      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206             2       Doe, et al. v. Porter, et al.           Nos. 02-5316/5823
   ELECTRONIC CITATION: 2004 FED App. 0171P (6th Cir.)
               File Name: 04a0171p.06                                       Argued: December 11, 2003

                                                                          Decided and Filed: June 7, 2004
UNITED STATES COURT OF APPEALS
                                                          Before: COLE and CLAY, Circuit Judges; QUIST, District
             FOR THE SIXTH CIRCUIT                                             Judge.*
               _________________
                                                                                 _________________
JOHN DOE , Individually;          X
MARY ROE , Individually and        -                                                  COUNSEL
as Natural Mother of A. ROE ,      -
                                   -  Nos. 02-5316/5823   ARGUED: Michael E. Evans, DAVIES, HUMPHREYS &
B. ROE , and C. ROE , her          -                      EVANS, Nashville, Tennessee, for Appellants. Alvin L.
minor daughters; and                >                     Harris, WEED, HUBBARD, BERRY & DOUGHTY,
                                   ,                      Nashville, Tennessee, for Appellees. ON BRIEF: Michael
FREEDOM FROM RELIGION              -
FOUNDATION, INC.,                                         E. Evans, DAVIES, HUMPHREYS & EVANS, Nashville,
                                   -                      Tennessee, Charles W. Cagle, LEWIS, KING, KRIEG,
           Plaintiffs-Appellees, -                        WALDROP & CATRON, Nashville, Tennessee, for
                                   -                      Appellants. Alvin L. Harris, R. Stephen Doughty, WEED,
            v.                     -                      HUBBARD, BERRY & DOUGHTY, Nashville, Tennessee,
                                   -                      Joseph Howell Johnston, Nashville, Tennessee, for Appellees.
                                   -
SUE PORTER , Individually and -
                                                                                 _________________
as Superintendent of the Rhea -
County School System; RHEA -                                                         OPINION
COUNTY BOARD OF                    -                                             _________________
EDUCATION ; JIMMY WILKEY ,         -
                                   -                        R. GUY COLE, JR., Circuit Judge. Defendants-Appellants
Individually and as County         -                      Superintendent Sue Porter (“Superintendent”) and the Rhea
Executive for Rhea County,         -                      County Board of Education (“Board of Education” or
Tennessee; and RHEA                -                      “Board”) appeal the district court’s grant of summary
COUNTY, TENNESSEE,                 -                      judgment for Plaintiffs-Appellees John Doe, Mary Roe, and
       Defendants-Appellants. -                           the Freedom from Religion Foundation, Inc. (“FFRF”). The
                                   -                      district court: (1) granted the Plaintiffs’ motion to proceed
                                 N                        pseudonymously; (2) held that Plaintiffs had standing to bring
       Appeal from the United States District Court       suit against the Board; (3) enjoined, as a violation of the First
  for the Eastern District of Tennessee at Chattanooga.
  No. 01-00115—R. Allan Edgar, Chief District Judge.          *
                                                               The Honorable Gordon J. Quist, United States District Judge for the
                                                          W estern District of Michigan, sitting by designation.

                           1
Nos. 02-5316/5823             Doe, et al. v. Porter, et al.       3   4     Doe, et al. v. Porter, et al.         Nos. 02-5316/5823

Amendment’s Establishment Clause, the Board’s allowing                BEM’s volunteer instructors were never employed by the
religious instruction in the Rhea County public schools; and          Board. The BEM classes took place for thirty minutes, once
(4) awarded attorneys’ fees. For the reasons below, we                a week, during the school day, in three county schools.
AFFIRM.
