Petition for Writ of Certiorari — Mercer County Board of Education, et al., Petitioners v. Elizabeth Deal, et al.

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-2429

ELIZABETH DEAL; JESSICA ROE,

Plaintiffs – Appellants,

and

FREEDOM FROM RELIGION FOUNDATION, INC.;

JANE DOE; JAMIE DOE,

Plaintiffs,

v.

MERCER COUNTY BOARD OF EDUCATION;

MERCER COUNTY SCHOOLS; DEBORAH S.

AKERS, in her individual capacity,

Defendants – Appellees.

Appeal from the United States District Court for the

Southern District of West Virginia, at Bluefield. David A. Faber, Senior District Judge. (1:17-cv-00642)

Argued: November 1, 2018

Decided: December 17, 2018

Before MOTZ, DUNCAN, and QUATTLEBAUM, Circuit Judges.

Reversed and remanded by published opinion. Judge

Motz wrote the opinion, in which Judge Duncan and

Judge Quattlebaum joined.

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ARGUED: Marcus Schneider, STEEL SCHNEIDER,

Pittsburgh, Pennsylvania, for Appellants. David

Richard Dorey, Washington, D.C.; Hannah Eliades

Dunham, O’MELVENY & MYERS LLP, Washington,

D.C., for Appellees. ON BRIEF: Kermit J. Moore,

BREWSTER, MORHOUS & CAMERON, Bluefield,

West Virginia; Gregory F. Jacob, O’MELVENY & MYERS LLP, Washington, D.C.; Hiram S. Sasser, III,

FIRST LIBERTY INSTITUTE, Plano, Texas, for Appellees.

DIANA GRIBBON MOTZ, Circuit Judge:

For the better part of a century, Mercer County,

West Virginia has offered weekly in-school Bible lessons to public elementary and middle school students

through its “Bible in the Schools” program. Believing

that the program violated the Establishment Clause,

appellants Elizabeth Deal and her daughter, Jessica,

filed this action against the Mercer County Board of

Education, Mercer County Schools, Mercer County

Schools Superintendent Deborah S. Akers, and Memorial Primary School Principal Rebecca Peery (collectively, the “County”). The district court dismissed

their complaint, reasoning that appellants lacked

standing to sue and that their claims were not ripe.

They now appeal. For the reasons that follow, we reverse and remand for further proceedings consistent

with this opinion.

I.

The following facts are taken from appellants’

amended complaint, which we must “accept as true”

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for the purpose of this appeal. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).

The “Bible in the Schools” (“BITS”) program is a

Bible instruction course that has been taught in Mercer County Schools for nearly 80 years. The program

offers 30 minutes of weekly Bible instruction for elementary school students and 45 minutes for middle

school students “as a part of the regular school day.”

Participation is ostensibly voluntary, since parents

must return a permission slip to allow their children

to attend. In practice, nearly all students participate.

Since 1986, the County itself has administered the

BITS program and designed its curriculum for use by

specially employed BITS teachers. The curriculum

includes lessons covering the story of Moses, the Crucifixion, and the Ten Commandments. Notwithstanding the County’s administrative role, the program is

privately funded by Bluefield Bible Study Fund, Inc.,

a 501(c)(3) organization.

Appellants Elizabeth Deal and her daughter, Jessica, live in Mercer County. When Jessica entered

first grade at Memorial Primary School, her mother

received a permission slip to allow Jessica to participate in BITS. Deal, who identifies as agnostic, sought

to teach her daughter about “multiple religions” to allow Jessica to “make her own religious choices.” Because Deal believed that the school’s weekly Bible lessons were incompatible with these goals, she withheld

her permission. When the Bible program began later

that year, a school official separated Jessica from her

classmates and placed her “in a coatroom area” in the

back of the classroom during the Bible class. After

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Deal protested to the principal, school officials relocated Jessica, usually to another classroom, the library, or a computer lab. The County never offered

any alternative instruction to Jessica during the BITS

program.

