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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0171P (6th Cir.)

File Name: 04a0171p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JOHN DOE, Individually;

MARY ROE, Individually and

as Natural Mother of A. ROE,

B. ROE, and C. ROE, her

minor daughters; and

FREEDOM FROM RELIGION

FOUNDATION, INC.,

Plaintiffs-Appellees,

v.

SUE PORTER, Individually and

as Superintendent of the Rhea

County School System; RHEA

COUNTY BOARD OF

EDUCATION; JIMMY WILKEY,

Individually and as County

Executive for Rhea County,

Tennessee; and RHEA

COUNTY, TENNESSEE,

Defendants-Appellants.

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Nos. 02-5316/5823

Appeal from the United States District Court

for the Eastern District of Tennessee at Chattanooga.

No. 01-00115—R. Allan Edgar, Chief District Judge.

2 Doe, et al. v. Porter, et al. Nos. 02-5316/5823

*

The Honorable Gordon J. Quist, United States District Judge for the

Western District of Michigan, sitting by designation.

Argued: December 11, 2003

Decided and Filed: June 7, 2004 

Before: COLE and CLAY, Circuit Judges; QUIST, District

Judge.*

_________________

COUNSEL

ARGUED: Michael E. Evans, DAVIES, HUMPHREYS &

EVANS, Nashville, Tennessee, for Appellants. Alvin L.

Harris, WEED, HUBBARD, BERRY & DOUGHTY,

Nashville, Tennessee, for Appellees. ON BRIEF: Michael

E. Evans, DAVIES, HUMPHREYS & EVANS, Nashville,

Tennessee, Charles W. Cagle, LEWIS, KING, KRIEG,

WALDROP & CATRON, Nashville, Tennessee, for

Appellants. Alvin L. Harris, R. Stephen Doughty, WEED,

HUBBARD, BERRY & DOUGHTY, Nashville, Tennessee,

Joseph Howell Johnston, Nashville,Tennessee,forAppellees.

_________________

OPINION

_________________

R. GUY COLE, JR., Circuit Judge. Defendants-Appellants

Superintendent Sue Porter (“Superintendent”) and the Rhea

County Board of Education (“Board of Education” or

“Board”) appeal the district court’s grant of summary

judgment for Plaintiffs-Appellees John Doe, Mary Roe, and

the Freedom from Religion Foundation, Inc. (“FFRF”). The

district court: (1) granted the Plaintiffs’ motion to proceed

pseudonymously; (2) held that Plaintiffs had standing to bring

suit against the Board; (3) enjoined, as a violation of the First
Nos. 02-5316/5823 Doe, et al. v. Porter, et al. 3

Amendment’s Establishment Clause, the Board’s allowing

religious instruction in the Rhea County public schools; and

(4) awarded attorneys’ fees. For the reasons below, we

AFFIRM.

I. BACKGROUND

For several years the Board of Education has allowed staff

and students from Bryan College in Dayton, Tennessee to

conduct a program known as the Bible Education Ministry

(“BEM”) in the county’s public elementary schools. Bryan

College refers to itself as a Christian school, whose motto is

“Christ Above All.” The College’s mission statement reads,

“Educating students to become servants of Christ to make a

difference in today’s world.” Bryan College students and

faculty are required to subscribe to a “Statement of Belief,”

which reads:

We believe: that the holy Bible, composed of the Old

and New Testaments, is of final and supreme authority in

faith and life, and, being inspired by God, is inerrant in

the original writings; in God the Father, God the Son,

and God the Holy Ghost, this Trinity being one God,

eternally existing in three persons; in the virgin birth of

Jesus Christ; that he was born of the virgin Mary and

begotten of the Holy Spirit; . . . that the Lord Jesus Christ

is the only Savior, that He was crucified for our sins,

according to the Scriptures, as a voluntary representative

and substitutionary sacrifice, and all who believe in Him

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 ascension into Heaven, and in “that

blessed hope,” the personal return to this earth of Jesus

Christ, and He shall reign forever; in the bodily

resurrection of all persons, judgment to come, the

everlasting blessedness of the saved, and the everlasting

punishment of the lost. 

4 Doe, et al. v. Porter, et al. Nos. 02-5316/5823

BEM’s volunteer instructors were never employed by the

Board. The BEM classes took place for thirty minutes, once

a week, during the school day, in three county schools.

Plaintiffs brought this action, pursuant to 42 U.S.C. § 1983,

seeking to enjoin the Board’s practice of permitting the

teaching of the Christian Bible as religious truth as a violation

of the First Amendment’s Establishment Clause. Following

summary judgment in Plaintiffs’ favor, Defendants appealed.

II. ANALYSIS

A. The District Court’s Protective Order

The Board asserts that the district court erred by granting

Plaintiffs’ motion for a protective order allowing them to

proceed pseudonymously. As a general matter, a complaint

must state the names of all parties. FED. R. CIV. P. 10(a).

