IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
KELLY BUTLER, on his own behalf and
as the natural parent and next friend of
his minor children, H.B. and P.B.;
JASON CARR and SHARONA CARR,
on their own behalf and as the natural
parents and next friends of their minor
children, L.C. and D.C.,

)
)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
SMITH COUNTY BOARD OF
)
EDUCATION; BARRY H. SMITH, in his )
official capacity as Director of Schools of )
the Smith County School System;
)
KELLY BELL, in her official capacity as )
Principal of Smith County Middle
)
School; and DUSTY WHITAKER, in his )
official capacity as Principal of Smith
)
County High School,
)
)
Defendants.
)

Civil No.: 2:19-cv-00091
Chief Judge Crenshaw
Magistrate Judge Newbern

ANSWER
Come Defendants Smith County Board of Education (“The Board”), Barry H. Smith
(“Smith”), Kelly Bell (“Bell”), and Dusty Whitaker (“Whitaker”) (collectively, “Defendants”),
by and through their legal counsel, and for their response to Plaintiffs’ Complaint (“Complaint”)
state as follows:
1.

Defendants lack knowledge or information sufficient to form a belief concerning

the truth of the averment in Paragraph 1 regarding the “religious diversity” of Smith County,
Tennessee. On information and belief, Defendants admit that Christian, Muslim, and atheist
students, among others, attend Smith County High School and Middle School. Defendants
additionally lack knowledge or information sufficient to form a belief concerning the truth of the

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 averment in Paragraph 1 that “Public schools belong to all and all belong to public schools.”
Defendants deny the remaining allegations and claims in Paragraph 1.
2.

The allegations in Paragraph 2 are either argument or legal conclusions and,

therefore, no response is required. However, to the extent that the Court deems a response
necessary, Defendants deny the allegations and claims in Paragraph 2.
3.

Defendants lack knowledge or information sufficient to form a belief concerning

the truth of the averments in Paragraph 3 regarding what Plaintiffs believe. The subsequent
averments regarding the personal nature of faith and the First Amendment are either argument or
legal conclusions and, therefore, no response is required. Defendants deny the remaining
allegations and claims in Paragraph 3.
4.

The allegations in Paragraph 4 are either argument or legal conclusions and,

therefore, no response is required. However, to the extent that the Court deems a response
necessary, Defendants deny the allegations and claims in Paragraph 4.
5.

The allegation in Paragraph 5 is a legal conclusion and, therefore, no response is

required.
6.

Admitted.

7.

Defendants admit that venue is proper in this district, that the parties reside in this

district, and that the allegations giving rise to this action occurred within this district.
Defendants deny the remaining allegations and claims in Paragraph 7.
8.

On information and belief, Defendants admit that H.B. and P.B. are minor

children currently enrolled at Smith County High School in Carthage, Tennessee, and that they
also attended Smith County Middle School in Carthage, Tennessee. Defendants lack knowledge

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 or information sufficient to form a belief concerning the truth of the remaining averments in
Paragraph 8.
9.

Defendants admit Mr. Butler raised certain concerns regarding the 2018 Veterans

Day program with the Smith County Board of Education. Defendants deny that Mr. Butler’s
expressed concerns were ignored or dismissed. To the extent not otherwise admitted or denied,
Defendants lack knowledge or information sufficient to form a belief concerning the truth of the
remaining averments in Paragraph 9.
10.

Defendants lack knowledge or information sufficient to form a belief concerning

the truth of the averments in Paragraph 10.
11.

On information and belief, Defendants admit that L.C. and D.C. are minor

students currently enrolled in Smith County High School and Middle School, respectively, and
that L.C. attended Smith County Middle School last year. Defendants lack knowledge or
information sufficient to form a belief concerning the truth of the remaining averments in
Paragraph 11.
12.

Defendants lack knowledge or information sufficient to form a belief concerning

the truth of the averments in Paragraph 12.
13.

Defendants lack knowledge or information sufficient to form a belief concerning

the truth of the averments in Paragraph 13.
14.

Defendants admit that Plaintiffs are students or parents of students in the Smith

County School System. Defendants deny the remaining allegations and claims in Paragraph 14.
15.

Admitted.

16.

Admitted.

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 17.