Jessica alleges that she faced harassment from

other students because she did not participate in

BITS. For example, one student told Jessica that she

and her mother were going to hell. Their experiences

left appellants feeling marginalized and excluded in

the community, ultimately prompting Deal to enroll

Jessica in a neighboring school district for the fourth

grade, where she has remained since. Deal alleges

that “[t]he [BITS] program and the treatment [Jessica] received . . . were a major reason for her removal.”

Shortly after relocating Jessica, appellants filed

this action alleging that the BITS program violates

the Establishment Clause and seeking injunctive relief and nominal damages. The County moved to dismiss for lack of standing and failure to state a claim.

During the briefing period, the County notified the

district court that the Board of Education had suspended BITS for at least a year to “review” the program’s curriculum. Counsel for the County later suggested at oral argument before the district court that

the suspended version of the program would not return, but news reports, which Mercer County itself

submitted, quoted Superintendent Akers as saying

that the County was “fighting” to retain BITS. After

oral argument and supplemental briefing, the district

court granted the County’s motion to dismiss, reasoning that appellants lacked standing to sue and that,

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as a result of the program’s suspension, their case was

no longer ripe.1 This appeal followed.

II.

The County first maintains that, because Jessica

no longer attends a Mercer County school and has not

vowed to return, appellants lack standing to seek injunctive relief. Unlike questions of mootness and

ripeness, the standing inquiry asks whether a plaintiff had the requisite stake in the outcome of a case

“at the outset of the litigation.” Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.

167, 180 (2000). “When standing is challenged on the

pleadings, we accept as true all material allegations

of the complaint and construe the complaint in favor

of the complaining party.” S. Walk at Broadlands

Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands,

LLC, 713 F.3d 175, 181–82 (4th Cir. 2013) (internal

quotation marks omitted).

We review a district court’s dismissal for lack of

standing de novo. Ohio Valley Envtl. Coal., Inc. v.

Pruitt, 893 F.3d 225, 229 (4th Cir. 2018). To satisfy

the “irreducible constitutional minimum of standing[,] . . . [a] plaintiff must have (1) suffered an injury

in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Spokeo,

Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (internal

1 The original complaint included plaintiffs Jamie Doe, a student

still enrolled in the Mercer County School system, and Jane Doe,

Jamie’s mother. The district court also dismissed those claims,

and those plaintiffs did not appeal.

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quotation marks omitted); Lujan v. Defs. of Wildlife,

504 U.S. 555, 560–61 (1992). Because appellants’ asserted injuries are clearly traceable to BITS, only the

first and third elements of standing — injury in fact

and redressability — are at issue here.

A.

The County first contends that appellants have

not adequately pled an injury in fact. To establish injury in fact, appellants must show that they “suffered

‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not

conjectural or hypothetical.’” Spokeo, 136 S. Ct. at

1548 (quoting Lujan, 504 U.S. at 560).

“[T]he concept of injury for standing purposes is

particularly elusive in Establishment Clause cases.”

Suhre v. Haywood Cty., 131 F.3d 1083, 1085 (4th Cir.

1997) (quoting Murray v. City of Austin, 947 F.2d 147,

151 (5th Cir. 1991)). This is so because Establishment

Clause injuries are often “spiritual and value-laden,

rather than tangible and economic.” Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 605 (4th Cir.

2012) (internal quotation marks omitted). As such,

an Establishment Clause injury “may be shown in

various ways.” Ariz. Christian Sch. Tuition Org. v.

Winn, 563 U.S. 125, 129 (2011). But no matter how

rare or unique the injury, a plaintiff still must carry

the burden of demonstrating each element of standing. See Suhre, 131 F.3d at 1085–86 (explaining

“there is of course no ‘sliding scale of standing’” (quoting Valley Forge Christian Coll. v. Ams. United for

Separation of Church & State, Inc., 454 U.S. 464, 484

(1982))).

