Doe v. Porter , 370 F.3d 558 ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Doe, et al. v. Porter, et al. Nos. 02-5316/5823
ELECTRONIC CITATION: 2004 FED App. 0171P (6th Cir.)
File Name: 04a0171p.06 Argued: December 11, 2003
Decided and Filed: June 7, 2004
UNITED STATES COURT OF APPEALS
Before: COLE and CLAY, Circuit Judges; QUIST, District
FOR THE SIXTH CIRCUIT Judge.*
_________________
_________________
JOHN DOE , Individually; X
MARY ROE , Individually and - COUNSEL
as Natural Mother of A. ROE , -
- Nos. 02-5316/5823 ARGUED: Michael E. Evans, DAVIES, HUMPHREYS &
B. ROE , and C. ROE , her - EVANS, Nashville, Tennessee, for Appellants. Alvin L.
minor daughters; and > Harris, WEED, HUBBARD, BERRY & DOUGHTY,
, Nashville, Tennessee, for Appellees. ON BRIEF: Michael
FREEDOM FROM RELIGION -
FOUNDATION, INC., E. Evans, DAVIES, HUMPHREYS & EVANS, Nashville,
- Tennessee, Charles W. Cagle, LEWIS, KING, KRIEG,
Plaintiffs-Appellees, - WALDROP & CATRON, Nashville, Tennessee, for
- Appellants. Alvin L. Harris, R. Stephen Doughty, WEED,
v. - HUBBARD, BERRY & DOUGHTY, Nashville, Tennessee,
- Joseph Howell Johnston, Nashville, Tennessee, for Appellees.
-
SUE PORTER , Individually and -
_________________
as Superintendent of the Rhea -
County School System; RHEA - OPINION
COUNTY BOARD OF - _________________
EDUCATION ; JIMMY WILKEY , -
- R. GUY COLE, JR., Circuit Judge. Defendants-Appellants
Individually and as County - Superintendent Sue Porter (“Superintendent”) and the Rhea
Executive for Rhea County, - County Board of Education (“Board of Education” or
Tennessee; and RHEA - “Board”) appeal the district court’s grant of summary
COUNTY, TENNESSEE, - judgment for Plaintiffs-Appellees John Doe, Mary Roe, and
Defendants-Appellants. - the Freedom from Religion Foundation, Inc. (“FFRF”). The
- district court: (1) granted the Plaintiffs’ motion to proceed
N pseudonymously; (2) held that Plaintiffs had standing to bring
Appeal from the United States District Court suit against the Board; (3) enjoined, as a violation of the First
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. BACKGROUND 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. ANALYSIS
College refers to itself as a Christian school, whose motto is
“Christ Above All.” The College’s mission statement reads, A. The District Court’s Protective Order
“Educating students to become servants of Christ to make a
difference in today’s world.” Bryan College students and The Board asserts that the district court erred by granting
faculty are required to subscribe to a “Statement of Belief,” Plaintiffs’ motion for a protective order allowing them to
which reads: proceed pseudonymously. As a general matter, a complaint
must state the names of all parties. FED . R. CIV . P. 10(a).
We believe: that the holy Bible, composed of the Old However, we may excuse plaintiffs from identifying
and New Testaments, is of final and supreme authority in themselves in certain circumstances. Several considerations
faith and life, and, being inspired by God, is inerrant in determine whether a plaintiff’s privacy interests substantially
the original writings; in God the Father, God the Son, outweigh the presumption of open judicial proceedings. They
and God the Holy Ghost, this Trinity being one God, include: (1) whether the plaintiffs seeking anonymity are
eternally existing in three persons; in the virgin birth of suing to challenge governmental activity; (2) whether
Jesus Christ; that he was born of the virgin Mary and prosecution of the suit will compel the plaintiffs to disclose
begotten of the Holy Spirit; . . . that the Lord Jesus Christ information “of the utmost intimacy”; (3) whether the
is the only Savior, that He was crucified for our sins, litigation compels plaintiffs to disclose an intention to violate
according to the Scriptures, as a voluntary representative the law, thereby risking criminal prosecution; and (4) whether
and substitutionary sacrifice, and all who believe in Him the plaintiffs are children. Doe v. Stegall, 653 F.2d 180, 185-
and confess Him before men are justified on the grounds 86 (5th Cir. 1981). We review the district court’s decision to
of His shed blood; in the resurrection of the crucified grant a protective order for an abuse of discretion. Samad v.
body of Jesus, in His ascension into Heaven, and in “that Jenkins, 845 F.2d 660, 663 (6th Cir. 1988).
blessed hope,” the personal return to this earth of Jesus
Christ, and He shall reign forever; in the bodily This suit – challenging a government activity – forces
resurrection of all persons, judgment to come, the Plaintiffs to reveal their beliefs about a particularly sensitive
everlasting blessedness of the saved, and the everlasting topic that could subject them to considerable harassment.
punishment of the lost. “[R]eligion is perhaps the quintessentially private matter.
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, 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.
1
The litigation in this case to ok place in R hea C ounty— the site of a
mythic Scop es trial in the early twentieth century. Brya n Co llege is In sworn affidavits, submitted under seal, Doe and Roe
named after one of the principal lawyers in the case—W illiams Jennings assert that they are the parents of three children, two of whom
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 are students at the Rhea County Elementary School. Their
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
BEM classes in their daughters’ respective classrooms. In We review a district court’s grant of a motion for summary
other words, Plaintiffs’ minor children have suffered a judgment de novo. Stephenson v. Allstate Ins. Co., 328 F.3d
cognizable injury by being placed in the BEM classes; this 822, 826 (6th Cir. 2003). Summary judgment is appropriate
injury is derived directly from the BEM classes; and the where no genuine issue of material fact exists and the moving
injury would be redressed by a decision in their favor. party is entitled to judgment as a matter of law. FED . R. CIV .
