02-5316, 02-5823 | 6th Cir. | Jun 7, 2004
Before: COLE and CLAY, Circuit Judges; QUIST, District
FOR THE SIXTH CIRCUIT Judge. [*] _________________ _________________ J OHN D OE , Individually; (cid:88) COUNSEL (cid:45) M ARY R OE , Individually and (cid:45) as Natural Mother of A. R OE , ARGUED: Michael E. Evans, DAVIES, HUMPHREYS & (cid:45) Nos. 02-5316/5823 B. R OE , and C. R OE , her EVANS, Nashville, Tennessee, for Appellants. Alvin L. (cid:45) > Harris, WEED, HUBBARD, BERRY & DOUGHTY, minor daughters; and (cid:44) Nashville, Tennessee, for Appellees. ON BRIEF: Michael F REEDOM F ROM R ELIGION (cid:45) E. Evans, DAVIES, HUMPHREYS & EVANS, Nashville, F OUNDATION , I NC ., (cid:45) Tennessee, Charles W. Cagle, LEWIS, KING, KRIEG, Plaintiffs-Appellees, (cid:45) WALDROP & CATRON, Nashville, Tennessee, for (cid:45) Appellants. Alvin L. Harris, R. Stephen Doughty, WEED, (cid:45) v. HUBBARD, BERRY & DOUGHTY, Nashville, Tennessee, (cid:45) Joseph Howell Johnston, Nashville, Tennessee, for Appellees. (cid:45) S UE P ORTER , Individually and (cid:45) _________________ as Superintendent of the Rhea (cid:45) (cid:45) County School System; R HEA OPINION (cid:45) _________________ C OUNTY B OARD OF (cid:45) E DUCATION ; J IMMY W ILKEY , (cid:45) R. GUY COLE, JR., Circuit Judge. Defendants-Appellants Individually and as County (cid:45) Superintendent Sue Porter (“Superintendent”) and the Rhea Executive for Rhea County, (cid:45) County Board of Education (“Board of Education” or Tennessee; and R HEA (cid:45) “Board”) appeal the district court’s grant of summary (cid:45) judgment for Plaintiffs-Appellees John Doe, Mary Roe, and C OUNTY , T ENNESSEE ,
(cid:45) the Freedom from Religion Foundation, Inc. (“FFRF”). The Defendants-Appellants. (cid:45) district court: (1) granted the Plaintiffs’ motion to proceed (cid:78) pseudonymously; (2) held that Plaintiffs had standing to bring
suit against the Board; (3) enjoined, as a violation of the First Appeal from the United States District Court 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 Nos. 02-5316/5823 Doe, et al. v. Porter, et al. 3 4 Doe, et al. v. Porter, et al. Nos. 02-5316/5823 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. B ACKGROUND 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. A NALYSIS College refers to itself as a Christian school, whose motto is A. The District Court’s Protective Order “Christ Above All.” The College’s mission statement reads, “Educating students to become servants of Christ to make a
The Board asserts that the district court erred by granting difference in today’s world.” Bryan College students and Plaintiffs’ motion for a protective order allowing them to faculty are required to subscribe to a “Statement of Belief,” proceed pseudonymously. As a general matter, a complaint which reads: must state the names of all parties. F ED . R. C IV . P. 10(a). However, we may excuse plaintiffs from identifying We believe: that the holy Bible, composed of the Old themselves in certain circumstances. Several considerations and New Testaments, is of final and supreme authority in determine whether a plaintiff’s privacy interests substantially faith and life, and, being inspired by God, is inerrant in outweigh the presumption of open judicial proceedings. They the original writings; in God the Father, God the Son, include: (1) whether the plaintiffs seeking anonymity are and God the Holy Ghost, this Trinity being one God, suing to challenge governmental activity; (2) whether eternally existing in three persons; in the virgin birth of prosecution of the suit will compel the plaintiffs to disclose Jesus Christ; that he was born of the virgin Mary and information “of the utmost intimacy”; (3) whether the begotten of the Holy Spirit; . . . that the Lord Jesus Christ litigation compels plaintiffs to disclose an intention to violate is the only Savior, that He was crucified for our sins,
the law, thereby risking criminal prosecution; and (4) whether according to the Scriptures, as a voluntary representative the plaintiffs are children. Doe v. Stegall , 653 F.2d 180" date_filed="1981-08-10" court="5th Cir." case_name="Thomas Doe v. V. Stegall">653 F.2d 180, 185- and substitutionary sacrifice, and all who believe in Him 86 (5th Cir. 1981). We review the district court’s decision to and confess Him before men are justified on the grounds grant a protective order for an abuse of discretion. Samad v. of His shed blood; in the resurrection of the crucified Jenkins , 845 F.2d 660" date_filed="1988-05-06" court="6th Cir." case_name="Stanley A. Samad v. Donald M. Jenkins the University of Akron, School of Law John Doe I John Doe II Board of Trustees of the University of Akron">845 F.2d 660, 663 (6th Cir. 1988). body of Jesus, in His ascension into Heaven, and in “that blessed hope,” the personal return to this earth of Jesus