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Appellants allege three separate injuries, one already sustained and two ongoing. First, they assert

that while Jessica attended school in Mercer County,

they suffered direct, unwelcome contact with the

BITS program. See id. at 1086 (finding injury based

on “unwelcome direct contact with a religious display

that appears to be endorsed by the state”). Second,

they allege that they continue to avoid the BITS program by sending Jessica to a neighboring school district, expending resources to do so. See Valley Forge,

454 U.S. at 486 n.22 (construing Abington Sch. Dist.

v. Schempp, 374 U.S. 203 (1963), as establishing that

standing exists where “impressionable schoolchildren

[are] subjected to unwelcome religious exercises or

[are] forced to assume special burdens to avoid them”

(emphasis added)). Finally, appellants assert that

they suffer from ongoing feelings of marginalization

and exclusion. See Moss, 683 F.3d at 607; see also Int’l

Refugee Assistance Project v. Trump, 883 F.3d 233,

258–59 (4th Cir. 2018), vacated on other grounds, 138

S. Ct. 2710 (2018) (collecting cases).

The County concedes, as it must, that each of

these allegations state cognizable injuries. But notwithstanding the ongoing nature of two of appellants’

asserted injuries, the County argues that these harms

are not sufficiently imminent to permit a court to

grant injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 105–06 (1983) (outlining the imminence requirement for plaintiffs seeking injunctive relief after past injuries); Lebron v. Rumsfeld, 670 F.3d

540, 560–62 (4th Cir. 2012) (same). This framing of

the issue fundamentally misapprehends appellants’

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claims. Appellants seek relief not just for past injuries or from some speculative future injury, which

would implicate the imminence requirement. See

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409

(2013). Rather, appellants also claim to suffer from

two actual, ongoing injuries: (1) near-daily avoidance

of contact with an alleged state-sponsored religious

exercise,2 and (2) enduring feelings of marginalization

and exclusion resulting therefrom.

Moreover, to the extent that the County asks us to

import the imminence requirement into cases involving ongoing injuries, its argument makes little sense.

The Supreme Court has always described and treated

the two concepts — actual, ongoing injury vs. imminent injury — as disjunctive. See, e.g., Lujan, 504

U.S. at 560 (requiring that an injury in fact be “actual

or imminent” (emphasis added)).

Our own application of these principles illustrates the point. In Kenny v. Wilson, for instance, we

considered a vagueness challenge to two South Carolina statutes assuredly used to curtail the First

Amendment rights of public school students. 885 F.3d

280, 284– 85 (4th Cir. 2018). We recognized that in

such a case a plaintiff can “satisfy the injury-in-fact

2 Avoiding direct contact with a religious display is a particularly

serious injury under our caselaw. In Suhre, the government argued that direct contact could not establish an injury unless the

challenger had “actually changed his behavior in response to the

display.” 131 F.3d at 1087. Rejecting this view, we explained

that such avoidance of contact would constitute “an extraordinary showing of injury” that was plainly “sufficient,” but “ ot necessary,” to prove Establishment Clause standing. Id. at 1088

(emphasis added).

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requirement for prospective relief” either by demonstrating “a sufficiently imminent injury in fact” or by

demonstrating “an ongoing injury” caused by the

chilling effect of self-censorship. Id. at 288; see also

Abbott v. Pastides, 900 F.3d 160, 168 (4th Cir. 2018)

(noting that a plaintiff may seek “prospective relief

against ongoing or imminent First Amendment violations” (emphasis added)). Unlike injuries that occurred in the past and may no longer be imminent,

ongoing injuries are, by definition, actual injuries for

purposes of Article III standing.3

B.

The County further contends, and the district

court held, that since Jessica no longer attends a Mercer County school, appellants also lack standing because an injunction would not meaningfully redress

their injuries.

