1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0171P (6th C ir.) File Name: 04a01 71p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
J OHN D OE , In di vi du al ly; M ARY R OE , Individually

and as Natural Mother of A. R OE , B. R OE , and C. R OE , her minor daughters; and F REE DOM F ROM R ELI GION F OUNDATION , I

NC ., Plaintiffs- Appellee s,

v.

S UE P ORTER , Individually and as Superintendent of the Rhea County School Sy

stem; R

HEA C OUNTY B OARD OF E DUCATI ON ; J IMMY W ILK EY , Indiv idually and as Cou

nty Ex ec ut iv e f

or Rh ea Co un ty, Tennessee; and R

HEA C OUNTY , T ENNESSEE , Defenda nts-Appe llants. X - - - -
> , - - - - - - - - - - - - - - - - - - - N Nos. 02-5316/5823

Appeal from the United States District Court for the Eastern District of Tennessee at Chattanoog a. No. 01-00115—R. Allan Edgar, Chief District Judge. 2 Doe, et a l. v. Porte r, et al. Nos. 02-5316/5823

* The Honorable Gordon J. Quist , Unit ed States Distr ict Judge for the W estern Distri ct of Michigan, sit ting by designat ion. Argued: December 11, 2003
Decided and Filed: June 7, 2004

Before: COLE a

nd CLAY, Circuit Judges; QUI ST, District Judge. *

_________________ COUNSEL

ARGUED: Michael E. Evans, DA VIES , HUMPHREY S & EVANS, Nas hvi ll e, T enn ess ee, for App ell ant s. A lv in L. Harris, WEED, HUBBARD, BER RY & DOUGHTY, Nashville , Tennes see, for Appellee s. ON BRI EF: Michael E. Evans, DAVIES, HUM PHREYS & E VANS , Nashville, Tenne sse e, Charles W. Cagle, LEWI S, KING, KRI EG, WALDROP & CATRON, Nashville, Tennessee, for Appellan ts. Alvin L. Harris, R. S tephen Doughty , WEED, HUBBARD, BERRY & DOUGHTY, Nashville, Tennessee, Joseph Howell Johnston, N ashville, Tennessee, for Appel lees.

_________________ OPINION

_________________ R. GUY COL

E, JR., Circu

it Judge. D efenda

nts-Appe llants Superintendent

Sue Porter

(“Super intenden t” ) a nd the Rhea County Board of Education (“Boar d of Education” or “Board”) ap pe al the district court’s grant of summary judg me ntfor Plaintiffs-Appellees John Doe, Mary Roe, and the Freedom from Religion Foundation, I nc. (“FFRF”). The districtcourt: (1) granted the Plaintiffs ’ motion to proceed ps eu do nym ou sl y; (2) held that Plaintiffs had standing to bring suit against the Board; (3) enjoined, as a violation of the FirstNos. 02-5316/5823 Doe, et a l. v. Porte r, et al. 3

Amendment’s Establish

ment Cla use, the Board’s allowing religious instructi on in

the Rhea County public schools; and (4) awarded attorn ey s’ fees. For the reasons below, we AFFIRM

. I. B ACKGROUND
For several years the Board

of Education has allowed staff and students from Bryan C ollege in Day ton, Tennessee to conduct a progr am know n as the Bible Education Ministry (“BEM”) in the county’s public eleme ntar y schools. Brya

n College refer s to itself

as a Chris tian scho ol, whose motto is “Christ Above All.” The Colle ge’s mi ssion state ment rea ds, “Educating

students to become servants of Christ to make a differencein today’s world.” B ryan Colleg e students and faculty are required to sub scrib e to a “Statement of Belief,” which re ads:

