Argued: November 1, 2018
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)
Schneider, STEEL SCHNEIDER, Pittsburgh, Pennsylvania, for
Richard Dorey, Washington, D.C.; Hannah Eliades Dunham,
O'MELVENY & MYERS LLP, Washington, D.C, for
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.
MOTZ, DUNCAN, and QUATTLEBAUM, Circuit Judges.
GRIBBON MOTZ, Circuit Judge
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.
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).
"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.
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.
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.
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."
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