EDGAR, Chief Judge.
Rhea County, Tennessee, is no stranger to religious controversy in its public schools. In 1925, the Rhea County Courthouse was the site of the well known "Scopes" or "Monkey" trial, wherein high school teacher John Scopes was tried for violating a Tennessee statute making it a misdemeanor to teach "evolution theory" in the State's public schools. The trial pitted William Jennings Bryan, the "Great Commoner," representing the State, against Clarence Darrow for the defense. The legacy of that trial in some respects gives rise to this lawsuit.
Plaintiffs here claim that the Rhea County Board of Education and its superintendent are violating the Establishment Clause of the First Amendment to the United States Constitution by teaching the Bible as religious truth in the public schools. The Bible teaching is conducted by students at Bryan College. Bryan College is named in honor of William Jennings Bryan who, during the Scopes trial, expressed the wish that a school might be established in Dayton, Tennessee, the Rhea County seat, to teach the truth from a Biblical perspective.
Plaintiffs bring this action under 42 U.S.C. § 1983, and seek a declaratory judgment, injunctive relief, nominal damages and attorney fees. The case is now before the Court on the plaintiffs' motion for summary judgment [Court File No. 50]. The Court has heard oral argument on this motion.
Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving 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 Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir.2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252, 106 S.Ct. 2505; McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir.2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249, 106 S.Ct. 2505; National Satellite Sports, 253 F.3d at 907.
The facts are not in dispute. Plaintiffs John Doe and Mary Roe are residents of Rhea County, Tennessee. They are parents of two minor children who currently attend public elementary school in Rhea County. John Doe and Mary Roe are members of the Freedom From Religion Foundation, Inc. ("FFRF"). FFRF is a non-profit organization, chartered under
Defendants Rhea County School Board and Superintendent Sue Porter are responsible for the management and control over the Rhea County school system. For many years they have allowed a program entitled "Bible Education Ministry" ("BEM") to be conducted in the public schools. Currently the BEM program is carried out in grades kindergarten through five in three elementary schools. The Bible is taught during regular school hours to each grade for 30 minutes every week. The Rhea County School Board has never adopted any written description of the program. The schools do not obtain parental consent for students to participate. While the defendants claim the program is optional, they do not tell that to students. There is no evidence that any child has ever opted out of the program. Parents are provided no information about the content or structure of the program. The BEM program is not mentioned in the policy manual that the Rhea County school system has filed with the State of Tennessee.
The BEM program is operated by Bryan College. Travis Harvey Ricketts, Ph.D., Assistant Professor of History and Director of Practical Christian Involvement, oversees and supervises the program. The teachers are Bryan College students who volunteer to help students in the Rhea County schools to become "exposed to the Bible." For ordinary school instruction, the School Board requires that lesson plans be prepared by classroom teachers on a weekly basis and that those lesson plans be available for review by school principals. However, BEM lesson plans are not provided to the school system, nor are they reviewed by any school employee.
The School Board and Superintendent have essentially turned over the operation of the BEM program to Bryan College, making a place in the regular school curriculum and in the classrooms for the program. Bryan College students do prepare lesson plans for review by Dr. Ricketts. The students who teach need not be in any particular college program, nor have any particular major. All teaching for the BEM program is from the Bible.
The defendants' contend that the plaintiffs lack standing to bring this suit. After reviewing the record, the Court concludes that the plaintiffs do have standing.
Article III, Section 2 of the United States Constitution confines the jurisdiction of federal courts to the resolution of actual "Cases" or "Controversies." See Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997); Arizonans For Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). A core component of the Article III case-or-controversy requirement is standing. Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000); Raines, 521 U.S. at 818, 117 S.Ct. 2312; Arizonans For Official English, 520 U.S. at 64, 117 S.Ct. 1055; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Plaintiffs bear the burden of showing that they have standing. Raines, 521 U.S. at 818-19, 117 S.Ct. 2312; United States v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 132 L.Ed.2d
The Supreme Court holds that the "irreducible constitutional minimum" of standing consists of three essential elements. First, there must be an injury in fact — a harm or invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. A plaintiff must establish a "personal stake" in the dispute which means the injury must affect the plaintiff in a personal and individual way. The second element is causation. There must be a causal connection between the alleged injury and the defendants' conduct. The plaintiffs' injury has to be "fairly traceable" to the challenged action of the defendants and not the result of the independent action of some third party not before the Court. Third, it must be likely, as opposed to merely speculative, that the plaintiffs' alleged injury will be redressed by a favorable judicial decision. Vermont Agency of Natural Res., 529 U.S. at 771, 120 S.Ct. 1858; Raines, 521 U.S. at 818-19, 117 S.Ct. 2312; Hays, 515 U.S. at 742-43, 115 S.Ct. 2431; Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 523-24 (6th Cir.2001).