We believe: that the holy B ible, c omposed of the Old and New Testaments, is of

final and supreme

authority in faith and life , and, be ing inspi red by God, is inerrant in the origina

l writing s; in God the

Father , God th e Son, and God the Ho ly G

host, this Trinit

y being one God, et ernally existing in three persons; in the virgin birth o f Jesus Christ; that he was born of the virg in Mary and begotten of the Ho ly Sp irit; . . . that the L ord Jesus Chr ist is the only Savior, that He wa s crucified for our s ins
, according to the Scr iptures, as a

voluntary representative and substitutionary sacrifice , and all who believe inHim and confess Him before men are justified on the grounds of His shed blood; in the resurrection of the crucified body of Jesus, in

His asce nsion intoHeaven , and in “that bles sedh ope,” the personal return to this earth of Jesus Ch r ist, and He shall reig n foreve r; in the bo dily resurrection

of all persons, judgment to come, the everlasting

blessedness of the saved, and the everlasting punishment of the lost. 4 Doe, et a l. v. Porte r, et al. Nos. 02-5316/5823

BEM’s volunteer instructors were ne ve r employed by the Board. The BEM cla sses took p lace fo r thirty minutes, once a week, during t

he schoo l day , in three

county schools.

Plaintiffs brough

t this acti on, pursuant to 42 U.S.C. § 1983, seekingto enjoin the Board ’s practice of permitting the teachingof

the Christian Bible as religious truth as a violation of the First Amendment’s Establishment Clause. Following summary judgment in Plaintiffs’ favor, Defendants appea led.

II. A NAL YSIS
A. The District Court’s Protec tive Order

The Board asserts that the district court erred by gr an ting Plaintiff s’ motion for

a protective orde

r allowin g them to proceed pseudonymously . As a general matter, a c o mplaint must state the name s of all parties. F ED

. R. C IV

. P. 10(a). However, we may e

xcuse plaintiffs from iden t ifying themselves incertain circumstances. Several considerations determine whether

a plaintiff’s privacy

interest s substant

ially outwe igh the presumptionof open judicial proceedings. They include: (1) whether the pla int iffs seeking anony mity are suing to chall e nge governmental activity ; (2) whether prosecution

of th e suit w ill compel

the plain tiffs to di sclose info r mation “of the utmost intimacy”; (3) w hether the litigationcompels p laintiff s to disclos e anintention t o violate the law, thereby

risking criminal prosecution; and (4) whether the plaintiffs are children. Doe v. St egall , 653 F.2d 180, 185- 86 (5th Cir. 1981). We r

eview the district c ourt’s de cision to grant a protective order

for an abuse of discretion. Samad v. Jenkins , 845 F.2d 660, 663 (6th Cir. 1988).

This suit – chal lengi ng a government activity – forces Plaintiffs to reveal their beliefs about a particularly sensitive topic that coul d su

bj ect them t

o conside rable ha rassmen t. “[R]eligion is pe rhaps the quintessentially private matter

. Alth ough they

do not confe ss either

illega l acts or p urposes, the [p laint iffs] have, by filing suit, made revelations aboutNos. 02-5316/5823 Doe, et a l. v. Porte r, et al. 5

1 The li ti gati on in this case to ok p lace in R hea C ounty— the site o f a mythic Scop es trial in the earl y twenti eth century

. Brya n Co llege is named after one of the princi pal lawyers in the case—W illi ams Jennings Bryan. See E DWARD J. L ARS ON , S UMM ER FOR THE G ODS : T HE S COPES T RI AL AND A MERIC A ’ S C ONTI NU I NG D EBATE OVER S CI ENCE AND R EL I GI ON (19 97)

. their persona l beliefs and prac tices th at are shown to have invited an opprobrium analogou s t o the infamy associa ted with criminal behavior.” Stegall , 653 F.2d at 186

