In this file image, a Bible is displayed open with a pair of glasses resting on the pages.

BLUEFIELD — A response has been filed to a motion by Mercer County schools to dismiss a lawsuit related to its Bible in the Schools program, and a hearing on the motion has been set for June 19 in Beckley.

The response was filed in U.S. District Court in Bluefield by Freedom From Religion Foundation, based in Wisconsin, detailing why the lawsuit should move forward.

That organization filed the original lawsuit in January, alleging the Bible in the Schools program is unconstitutional because it “endorses one religion, improperly entangles public schools in religious affairs, and violates the personal consciences of nonreligious and non-Christian parents and students.”

Two plaintiffs in the suit, parents of children who either attended Mercer County schools or will attend, also are part of the suit, which claims the children risk “ostracism” from other students if they do not participate in the Bible classes, which are optional.

The lawsuit also contends that the Bible in the Schools program, which is taught in 15 elementary schools and three middle schools, offers classes that are basically “Sunday school” classes, which they say is illegal.

The Mercer County School Board administers the program, but funding for the teachers is from private donations. About $500,000 a year is raised to finance the program.

The board, the school system as well as Dr. Deborah S. Akers, superintendent of schools, are named as defendants.

Mercer County schools, represented by First Liberty Institute of Plano, Texas, and the law firm of O’Melvey & Myers LLP of Washington, D.C., filed the motion to dismiss last month.

According the motion filed on behalf of the school system, grounds to dismiss the lawsuit include.

• Plaintiffs (parents) do not have standing to bring this case, and the court lacks subject matter jurisdiction. The “standing “ pertains to the fact that one parent removed her child from the school system and the other’s child is not yet old enough to opt out of the class.

• The lawsuit does not attack the particular curriculum of the classes, but attacks the fact that such classes exist. This is not a cognizable legal claim and flies in the face of decades of precedent.

• Plaintiffs fail to state claims against Akers in her individual capacity because they do not allege with particularity that she did anything to them in that capacity. She is entitled to immunity.

• Plaintiffs fail to adequately plead violations against defendants Mercer County Board of Education and Mercer County schools.

In Freedom From Religion’s response, all of these grounds are disputed.

Both parents have standing, the response says, because one student has already been exposed to “suffering” because the student was “alienated” from classmates for not attending the Bible class, prompting the parent to enroll the student in an out-of-state school system.

The other parent, the response says, awaits the “same injury” to her child.

On the grounds to dismiss based on the existence of Bible classes at all, the response says the constitutionality of the Bible in the Schools program itself is being challenged.

“The Bible in the Schools classes are unquestionably Bible classes,” the response said, and the defendants cannot move to dismiss a claim that challenges defendants’ specific Bible in the Schools program …”

In the lawsuit, the plaintiffs state: “The Bible in the Schools program violates the Establishment Clause of the First Amendment and Article III, Section 15 of the West Virginia Constitution” and an injunction is sought “prohibiting defendants from administering in or participating in the Bible in the Schools program in the future, nominal damages, and recovery of attorney fees and costs …”

The plaintiff’s lawsuit is not just a “quibble” with the particular curriculum of the program, the motion to dismiss says, “but instead an attempt to eliminate classes of any stripe that teach about the Bible.”

“The Constitution does not prohibit schools from teaching about religion or from using materials that have a religious basis … The Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like,” according to the motion to dismiss.

That has been “settled law” for more than 50 years that Bible courses and in religion may be offered in public schools, it says.

But Patrick Elliott, an attorney for Freedom from Religion, said after the motion to dismiss was filed that “… we see no way the program can meet the guidelines” that would make it constitutional, regardless of any changes that may be made in the lesson plans.

The response contends that Akers “has the primary duties of implementing Mercer’s policies and programs. In that role … Akers has created policies supporting and implementing the Bible in the Schools program for approximately 25 years.”

The board of education and the school system are defendants, the response says, because they “handle all responsibilities of the program except financing, including most significantly, approval and implementation of the program itself; hiring and employment of Bible teachers; and provision of alternative instruction for students who do not wish to attend Bible classes.”

That makes them “responsible for administering the Bible in the Schools program through policy and custom,” the response says.

The motion to dismiss is scheduled to be heard at 10 a.m. on Monday, June 19, in the U.S. Federal District Court in Beckley.

During a board of education meeting last week, a new program for high school students was reviewed that would offer Bible study in those grades, but as an elective that is incorporated into a regular class and taught in the context of literary, historic and artistic values.

Amanda Aliff, the school system’s coordinator of pupil services, said the elective would be an English or social studies class, meet educational and legal standards but use the Bible as a primary source.

The textbook used in the course, she said, is “The Bible and Its Influence” and it is used in 625 public high schools in 43 states.

Academically, it “falls in line with what we do every day in English classes,” she said, explaining that the Bible is used as a work of literature, not only studying its historic influence but artistic and literary value as well.

The course, which would count as one of the eight electives required for graduation, would use the Bible and its imagery, poetry, history and context to study its political, economic and social impact at different points in history, and how it has influenced world culture, she said.

“It would incorporate analysis, evaluation and critical thinking skills,” she added.

Aliff said teachers would have the textbook, an assessment program and training on how it should be taught to meet the necessary standards.

“Students who don’t have a knowledge of biblical content are at a disadvantage,” she said, using examples of literary and cultural references and imagery that have their origins in the Bible. “You can’t exactly separate these from secular things.”

Akers said at that meeting that no decision has yet been made regarding the future of the current Bible in the Schools program.

Jeremiah Dys, attorney for First Liberty Institute, said comments pertaining to the response will be made next week.

— Contact Charles Boothe at

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