JOHN DOE, Individually v. SUE PORTER, Individually

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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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N
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
W estern 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, for Appellees.
_________________
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

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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

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1The litigation in this case to ok place in R hea C ounty— the site of a
mythic Scop es trial in the early twentieth century. Brya n Co llege is
named after one of the principal lawyers in the case—W illiams Jennings
Bryan. See ED W A R D J. LA R SO N, SUMM ER FOR THE GO D S: THE SCOPES
TRIAL A N D AMERICA’S CO N T IN UIN G DEBATE OVER SC IE N C E A N D
RE LIG IO N (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

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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

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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

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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.

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III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment for Plaintiffs.

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