BLUEFIELD – The Mercer County Board of Education has filed a motion to dismiss in a lawsuit filed by the Freedom From Religion Foundation attempting to end its Bible in the Schools program.
Mercer claims none of the plaintiffs’ have ever attended or even been eligible to attend such classes, according to the March 13 memorandum in support of its motion to dismiss.
“Even if plaintiffs had standing to bring this care, it should be dismissed for failure to state a claim,” according to the memorandum. “Plaintiffs ask for an injunction to end Bible classes in Mercer County Schools, despite the fact that over a half century of well-settled law holds that the Constitution permits Bible classes in public schools.”
The board claims the complaint does not even say that Jamie Doe attends one of the 15 elementary schools where the course is offered, as opposed to one of the four where it is not.
Even if Jamie Doe currently attends an elementary school where the Bible course is offered, “the complaint does not say that he is unable to attend one of the elementary schools in Mercer County where the course is not offered.
FFRF is challenging the constitutionality of the “Bible in the Schools” program that is administered by Mercer County schools and provides Bible study to elementary and middle school students at public schools in the county, according to a complaint filed Jan. 18 in the U.S. District Court for the Southern District of West Virginia.
The program advances and endorses one religion, improperly entangles public schools in religious affairs and violates the personal consciences of nonreligious and non-Christian parents and students, according to the suit.
Jane Doe and Jamie Doe claim that Jane Doe does not wish for Jamie Doe to participate in any school Bible courses or to be ostracized by other students or staff because of non-participation.
FFRF claims Jamie Doe and Jane Doe will face two untenable choices beginning in the first grade and continuing each year thereafter where Jamie Doe will either be forced to attend Bible indoctrination classes against the wishes and conscience of Jane Doe or Jamie Doe will be one of the only few children who do not participate.
Jamie will therefore be made conspicuous by absence and is essentially identified as a non-Christian or nonbeliever, which subjects him to the risk of ostracism from his peers and school staff, according to the suit.
FFRF claims the classes are held weekly for 30 minutes in elementary school and 45 minutes in middle school as part of the regular school day. While participation is voluntary, the overwhelming majority of students participate in the classes.
By administering Bible instruction in the classroom to students, the defendant and their agents or employees violate the Establishment Clause of the First Amendment of the U.S. Constitution, which is incorporated to the states by the 14th Amendment of the U.S. Constitution, according to the suit.
FFRF claims the religious instruction also violates the West Virginia Constitution.
FFRF is seeking for the court to permanently enjoin the defendants from organizing, administering or otherwise endorsing Bible classes for Mercer students. It is being represented by Marcus B. Schneider of Steel Schneider.
The board is represented by David R. Dorey and Michael J. Walsh Jr. of O’Melveny & Myers; and Kermit J. Moore of Brewster, Morhous, Cameron, Caruth, Moore, Kersey & Stafford.
The case is assigned to District Judge David Faber.
U.S. District Court for the Southern District of West Virginia case number: 1:17-cv-00642