                                                                        Plaintiffs brought this action, pursuant to 42 U.S.C. § 1983,
                      I. BACKGROUND                                   seeking to enjoin the Board’s practice of permitting the
                                                                      teaching of the Christian Bible as religious truth as a violation
  For several years the Board of Education has allowed staff          of the First Amendment’s Establishment Clause. Following
and students from Bryan College in Dayton, Tennessee to               summary judgment in Plaintiffs’ favor, Defendants appealed.
conduct a program known as the Bible Education Ministry
(“BEM”) in the county’s public elementary schools. Bryan                                       II. ANALYSIS
College refers to itself as a Christian school, whose motto is
“Christ Above All.” The College’s mission statement reads,            A. The District Court’s Protective Order
“Educating students to become servants of Christ to make a
difference in today’s world.” Bryan College students and                 The Board asserts that the district court erred by granting
faculty are required to subscribe to a “Statement of Belief,”         Plaintiffs’ motion for a protective order allowing them to
which reads:                                                          proceed pseudonymously. As a general matter, a complaint
                                                                      must state the names of all parties. FED . R. CIV . P. 10(a).
  We believe: that the holy Bible, composed of the Old                However, we may excuse plaintiffs from identifying
  and New Testaments, is of final and supreme authority in            themselves in certain circumstances. Several considerations
  faith and life, and, being inspired by God, is inerrant in          determine whether a plaintiff’s privacy interests substantially
  the original writings; in God the Father, God the Son,              outweigh the presumption of open judicial proceedings. They
  and God the Holy Ghost, this Trinity being one God,                 include: (1) whether the plaintiffs seeking anonymity are
  eternally existing in three persons; in the virgin birth of         suing to challenge governmental activity; (2) whether
  Jesus Christ; that he was born of the virgin Mary and               prosecution of the suit will compel the plaintiffs to disclose
  begotten of the Holy Spirit; . . . that the Lord Jesus Christ       information “of the utmost intimacy”; (3) whether the
  is the only Savior, that He was crucified for our sins,             litigation compels plaintiffs to disclose an intention to violate
  according to the Scriptures, as a voluntary representative          the law, thereby risking criminal prosecution; and (4) whether
  and substitutionary sacrifice, and all who believe in Him           the plaintiffs are children. Doe v. Stegall, 653 F.2d 180, 185-
  and confess Him before men are justified on the grounds             86 (5th Cir. 1981). We review the district court’s decision to
  of His shed blood; in the resurrection of the crucified             grant a protective order for an abuse of discretion. Samad v.
  body of Jesus, in His ascension into Heaven, and in “that           Jenkins, 845 F.2d 660, 663 (6th Cir. 1988).
  blessed hope,” the personal return to this earth of Jesus
  Christ, and He shall reign forever; in the bodily                     This suit – challenging a government activity – forces
  resurrection of all persons, judgment to come, the                  Plaintiffs to reveal their beliefs about a particularly sensitive
  everlasting blessedness of the saved, and the everlasting           topic that could subject them to considerable harassment.
  punishment of the lost.                                             “[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    6    Doe, et al. v. Porter, et al.         Nos. 02-5316/5823

their personal beliefs and practices that are shown to have                        The Board also asserts that the district court’s protective
invited an opprobrium analogous to the infamy associated                         order hindered its ability to make full discovery, contending
with criminal behavior.” Stegall, 653 F.2d at 186. For                           that the protective order allowed counsel to know only
instance, in a letter to the editor of a local paper, one Nancy                  Plaintiffs’ names, residency status, taxpayer information, and
Rogers wrote:                                                                    school enrollment status. This characterization of the district
                                                                                 court’s order is incorrect. Although the district court’s
  [Y]ou are [] cowards because you won’t give us your                            protective order limited the scope of discovery as to other
  name. You know the people in Rhea County would                                 persons beyond Defendants’ counsel of record, it placed no
  come up to your face and tell you what we think of you.                        limitation on defense counsel’s scope of discovery.
  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                           Assuming, for the sake of argument, that the Board’s
  my sons tell you too. You have hurt my sons and I will                         characterization of the trial court’s protective order is
  not let no one [sic] hurt one of my children. We might                         accurate, it is unclear how this would have hindered its
  not know you but someone higher does [,] and yes you                           preparation for trial. The only issue for which facts about
  will answer to him.                                                            Plaintiffs would have been crucial is the Board’s challenge
                                                                                 to Plaintiffs’ standing to bring this action. Even under their
Indeed, in an article about the lawsuit, the principal of Rhea                   narrow characterization of the trial court’s order, Defendants
County High School stated that if he had known the person                        would have been able to obtain all the information necessary
challenging the BEM, he “would have tried to alert him . . .                     to address the standing inquiry at trial: Plaintiffs’ names,
I’d have said: ‘Look do you want to cause your family                            residency status, taxpayer information and school enrollment
trouble? This is a rural, conservative place, and very                           status. Accordingly, the district court did not abuse its
emotional about religion. Attack religion and crusades begin.                    discretion by allowing Plaintiffs to litigate pseudonymously.