This suit – challenging a government activity – forces Christ, and He shall reign forever; in the bodily Plaintiffs to reveal their beliefs about a particularly sensitive resurrection of all persons, judgment to come, the topic that could subject them to considerable harassment. everlasting blessedness of the saved, and the everlasting “[R]eligion is perhaps the quintessentially private matter. punishment of the lost. Although they do not confess either illegal acts or purposes, the [plaintiffs] have, by filing suit, made revelations about
Nos. 02-5316/5823 Doe, et al. v. Porter, et al. 5 6 Doe, et al. v. Porter, et al. Nos. 02-5316/5823 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" date_filed="2004-03-03" court="6th Cir." case_name="Brandywine, Inc. D/B/A Expressway Video and Gary R. Sewell v. City of Richmond, Kentucky">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.
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" date_filed="2002-10-09" court="6th Cir." case_name="None">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" date_filed="1992-06-24" court="SCOTUS" case_name="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" date_filed="1982-12-13" court="SCOTUS" case_name="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 Nos. 02-5316/5823 Doe, et al. v. Porter, et al. 11 12 Doe, et al. v. Porter, et al. Nos. 02-5316/5823 school district abdicated its supervisory authority over the D. Denial of Invitation to Establish Guidelines BEM classes. Elizabeth Brown – the principal of a public Finally, the Board complains that the district court erred in elementary school in Rhea County – testified that she did not enjoining the entire BEM program without articulating “legal know what was being taught in the BEM classes. Although
guidelines for the structuring and teaching of [Bible study Brown required and regularly reviewed lesson plans in other courses] and afford[ing] each party the opportunity, if they classes taught in the school, she admitted that she never saw, should so elect, to submit plans, policies, and curricula and never asked for, any lesson plan for any BEM class. changes in accordance with such guidelines.” (Appellants’ Brown also testified that there had never been instructions Brief at 20). The provision of guidelines by a federal court from the Rhea County School Board on how the BEM classes would, however, amount to the rendering of an advisory were to be conducted. Similarly, John Mincy, the Chairman opinion, a practice that is beyond our Article III authority. of the Rhea County School Board, admitted that he voted to United States Nat. Bank of Or. v. Indep. Ins. Agents of Am., continue the BEM classes in the public schools without
Inc. , 508 U.S. 439" date_filed="1993-06-07" court="SCOTUS" case_name="United States National Bank v. Independent Insurance Agents of America, Inc.">508 U.S. 439, 446 (1993). knowing their content. When asked who determined the content of what Mincy, himself, called “the Bible class,” he
E. Attorneys’ Fees said, “I would say that Bryan College does.” Mincy also stated that the Board had no written policy governing the
Finally, the Board contends that the trial court granted to BEM classes, and also acknowledged that he had never seen Plaintiffs an excessive award of attorneys’ fees. We review a policy manual describing the BEM classes. a district court’s determination regarding the award of attorneys’ fees for abuse of discretion. Paschal v. Flagstar
The Rhea County School Board has ceded its supervisory Bank , 297 F.3d 431, 433 (6th Cir. 2002). A district court authority over the BEM classes to Bryan College, which abuses its discretion when it relies on clearly erroneous requires its students and faculty to subscribe to a sectarian findings of fact, uses an incorrect legal standard, or applies statement of belief. The Supreme Court rejected such a the law incorrectly. Id. at 434. practice in Larkin , which invalidated a Massachusetts statute that allowed churches to veto the issuance of liquor licenses