Plaintiffs have met their burden of showing standing. John Doe and Mary Roe have each submitted sworn affidavits which the Court takes into consideration when ruling on the summary judgment motion pursuant to FED. R. CIV. P. 56. In their affidavits, John Doe and Mary Roe state they are residents of Rhea County and they have two minor children who currently attend elementary school in the Rhea County public school system. This is sufficient to give John Doe, Mary Roe, and their children standing to bring the instant suit. See McCollum v. Board of Ed., 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948). Parents generally have standing to assert claims on behalf of their minor children. See, e.g., Smith v. Organization of Foster Families, 431 U.S. 816, 841 n. 44, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977); Engel v. Vitale, 370 U.S. 421, 423, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 70 (2nd Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 68, 151 L.Ed.2d 34 (2001).
The plaintiff school students and their parents are not merely "concerned bystanders" seeking to air generalized grievances. They are directly affected by the BEM program. Children attending public schools and their parents have a constitutional right to receive a public education in compliance with the Establishment Clause contained in the First Amendment to the United States Constitution. It is well settled that public school students and their parents have standing to maintain a federal lawsuit challenging the constitutionality of a State law, regulation, or program adopted by public school authorities under the Establishment Clause without proving that particular religious freedoms are being infringed. School Dist. of Abington Township v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Caldwell v. Craighead, 432 F.2d 213, 220 (6th Cir.1970); Wiley v. Franklin, 468 F.Supp. 133, 145 (E.D.Tenn.1979); see also Altman, 245 F.3d at 72; Doe v. School Bd. of Ouachita Parish, 274 F.3d 289, 292 (5th Cir.2001); Doe v. Beaumont Ind. Sch. Dist., 240 F.3d 462, 466-67 (5th Cir.2001) (en banc).
John Doe, Mary Roe, and their children, who are currently attending public elementary school in Rhea County, have established that they meet all of the criteria necessary to have standing. They have shown that they are suffering an actual injury in fact regarding a violation or infringement of their rights protected under the Establishment Clause. The injury in
Defendants contend that FFRF lacks standing on the ground it has not shown that the organization itself has suffered a distinct injury in fact. It is further argued FFRF lacks representational standing because it cannot show that any of its members are suffering an injury. This argument lacks merit. Although FFRF does not contend that the organization itself is suffering an injury caused by the defendants' conduct, FFRF does have standing to represent the interests of its members.
Even in the absence of a direct injury to its association or organization, FFRF has standing to bring suit as a representative of its members if it satisfies three criteria: (1) its members would otherwise have standing to sue in their own right; (2) the specific interests the association or organization seeks to protect are germane to its purpose; and (3) neither the legal claim asserted nor the relief sought requires the participation of the organization's individual members in the suit. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Cleveland Branch, N.A.A.C.P., 263 F.3d at 523-24; Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 527 (6th Cir. 1998); Ohio Ass'n of Ind. Sch. v. Goff, 92 F.3d 419, 422 (6th Cir.1996); Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d 710, 717 (6th Cir. 1995). FFRF satisfies each of these requirements. John Doe and Mary Roe are members of FFRF, and the Court has determined that John Doe and Mary Roe have individual standing to sue the defendants. Accordingly, FFRF has standing to be a party plaintiff in this action as a representative of its members in Rhea County.
The BEM Program
The First Amendment to the United States Constitution declares, in part, that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...." In this case we answer the question — whether the Establishment Clause proscribes the Rhea County School Board's Bible Education Ministry Program.
There has been considerable historical debate about the breadth of the Establishment Clause. Some have asserted that it was intended to do nothing more than prohibit the setting up of an official church and prevent Congress from interfering with relations between some of the States and the church. See School Dist. of Abington Township v. Schempp, 374 U.S. at 309-10, 83 S.Ct. 1560 (Stewart, J. dissenting). It is beyond the scope of this opinion to engage in historical debate. Suffice it to say that a majority of the Supreme Court has consistently found the Establishment Clause to be much broader than that, reaching to both State and Federal governments, and to many other governmental involvements with religion. Of course, this Court must follow existing legal precedent.
The Supreme Court has used various analytical approaches to draw the line between government and religion. One such approach is that set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971), wherein it was held that government action, to comply with the Establishment Clause, must (1) have a secular purpose; (2) have the primary effect of
In recent years the Supreme Court has not made overt use of the Lemon test in articulating its rationale for deciding Establishment Clause cases. See Martha McCarthy, Religion and Education: Wither the Establishment Clause, 75 IND. L.J. 123 (2000); James L. Underwood, The Proper Role of Religion in the Public Schools: Equal Access Instead of Official Indoctrination, 46 VILL. L. REV. 47 (2001). However, the Lemon test has not been rejected by the Court and continues to be used by lower courts in evaluating Establishment Clause claims. See American Civil Liberties Union v. Capitol Square Review & Advisory Bd., 243 F.3d 289, 305-308 (6th Cir.2001); Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 383-86 (6th Cir.1999); Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 683 (6th Cir.1994); Books v. City of Elkhart, 235 F.3d 292, 301 (7th Cir.2000), cert. denied, 532 U.S. 1058, 121 S.Ct. 2209, 149 L.Ed.2d 1036 (May 29, 2001). Moreover, it is clear that while the Supreme Court may not have recently engaged in Lemon's tripartite analysis, some elements of the Lemon test continue to be used by both the Supreme Court and lower courts.
