, . . . our

impotence to review moot cases derives from the

requirement of Article III of the Constitution

under which the exercise of judicial power depends

on the existence of a case or controversy.

North Carolina v. Rice, 404 U.S. 244, 246 (1971) (internal

citations and quotations omitted); see also Lewis v. Continental

Bank Corp., 494 U.S. 472, 477 (1990) (“Under Article III of the

Constitution, federal courts may adjudicate only actual, ongoing

cases or controversies.”).

“This case-or-controversy requirement subsists through

all stages of federal judicial proceedings, trial and appellate.

To sustain our jurisdiction . . ., it is not enough that a

dispute was very much alive when suit was filed. . . .” Id.

“The parties must continue to have a personal stake in the

outcome of the lawsuit.” Id. at 478. “If an intervening

circumstance deprives the plaintiff of a ‘personal stake in the

outcome of the lawsuit,’ at any point during litigation, the

action can no longer proceed and must be dismissed as moot.”

15

Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 73 (2013)

(quoting Lewis, 494 U.S. at 477–478); Norfolk S. Ry Co. v. City

of Alexandria, 608 F.3d 150, 161 (4th Cir. 2010) (“We are always

obliged to assure ourselves that a live dispute exists between

the parties at all stages of litigation.”).

“When a case or controversy ceases to exist—either due to

a change in the facts or the law—‘the litigation is moot, and the

court’s subject matter jurisdiction ceases to exist also.’”

Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017) (quoting S.C.

Coastal Conservation League v. U.S. Army Corps. of Eng’rs, 789

F.3d 475, 482 (4th Cir. 2015)). “A case can become moot due

either to a change in the facts or a change in the law.” S.C.

Coastal, 789 F.3d at 482 (citing Ross v. Reed, 719 F.2d 689,

693–94 (4th Cir. 1983)). A district court's mootness

determination is reviewed de novo and “a district court's

jurisdictional findings of fact on any issues that are not

intertwined with the facts central to the merits of the

plaintiff's claims [are reviewed] under the clearly erroneous

standard of review. . . .” Id. (quoting U.S. ex rel. Vuyyuru v.

Jadhav, 555 F.3d 337, 348 (4th Cir. 2009)).

There are, however, exceptions to the mootness doctrine.

One of these, commonly referred to as the voluntary cessation

16

exception, holds that “‘a defendant’s voluntary cessation of a

challenged practice does not deprive a federal court of its power

to determine the legality of the practice.’” Porter, 852 F.3d at

363 (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.

283, 289 (1982)).

The voluntary cessation exception “traces to the

principle that a party should not be able to evade

judicial review, or to defeat a judgment, by

temporarily altering questionable behavior.” Id.

at 364 (quoting City News & Novelty, Inc. v. City

of Waukesha, 531 U.S. 278, 284 n.1 (2001)).

Accordingly, the exception seeks to prevent “a

manipulative litigant immunizing itself from suit

indefinitely, altering its behavior long enough to

secure a dismissal and then reinstating it

immediately after.” ACLU of Mass. v. U.S.

Conference of Catholic Bishops, 705 F.3d 44, 54-55

(1nst Cir. 2013). . . . To that end, “a defendant

claiming that its voluntary compliance moots a

case bears the formidable burden of showing that

it is absolutely clear the allegedly wrongful

behavior could not reasonably be expected to

recur.” [Friends of the Earth v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)].

Id. at 364.

Of that heavy burden, the United States Court of Appeals

for the Fourth Circuit has already observed in this case:

When a defendant voluntarily ceases a

challenged program, however, the analysis requires

additional rigor. In such a case, “[i]t is well

settled that a defendant’s voluntary cessation of

a challenged practice does not deprive a federal

court of its power to determine the legality of

the practice.” Laidlaw, 528 U.S. at 189. . . .

Rather, a party asserting mootness bears a “heavy

17

burden of persuading” the court that “subsequent

events [make] it absolutely clear that the

allegedly wrongful behavior could not reasonably

be expected to recur.” Id.

Deal v. Mercer County Bd. of Educ., 911 F.3d 183, 191 (4th Cir.

2018); see also Grutzmacher v. Howard County, 851 F.3d 332, 349

(4th Cir. 2017) (“It is well established that a defendant’s

voluntary cessation of a challenged practice moots an action only

if subsequent events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.”)

(internal citations and quotations omitted).

