School board seeks to dismiss first amended complaint in Bible in the Schools lawsuit

By Kyla Asbury | May 1, 2017

BLUEFIELD – The Mercer County Board of Education has filed a motion to dismiss the first amended complaint filed by Freedom From Religion Foundation in a lawsuit attempting to remove the Bible in the Schools program from the county.

“This is plaintiff’s second effort to craft a viable complaint against defendants, asking this court to forever end all Bible classes of any kind taught in public school in Mercer County, West Virginia,” the April 19 motion to dismiss memorandum states.

After FFRF reviewed the first motion to dismiss of the original complaint, it elected to file a first amended complaint.

“The FAC does not solve the problems with the original complaint, even though out-of-state serial plaintiff Freedom from Religion Foundation found two more plaintiffs to join it, because those new plaintiffs—Elizabeth Deal and her child Jessica Roe—also lack standing,” the document states. “FFRF tried and failed to manufacture standing in this circuit before under similar circumstances in Moss v. Spartanburg County School District Seven…which was dismissed for many of the same reasons this case ought to be.”

The FFRF has failed to locate what Mercer called a “Goldilocks” plaintiff, referring to the children’s fairytale.

“The original plaintiffs, Jane and Jamie Doe are ‘too hot’—they filed suit too soon, well before Jamie Doe, a kindergartener, was eligible to attend the Bible classes, meaning any purported injury is not certainly impending and is instead merely speculative,” the document states. “The new plaintiffs, Deal and Roe, are ‘too cold’—they joined this suit nearly a year after Roe began attending school in a different school district with no plans to return to school in Mercer County.”

On those facts and the particular claims they have brought, Deal and Roe lack standing, according to the document.

Previously, the school district filed a motion to dismiss the original complaint on March 13. An amended complaint was filed later that month.

The Bible classes, which 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. The program is administered by the school board, but it is not funded by the school.

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 lawsuit.

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

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