However, we may excuse plaintiffs from identifying

themselves in certain circumstances. Several considerations

determine whether a plaintiff’s privacy interests substantially

outweigh the presumption of open judicial proceedings. They

include: (1) whether the plaintiffs seeking anonymity are

suing to challenge governmental activity; (2) whether

prosecution of the suit will compel the plaintiffs to disclose

information “of the utmost intimacy”; (3) whether the

litigation compels plaintiffs to disclose an intention to violate

the law, thereby risking criminal prosecution; and (4) whether

the plaintiffs are children. Doe v. Stegall, 653 F.2d 180, 185-

86 (5th Cir. 1981). We review the district court’s decision to

grant a protective order for an abuse of discretion. Samad v.

Jenkins, 845 F.2d 660, 663 (6th Cir. 1988).

This suit – challenging a government activity – forces

Plaintiffs to reveal their beliefs about a particularly sensitive

topic that could subject them to considerable harassment.

“[R]eligion is perhaps the quintessentially private matter.

Although they do not confess either illegal acts or purposes,

the [plaintiffs] have, by filing suit, made revelations about
Nos. 02-5316/5823 Doe, et al. v. Porter, et al. 5

1

The litigation in this case took place in Rhea County—the site of a

mythic Scopes trial in the early twentieth century. Bryan College is

named after one of the principal lawyers in the case—Williams Jennings

Bryan. See EDWARD J. LARSON, SUMM ER FOR THE GODS: THE SCOPES

TRIAL AND AMERICA’S CONTINUING DEBATE OVER SCIENCE AND

RELIGION (1997). 

their personal beliefs and practices that are shown to have

invited an opprobrium analogous to the infamy associated

with criminal behavior.” Stegall, 653 F.2d at 186. For

instance, in a letter to the editor of a local paper, one Nancy

Rogers wrote:

[Y]ou are [] cowards because you won’t give us your

name. You know the people in Rhea County would

come up to your face and tell you what we think of you.

I would love to come face to face with you because yes

I would tell you what I thought of you and I would let

my sons tell you too. You have hurt my sons and I will

not let no one [sic] hurt one of my children. We might

not know you but someone higher does [,] and yes you

will answer to him.

Indeed, in an article about the lawsuit, the principal of Rhea

County High School stated that if he had known the person

challenging the BEM, he “would have tried to alert him . . .

I’d have said: ‘Look do you want to cause your family

trouble? This is a rural, conservative place, and very

emotional about religion. Attack religion and crusades begin.

But you need to follow your own conscience.’”

Further, this case is brought on behalf of very young

children, to whom we grant a heightened protection. Stegall,

653 F.2d at 186. (“The gravity of the danger posed by the

threats of retaliation against the [plaintiffs] for filing this

lawsuit must also be assessed in light of the special

vulnerability of these child-plaintiffs.”).1

6 Doe, et al. v. Porter, et al. Nos. 02-5316/5823

The Board also asserts that the district court’s protective

order hindered its ability to make full discovery, contending

that the protective order allowed counsel to know only

Plaintiffs’ names, residency status, taxpayer information, and

school enrollment status. This characterization of the district

court’s order is incorrect. Although the district court’s

protective order limited the scope of discovery as to other

persons beyond Defendants’ counsel of record, it placed no

limitation on defense counsel’s scope of discovery. 

Assuming, for the sake of argument, that the Board’s

characterization of the trial court’s protective order is

accurate, it is unclear how this would have hindered its

preparation for trial. The only issue for which facts about

Plaintiffs would have been crucial is the Board’s challenge

to Plaintiffs’ standing to bring this action. Even under their

narrow characterization of the trial court’s order, Defendants

would have been able to obtain all the information necessary

to address the standing inquiry at trial: Plaintiffs’ names,

residency status, taxpayer information and school enrollment

status. Accordingly, the district court did not abuse its

discretion by allowing Plaintiffs to litigate pseudonymously.

B. Standing

The Board challenges the standing of John Doe, Mary Roe

and FFRF. We review de novo the district court’s

conclusions of law with regard to standing. Brandywine, Inc.

v. City of Richmond, 359 F.3d 830, 834 (6th Cir. 2004). To

establish standing under Article III of the Constitution,

plaintiffs must demonstrate: (1) an injury in fact; (2) a causal

connection between the injury and the challenged conduct;

and (3) the injury’s redressability by a favorable judicial

decision. See id. at 834-35.

In sworn affidavits, submitted under seal, Doe and Roe

assert that they are the parents of three children, two of whom

are students at the Rhea County Elementary School. Their

eldest daughter – identified as A. Roe – is in fifth grade, and
Nos. 02-5316/5823 Doe, et al. v. Porter, et al. 7

their second daughter – B. Roe – is in first grade. Each parent

testified that students from Bryan College regularly teach

BEM classes in their daughters’ respective classrooms. In

other words, Plaintiffs’ minor children have suffered a

cognizable injury by being placed in the BEM classes; this

injury is derived directly from the BEM classes; and the

injury would be redressed by a decision in their favor.