But you need to follow your own conscience.’”
                                                                                 B. Standing
  Further, this case is brought on behalf of very young
children, to whom we grant a heightened protection. Stegall,                        The Board challenges the standing of John Doe, Mary Roe
653 F.2d at 186. (“The gravity of the danger posed by the                        and FFRF. We review de novo the district court’s
threats of retaliation against the [plaintiffs] for filing this                  conclusions of law with regard to standing. Brandywine, Inc.
lawsuit must also be assessed in light of the special                            v. City of Richmond, 359 F.3d 830, 834 (6th Cir. 2004). To
vulnerability of these child-plaintiffs.”).1                                     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.
    1
       The 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            In sworn affidavits, submitted under seal, Doe and Roe
named after one of the principal lawyers in the case—W illiams Jennings          assert that they are the parents of three children, two of whom
Bryan. See E D W A R D J. L A R SO N , S UMM ER FOR THE G O D S : T HE S COPES   are students at the Rhea County Elementary School. Their
T RIAL A N D A MERICA ’S C O N T IN UIN G D EBATE OVER S C IE N C E A N D        eldest daughter – identified as A. Roe – is in fifth grade, and
R E LIG IO N (1997).
Nos. 02-5316/5823             Doe, et al. v. Porter, et al.   7    8    Doe, et al. v. Porter, et al.         Nos. 02-5316/5823

their second daughter – B. Roe – is in first grade. Each parent    C. Establishment Clause
testified that students from Bryan College regularly teach
BEM classes in their daughters’ respective classrooms. In            We review a district court’s grant of a motion for summary
other words, Plaintiffs’ minor children have suffered a            judgment de novo. Stephenson v. Allstate Ins. Co., 328 F.3d
cognizable injury by being placed in the BEM classes; this         822, 826 (6th Cir. 2003). Summary judgment is appropriate
injury is derived directly from the BEM classes; and the           where no genuine issue of material fact exists and the moving
injury would be redressed by a decision in their favor.            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
   As for FFRF: it may have associational standing to assert       Court must view the facts contained in the record, and all
the rights of one or more of its members, even if it suffers no    inferences that can be drawn from those facts, in the light
direct injury, if it can answer in the affirmative the three       most favorable to the non-moving party. Matsushita Elec.
questions articulated in Hunt v. Washington State Apple            Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Advertising Commission, 432 U.S. 333, 343 (1977):
(1) whether a member has standing to sue in her own right;            Here, Plaintiffs contend that the BEM program is an
(2) whether the interests that it seeks to protect are germane     unconstitutional establishment of religion because it fails the
to its purpose; and (3) whether the claim asserted or the relief   Lemon test. In Lemon v. Kurtzman, 403 U.S. 602, 612-13
requested requires the participation of individual members in      (1971), the Court set forth three factors to be considered when
the lawsuit.                                                       a violation of the Establishment Clause is alleged: (1) whether
                                                                   the government practice has a secular purpose; (2) whether
   First, John Doe and Mary Roe have standing to bring this        the principal effect is one that either advances or inhibits
action in their individual capacities, and are members of the      religion; and (3) whether the practice fosters excessive
FFRF. Second, one of FFRF’s central purposes is to                 government entanglement with religion. A statute or practice
challenge practices that violate the separation of church and      must conform to all three requirements to survive scrutiny
state. At the bottom of FFRF’s stationery is the phrase,           under the Establishment Clause.