In this case, defendants have met their burden. It is

undisputed that on January 3, 2019, the Board approved a

resolution to terminate the BITS program and never reinstate it

in any of its schools. In the resolution, the Board further

stated that it “does not now or in the future intend to offer a

Bible elective curriculum in any of its elementary schools” or

“now or in the future employ teachers for the purpose of teaching

a Bible elective curriculum in any of its elementary schools.”

ECF No. 79-1. In his affidavit dated April 10, 2019, Paul

Hodges, President of the Board, confirmed that “[n]o teachers are

assigned to the BITS program. The contract for any teacher

previously employed as a part of the BITS program has either not

been renewed, or renewed under new assignment within Mercer

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County Schools.” ECF No. 79-1 (Hodges Affidavit at ¶ 1).

At his deposition on September 25, 2019, Mr. Hodges

confirmed that he had voted in favor of the resolution to

terminate the BITS program and that there would be no effort to

reinstate the program. See Hodges Depo. at 44. Dr. Akers

confirmed that, not only was the BITS program terminated, that a

Bible elective would never be taught in the elementary schools.

See Akers Depo. at 64-65 (“[W]e’re not going to be teaching a

Bible elective in the elementary schools. Period. . . . [W]e’re

not going to be offering that or any version of that in the

elementary schools. . . . We’re not going to offer Bible in the

elementary schools. Period.”). Under repeated questioning, Dr.

Akers continued to maintain the Board’s resolution would prevent

Mercer County Schools from offering not only BITS, but any other

Bible curriculum, in its elementary schools. See Akers Depo. at

65-67. It is clear from reading the depositions of both Mr.

Hodges and Dr. Akers that the BITS program is gone and is not

coming back.

In Grutzmacher, the court concluded that the defendants

in that case had met their “heavy burden of persuad[ing]” the

court “that they will not revert to the challenged policies” and

that dismissal for mootness was proper. Id. In so doing, the

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Fourth Circuit looked at the record and could “discern ‘no hint’”

that the defendants “ha[d] any intention in reinstating the prior

policies.” Id. Therefore, based on the “formal assurances” of

defendants “and the absence of any evidence to the contrary,” the

court affirmed the district court’s mootness finding. Id. In

this case, as in Grutzmacher, there is “no hint” that defendants

have any intention of reinstating BITS. Dr. Akers’ statement(s)

to the press, in April of 2017, that defendants were “fighting”

the lawsuit and the like do not suggest otherwise. Those

statements were made early in the lawsuit and almost two years

prior to the resolution terminating BITS.

This case is distinguishable from the cases in which our

appeals court has found the voluntary cessation exception should

apply. For example, in Town of Nags Head v. Toloczko, 728 F.3d

391, 394 n.3 (4th Cir. 2013), the court found that, given the

Town Manager’s statements that he “could . . . still

declare—redeclare [the property owners’] cottage to be a

nuisance” after giving them a chance procure new permits to

repair the cottage, the action was not moot. The court found

that the Town Manager’s statements made it likely the property

owners would “‘be subject to the same action again.’” Id.

(quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). In this case,

20

rather than asserting their right to reinstate the BITS program,

defendants have made clear that they feel that they are bound by

the resolution to terminate it and never reinstate it. There is

not even a “hint” that defendants are likely to repeat the

allegedly illegal conduct.

In Stone v. Trump, 400 F. Supp.2d 317, 336-37 (D. Md.

2019), plaintiffs challenged the Trump administration’s plan to

restrict transgender military service as laid out in an August

2017 Memorandum. The district court found that plaintiffs’

claims were moot because President Trump revoked his August 2017

Memorandum and that the voluntary cessation exception to the

mootness doctrine did not apply. See id. In addressing

plaintiffs’ argument that defendants had not met their heavy

burden of showing the exception should not apply, the court

noted:

Plaintiffs also contend that Defendants have

failed to carry their burden because they have not

made it “absolutely clear” that President Trump

will not reissue the Ban. While President Trump

retains the power to reinstitute the Ban, he has

not “openly announce[d]” his intention to do so.

Id. at 337. In this case, as in Stone, there has been no

announcement that defendants seek to bring back BITS. Indeed,

the evidence is to the contrary.

