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Deal v. Mercer County Board of Education

United States Court of Appeals, Fourth Circuit

December 17, 2018

ELIZABETH DEAL; JESSICA ROE, Plaintiffs - Appellants,
v.
MERCER COUNTY BOARD OF EDUCATION; MERCER COUNTY SCHOOLS; DEBORAH S. AKERS, in her individual capacity, Defendants - Appellees. and FREEDOM FROM RELIGION FOUNDATION, INC.; JANE DOE; JAMIE DOE, Plaintiffs,

          Argued: November 1, 2018

          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:

          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.

          Before MOTZ, DUNCAN, and QUATTLEBAUM, Circuit Judges.

          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" 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 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 ...


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