Doe v. Porter

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Doe, et al. v. Porter, et al. Nos. 02-5316/5823

ELECTRONIC CITATION: 2004 FED App. 0171P (6th Cir.)

File Name: 04a0171p.06 Argued: December 11, 2003

Decided and Filed: June 7, 2004

UNITED STATES COURT OF APPEALS

Before: COLE and CLAY, Circuit Judges; QUIST, District

FOR THE SIXTH CIRCUIT Judge.*

_________________

_________________

JOHN DOE , Individually; X

MARY ROE , Individually and - COUNSEL

as Natural Mother of A. ROE , -

- Nos. 02-5316/5823 ARGUED: Michael E. Evans, DAVIES, HUMPHREYS &

B. ROE , and C. ROE , her - EVANS, Nashville, Tennessee, for Appellants. Alvin L.

minor daughters; and > Harris, WEED, HUBBARD, BERRY & DOUGHTY,

, Nashville, Tennessee, for Appellees. ON BRIEF: Michael

FREEDOM FROM RELIGION -

FOUNDATION, INC., E. Evans, DAVIES, HUMPHREYS & EVANS, Nashville,

- Tennessee, Charles W. Cagle, LEWIS, KING, KRIEG,

Plaintiffs-Appellees, - WALDROP & CATRON, Nashville, Tennessee, for

- Appellants. Alvin L. Harris, R. Stephen Doughty, WEED,

v. - HUBBARD, BERRY & DOUGHTY, Nashville, Tennessee,

- Joseph Howell Johnston, Nashville, Tennessee, for Appellees.

-

SUE PORTER , Individually and -

_________________

as Superintendent of the Rhea -

County School System; RHEA - OPINION

COUNTY BOARD OF - _________________

EDUCATION ; JIMMY WILKEY , -

- R. GUY COLE, JR., Circuit Judge. Defendants-Appellants

Individually and as County - Superintendent Sue Porter (“Superintendent”) and the Rhea

Executive for Rhea County, - County Board of Education (“Board of Education” or

Tennessee; and RHEA - “Board”) appeal the district court’s grant of summary

COUNTY, TENNESSEE, - judgment for Plaintiffs-Appellees John Doe, Mary Roe, and

Defendants-Appellants. - the Freedom from Religion Foundation, Inc. (“FFRF”). The

- district court: (1) granted the Plaintiffs’ motion to proceed

N pseudonymously; (2) held that Plaintiffs had standing to bring

Appeal from the United States District Court suit against the Board; (3) enjoined, as a violation of the First

for the Eastern District of Tennessee at Chattanooga.

No. 01-00115—R. Allan Edgar, Chief District Judge. *

The Honorable Gordon J. Quist, United States District Judge for the

W estern District of Michigan, sitting by designation.

1

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Amendment’s Establishment Clause, the Board’s allowing BEM’s volunteer instructors were never employed by the

religious instruction in the Rhea County public schools; and Board. The BEM classes took place for thirty minutes, once

(4) awarded attorneys’ fees. For the reasons below, we a week, during the school day, in three county schools.

AFFIRM.

Plaintiffs brought this action, pursuant to 42 U.S.C. § 1983,

I. BACKGROUND seeking to enjoin the Board’s practice of permitting the

teaching of the Christian Bible as religious truth as a violation

For several years the Board of Education has allowed staff of the First Amendment’s Establishment Clause. Following

and students from Bryan College in Dayton, Tennessee to summary judgment in Plaintiffs’ favor, Defendants appealed.

conduct a program known as the Bible Education Ministry

(“BEM”) in the county’s public elementary schools. Bryan II. ANALYSIS

College refers to itself as a Christian school, whose motto is

“Christ Above All.” The College’s mission statement reads, A. The District Court’s Protective Order

“Educating students to become servants of Christ to make a

difference in today’s world.” Bryan College students and The Board asserts that the district court erred by granting

faculty are required to subscribe to a “Statement of Belief,” Plaintiffs’ motion for a protective order allowing them to

which reads: proceed pseudonymously. As a general matter, a complaint

must state the names of all parties. FED . R. CIV . P. 10(a).