. For instance
, in a l etter to the editor of a local paper, one Na ncy Rogers wrote: [Y]ou are [] cowards because y ou won’t give us y

our name. You know t

he people

inRh ea County

would
come up to your fac e and tell you what we think of you. I would love to come face to face with y ou be ca us e ye s Iwould tell you what I

thought of you

and I would let my s ons tell

you too. You have hurt my sons and I will notlet no one [sic] hurt one o f my child ren. We might notknow you

but s omeone higher does [,] and y es you will answe

r to him. Indeed, in an article ab out the lawsuit, the principal of Rhea County High Sch ool stated that if he had known the person challenging

th e BE M, he “would have tried to alert him . . . I’d have sai d: ‘L ook do y ou want to

cause your fam ily trouble? This is a r

ural, conserv ative place, and very emotional about religion. Attack religion and crusades begin. But you nee d to follow your own conscie nce.’”

Furth er, th is case is brought on behalf of very young children, to whom we gra nt a heightened protection. Stegall
, 653 F.2d at 186. (“The gravity of the danger posed by

the threats of reta liation against the [p laintiff s] for filin

g this lawsuit must also be assessed in light of the special vulnerability of these c

hild-plaintiffs.”). 1 6 Doe, et a l. v. Porte r, et al. Nos. 02-5316/5823

The Board also asserts that the dist rict court’s protective order hindered its ability to make full discovery , contending that the protective o rder al lowed co unsel to kn

ow only Plaintiff s’ names, residency

status, taxpayer

information, and school enrollment

status. This characterization of the district court’s order is incorrect. Altho ugh t he district court’s protective order limited the scope of discovery as to other pers on s beyond Def

endants’ counsel of record, it placed no limitation on defense counsel’s scope of discovery

. Assu mi ng, for the sake of argument, that the B oard’s characterization

of the tri al c our t’s prote ctive or der is
accura te, it is unclea

r how this would have

hindere d its pre paration

for trial. The only issue f or which facts abou

t Plaintiffs would hav e been c rucial is th e Board’ s chal lenge to Plaintiffs’ standing to bring thi s actio n. Even un der thei r narrow characterization of

the trial court’s

order, D efenda

nts would have be en able t

o obtain all the information necessary to address

the stand

ing inqui ry at trial: P laintiff

s’ names , residency status, taxpayer

information and school enrollment status. Accord

ingly, the dist

ric t court did

not abuse

its discretionby allowing Plaintiffs to li ti ga te ps eu do nym ou sl y. B. Standing

The Board challenges the standing of John Doe, Mary Roe and FF RF. We review de novo the district court’s conclusions of law wi

thregar d to standing. Brandywine, Inc.

v. C ity of Richmond, 359 F.3d 830, 834 (6th Cir. 2004). T o esta blis h standing under Article III of the Constitution, plaintiffs must demonstrate: (1) an injury in fact; (2) a causal connection

betwee n the injur

y a nd the cha

llenge d conduct; and (3) the injury’s r

edressability by

a favora ble ju dicial decision. See id. at 834-35.

Insworn af

fidavit s, sub mitted under seal, Doe and Roe assert that they are

the parents of three children, two of whom
are stude nts at the R

hea Count

y El ementar

y Sc hool. The ir eldest daught er – iden tified as A. Roe – isinfifth grade, andNos. 02-5316/5823 Doe, et a l. v. Porte r, et al. 7

their second daught er – B. Ro e – is in

first grade. Each pare

nt testified that s tuden ts fro m Bryan Col lege re gularly teach BEM cla ss es i n t hei r da ugh ter s’ r esp ect iv e cl ass roo ms . In other words, Pla

intiffs’ minor chil dre n have suffered a cogniza ble injury by b eing pla

ced in the BEM cla sses; this injury is derived directly f

rom the BEM cl asses; and the injury would be redr

essed by a de cision in their favor.