To satisfy the redressability element of standing,

a plaintiff “must show that ‘it is likely, as opposed to

merely speculative, that the injury will be redressed

by a favorable decision.’” Sierra Club v. U.S. Dep’t of

the Interior, 899 F.3d 260, 284 (4th Cir. 2018) (quoting

3 To avoid this result, the County mistakenly relies on Suhre.

There, we considered the constitutionality of a Ten Commandments display located in the main courtroom of a county courthouse. 131 F.3d at 1084–85. Suhre, who came to the courthouse

frequently, had stated an “unmistakeable intention to participate in future judicial and municipal business at the courthouse

when the occasion arises.” Id. at 1091. This intention established imminence, and we found that Suhre thus had standing

to seek injunctive relief. Id. But that holding clarifies little

about this case since, as we have explained, appellants assert

injuries that are both actual and ongoing.

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Laidlaw, 528 U.S. at 181). The burden imposed by

this requirement is not onerous. Plaintiffs “need not

show that a favorable decision will relieve [their]

every injury.” Id. (quoting Larson v. Valente, 456 U.S.

228, 243 n.15 (1982)). Rather, plaintiffs “need only

show that they personally would benefit in a tangible

way from the court’s intervention.” Id. (internal quotation marks omitted).

In fact, an injunction would redress both of the ongoing, independent injuries that appellants allege

here. If the district court were to enjoin the County

from offering the BITS program to students in the future, Deal would no longer feel compelled to send Jessica to a neighboring school district to avoid what

Deal views as state-sponsored religious instruction.

Moreover, an injunction would also alleviate appellants’ ongoing feelings of marginalization. We

have explained that “[f]eelings of marginalization and

exclusion are cognizable forms of injury, particularly

in the Establishment Clause context, 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, 683 F.3d at 607

(quoting McCreary Cty. v. ACLU, 545 U.S. 844, 860

(2005)). An injunction would eliminate the source of

that message and thereby redress appellants’ alleged

injuries.

Resisting this result, the County maintains that

appellants’ avoidance-based injuries are not redressable because Deal did not avow in the complaint that

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she would reenroll her daughter in a Mercer County

school if the district court were to issue an injunction.4

But appellants’ feelings of marginalization constitute

an independently actionable injury. And in any

event, our standing jurisprudence does not require

such formalism. Rather, “[t]he removal of even one

obstacle to the exercise of one’s rights, even if other

barriers remain, is sufficient to show redressability.”

Sierra Club, 899 F.3d at 285. Applied here, the “opportunity” to return Jessica to her home district, in

addition to alleviating appellants’ ongoing feelings of

marginalization, is surely a “tangible benefit” sufficient to confer standing. Id. (internal quotation

marks omitted).5

4 The County heavily relies on Freedom from Religion Founda-

tion Inc v. New Kensington Arnold School District, 832 F.3d 469

(3d Cir. 2016). There, the plaintiff filed an Establishment

Clause challenge to a Ten Commandments monument located

near the entrance of her daughter’s high school. Id. at 473. As

here, the school district challenged the plaintiff’s standing to

seek an injunction after the plaintiff moved her daughter to another school. Id. at 474. Although the court suggested that the

plaintiff “would permit” her daughter to return to her home

school if the monument were removed, id., it did not treat that

fact as a necessary condition for the plaintiff to establish standing. Moreover, the plaintiffs in New Kensington, unlike appellants, did not claim to suffer from feelings of marginalization and

exclusion.

5 Because appellants have standing to seek injunctive relief, we

need not reach their novel contention that nominal damages

alone, without any other cognizable form of relief, can create

standing from the outset of a case. See, e.g., Am. Humanist Assoc. v. Md.-Nat’l Capital Park & Planning Comm’n, 874 F.3d

195, 203–04 (4th Cir. 2017) (finding plaintiffs had standing to

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III.

In addition to concluding that appellants lacked

standing to seek injunctive relief, the district court

held that appellants’ claims were not ripe. The court

reasoned that, in view of the BITS program’s suspension, the court could not “evaluate the content of future BITS classes because they do not exist.” In so

holding, the district court seems to have concluded

that because BITS was unlikely to return in its current form, a challenge to it was moot. Where, as here,

the parties do not dispute the relevant jurisdictional

facts, we review a district court’s dismissal based on

ripeness and mootness de novo. Porter v. Clarke, 852

F.3d 358, 363 (4th Cir. 2017); Doe v. Va. Dep’t of State

Police, 713 F.3d 745, 752 (4th Cir. 2013).