“protecting the constitutional principle of separation of state
and church.” That phrase appears to accurately describe the           As to the first factor, the Board contends that BEM’s
purpose of FFRF, and the eradication of religious instruction      teaching has a secular purpose:          to teach character
in public schools is germane to that purpose. Finally, this        development, as required of all Tennessee public schools. See
litigation is resolvable without the presence of either John       TENN. CODE ANN . § 49-6-1007(a). The Board argues that
Doe or Mary Roe. The central issues at the district court were     BEM’s classes “focus [] on different value-driven themes,
legal; the record was sufficiently developed to resolve the        such as responsibility and courage, which serve [] to instill
legality of the protective order, the questions of standing, and   positive morals in students attending Rhea County schools.”
whether the BEM classes violated the Establishment Clause.         Even if we accept this as fact, the BEM classes also teach the
                                                                   Bible as religious truth. Several lesson plans from the 2000-
  Accordingly, all Plaintiffs have standing.                       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    10    Doe, et al. v. Porter, et al.        Nos. 02-5316/5823

us where He wants us to go.” The lessons also seek to “teach       objective was, “[To] reinforce how much God loves them [the
the kids that God provides for us, even in the worst               students]; God wants to be their friend; You can be personal
situations.” Moreover, in explaining “How I Plan to Help           with God.”        In a lesson plan for first graders, a BEM
Students See the Truth,” one BEM teacher wrote, “Teach –           instructor planned to “Teach the children that God created
‘Read your Bible[,] pray everyday.’ ‘Jesus loves you.’ – (if       everything and teach them which days He created certain
acceptable)?” Such statements cannot be described as having        things.” And in a lesson plan dated December 3, 2000, a
a secular purpose.                                                 BEM instructor stated, “[W]e will make sure that they know
                                                                   the true meaning of Christmas is. It was that God sent his son
  As to the second factor, the central question in our             to the earth to be born as a baby; a baby who would [] one day
endorsement inquiry is whether the BEM program                     die on the cross for our sins so that we can be saved. (We’ll
communicates a message of government endorsement or                make sure to tell them this in a way that is ok – so we don’t
disapproval of religion. To answer this question, we ask           break any of the school rules).” The Board’s justification of
whether an objective observer, acquainted with the program,        authorizing the BEM program as a component of its character
would view it as advancement or inhibition of religion.            development requirement ignores the overwhelmingly
Adland v. Russ, 307 F.3d 471,484 (6th Cir. 2002). Viewing          sectarian nature of the actual classes taught under its auspices.
the BEM program in its specific context, an objective
observer would conclude that it communicates a message of             While some of BEM’s lesson plans evince an intention to
government endorsement of religion, generally, and of              train students in more secular aspects of character
Christianity in particular. Lee v. Weisman, 505 U.S. 577, 627      development, many, if not most, appear to have no secular
(1992) (Souter, J., concurring) (“[T]he State may not favor or     component at all. Although the school system’s oversight of
endorse either religion generally over nonreligion or one          BEM has been woefully derelict, its occurrence during the
religion over others.”) (citing County of Allegheny v. ACLU,       school day, and on school property sends a clear message of
492 U.S. 573,589-94 (1989)).                                       state endorsement of religion – Christianity in particular – to
                                                                   an objective observer.
   Because the BEM program is conducted in public school
classrooms, during school hours, and for children who are as         Third, we ask whether BEM fosters an excessive
young as kindergarten age, we must treat the objective             entanglement between the state and religion. BEM takes
observers as students in these classes. As the Supreme Court       place on school premises, during the school day, with the
stated in Lee, “What to most believers may seem nothing            explicit sanction of the Board of Education. Moreover, the
more than a reasonable request that the nonbeliever respect        program’s administration – which seems to have been left
their religious practices, in a school context may appear to the   entirely in the hands of the students of Bryan College –
nonbeliever or dissenter to be an attempt to employ the            creates a “grave potential for entanglement,” Comm. for Pub.
machinery of the State to enforce a religious orthodoxy.” 505      Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794
U.S. at 592.                                                       (1973), by delegating a governmental function to a religious
                                                                   institution. See Larkin v. Grendel’s Den, Inc., 459 U.S. 116,
   As we explained above, the lesson plans here evidence an        121 (1982).