Although the Board acknowledges that the district court within 500 feet of a church. Id . at 117. Indeed, the practices reduced Plaintiffs’ requested award for attorneys’ fees by challenged in this action resemble paradigmatic cases of $9,500 for what it deemed to be unnecessary travel time unconstitutional entanglement. See Illinois ex rel. McCollum charged by Plaintiffs’ attorneys and paralegals and further v. Bd. of Educ. , 333 U.S. 203" date_filed="1948-03-08" court="SCOTUS" case_name="Illinois Ex Rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty.">333 U.S. 203, 209-10 (1948) (“[T]he use of reduced the entire award by five percent, it argues that the tax-supported property for religious instruction and the close latter reduction—imposed to compensate for what the district cooperation between the school authorities and the religious court considered to be a duplication of effort—should have council in promoting religious education . . . falls squarely been greater. The Board makes only one specific statement under the ban of the First Amendment.”); Doe v. Human , 725 regarding duplication of services – regarding $4,600 in F. Supp. 1503, 1504-1506, 1508 (W.D. Ark. 1989) (relying expenses related to travel on November 6, 2001. However, on McCollum to invalidate a program in which Catholic, even here, it concedes that it is likely that at least some of the Jewish and Protestant instructors came into classrooms during duplication was accounted for in the original fee reduction of school hours to teach bible classes), aff’d ., 923 F.2d 857" date_filed="1990-10-03" court="8th Cir." case_name="Taggert (Doris) v. Jefferson County Child Support">923 F.2d 857 (8th $9,500. Without more specific arguments, we cannot say that Cir. 1990), cert. denied , 499 U.S. 922" date_filed="1991-03-18" court="SCOTUS" case_name="Palomo v. Texas">499 U.S. 922 (1991). this particular reduction amounted to an abuse of discretion. Nos. 02-5316/5823 Doe, et al. v. Porter, et al. 13 III. C ONCLUSION For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment for Plaintiffs.
NOTES
[1] The litigation in this case to ok place in R hea C ounty— the site of a In sworn affidavits, submitted under seal, Doe and Roe mythic Scop es trial in the early twentieth century. Brya n Co llege is assert that they are the parents of three children, two of whom named after one of the principal lawyers in the case—W illiams Jennings are students at the Rhea County Elementary School. Their 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 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). Nos. 02-5316/5823 Doe, et al. v. Porter, et al. 7 8 Doe, et al. v. Porter, et al. Nos. 02-5316/5823 their second daughter – B. Roe – is in first grade. Each parent C. Establishment Clause testified that students from Bryan College regularly teach We review a district court’s grant of a motion for summary BEM classes in their daughters’ respective classrooms. In judgment de novo . Stephenson v. Allstate Ins. Co. , 328 F.3d other words, Plaintiffs’ minor children have suffered a 822, 826 (6th Cir. 2003). Summary judgment is appropriate cognizable injury by being placed in the BEM classes; this where no genuine issue of material fact exists and the moving injury is derived directly from the BEM classes; and the party is entitled to judgment as a matter of law. F ED . R. C IV . injury would be redressed by a decision in their favor. 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" date_filed="1986-03-26" court="SCOTUS" case_name="Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation">475 U.S. 574, 587 (1986). Advertising Commission , 432 U.S. 333, 343 (1977): Here, Plaintiffs contend that the BEM program is an (1) whether a member has standing to sue in her own right; unconstitutional establishment of religion because it fails the (2) whether the interests that it seeks to protect are germane Lemon test. In Lemon v. Kurtzman , 403 U.S. 602" date_filed="1971-10-12" court="SCOTUS" case_name="Lemon v. Kurtzman">403 U.S. 602, 612-13 to its purpose; and (3) whether the claim asserted or the relief (1971), the Court set forth three factors to be considered when requested requires the participation of individual members in a violation of the Establishment Clause is alleged: (1) whether the lawsuit. 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 As to the first factor, the Board contends that BEM’s and church.” That phrase appears to accurately describe the teaching has a secular purpose: to teach character purpose of FFRF, and the eradication of religious instruction development, as required of all Tennessee public schools. See in public schools is germane to that purpose. Finally, this T ENN . C ODE A NN . § 49-6-1007(a). The Board argues that litigation is resolvable without the presence of either John BEM’s classes “focus [] on different value-driven themes, Doe or Mary Roe. The central issues at the district court were such as responsibility and courage, which serve [] to instill legal; the record was sufficiently developed to resolve the positive morals in students attending Rhea County schools.” legality of the protective order, the questions of standing, and Even if we accept this as fact, the BEM classes also teach the whether the BEM classes violated the Establishment Clause. Bible as religious truth. Several lesson plans from the 2000-