IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TENNESSEE

FILED
2001 APR 26
U.S. DISTRICT COURT
EASTERN DIST. TENN.
Case No. 1:01-CV-115
Judge Edgar
Magistr. Judge Powers

JOHN DOE, Individually, MARY ROE, Individually, and FREEDOM FROM RELIGION FOUNDATION, INC., A Non-Profit corporation,
Plaintiffs,

vs.

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.

COMPLAINT FOR DECLARATORY JUDGMENT,
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF,
NOMINAL DAMAGES AND ATTORNEY'S FEE

Come now Plaintiffs and for their complaint in this cause would show the Court as follows:

I. Jurisdiction

1. This Court has civil rights jurisdiction under 28 USC ¶ 1343 for claims arising out of the deprivation of their civil rights under color of law as provided by 42 USC ¶ 1983.

II. Nature of the Case

2. This case arises out of the policy, practice and custom of the Defendants in promoting the teaching of religion to public school children in Rhea County, by permitting college students from Bryan College to attend classes and teach "the Bible" to students in grades K-12. This policy, practice or custom deprives Plaintiffs, as State and County taxpayers, and Plaintiff Jane Roe, as a parent of school age children, of their civil rights guaranteed under the Establishment Clause of the First Amendment to the U.S. Constitution. Plaintiffs are entitled to relief sought under 42 USC ¶ 1983.

III. The Parties

3. Plaintiff John Doe is a citizen and resident of Rhea County, Tennessee. He brings suit in his individual capacity as a State and County taxpayer to be free from government sponsored religious indoctrination of public school children at taxpayers' expense. Plaintiff John Doe requests that his true name mid address remain confidential for fear of physical and/or economic harm from persons favoring such unconstitutional programs Plaintiff John Doe is a member of Freedom. From Religion Foundation, Inc.

4. Plaintiff Jane Roe is a citizen and resident of Rhea County, Tennessee. She brings suit in her individual capacity as a State and County taxpayer, and as a parent of two children enrolled in Rhea County Schools who are being involuntarily subjected to government sponsored religious education at taxpayers' expense. Plaintiff Jane Roe requests that her true name and address, and the names of her children, remain confidential for few of physical and/or economic harm from persons favoring such unconstitutional programs. Plaintiff Roe is a member of Freedom From Religion Foundation, Inc.

5. Plaintiff Freedom From Religion Foundation, Inc. (FFRF) is a non-profit corporation, chartered under the laws of the State of Wisconsin. It is organized for the purpose of promoting the constitutional principle of separation of church and state, and to educate the public on matters relating to non-theistic beliefs. Plaintiff FFRF has members throughout the United States, including Rhea County, Tennessee. This organizational Plaintiff is a proper party for purposes of representing its members in Rhea County, Tennessee.

6. Defendant Sue Porter is a citizen and resident of Rhea County, Tennessee. At all times material to this cause, Defendant Porter has served, and continues to serve, as Superintendent of the Rhea County School System. Defendant Porter is a final policy decision maker, in her administrative capacity as school superintendent, and is responsible for implementing those policies as directed by the Rhea County School Board and/or the Rhea County Commission. As a public official acting within the scope of her employment, Defendant Porter's actions have been, and continue to be, under color of law. Defendant Porter is being sued in her individual capacity, and in her official capacity, for purposes of obtaining injunctive relief.

7. Defendant Rhea County Board of Education is an entity created by Tennessee Code Annotated ¶ 49-2-201, and pursuant to Tennessee Code Annotated ¶ 49-2-203, is the governmental entity responsible for management and control of all public schools under its jurisdiction in Rhea County, Tennessee. This Defendant has a duty to administer the Rhea County School System so as not to violate the Establishment Clause of the First Amendment to the U. S. Constitution.

7. Defendant Jimmy Wilkey is a citizen and resident of Rhea County, Tennessee. At all times material to this cause, Defendant Wilkey has been, and continues to be, the duly elected County Executive of Rhea County, Tennessee. As County Executive, Defendant Wilkey is a final policy decision maker for Rhea County, and responsible for administering policies promulgated by the Rhea County Commission. All of Defendant Wilkey's actions were within the scope of his employment as a public official and were, therefore, under color of law. Defendant Wilkey is being sued individually, and in his official capacity, for purposes of obtaining injunctive relief.

