BLUEFIELD – The Freedom From Religion Foundation has filed a memorandum in opposition to a motion to dismiss in a lawsuit against the Mercer Board of Education for its Bible in the Schools program.

The memorandum was filed on May 10 in the U.S. District Court for the Southern District of West Virginia.

“The Mercer County School Board will soon complete its [31st] year administering a program that opening teaches the central tenets of Christianity to the elementary and middle school students in Mercer County schools,” the document states. “Students who do not wish to receive the bible instruction provided in these ‘Bible in the Schools’ classes may choose to be removed from the classroom during the lesson. For the parents who do not wish to have their children receive religious teaching from their public school, this creates an obvious dilemma: violate their personal conscience and expose their child to bible indoctrination or have their child removed from his or her classmates.”

The defendants have moved to dismiss the complaint and the defendants’ motion to dismiss did not challenge the merits of the plaintiffs’ right to bring a claim challenging the Bible in the Schools program, according to the document

“Instead, defendants ignore the plain allegations in plaintiffs’ amended complaint and attempt to recast plaintiffs’ claim into one they believe they can challenge under Rule 12(b)(6),” the document states. “This argument can be dismissed out of hand because it does not address the actual complaint before the court.”

In April, the school board filed a motion to dismiss, claiming that the first amended complaint did not solve the problems with the original complaint and that the two new plaintiffs, Elizabeth Deal and her child, Jessica Roe, also lacked standing.

“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,” it stated.

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.

A hearing on the motion has been set for June 19.

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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