As for FFRF: 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 answer in the affirmative the three

questions articulated in Hunt v. Washington State Apple

Advertising Commission, 432 U.S. 333, 343 (1977):

(1) whether a member has standing to sue in her own right;

(2) whether the interests that it seeks to protect are germane

to its purpose; and (3) whether the claim asserted or the relief

requested requires the participation of individual members in

the lawsuit.

First, John Doe and Mary Roe have standing to bring this

action in their individual capacities, and are members of the

FFRF. Second, one of FFRF’s central purposes is to

challenge practices that violate the separation of church and

state. At the bottom of FFRF’s stationery is the phrase,

“protecting the constitutional principle of separation of state

and church.” That phrase appears to accurately describe the

purpose of FFRF, and the eradication of religious instruction

in public schools is germane to that purpose. Finally, this

litigation is resolvable without the presence of either John

Doe or Mary Roe. The central issues at the district court were

legal; the record was sufficiently developed to resolve the

legality of the protective order, the questions of standing, and

whether the BEM classes violated the Establishment Clause.

Accordingly, all Plaintiffs have standing.

8 Doe, et al. v. Porter, et al. Nos. 02-5316/5823

C. Establishment Clause

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 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 (1986).

Here, Plaintiffs contend that the BEM program is an

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 be considered when

a violation of the Establishment Clause is alleged: (1) whether

the government practice has a secular purpose; (2) whether

the principal effect is one that either advances or inhibits

religion; and (3) whether the practice fosters excessive

government entanglement with religion. A statute or practice

must conform to all three requirements to survive scrutiny

under the Establishment Clause.

As to the first factor, the Board contends that BEM’s

teaching has a secular purpose: to teach character

development, as required of all Tennessee public schools. See

TENN. CODE ANN. § 49-6-1007(a). The Board argues that

BEM’s classes “focus [] on different value-driven themes,

such as responsibility and courage, which serve [] to instill

positive morals in students attending Rhea County schools.”

Even if we accept this as fact, the BEM classes also teach the

Bible as religious truth. Several lesson plans from the 2000-

2001 academic year are singularly religious. For example, the

objective of one lesson plan for second graders is to “Teach

the children God’s commandments and that we should obey

all of them.” A subsequent lesson plan expressed a teacher’s

intention to “Teach them how God gives us the best and leads
Nos. 02-5316/5823 Doe, et al. v. Porter, et al. 9

us where He wants us to go.” The lessons also seek to “teach

the kids that God provides for us, even in the worst

situations.” Moreover, in explaining “How I Plan to Help

Students See the Truth,” one BEM teacher wrote, “Teach –

‘Read your Bible[,] pray everyday.’ ‘Jesus loves you.’ – (if

acceptable)?” 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 BEM program

communicates a message of government endorsement or

disapproval of religion. To answer this question, we ask

whether an objective observer, acquainted with the program,

would view it as advancement or inhibition of religion.

Adland v. Russ, 307 F.3d 471,484 (6th Cir. 2002). Viewing

the BEM program in its specific context, an objective

observer would conclude that it communicates a message of

government endorsement of religion, generally, and of

Christianity in particular. Lee v. Weisman, 505 U.S. 577, 627

(1992) (Souter, J., concurring) (“[T]he State may not favor or

endorse either religion generally over nonreligion or one

religion over others.”) (citing County of Allegheny v. ACLU,

492 U.S. 573,589-94 (1989)).

Because the BEM program is conducted in public school

classrooms, during school hours, and for children who are as

young as kindergarten age, we must treat the objective

observers as students in these classes. As the Supreme Court

stated in Lee, “What to most believers may seem nothing

more than a reasonable request that the nonbeliever respect

their religious practices, in a school context may appear to the

nonbeliever or dissenter to be an attempt 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 evidence an

intention to teach the Bible as literal truth, and to draw from

its narratives certain theological propositions. In a lesson

plan for first graders, dated November 7, 2000, the lesson

10 Doe, et al. v. Porter, et al. Nos. 02-5316/5823

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

students]; God wants to be their friend; You can be personal

with God.” In a lesson plan for first graders, a BEM

instructor planned to “Teach the children that God created

everything and teach them which days He created certain

things.” And in a lesson plan dated December 3, 2000, a

BEM instructor stated, “[W]e will make sure that they know

the true meaning of Christmas is. It was that God sent his son

to the earth to be born as a baby; a baby who would [] one day

die on the cross for our sins so that we can be saved. (We’ll

make sure to tell them this in a way that is ok – so we don’t

break any of the school rules).” The Board’s justification of

authorizing the BEM program as a component of its character

development requirement ignores the overwhelmingly

sectarian nature of the actual classes taught under its auspices.