A.

Like other justiciability doctrines, ripeness derives

from Article III. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003). The ripeness doctrine

addresses “the appropriate timing of judicial intervention,” Cooksey v. Futrell, 721 F.3d 226, 240 (4th

Cir. 2013) (internal quotation marks omitted), and

“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 City of L.A.,

331 U.S. 549, 584 (1947)). In reviewing a ripeness

claim, “we consider ‘(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of

pursue other forms of relief without separately addressing

standing to seek nominal damages).

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withholding court consideration.’” Cooksey, 721 F.3d

at 240 (quoting Nat’l Park Hosp. Ass’n, 538 U.S. at

808).

The district court erred in treating the temporary

suspension of the BITS program as raising ripeness

concerns. Appellants 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. See McCreary Cty., 545 U.S. at 867

(“[U]nder the Establishment Clause detail is key.”);

Van Orden v. Perry, 545 U.S. 677, 700 (2005) (Breyer,

J., concurring in the judgment) (describing Establishment Clause analysis as “fact-intensive”); Am. Humanist Ass’n, 874 F.3d at 211 (“Establishment Clause

cases are fact-specific, and our decision is confined to

the unique facts at hand.”). But that is not this case.

The County cannot, as it evidently seeks to do here,

reframe this case as an unripe challenge to some future iteration of BITS in order to avoid the demanding

requirements of demonstrating mootness.

B.

In reaching its contrary conclusion on ripeness,

the district court implicitly determined that appellants’ challenge to the suspended BITS program was

also moot. Unlike standing, which “is determined at

the commencement of a lawsuit[,] . . . subsequent

events can moot” an otherwise validly raised claim.

Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013). A

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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. at 189 (internal quotation marks omitted). Rather, a party asserting mootness bears a “heavy 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. (alteration omitted and emphasis added).

In its written submission to this court, the County

did not even attempt to meet this standard, persisting

instead in its dogged attempt to reframe the issue as

one of ripeness. When pressed at oral argument, the

County reversed course and suggested that appellants’ claims are both moot (as to the suspended program) and not ripe (as to any future reimplementation of a new program). Even assuming this argument is not forfeited, it is meritless.

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.

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Nike, Inc., 568 U.S. 85, 91 (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 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 Superintendent Akers’ description of

the notices as a “precautionary measure” driven solely

by this litigation and the school district’s “mandatory

timelines” for informing teachers of their ongoing employment status. Such equivocal evidence cannot

save the County’s mootness claim.6

6 At oral argument before us, the County also sought to rely on

its counsel’s statement to the district court that “it is clear from

media accounts that the curriculum that is complained about in

the complaint is over and is not coming back.” Although we have

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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. Appellants’ current claims are therefore not moot. Of

course, this does not prevent the district court from

addressing mootness in the future if presented with

that issue.

IV.

Appellants have adequately pled ongoing injuries

that, if proven, are redressable by an injunction.

Moreover, subsequent events have not rendered appellants’ present claims moot or not ripe. Accordingly, the judgment of the district court is

REVERSED AND REMANDED.

at times given weight to such claims, see, e.g., Grutzmacher v.

Howard County, 851 F.3d 332, 349 (4th Cir. 2017), counsel’s

statement in this case merely leads us back to the same press

accounts that undermine the County’s mootness claim in the

first place.

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APPENDIX B

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.

AMENDED 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.

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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. See

First Amended Complaint (“FAC”) ¶ 19. 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. Id. at ¶ 24. 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 1-45. See

id. at 1 99. Mercer County School Policy 1-45 directed

teachers to develop BITS lesson plans and submit

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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

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 pre-kindergarten

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 25-2, with

Bible in the Schools:

About Us, http://www.mercerbits.org/aboutus.htm (last visited Sept 21, 2017).

1

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).

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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 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 non-theists.”