We believe: that the holy Bible, composed of the Old However, we may excuse plaintiffs from identifying

and New Testaments, is of final and supreme authority in themselves in certain circumstances. Several considerations

faith and life, and, being inspired by God, is inerrant in determine whether a plaintiff’s privacy interests substantially

the original writings; in God the Father, God the Son, outweigh the presumption of open judicial proceedings. They

and God the Holy Ghost, this Trinity being one God, include: (1) whether the plaintiffs seeking anonymity are

eternally existing in three persons; in the virgin birth of suing to challenge governmental activity; (2) whether

Jesus Christ; that he was born of the virgin Mary and prosecution of the suit will compel the plaintiffs to disclose

begotten of the Holy Spirit; . . . that the Lord Jesus Christ information “of the utmost intimacy”; (3) whether the

is the only Savior, that He was crucified for our sins, litigation compels plaintiffs to disclose an intention to violate

according to the Scriptures, as a voluntary representative the law, thereby risking criminal prosecution; and (4) whether

and substitutionary sacrifice, and all who believe in Him the plaintiffs are children. Doe v. Stegall, 653 F.2d 180, 185-

and confess Him before men are justified on the grounds 86 (5th Cir. 1981). We review the district court’s decision to

of His shed blood; in the resurrection of the crucified grant a protective order for an abuse of discretion. Samad v.

body of Jesus, in His ascension into Heaven, and in “that Jenkins, 845 F.2d 660, 663 (6th Cir. 1988).

blessed hope,” the personal return to this earth of Jesus

Christ, and He shall reign forever; in the bodily This suit – challenging a government activity – forces

resurrection of all persons, judgment to come, the Plaintiffs to reveal their beliefs about a particularly sensitive

everlasting blessedness of the saved, and the everlasting topic that could subject them to considerable harassment.

punishment of the lost. “[R]eligion is perhaps the quintessentially private matter.

Although they do not confess either illegal acts or purposes,

the [plaintiffs] have, by filing suit, made revelations about

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their personal beliefs and practices that are shown to have The Board also asserts that the district court’s protective

invited an opprobrium analogous to the infamy associated order hindered its ability to make full discovery, contending

with criminal behavior.” Stegall, 653 F.2d at 186. For that the protective order allowed counsel to know only

instance, in a letter to the editor of a local paper, one Nancy Plaintiffs’ names, residency status, taxpayer information, and

Rogers wrote: school enrollment status. This characterization of the district

court’s order is incorrect. Although the district court’s

[Y]ou are [] cowards because you won’t give us your protective order limited the scope of discovery as to other

name. You know the people in Rhea County would persons beyond Defendants’ counsel of record, it placed no

come up to your face and tell you what we think of you. limitation on defense counsel’s scope of discovery.

I would love to come face to face with you because yes

I would tell you what I thought of you and I would let Assuming, for the sake of argument, that the Board’s

my sons tell you too. You have hurt my sons and I will characterization of the trial court’s protective order is

not let no one [sic] hurt one of my children. We might accurate, it is unclear how this would have hindered its

not know you but someone higher does [,] and yes you preparation for trial. The only issue for which facts about

will answer to him. Plaintiffs would have been crucial is the Board’s challenge

to Plaintiffs’ standing to bring this action. Even under their

Indeed, in an article about the lawsuit, the principal of Rhea narrow characterization of the trial court’s order, Defendants

County High School stated that if he had known the person would have been able to obtain all the information necessary

challenging the BEM, he “would have tried to alert him . . . to address the standing inquiry at trial: Plaintiffs’ names,

I’d have said: ‘Look do you want to cause your family residency status, taxpayer information and school enrollment

trouble? This is a rural, conservative place, and very status. Accordingly, the district court did not abuse its

emotional about religion. Attack religion and crusades begin. discretion by allowing Plaintiffs to litigate pseudonymously.