8. Defendant Rhea County is one of 95 counties created under the Constitution of the State of Tennessee. It is the governmental entity responsible for raising taxes and appropriating funds for the proprietary functions of county government within its political boundaries, including the Rhea County School System. Defendant Rhea County is governed by Defendant Jimmy Wilkey, as its County Executive, and by its legislative body, the Rhea County Commission. Defendant Rhea County is ultimately responsible for seeing that its county schools are administered so as not to conflict with the Establishment Clause of the First Amendment to the U. S. Constitution.

9. Defendant Rhea County Board of Education is an entity created by Tennessee Code Annotated ¶ 49-2-201, and pursuant to Tennessee Code Annotated ¶ 49-2-203, is the governmental entity responsible for management and control of all public schools under its jurisdiction in Rhea County, Tennessee.

IV. The Facts

10. Plaintiff Jane Roe is the natural parent and legal guardian of two minor children enrolled in the Rhea County School System.

11. During the 2000-2001 school year, Defendants Rhea County Board of Education and Sue Porter, in her capacity as Superintendent of the Rhea County School System, have implemented, and continue to implement, a program in conjunction with Bryan College, in Dayton, Tennessee, whereby college students from Bryan College attend classes in the public schools of Rhea County, grades K through 12, for purposes of teaching religious education.

12. This program of teaching religious education to public school children in Rhea County has received official approval by Defendant Wilkey, in his capacity as County Commissioner for Rhea County, as well as by formal resolution passed by the Rhea County Commission.

13. In addition, Defendants, as a matter of public policy, permit the distribution of Gideon Bibles in classrooms by members of the Gideon Society, endorse the reading of the Bible over the school intercom system, and the prominent display of religious images in classrooms.

14. Plaintiff Jane Roe, as a state and county taxpayer and parent, objects to having her two children subjected to religious instruction and indoctrination at public school, and at public expense, and has made her objections known through Plaintiff Freedom From Religion Foundation, Inc., of which she is a member.

15. Plaintiff John Doe, as a state and county taxpayer, objects to the policy, practice and/or custom of teaching religious education on to public school children, on school property, during school hours, time which teachers are being paid to teach students academic subjects required by state law. Plaintiff John Doe has made his objections known through Freedom From Religion Foundation, Inc., of which heis a member.

16. Plaintiffs Jane Roe and John Doe object to the misallocation of public facilities and public school time, paid for at taxpayers' expense, for the purpose of teaching public school children religious beliefs and practices to which they personally do not subscribe.

17. On September 27, 2000, Plaintiff FFRF sent a letter to Defendant Sue Porter relaying the objections of Plaintiffs Jane Roe and John Doe, and requesting that Rhea County cease and desist from teaching and endorsing, or appearing endorse, Christian religious beliefs and practices to public school children, specifically referring to the acts and practices described above. [See FFRF, letter to Sue Porter dated 9/27/2000, attached hereto as Exhibit A, and incorporated by reference herein.]

18. On or about October 17, 2000, in response to the demand letter by Plaintiff FFRF, the County Commissioner for Defendant Rhea County adopted the following Resolution unanimously and without discussion that condoned and officially endorsed the policy, practice and/or custom of teaching, public school students religious education on school property, during school hours:

"Whereas, the Rhea County Board of Education is elected by the people of Rhea County and entrusted with the responsibility of supervising operation of the public schools of Rhea County; and

Whereas, the people of Rhea County historically, like their neighbors in the great state of Tennessee, have resisted tyranny in all its forms, whether tyranny of the majority or by the minority.

Now, therefore be it resolved by the Rhea County Commission that the Rhea County Board of Education be commended for its stand in support of the cultural, moral and religious heritage of our community and country, despite the accusations, threats and intimidation by groups who have no interest in the welfare of Rhea County or its citizens."

19. This Resolution was printed verbatim in The Herald-News, the weekly newspaper published in Dayton, Tennessee. [See copy of news article, dated 10/22/00, attached hereto as Exhibit B and incorporated by reference herein.]