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. See FAC ¶¶ 11, 29.

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 classroom and other classrooms – to abstain

from BITS. FAC ¶¶ 39-44. Roe was allegedly “harassed by other students” and “felt excluded” because

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she did not participate in BITS. FAC ¶¶ 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.

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.” See ECF No. 30-1. 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 1 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

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ECF No. 30. 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 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

3 Deborah Akers’ statements were printed in the Bluefield Tele-

graph 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.

23a

program had been suspended. See ECF No. 30. 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 principal or

primary effect, which neither advances nor inhibits

religion, and (3) the activity does not foster excessive entanglement with religion. See Lemon v.

5 With the courts permission.

See ECF No. 32.

24a

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 context-specific and factintensive analysis. Staley v. Harris Cty., Tex., 485

F.3d 305, 307 (5th Cir. 2007) (en banc) (“[W]e emphasize[] that Establishment Clause analysis is

context-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

25a

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. See Adams v. Bain, 697

F.2d 1213, 1219 (4th Cir. 1982). 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 (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,

26a

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 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”).

27a

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 citation omitted). In cases alleging Establishment

Clause violations, a plaintiff must have “personal

contact with the alleged establishment of religion.”

Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th

Cir. 1997). “[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-

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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. 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

29a

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).

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 fourth-grade 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.

30a

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 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

31a

not entitled to 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 with a true stake in the contreversy from

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.

32a

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. Warth v. Seldin, 422 U.S. 490, 508

(1975). 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. 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

33a

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 backward-looking 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 injunctive or declaratory relief in the same

case.” Utah Animal Rights Coalition v. Salt Lake

34a

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.

Thus, the nominal damages claim will “not remedy the injury suffered [and] cannot bootstrap [Deal

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 re-view 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.”).

35a

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 The court held plaintiff’s fear

10 It is important to note the rigors of the Supreme Court’s standing analysis when “review[ing] the actions of political 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).

36a

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 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.

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.

37a

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. A 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);

12 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.

38a

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.

Suhre v. Haywood County, 131 F.3d 1083, 1088 (4th

Cir. 1997)(“[N]either Supreme Court precedent nor

13 Defendants do not argue that plaintiffs’ claims are moot because of the temporary suspension of the Bible in the Schools

program.

39a

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 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

40a

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). “A hypothetical threat is not enough.” 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

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.

41a

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. Id. at 151. Courts remain hesitant

to factually analyze a question which would result

in the issuance of an advisory opinion, 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.

42a

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

unable to conduct the fact-intensive and context-specific 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.

43a

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 School’s 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 context-dependent inquiry of a future BITS curriculum. Therefore,

until the Bible in the School’s curriculum that Jamie Doe will actually encounter “is presented in

clean-cut and concrete form,” Rescue 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. Say. 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

44a

BITS program.

(1967).

Abbott Labs., 387 U.S. at 149

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 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. See Schempp, 374 U.S. at 225. 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.

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.

45a

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.

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:

15 While defendant, Rebecca Peery, did not join defendants’ motion to dismiss, see ECF No. 25, plaintiffs’ claims are also not

justiciable as they relate to Ms. Peery. Therefore, plaintiffs’

claims against Ms. Peery are also dismissed.

46a

/s/ David A. Faber

David A. Faber

Senior United States District

Judge

47a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-2429

(1:17-cv-00642)

ELIZABETH DEAL; JESSICA ROE,

Plaintiffs – Appellants,

and

FREEDOM FROM RELIGION FOUNDATION, INC.;

JANE DOE; JAMIE DOE,

Plaintiffs,

v.

MERCER COUNTY BOARD OF EDUCATION;

MERCER COUNTY SCHOOLS; DEBORAH S.

AKERS, in her individual capacity,

Defendants – Appellees.

ORDER

The court denies the petition for rehearing.

Entered at the direction of the panel: Judge Motz,

Judge Duncan, and Judge Quattlebaum.

For the Court

/s/ Patricia S. Connor, Clerk