While some of BEM’s lesson plans evince an intention to

train students in more secular aspects of character

development, many, if not most, appear to have no secular

component at all. Although the school system’s oversight of

BEM has been woefully derelict, its occurrence during the

school day, and on school property sends a clear message of

state endorsement of religion – Christianity in particular – to

an objective observer. 

Third, we ask whether BEM fosters an excessive

entanglement between the state and religion. BEM takes

place on school premises, during the school day, with the

explicit sanction of the Board of Education. Moreover, the

program’s administration – which seems to have been left

entirely in the hands of the students of Bryan College –

creates a “grave potential for entanglement,” Comm. for Pub.

Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794

(1973), by delegating a governmental function to a religious

institution. See Larkin v. Grendel’s Den, Inc., 459 U.S. 116,

121 (1982).

Deposition testimony by several officials from the Rhea

County public schools and Bryan College confirms that the
Nos. 02-5316/5823 Doe, et al. v. Porter, et al. 11

school district abdicated its supervisory authority over the

BEM classes. Elizabeth Brown – the principal of a public

elementary school in Rhea County – testified that she did not

know what was being taught in the BEM classes. Although

Brown required and regularly reviewed lesson plans in other

classes taught in the school, she admitted that she never saw,

and never asked for, any lesson plan for any BEM class.

Brown also testified that there had never been instructions

from the Rhea County School Board on how the BEM classes

were to be conducted. Similarly, John Mincy, the Chairman

of the Rhea County School Board, admitted that he voted to

continue the BEM classes in the public schools without

knowing their content. When asked who determined the

content of what Mincy, himself, called “the Bible class,” he

said, “I would say that Bryan College does.” Mincy also

stated that the Board had no written policy governing the

BEM classes, and also acknowledged that he had never seen

a policy manual describing the BEM classes. 

The Rhea County School Board has ceded its supervisory

authority over the BEM classes to Bryan College, which

requires its students and faculty to subscribe to a sectarian

statement of belief. The Supreme Court rejected such a

practice in Larkin, which invalidated a Massachusetts statute

that allowed churches to veto the issuance of liquor licenses

within 500 feet of a church. Id. at 117. Indeed, the practices

challenged in this action resemble paradigmatic cases of

unconstitutional entanglement. See Illinois ex rel. McCollum

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

tax-supported property for religious instruction and the close

cooperation between the school authorities and the religious

council in promoting religious education . . . falls squarely

under the ban of the First Amendment.”); Doe v. Human, 725

F. Supp. 1503, 1504-1506, 1508 (W.D. Ark. 1989) (relying

on McCollum to invalidate a program in which Catholic,

Jewish and Protestant instructors came into classrooms during

school hours to teach bible classes), aff’d., 923 F.2d 857 (8th

Cir. 1990), cert. denied, 499 U.S. 922 (1991). 

12 Doe, et al. v. Porter, et al. Nos. 02-5316/5823

D. Denial of Invitation to Establish Guidelines

Finally, the Board complains that the district court erred in

enjoining the entire BEM program without articulating “legal

guidelines for the structuring and teaching of [Bible study

courses] and afford[ing] each party the opportunity, if they

should so elect, to submit plans, policies, and curricula

changes in accordance with such guidelines.” (Appellants’

Brief at 20). The provision of guidelines by a federal court

would, however, amount to the rendering of an advisory

opinion, a practice that is beyond our Article III authority.

United States Nat. Bank of Or. v. Indep. Ins. Agents of Am.,

Inc., 508 U.S. 439, 446 (1993). 

E. Attorneys’ Fees

Finally, the Board contends that the trial court granted to

Plaintiffs an excessive award of attorneys’ fees. We review

a district court’s determination regarding the award of

attorneys’ fees for abuse of discretion. Paschal v. Flagstar

Bank, 297 F.3d 431, 433 (6th Cir. 2002). A district court

abuses its discretion when it relies on clearly erroneous

findings of fact, uses an incorrect legal standard, or applies

the law incorrectly. Id. at 434.

Although the Board acknowledges that the district court

reduced Plaintiffs’ requested award for attorneys’ fees by

$9,500 for what it deemed to be unnecessary travel time

charged by Plaintiffs’ attorneys and paralegals and further

reduced the entire award by five percent, it argues that the

latter reduction—imposed to compensate for what the district

court considered to be a duplication of effort—should have

been greater. The Board makes only one specific statement

regarding duplication of services – regarding $4,600 in

expenses related to travel on November 6, 2001. However,

even here, it concedes that it is likely that at least some of the

duplication was accounted for in the original fee reduction 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 al. v. Porter, et al. 13

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment for Plaintiffs.