As for F FRF: it

may have associational standing to assert the rights of one or

more of its members, even if it suffers no direct injury, if it can answe

r in the affirmative the t h ree questio ns articulated in Hunt v. W ashington S

tate Apple Advertising

Commi ssio n , 432 U.S. 333, 343 (1977): (1) whether

a member

has stand ing to sue in he r own rig ht; (2) whether the interest s that it seeks to protect are germane to its purpose; and (3) whether the claim asserted or the relief requested requires the participation of individua

l members

in the lawsu it. First, John Doe and Mary Roe have s tandi ng t o bring t

his actionin their individual capacities, and a r e members of the FFRF. Second, one of FF RF’s ce ntral pur poses is to ch allen ge practices that violate the separation of churc h and state. At the bottom of FFRF’s stationery is the phrase, “protecting the constitutional principle of separation of state and church.” That phra se appears to accurately describe the purpose of FFRF, and the eradication of religious instruction inpubl ic sch ools is ge rman e to that p urpose. F inally , this liti gationis resolvable without the presence of either John Doe or Mary Roe. The

central issues at

the district court were legal; the record was sufficiently de ve loped to resolve the legali ty of the protective order, the questions of standing, and whether the BEM classes violated the Establishment Clause.

Accord ingly, al l Pla inti ffs hav e stan ding. 8 Doe, et a l. v. Porte r, et al. Nos. 02-5316/5823

C. Establis hment C lause

We review a district court’s grant of a motion for summary judgment de novo

. Stephenson v. Allstate Ins. Co. , 328 F.3d 822, 826 (6th

Cir. 2003). Summary

judgmen t is appro priate where no genuine issue of material fact exists and the moving party is entitle d to judgment as a matter of law. F ED

. R. C IV

. P. 56(c). I

n ruling on a motion

for summa

ry judgme nt, th e Courtmust view the facts contained in the rec ord, and all inferences that can

be draw n from tho se fact s, in the l ight most favorable to the non-moving party

. Mat sus hita Elec. Indus. Co. v. Zenith R adio Corp ., 475 U.S. 574, 587 (1986).

Her e, Plaintiff

s contend

that the B EM prog

ram is a n unconstitutional establishment of religion because it fails the Lemon test. In Lemon v. Kurtzman , 403 U.S. 602, 612-13 (1971), the Court

set forth three factors to beconsidered when
a violation of the Establishment Clause is alleged: (1) whether the government practice has a se cular purpose; (2) whethe r the principa

l effect is one tha

t either a dvance s or inhibit s religion; and (3) wh eth er the practice fosters excessive government

entanglement

with religion. A statute or practice must conform to all thre e requir

ements to s

urviv e scru tiny under the Establishment Clause.

As to the first factor, the Board contends that BE M’s teachinghas a secular purpose: to teach char acter development, as requ ir ed of all Tennessee public schools. See T ENN

. C ODE ANN . § 49-6-1007(a). The Board ar gues that BEM’s classes

“focus [] on

differe nt value- driven themes, suchas resp o nsibility

and cour age, w hich ser ve [] to instill positive morals in students attending Rhea County sc hools.” Even if we accept this as fact, the BEM cla sses also teach the Bibleas religious truth. Several lesson plans from the 2000- 2001 academic y

ear are singularly

religious. For example, the objective of one lesson plan for second graders is to “Teach the children

God’s commandmen

ts and tha t we should

obey all of them.” A subsequent lesson plan expressed a teacher’s intention to “Teach them how God gives usthe best and leadsNos. 02-5316/5823 Doe, et a l. v. Porte r, et al. 9

us where He wants us to go.” The lessons also see k to “teach the kids that God provi des for u s, even in the worst situations.” Moreover, in explaining “How I Plan t o He lp Students See the Truth,” one BEM teacher w rote, “Teach – ‘Read your B ible[,] pray every day.’ ‘Jesus loves y

ou.’ – (if
ac ce pta ble )?”Such statements cannot be described as having a secular purpose.