But you need to follow your own conscience.’”

B. Standing

Further, this case is brought on behalf of very young

children, to whom we grant a heightened protection. Stegall, The Board challenges the standing of John Doe, Mary Roe

653 F.2d at 186. (“The gravity of the danger posed by the and FFRF. We review de novo the district court’s

threats of retaliation against the [plaintiffs] for filing this conclusions of law with regard to standing. Brandywine, Inc.

lawsuit must also be assessed in light of the special v. City of Richmond, 359 F.3d 830, 834 (6th Cir. 2004). To

vulnerability of these child-plaintiffs.”).1 establish standing under Article III of the Constitution,

plaintiffs must demonstrate: (1) an injury in fact; (2) a causal

connection between the injury and the challenged conduct;

and (3) the injury’s redressability by a favorable judicial

decision. See id. at 834-35.

1

The litigation in this case to ok place in R hea C ounty— the site of a

mythic Scop es trial in the early twentieth century. Brya n Co llege is In sworn affidavits, submitted under seal, Doe and Roe

named after one of the principal lawyers in the case—W illiams Jennings assert that they are the parents of three children, two of whom

Bryan. See E D W A R D J. L A R SO N , S UMM ER FOR THE G O D S : T HE S COPES are students at the Rhea County Elementary School. Their

T RIAL A N D A MERICA ’S C O N T IN UIN G D EBATE OVER S C IE N C E A N D eldest daughter – identified as A. Roe – is in fifth grade, and

R E LIG IO N (1997).

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their second daughter – B. Roe – is in first grade. Each parent C. Establishment Clause

testified that students from Bryan College regularly teach

BEM classes in their daughters’ respective classrooms. In We review a district court’s grant of a motion for summary

other words, Plaintiffs’ minor children have suffered a judgment de novo. Stephenson v. Allstate Ins. Co., 328 F.3d

cognizable injury by being placed in the BEM classes; this 822, 826 (6th Cir. 2003). Summary judgment is appropriate

injury is derived directly from the BEM classes; and the where no genuine issue of material fact exists and the moving

injury would be redressed by a decision in their favor. party is entitled to judgment as a matter of law. FED . R. CIV .

P. 56(c). In ruling on a motion for summary judgment, the

As for FFRF: it may have associational standing to assert Court must view the facts contained in the record, and all

the rights of one or more of its members, even if it suffers no inferences that can be drawn from those facts, in the light

direct injury, if it can answer in the affirmative the three most favorable to the non-moving party. Matsushita Elec.

questions articulated in Hunt v. Washington State Apple Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Advertising Commission, 432 U.S. 333, 343 (1977):

(1) whether a member has standing to sue in her own right; Here, Plaintiffs contend that the BEM program is an

(2) whether the interests that it seeks to protect are germane unconstitutional establishment of religion because it fails the

to its purpose; and (3) whether the claim asserted or the relief Lemon test. In Lemon v. Kurtzman, 403 U.S. 602, 612-13

requested requires the participation of individual members in (1971), the Court set forth three factors to be considered when

the lawsuit. a violation of the Establishment Clause is alleged: (1) whether

the government practice has a secular purpose; (2) whether

First, John Doe and Mary Roe have standing to bring this the principal effect is one that either advances or inhibits

action in their individual capacities, and are members of the religion; and (3) whether the practice fosters excessive

FFRF. Second, one of FFRF’s central purposes is to government entanglement with religion. A statute or practice

challenge practices that violate the separation of church and must conform to all three requirements to survive scrutiny

state. At the bottom of FFRF’s stationery is the phrase, under the Establishment Clause.