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, 587 (1986).
Advertising Commission, 432 U.S. 333, 343 (1977):
(1) whether a member has standing to sue in her own right; Here, Plaintiffs contend that the BEM program is an
(2) whether the interests that it seeks to protect are germane unconstitutional establishment of religion because it fails the
to its purpose; and (3) whether the claim asserted or the relief Lemon test. In Lemon v. Kurtzman, 403 U.S. 602, 612-13
requested requires the participation of individual members in (1971), the Court set forth three factors to be considered when
the lawsuit. a violation of the Establishment Clause is alleged: (1) whether
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
and church.” That phrase appears to accurately describe the As to the first factor, the Board contends that BEM’s
purpose of FFRF, and the eradication of religious instruction teaching has a secular purpose: to teach character
in public schools is germane to that purpose. Finally, this development, as required of all Tennessee public schools. See
litigation is resolvable without the presence of either John TENN. CODE ANN . § 49-6-1007(a). The Board argues that
Doe or Mary Roe. The central issues at the district court were BEM’s classes “focus [] on different value-driven themes,
legal; the record was sufficiently developed to resolve the such as responsibility and courage, which serve [] to instill
legality of the protective order, the questions of standing, and positive morals in students attending Rhea County schools.”
whether the BEM classes violated the Establishment Clause. Even if we accept this as fact, the BEM classes also teach the
Bible as religious truth. Several lesson plans from the 2000-
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 471,484 (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, 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,
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
elementary school in Rhea County – testified that she did not Finally, the Board complains that the district court erred in
know what was being taught in the BEM classes. Although enjoining the entire BEM program without articulating “legal
Brown required and regularly reviewed lesson plans in other guidelines for the structuring and teaching of [Bible study
classes taught in the school, she admitted that she never saw, courses] and afford[ing] each party the opportunity, if they
and never asked for, any lesson plan for any BEM class. should so elect, to submit plans, policies, and curricula
Brown also testified that there had never been instructions changes in accordance with such guidelines.” (Appellants’
from the Rhea County School Board on how the BEM classes Brief at 20). The provision of guidelines by a federal court
were to be conducted. Similarly, John Mincy, the Chairman would, however, amount to the rendering of an advisory
of the Rhea County School Board, admitted that he voted to opinion, a practice that is beyond our Article III authority.
continue the BEM classes in the public schools without United States Nat. Bank of Or. v. Indep. Ins. Agents of Am.,
knowing their content. When asked who determined the Inc., 508 U.S. 439, 446 (1993).
content of what Mincy, himself, called “the Bible class,” he
said, “I would say that Bryan College does.” Mincy also E. Attorneys’ Fees
stated that the Board had no written policy governing the
BEM classes, and also acknowledged that he had never seen Finally, the Board contends that the trial court granted to
a policy manual describing the BEM classes. Plaintiffs an excessive award of attorneys’ fees. We review
a district court’s determination regarding the award of
The Rhea County School Board has ceded its supervisory attorneys’ fees for abuse of discretion. Paschal v. Flagstar
authority over the BEM classes to Bryan College, which Bank, 297 F.3d 431, 433 (6th Cir. 2002). A district court
requires its students and faculty to subscribe to a sectarian abuses its discretion when it relies on clearly erroneous
statement of belief. The Supreme Court rejected such a findings of fact, uses an incorrect legal standard, or applies
practice in Larkin, which invalidated a Massachusetts statute the law incorrectly. Id. at 434.
that allowed churches to veto the issuance of liquor licenses
within 500 feet of a church. Id. at 117. Indeed, the practices Although the Board acknowledges that the district court
challenged in this action resemble paradigmatic cases of reduced Plaintiffs’ requested award for attorneys’ fees by
unconstitutional entanglement. See Illinois ex rel. McCollum $9,500 for what it deemed to be unnecessary travel time
v. Bd. of Educ., 333 U.S. 203, 209-10 (1948) (“[T]he use of charged by Plaintiffs’ attorneys and paralegals and further
tax-supported property for religious instruction and the close reduced the entire award by five percent, it argues that the
cooperation between the school authorities and the religious latter reduction—imposed to compensate for what the district
council in promoting religious education . . . falls squarely court considered to be a duplication of effort—should have
under the ban of the First Amendment.”); Doe v. Human, 725 been greater. The Board makes only one specific statement
F. Supp. 1503, 1504-1506, 1508 (W.D. Ark. 1989) (relying regarding duplication of services – regarding $4,600 in
on McCollum to invalidate a program in which Catholic, expenses related to travel on November 6, 2001. However,
Jewish and Protestant instructors came into classrooms during even here, it concedes that it is likely that at least some of the
school hours to teach bible classes), aff’d., 923 F.2d 857 (8th duplication was accounted for in the original fee reduction of
Cir. 1990), cert. denied, 499 U.S. 922 (1991). $9,500. Without more specific arguments, we cannot say that
this particular reduction amounted to an abuse of discretion.
Nos. 02-5316/5823 Doe, et al. v. Porter, et al. 13
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment for Plaintiffs.