As to the second factor, the central question in our endorsement

inquiry is whether the B EM progra m communicates a message of government endorsement or disapproval of religion. To answer t his q uestion, we ask whether an objective observer, acquain ted with the prog

ram, would view it as advancement or inhibition of religion. Adland v. Russ , 307 F.3d 471,484 (6th Cir. 2002). Viewing the BEM prog

ram in its s pecific context, an objective observer would conclude that it communicates a messag e of gover nme nt en dorsement of religion, genera lly, and of Christian ity in particular. Lee v. Weisman , 505 U.S. 577, 627 (1992) (Souter, J., concurring) (“[T]he State may not favor or endorse either religion genera

lly over nonreligion or one religion over o thers .”) (ci ting County of Allegheny v. ACLU , 492 U.S. 573,589-94 (1989)).

Becau se the BEM progra m is conducted in public school classro oms, during school hours, and for children who are as young as kinder

garte n age, we must tr

eat t he obj ective observers as studen

ts in these classes. As the Supreme Court stated in Lee , “What to most believers may see m nothing
more than a reasonable request that the nonbeliever respect their reli giou s practic es, in

a school c onte xtmay

appear to the nonbeliever

or dissen

ter to be an att empt to employ the machinery

of the State to enforce a religious orthodoxy .” 505 U.S. at 592. As we explained above, the lesson plans here evidencean intention to teach the Bible as literal truth, and to draw from its narrat ives cer tain theo logica

l propositions. In a lesson planfor first graders, dated Nove mb er 7, 2000, the lesson 10 Doe, et a l. v. Porte r, et al. Nos. 02-5316/5823

objective was, “[To] reinforce how much God loves them

[the stude nts]; God wants to be their friend; You can be personal with God.” In a lesson plan for f irst gra ders, a BEM instru ctor p lanned to “Teach the children that God cre ated everything

and teac h them which day s He cre ated ce rtain things.” And in a lesson plan dated D ecembe r 3, 2000, a BEM instructor stated, “[W]e will make sure that they know the true meaning of Christmas is. It wa s that God sent his son to the earth to be born as a baby ; a baby who would [] one day die on the cross f

or ou r sins so tha t we c an be

save d. (We ’l l make su re to te ll th em th is in a w ay that is o k – so we don’t break any of the sc

hool rules).” The Board’s justification of authorizing the BEM prog ram as a component of its character development

require ment ignores the

overwhe lmingly sectarian nature of the actual clas ses taug ht under i ts auspic es.
While some of B EM’s less on plans e vince an intention t

o t r ain students in more secular aspects of character dev elopment
, many, if not most, appear to ha ve no secu la r component

at all. Although the school sy stem’s oversight of BEM has been

woefully dereli ct , its occurrence during the school da y, and on school prope rty sends a clear message of stateendorsement of

religion – Christianity in particular – to an objective observer. Third, we ask whether BEM fos te rs an excessive entanglement

betwee n the st ate an d religion. BEM takes place on school premises, during the scho ol da y, with the explicit san ction of the Board of Education. Moreover, the program’s administration – which seems to have been left entirely in the han

ds of the st

udents of Bry

an College – creates a “grave potential

for entanglement,” Comm. for Pub. Educ. & Re ligious Liberty v. Nyquis t , 413 U.S. 756, 794 (1973), by dele gating a governme ntal functionto areligious institution. See Larkin v. Grendel’s Den, Inc. , 459 U.S. 116, 121 (1982). Deposition testimony by

several officials from the Rhea C ounty public schools and Bry

an College confirms that theNos. 02-5316/5823 Doe, et a l. v. Porte r, et al. 11

school district a

bdica ted its supervisory authority over the BEM cla sses. El izabeth B rown – the principa l of a publ ic elementary

school in Rhea County – testified that she d

id not know wha t wa s bein g taught in th e BEM cl asses . Alt hough Brown required and regularly

reviewed lesson

plans in other classes taught

inthe school, she admitted that she never saw, and neve r asked for, any

lesson pla

n for any BEM cla ss. Brown also testified that there had never been instructions fromthe Rhea County School Boar d onhow the BEM classes
were to be conducted. Similarly, John Mincy , the Chairman of the Rhea County School Boar d, admitted that

he voted t

o contin u e the BEM classes in the public schools without knowing their content. When asked who deter mine d the content of what Mincy, himself, ca lled “the Bible class,” he said, “ I wou

ld say that Bry an Colleg e does.”