“protecting the constitutional principle of separation of state

and church.” That phrase appears to accurately describe the As to the first factor, the Board contends that BEM’s

purpose of FFRF, and the eradication of religious instruction teaching has a secular purpose: to teach character

in public schools is germane to that purpose. Finally, this development, as required of all Tennessee public schools. See

litigation is resolvable without the presence of either John TENN. CODE ANN . § 49-6-1007(a). The Board argues that

Doe or Mary Roe. The central issues at the district court were BEM’s classes “focus [] on different value-driven themes,

legal; the record was sufficiently developed to resolve the such as responsibility and courage, which serve [] to instill

legality of the protective order, the questions of standing, and positive morals in students attending Rhea County schools.”

whether the BEM classes violated the Establishment Clause. Even if we accept this as fact, the BEM classes also teach the

Bible as religious truth. Several lesson plans from the 2000-

Accordingly, all Plaintiffs have standing. 2001 academic year are singularly religious. For example, the

objective of one lesson plan for second graders is to “Teach

the children God’s commandments and that we should obey

all of them.” A subsequent lesson plan expressed a teacher’s

intention to “Teach them how God gives us the best and leads

Nos. 02-5316/5823 Doe, et al. v. Porter, et al. 9 10 Doe, et al. v. Porter, et al. Nos. 02-5316/5823

us where He wants us to go.” The lessons also seek to “teach objective was, “[To] reinforce how much God loves them [the

the kids that God provides for us, even in the worst students]; God wants to be their friend; You can be personal

situations.” Moreover, in explaining “How I Plan to Help with God.” In a lesson plan for first graders, a BEM

Students See the Truth,” one BEM teacher wrote, “Teach – instructor planned to “Teach the children that God created

‘Read your Bible[,] pray everyday.’ ‘Jesus loves you.’ – (if everything and teach them which days He created certain

acceptable)?” Such statements cannot be described as having things.” And in a lesson plan dated December 3, 2000, a

a secular purpose. BEM instructor stated, “[W]e will make sure that they know

the true meaning of Christmas is. It was that God sent his son

As to the second factor, the central question in our to the earth to be born as a baby; a baby who would [] one day

endorsement inquiry is whether the BEM program die on the cross for our sins so that we can be saved. (We’ll

communicates a message of government endorsement or make sure to tell them this in a way that is ok – so we don’t

disapproval of religion. To answer this question, we ask break any of the school rules).” The Board’s justification of

whether an objective observer, acquainted with the program, authorizing the BEM program as a component of its character

would view it as advancement or inhibition of religion. development requirement ignores the overwhelmingly

Adland v. Russ, 307 F.3d 471,484 (6th Cir. 2002). Viewing sectarian nature of the actual classes taught under its auspices.

the BEM program in its specific context, an objective

observer would conclude that it communicates a message of While some of BEM’s lesson plans evince an intention to

government endorsement of religion, generally, and of train students in more secular aspects of character

Christianity in particular. Lee v. Weisman, 505 U.S. 577, 627 development, many, if not most, appear to have no secular

(1992) (Souter, J., concurring) (“[T]he State may not favor or component at all. Although the school system’s oversight of

endorse either religion generally over nonreligion or one BEM has been woefully derelict, its occurrence during the

religion over others.”) (citing County of Allegheny v. ACLU, school day, and on school property sends a clear message of

492 U.S. 573,589-94 (1989)). state endorsement of religion – Christianity in particular – to

an objective observer.

Because the BEM program is conducted in public school

classrooms, during school hours, and for children who are as Third, we ask whether BEM fosters an excessive

young as kindergarten age, we must treat the objective entanglement between the state and religion. BEM takes

observers as students in these classes. As the Supreme Court place on school premises, during the school day, with the

stated in Lee, “What to most believers may seem nothing explicit sanction of the Board of Education. Moreover, the

more than a reasonable request that the nonbeliever respect program’s administration – which seems to have been left

their religious practices, in a school context may appear to the entirely in the hands of the students of Bryan College –

nonbeliever or dissenter to be an attempt to employ the creates a “grave potential for entanglement,” Comm. for Pub.

machinery of the State to enforce a religious orthodoxy.” 505 Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794

U.S. at 592. (1973), by delegating a governmental function to a religious

institution. See Larkin v. Grendel’s Den, Inc., 459 U.S. 116,

As we explained above, the lesson plans here evidence an 121 (1982).

