BLUEFIELD — A lawsuit seeking an injunction to permanently end the Bible in the Schools program in Mercer County schools, which is no longer offered, has once again been dismissed in U.S. Distrivct Court.

West Virginia Southern District Senior Judge David Faber ruled on Tuesday that plaintiffs Elizabeth Deal and the Wisconsin-based Freedom From Religion Foundation (FFRF) could not pursue an injunction against Bible classes in elementary schools since they were officially and permanently ended by a school board resolution last year.

Faber’s ruling came after court battles saw his initial ruling in August 2018 to dismiss the lawsuit because the Bible in the Schools (BITS) program had been suspended by the school board overturned by the 4th District Court of Appeals in Richmond in December 2018.

The Court of Appeals ruling said the school system had “not carried its burden of showing that subsequent events make it ‘absolutely clear’ that the suspended version of the BITS program will not return in identical or materially indistinguishable form.”

The court went on to say that its decision “does not prevent the district court from addressing mootness in the future if presented with that issue.”

A month after the Court of Appeals’ decision, in January 2019, the school board passed the resolution to end, rather than suspend, the BITS program.

The school system also appealed the reversal to the U.S. Supreme Court, which refused to hear the case in October 2019.

In the brief filed with the district court, FFRF and Deal had argued that the school board’s January actions were merely an “attempt to thwart judicial review of its (BITS) constitutionality.”

The issue was whether the plaintiffs have any standing for seeking an injunction to prevent the Mercer County School Board from ever bringing back the BITS program when considering the January 2019 resolution.

On Tuesday, Faber ruled that the school board’s resolution ended the program and the resolution also said it would never return, so the lawsuit is moot.

In his ruling, Faber concluded:

“In summary, plaintiffs are challenging a program that has not been taught in Mercer County Schools for almost three years. There is nothing in the record to suggest that defendants are gaming the system to obtain a dismissal of this lawsuit and then, having done so, reinstate BITS (Bible in the Schools). Accordingly, they have met their heavy burden of showing plaintiffs’ claim for injunctive relief is moot.”

According to depositions in the case taken from Mercer County Schools superintendent Dr. Deborah Akers and school board chair Paul Hodges, which are included in Faber’s ruling, the BITS classes or any other Bible class will never again be offered to elementary students and the resolution is binding for future boards.”

In the depositions, Akers confirmed that, not only was the BITS program terminated, that a Bible elective would never be taught in the elementary schools.

“We’re not going to be teaching a Bible elective in the elementary schools. Period,” she said. “We’re not going to be offering that or any version of that in the elementary schools. Period.”

Under repeated questioning, the ruling said, Akers continued to maintain “the Board’s resolution would prevent Mercer County Schools from offering not only BITS, but any other Bible curriculum, in its elementary schools… It is clear from reading the depositions of both Mr. Hodges and Dr. Akers that the BITS program is gone and is not coming back.”

Hodges testified that the January 2019 resolution to permanently end the BITS program passed by a vote of 3 to 2 and that he had voted in favor of it.

An “ad hoc” committee had been formed in 2017 after the BITS was suspended to try to come up with alternative.

The ruling said that Amanda Aliff, the Coordinator of Pupil Services for Mercer County Schools, spearheaded a committee charged with reviewing the BITS program “to see if there was any way to deliver the curriculum in an appropriate manner.” That committee, which Ms. Aliff described as “ad hoc,” consisted of Aliff, several school members, as well as members of the community. Aliff testified that she was instructed “to form this committee by Dr. Akers … and that it was formed in May of 2017.”

According to Aliff, the committee was “looking at a way to offer the [BITS] program within the confines of the law.” Aliff testified that ultimately the committee concluded that the BITS program as it existed was “inappropriate” and that the committee “didn’t have the expertise to revamp that program to make it appropriate.”

The ruling said that according to Aliff, the ad hoc committee came to its conclusion that the BITS program could not be salvaged “pretty quickly after forming,”

A separate issue with the lawsuit is whether Deal, whose daughter attended a Mercer County elementary school that at the time offered a Bible in the Schools class and was allegedly harassed and ostracized by other students for not taking the class, can pursue nominal damages. But that was not included in this ruling and Faber requested additional briefing on Deal’s claim for nominal damages.

The FFRF said Wednesday the plaintiffs “will submit additional briefing on April 8 to explain that Deal can pursue nominal damages. When the case is finally resolved, FFRF and Deal may appeal the judge’s decision that claims for an injunction are moot. An appeal would be heard again by the 4th Circuit.” 

“While we are very glad FFRF’s lawsuit got these fundamentalist Christian classes out of Mercer County schools, we believe it is important for the school district to give our plaintiff and the court true assurance that they will not bring back proselytizing classes,” says Annie Laurie Gaylor, FFRF co-president.

The FFRF, with Deal added as a plaintiff, filed a lawsuit against the Mercer County School Board and Akers in January 2017 to stop the Bible in the Schools program, which had been offered as an elective to elementary and middle school students in the school system for 75 years.

Although its costs, about $500,000 a year, came from private donations, the school board administered the program and hired teachers.

But the lawsuit contended the instruction was like “Sunday classes” and violated the Constitution’s Establishment Clause related to promoting one religion in public schools.

In May 2017, the school board suspended the program for the 2017-18 year, which led to Faber’s original dismissal based on the discontinuance of the program.

— Contact Charles Boothe at cboothe@bdtonline.com

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