Mincy als o stated that the Board had no written policy governing

t he BEM classes, and also acknowledged that he had never seen a policy manual de scribing the BEM classes.

The Rhea County School Boar d has ceded its supe rvisor y authority over the BEM classes to Bry an C ollege, which requires its student s and fac ulty to subscribe to a sectarian statement of belie f. Th e Supreme Court rejected such a practice in Larkin , whichinvalida ted a Mas sachuse

tts statute that allowed churche s to veto the issuance of liquor licenses within 500 feet of a church. Id . at 117. Indeed, the pra ctices challenged

in this action resemble paradigmatic cases of unconstitutional entanglement. See Illin ois ex re l. McCollum

v. Bd. of Educ. , 333 U .S. 203, 209-10 (1948) (“[T]he use of tax-supported

propert y for religious instruction and the close cooperation between

the school authorities and the religious counci l in promoting

religio us educa tion . . . fa

lls square ly under the ban of

the Firs t Amendme

nt.”); Doe v. Human , 725 F. Supp. 1 503, 1504-1506, 1508 (W.D. Ark. 1989) (rely ing
on McCollum to invalidate a program in which Catho lic
, Jewish and Protestant instructors came into classro oms duri ng school hours toteach bible classes), aff’d ., 923 F.2d 857 (8th Cir. 1990), cert. denied, 499 U.S. 922 (1991). 12 Doe, et a l. v. Porte r, et al. Nos. 02-5316/5823

D. Denial of Invitation to Establish Guidelines

Fi na ll y, the Board complains that the district court erred i n enjoining the entire BEM program without articulating “le gal guidelines fo r th e structuring and teaching of [Bible study
courses ] and afford[ing] each p arty the opportunity, if they should so elect , to submit pl ans, polic ie s, and cu rricula changes in accordance with such guidelines.” ( Appe llants ’ Brief a t 20). Th e provision of guidelines by a federal court would, however, amoun t to the rendering of an advisory opinion, a pract

ice that i s be yon d o ur Ar ti cl e III au th or it y. United States Nat. Bank of Or. v. Ind ep . Ins. Agents of Am., Inc. , 508 U.S. 439, 446 (1993). E. Attorneys’ Fees

Fi na ll y, the Boa

rd conte n ds that the

trial cou rt gra nted to Plaintiffs an excess iv e award of attorney s’ fees. We review
a district court’s determination regar ding the award of
a ttorney s’ fees for abuse of discretion. Paschal v . Flagsta r Bank
, 297 F. 3d 431, 433 (6th Cir. 2002). A district court abuses its discretion when it relies on clearly err oneo us findi ngs of

fac t, uses an incorrect legal standard, or applies the law incorrectly

. Id. at 434.

Alth ough the Bo ard acknowledges that the district court reduced Plaintiffs’ reque sted award for attorney s’ fees by $9,500 for wha

t it deeme d to be unnecessa ry travel t i me charged by Plaintiffs’ attorney

s and paralegal s andfurther reduced the entire award

by fi ve percent, it argues that the latter reduction—imposed

to compensate for what the district court co nsider ed to be a duplication of effort—should have been great er. The Board makes only

one spec ific st atem ent rega rding duplication of services – regarding $4,600 i n expenses related to travel on November 6, 2001. However
, even here, it concedes that it is likely that at lea st some of the duplicationwas accounted for in the original feereduction of $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 a l. v. Porte r, et al. 13

III. C ONCLUSI ON
For the foregoing

reasons, we AFFIRM

the district court’s grant o f summary

judgmen t for Plain tiffs.