intention to teach the Bible as literal truth, and to draw from
its narratives certain theological propositions. In a lesson        Deposition testimony by several officials from the Rhea
plan for first graders, dated November 7, 2000, the lesson         County public schools and Bryan College confirms that the
Nos. 02-5316/5823            Doe, et al. v. Porter, et al.   11   12    Doe, et al. v. Porter, et al.         Nos. 02-5316/5823

school district abdicated its supervisory authority over the      D. Denial of Invitation to Establish Guidelines
BEM classes. Elizabeth Brown – the principal of a public
elementary school in Rhea County – testified that she did not       Finally, the Board complains that the district court erred in
know what was being taught in the BEM classes. Although           enjoining the entire BEM program without articulating “legal
Brown required and regularly reviewed lesson plans in other       guidelines for the structuring and teaching of [Bible study
classes taught in the school, she admitted that she never saw,    courses] and afford[ing] each party the opportunity, if they
and never asked for, any lesson plan for any BEM class.           should so elect, to submit plans, policies, and curricula
Brown also testified that there had never been instructions       changes in accordance with such guidelines.” (Appellants’
from the Rhea County School Board on how the BEM classes          Brief at 20). The provision of guidelines by a federal court
were to be conducted. Similarly, John Mincy, the Chairman         would, however, amount to the rendering of an advisory
of the Rhea County School Board, admitted that he voted to        opinion, a practice that is beyond our Article III authority.
continue the BEM classes in the public schools without            United States Nat. Bank of Or. v. Indep. Ins. Agents of Am.,
knowing their content. When asked who determined the              Inc., 508 U.S. 439, 446 (1993).
content of what Mincy, himself, called “the Bible class,” he
said, “I would say that Bryan College does.” Mincy also           E. Attorneys’ Fees
stated that the Board had no written policy governing the
BEM classes, and also acknowledged that he had never seen            Finally, the Board contends that the trial court granted to
a policy manual describing the BEM classes.                       Plaintiffs an excessive award of attorneys’ fees. We review
                                                                  a district court’s determination regarding the award of
   The Rhea County School Board has ceded its supervisory         attorneys’ fees for abuse of discretion. Paschal v. Flagstar
authority over the BEM classes to Bryan College, which            Bank, 297 F.3d 431, 433 (6th Cir. 2002). A district court
requires its students and faculty to subscribe to a sectarian     abuses its discretion when it relies on clearly erroneous
statement of belief. The Supreme Court rejected such a            findings of fact, uses an incorrect legal standard, or applies
practice in Larkin, which invalidated a Massachusetts statute     the law incorrectly. Id. at 434.
that allowed churches to veto the issuance of liquor licenses
within 500 feet of a church. Id. at 117. Indeed, the practices       Although the Board acknowledges that the district court
challenged in this action resemble paradigmatic cases of          reduced Plaintiffs’ requested award for attorneys’ fees by
unconstitutional entanglement. See Illinois ex rel. McCollum      $9,500 for what it deemed to be unnecessary travel time
v. Bd. of Educ., 333 U.S. 203, 209-10 (1948) (“[T]he use of       charged by Plaintiffs’ attorneys and paralegals and further
tax-supported property for religious instruction and the close    reduced the entire award by five percent, it argues that the
cooperation between the school authorities and the religious      latter reduction—imposed to compensate for what the district
council in promoting religious education . . . falls squarely     court considered to be a duplication of effort—should have
under the ban of the First Amendment.”); Doe v. Human, 725        been greater. The Board makes only one specific statement
F. Supp. 1503, 1504-1506, 1508 (W.D. Ark. 1989) (relying          regarding duplication of services – regarding $4,600 in
on McCollum to invalidate a program in which Catholic,            expenses related to travel on November 6, 2001. However,
Jewish and Protestant instructors came into classrooms during     even here, it concedes that it is likely that at least some of the
school hours to teach bible classes), aff’d., 923 F.2d 857 (8th   duplication was accounted for in the original fee reduction of
Cir. 1990), cert. denied, 499 U.S. 922 (1991).                    $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.