21

Plaintiffs make much of the fact that the mechanism used

to accomplish termination of BITS was a Board resolution rather

than a Board policy. However, both Mr. Hodges and Dr. Akers

testified that they considered the resolution to be binding on

this Board and future boards. Of the difference between a

resolution and policy, Mr. Hodges explained that his

“understanding would be a resolution would be a more specific

situation that you’re just making a statement on[,] that policy

would be more long ranging.” Hodges Depo. at 8. And, as Dr.

Akers confirmed, there were no Board policies that dealt

specifically with BITS. See Akers Depo. at 23. Therefore, there

was no policy in place that required amendment to terminate BITS.

As Dr. Akers explained one of the differences between the two,

“[t]he discussion on resolution as opposed to policy, the policy

is a document that can be changed. A resolution is this is how

it is.” Id. at 68.

Furthermore, despite plaintiffs’ argument that the

adoption of Board Memo #171 was improper because it was done in

secret at a work session, Mr. Hodges confirmed that the vote was

taken in public session. See Hodges Depo. at 31 (“It could not

have been taken at a work session. It must have been an open

meeting after the session or some such.”).

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Q: And you would agree with me that board action

isn’t typically taken in work sessions. I

think you said that a couple of times.

A: Yes.

Q: So is there a process by which you’ve been

involved in a work session being converted to

a public meeting at which a vote can take

place?

A: As far as I know, any meeting we’ve had with

the legislature is a public meeting. Nobody

else comes, but it is a public meeting, so I

would assume it’s just part of that process.

Q: And this resolution it doesn’t appear that

based upon the minutes that there was any

executive session at this work session.

Do you recall that this - - the

vote on this Board Memo No. 171 took

place outside of executive session?

A: Yes.

Id. at 33. Dr. Akers testified that there was nothing unusual

about either the agenda or the press release that was prepared

for that meeting on January 3, 2019. See Akers Depo. at 53, 78.

According to Dr. Akers, a combined work session and special

meeting took place. See id. at 56-57.

Regarding the timing of the Board’s decision to terminate

the BITS program, the court has no doubt that it “was motivated,

at least in part, by a desire to rid itself of this litigation.”

Keohane v Florida Dep’t of Corr. Sec’y, — F.3d —, 2020 WL

23

1160905, *6 (11th Cir. Mar. 11, 2020). However, as the Keohane

court counseled, that fact should not be overemphasized. See id.

The fact that a defendant may realize and correct a “mistake a

little late in the game in no way suggest that it would revert

back to its old ways absent [an] injunction.” Id. at 7. “Wisdom

too often never comes, and so one ought not to reject it merely

because it comes late.” Id. (quoting Henslee v. Union Planters

Nat. Bank & Trust Co., 335 U.S. 595, 600 (1949) (Frankfurter, J.,

dissenting)).

Finally, in arguing that this case is not moot even

though the BITS program has been terminated, plaintiffs make much

of the fact that Mercer County Schools offer an elective class in

its middle and high schools based upon a textbook called The

Bible and Its Influence. However, as the appeals court has made

clear, plaintiffs “challenge only the BITS program as it existed

at the time the suit was filed. To be sure, any challenge

brought now to a future version of BITS would face ripeness

concerns. This is so because the Establishment Clause requires

us to undertake a fact-intensive inquiry that may prove

impossible until the precise contours of a redesigned Bible

instruction course are known.” Deal, 911 F.3d at 191.

Therefore, any problems that plaintiffs may have with courses

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based upon The Bible and Its Influence are not properly before

this court.

In summary, plaintiffs are challenging a program that has

not been taught in Mercer County Schools for almost three years.

There is nothing in the record to suggest that defendants are

gaming the system to obtain a dismissal of this lawsuit and then,

having done so, reinstate BITS. Accordingly, they have met their

heavy burden of showing plaintiffs’ claim for injunctive relief

is moot.

III. CONCLUSION

Based on the foregoing, the court GRANTS defendants’

Motion to Dismiss the Amended Complaint insofar as it seeks

injunctive relief.* The court DIRECTS the Clerk to send a copy

of this Memorandum Opinion and Order to counsel of record.

IT IS SO ORDERED this 31st day of March, 2020.

BNTER:

Raut O Dabo

David A. Faber

Senior United States District Judge

2 In their filings, plaintiffs did not address defendants’

argument that plaintiff’s claims for nominal damages cannot save

this action from mootness. If plaintiffs wish to respond to this

argument, they should file a brief addressing this argument no

later than April 8, 2020.

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