In County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 592-93, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), the Supreme Court articulated an "endorsement" test to determine whether an Establishment Clause violation has occurred. Under this formulation a governmental practice may not have the "purpose or effect of `endorsing' religion ...." Id. at 592, 109 S.Ct. 3086. Endorsement occurs when the government conveys or attempts to convey "a message that religion or a particular religious belief is favored or preferred." Id. at 593, 109 S.Ct. 3086, citing Wallace v. Jaffree, 472 U.S. 38, 70, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O'Connor, J. concurring). Thus, under either the Lemon test or the "endorsement" test we must examine both the purpose and effect of the governmental action.
In determining purpose the Court looks to whether the government subjectively intended to convey a message of endorsement or approval of religion. Lynch v. Donnelly, 465 U.S. 668, 690, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J. concurring). In a different context, which may be more relevant to this case, Justice O'Connor has observed that in Establishment Clause cases "... we continue to ask whether the government acted with the purpose of advancing or inhibiting religion." Agostini v. Felton, 521 U.S. 203, 223-24, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). In determining the effect of governmental action under the "endorsement" test, the Court makes an objective determination about whether a "reasonable observer" would conclude that the government has endorsed religion. Capitol Square Review & Advisory Bd., 243 F.3d at 302; Granzeier v. Middleton, 173 F.3d 568, 573 (6th Cir.1999). This determination has been recognized by the Sixth Circuit as a clarification of the second prong of the Lemon test, Granzeier, 173 F.3d at 573, which asks whether the principal or primary effect of the government action advances or inhibits religion. Lemon, 403 U.S. at 612, 91 S.Ct. 2105.
The Courts have looked with special scrutiny at government involvement with religious activity in public schools. The reason is that "students are young, impressionable, and compelled to attend public schools." Coles, 171 F.3d at 377. The Supreme Court has said that:
Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). Public schools play a key role in "the maintenance of a democratic pluralistic society," Coles, 171 F.3d at 377. Because the schools are "[d]esigned to serve as perhaps the most powerful agency for promoting cohesion among a heterogenous democratic people, the public school must be kept scrupulously free from entanglement in the strife of sects." McCollum, 333 U.S. at 216-17, 68 S.Ct. 461. As Justice Frankfurter has said, "The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools...." Id. at 231, 68 S.Ct. 461 (Frankfurter, J.).
In a long series of cases, the Supreme Court has struck down many religious activities in the public schools. Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (student-led, student-initiated prayer at football games); Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) ("nonsectarian" prayer at graduation ceremonies); Edwards, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (state statute forbidding teaching of evolution in public schools unless accompanied by instruction in "creation science"); Wallace, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (state statute mandating "a period of silence ... for meditation or voluntary prayer"); Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (state statute requiring posting of Ten Commandments in public schools); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) (state statute forbidding teaching of evolution in public schools); Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (state statute requiring daily readings from Bible); Engel, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (New York Board of Regents prayer); McCollum, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (religious teaching during regular school hours), Moreover, lower courts, including this one, have specifically found Bible classes like those in Rhea County as violative of the Establishment Clause. Doe v. Human, 725 F.Supp. 1499 (W.D.Ark.1989); Crockett v. Sorenson, 568 F.Supp. 1422 (W.D.Va. 1983); Wiley, 468 F.Supp. 133 (E.D.Tenn. 1979).
It has never been held that there is a ban on all religious activity in public schools. Santa Fe Ind. Sch. Dist., 530 U.S. at 313, 120 S.Ct. 2266. For example, a student may voluntarily pray at school. Id. Also, religious organizations may use public school facilities under some circumstances. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). But the government, through its public school system, may not teach, or allow the teaching of a distinct religious viewpoint. This is what the Rhea County School Board has done by allowing the teaching of the Bible through the BEM program in the elementary schools of Rhea County. In so doing, these defendants have acted with both purpose and effect to endorse and advance religion in the public schools. This is prohibited by the Establishment Clause.
As one of this judge's predecessors, Frank W. Wilson, has pointed out at length, the Bible may be taught in the public schools if it is taught by trained educators, and if it does not encourage a commitment to a set of religious beliefs. Such biblical instruction may include "non-devotional instruction in biblical literature,
The Rhea County School Board argues that the BEM program does not teach religion, but that its purpose and effect is to teach character. Defendants therefore say that the program has a secular purpose. Hopefully, character is indeed a byproduct of religious instruction. However, even if the defendants assert a secular purpose, and even if the classes do promote character, this does not legitimize proselytizing religious activity in the schools. Edwards, 482 U.S. at 592, 107 S.Ct. 2573; Stone, 449 U.S. at 41, 101 S.Ct. 192; Schempp, 374 U.S. at 223-24, 83 S.Ct. 1560; Human, 725 F.Supp. 1503, 1508
This is not a close case.
505 U.S. at 591-92, 112 S.Ct. 2649. It is, therefore, understandable why many religious organizations have endorsed specific restrictions about how the Bible should be taught and used in the public schools.
A judgment will enter