intention to teach the Bible as literal truth, and to draw from

its narratives certain theological propositions. In a lesson Deposition testimony by several officials from the Rhea

plan for first graders, dated November 7, 2000, the lesson County public schools and Bryan College confirms that the

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school district abdicated its supervisory authority over the D. Denial of Invitation to Establish Guidelines

BEM classes. Elizabeth Brown – the principal of a public

elementary school in Rhea County – testified that she did not Finally, the Board complains that the district court erred in

know what was being taught in the BEM classes. Although enjoining the entire BEM program without articulating “legal

Brown required and regularly reviewed lesson plans in other guidelines for the structuring and teaching of [Bible study

classes taught in the school, she admitted that she never saw, courses] and afford[ing] each party the opportunity, if they

and never asked for, any lesson plan for any BEM class. should so elect, to submit plans, policies, and curricula

Brown also testified that there had never been instructions changes in accordance with such guidelines.” (Appellants’

from the Rhea County School Board on how the BEM classes Brief at 20). The provision of guidelines by a federal court

were to be conducted. Similarly, John Mincy, the Chairman would, however, amount to the rendering of an advisory

of the Rhea County School Board, admitted that he voted to opinion, a practice that is beyond our Article III authority.

continue the BEM classes in the public schools without United States Nat. Bank of Or. v. Indep. Ins. Agents of Am.,

knowing their content. When asked who determined the Inc., 508 U.S. 439, 446 (1993).

content of what Mincy, himself, called “the Bible class,” he

said, “I would say that Bryan College does.” Mincy also E. Attorneys’ Fees

stated that the Board had no written policy governing the

BEM classes, and also acknowledged that he had never seen Finally, the Board contends that the trial court granted to

a policy manual describing the BEM classes. Plaintiffs an excessive award of attorneys’ fees. We review

a district court’s determination regarding the award of

The Rhea County School Board has ceded its supervisory attorneys’ fees for abuse of discretion. Paschal v. Flagstar

authority over the BEM classes to Bryan College, which Bank, 297 F.3d 431, 433 (6th Cir. 2002). A district court

requires its students and faculty to subscribe to a sectarian abuses its discretion when it relies on clearly erroneous

statement of belief. The Supreme Court rejected such a findings of fact, uses an incorrect legal standard, or applies

practice in Larkin, which invalidated a Massachusetts statute the law incorrectly. Id. at 434.

that allowed churches to veto the issuance of liquor licenses

within 500 feet of a church. Id. at 117. Indeed, the practices Although the Board acknowledges that the district court

challenged in this action resemble paradigmatic cases of reduced Plaintiffs’ requested award for attorneys’ fees by

unconstitutional entanglement. See Illinois ex rel. McCollum $9,500 for what it deemed to be unnecessary travel time

v. Bd. of Educ., 333 U.S. 203, 209-10 (1948) (“[T]he use of charged by Plaintiffs’ attorneys and paralegals and further

tax-supported property for religious instruction and the close reduced the entire award by five percent, it argues that the

cooperation between the school authorities and the religious latter reduction—imposed to compensate for what the district

council in promoting religious education . . . falls squarely court considered to be a duplication of effort—should have

under the ban of the First Amendment.”); Doe v. Human, 725 been greater. The Board makes only one specific statement

F. Supp. 1503, 1504-1506, 1508 (W.D. Ark. 1989) (relying regarding duplication of services – regarding $4,600 in

on McCollum to invalidate a program in which Catholic, expenses related to travel on November 6, 2001. However,

Jewish and Protestant instructors came into classrooms during even here, it concedes that it is likely that at least some of the

school hours to teach bible classes), aff’d., 923 F.2d 857 (8th duplication was accounted for in the original fee reduction of

Cir. 1990), cert. denied, 499 U.S. 922 (1991). $9,500. Without more specific arguments, we cannot say that

this particular reduction amounted to an abuse of discretion.

Nos. 02-5316/5823 Doe, et al. v. Porter, et al. 13

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment for Plaintiffs.