20. On January 22, 2001, in accordance with Rule 11 of the Federal Rules of Civil Procedure, Counsel for Plaintiffs wrote to Defendants Sue Porter and Jimmy Wilkey requesting copies of records and documents that are within the scope of the Tennessee Public Records Act that related in any way to the policy and/or practice of Rhea County and/or the Rhea County School Board of promoting religious education for students in grades K through 12 in the Rhea County Public Schools. [See letters dated 1/22/01 attached hereto as Collective Exhibit C, and incorporated by reference herein.

21. No reply has been received as of the date of this Complaint. Upon information and belief, Plaintiffs aver that the Defendants have chosen to deliberately ignore this lawful and proper request for public records and documents.

V. Cause of Action

22. The actions of Defendants in promoting official government endorsement of the religious education programs in the Rhea County Public Schools constitute a policy, practice and/or custom that deprives the individual Plaintiffs of their civil rights, under color of law, guaranteed under the Establishment Clause of the First Amendment to the U.S. Constitution, as applied to the States under the Fourteenth Amendment to the U.S. Constitution. Plaintiffs are, therefore, entitled to declaratory and injunctive relief, and nominal damages and reasonable attorney's fees pursuant to 42 USC ¶ 1983 and 42 USC ¶ 1988.

IV. Need For Preliminary Injunctive Relief

23. Plaintiff Roe's children are of tender years and are, therefore, extremely vulnerable to such religious proselytization. Plaintiff Jane Roe avers that her children and her family are suffering immediate and irreparable harm every day that Defendants are allowed to continue to proselytize her children in religious beliefs and practices which they do not share.

24. Plaintiffs Jane Roe and John Doe, as citizens and taxpayers of Rhea County Tennessee, are suffering immediate and irreparable harm every day the Defendants continue to misallocate public resources, such as public school facilities and classroom time for teaching academic subjects, for the purpose of promoting religious education at taxpayers expense and by blatantly violating the prescriptions of the First Amendment to the U. S. Constitution.

25. Plaintiffs can make a substantial showing of prevailing on the merits of their claim relying upon U. S. Supreme Court cases going back more than 50 years: McCollum v. Board of Education,333 US 203 (1948) (religious instruction in public schools is unconstitutional); Tudor v. Board of Education of Rutherford, 14 N.J. 31 (1953) cert. denied 348 US 816 (1954); Berger v. Rensselaer, 982 F 2d 1160 (7th Cir), cert denied 124 L Ed 2d 254 (1993) (distribution of Gideon Bibles on school property unconstitutional); Wallace v. Jaffree,472 US 38,72 (1985) (a moment of silence with religious intent in public schools is unconstitutional); Stone v. Graham 449 US 39 (1980) (posting of Ten Commandments in public buildings is unconstitutional).

26. Enjoining the religious policy and practice described hereinabove will preserve the status quo of the parties and will not prejudice the Defendants pending a final decision in this cause. An injunction will not cause any out of pocket expenses to the Defendants.

27. The public interest is best served by the enforcement of civil rights and their protection from encroachment by well intentioned but misguided government officials. The public interest requires that local government officials follow the mandates of the U.S. Constitution in spite of their personal religious beliefs and practices.

Prayer for Relief

WHEREFORE, premises considered, Plaintiffs pray for:

  1. A Declaratory Judgment that the policy and practice of promoting religious education in the Rhea County Public Schools is unconstitutional in violation of the Establishment Clause of the First Amendment to the U. S. Constitution; deprives Plaintiffs of their civil rights under color of law, and is, therefore, actionable under 42 USC ¶ 1983.
  2. A preliminary and permanent injunction against the Defendants to enjoin further actions which are unconstitutional in violation of the Establishment Clause of the First Amendment to the U. S. Constitution.
  3. Nominal damages awarded to Plaintiffs in the amount of One ($1.00) Dollar.
  4. A reasonable award of attorney's fees and litigation expenses under 42 USC ¶ 1988 for being the prevailing parties under 42 USC ¶ 1983.
  5. Other general and equitable relief as may be necessary, including the costs of this cause.

Respectfully submitted,

Joseph H. Johnston (#4706)
P.0. Box 120874
Nashville, Tennessee 37212
(615) 383-2119

WEED, HUBBARD, BERRY & DOUGHTY, PLLC
R. Stephen Doughty (#1580)
Sun Trust Bank Building
201 Fourth Avenue, North, Suite 1420
Nashville, Tennessee 37219
(615) 251-5445

Attorneys for Plaintiffs


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