Elizabeth Deal v. Mercer County Board of Ed.
Elizabeth Deal v. Mercer County Board of Ed.
Opinion
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
,
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 County's motion to dismiss, reasoning that appellants lacked standing to sue and that, 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.
,
We review a district court's dismissal for lack of standing de novo.
Ohio Valley Envtl. Coal., Inc. v. Pruitt
,
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
,
"[T]he concept of injury for standing purposes is particularly elusive in Establishment Clause cases."
Suhre v. Haywood Cty.
,
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
,
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
,
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
,
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 assertedly used to curtail the First Amendment rights of public school students.
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
,
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
,
Resisting this result, the County maintains that appellants' avoidance-based injuries are not redressable because Deal did not
avow
in the complaint that 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
,
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
,
A.
Like other justiciability doctrines, ripeness derives from Article III.
Nat'l Park Hosp. Ass'n v. Dep't of Interior
,
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.
,
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
,
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
,
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. Nike, Inc.
,
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
,
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
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
,
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.
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.
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."
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.
The County heavily relies on
Freedom from Religion Foundation Inc v. New Kensington Arnold School District
,
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
,
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 at times given weight to such claims,
see, e.g.
,
Grutzmacher v. Howard County
,
Reference
- Full Case Name
- 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.
- Cited By
- 100 cases
- Status
- Published