Defendants admit that Barry H. Smith is the Director of Schools of the Smith

County School System, that he is a resident of Smith County, and that he is responsible for,
among other things, implementing and enforcing Board rules, regulations, and policies.
18.

Defendants admit that Kelly Bell is the Principal of Smith County Middle School,

and that she is the decision-maker on day-to-day operational issues at the Middle School and is
responsible for enforcing school rules, regulations, and policies. Defendants admit that Kelly
Bell was previously a resident of Smith County but aver that she no longer resides in Smith
County.
19.

Defendants admit that Dusty Whitaker is the Principal of Smith County High

School, that he is a resident of Smith County, and that he is the decision-maker on day-to-day
operational issues at the High School and is responsible for enforcing school rules, regulations,
and policies.
20.

The allegation in Paragraph 20 is a legal conclusion and, therefore, no response is

required.
21.

No response is required to Paragraph 21.

22.

Denied.

23.

Denied.

24.

Defendants lack knowledge or information sufficient to form a belief concerning

the truth of the averments in Paragraph 24 regarding the feelings of the minor Plaintiffs.
Defendants deny the remaining allegations and claims in Paragraph 24.
25.

Defendants lack knowledge or information sufficient to form a belief concerning

the truth of the averments in Paragraph 25 regarding the feelings of Mr. Butler and the Carrs.
Defendants deny the remaining allegations and claims in Paragraph 25.

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 26.

Denied.

27.

Defendants admit that Smith County Middle School holds mandatory assemblies

in the gymnasium known as “family meetings” on Monday mornings throughout the school year
and that students are expected to be respectful during these assemblies and, when asked, to
remain silent. Defendants deny the remaining allegations and claims in Paragraph 27.
28.

Defendants admit that, on mornings when there is no “family meeting,” D.C.’s

teacher observes a moment of silence with her students following morning announcements.
Defendants deny the remaining allegations and claims in Paragraph 28.
29.

Defendants admit that the quoted policy exists and that it is titled “Prayer and

Period of Silence.” Defendants deny that the policy promotes or encourages prayer. Defendants
further state that this policy is based upon Tenn. Code Ann. § 49-6-1004, which is titled
“Moment of Silence; prayer.”
30.

Denied.

31.

Defendants admit that Smith County Middle School held a Veterans Day

assembly in the fall, that Principal Bell made introductory remarks, and that a student voluntarily
delivered a prayer, which included a request that those present bow their heads and pray for our
veterans. Defendants lack knowledge or information sufficient to form a belief concerning the
truth of the remaining averments in Paragraph 31.
32.

Defendants admit that a second student voluntarily delivered a prayer during the

Veterans Day assembly. Defendants lack knowledge or information sufficient to form a belief
concerning the truth of the remaining averments in Paragraph 32.
33.

Defendants admit that Smith County Middle School held a Veterans Day

assembly in 2018 that veterans were invited to attend, that Mr. Butler, L.C., and P.B. were in

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 attendance, and that Principal Bell permitted a student who had previously volunteered to deliver
a prayer. Defendants lack knowledge or information sufficient to form a belief concerning the
truth of the averment regarding who bowed their heads for this prayer. Defendants admit that
Mr. Butler confronted Principal Bell after the assembly but deny the remaining allegations and
claims in Paragraph 33.
34.

Defendants admit that an administrator at Smith County High School made an

announcement over the school’s public-address system wherein he requested that students and
faculty observe a moment of silence for Veterans Day in 2018. Defendants aver that the
administrator mentioned that there were veterans in the building that day that those listening may
want to keep in their thoughts. Defendants deny that the administrator delivered a prayer.
35.

Defendants admit that some coaches participate in prayer with students before and

after various sporting events, and that a person unaffiliated with the school usually delivers a
Christian prayer over the public-address system before Smith County High School home football
games. Defendants deny that such prayer is “official.” On information and belief, Defendants
admit that H.B. is a member of the marching band who would be expected to attend football
games, and that other Plaintiffs occasionally may attend games. Defendants lack knowledge or
information sufficient to form a belief concerning the truth of the remaining averments in
Paragraph 35.
36.

Defendants lack knowledge or information sufficient to form a belief concerning

the truth of the averments in Paragraph 36.
37.

Defendants admit that P.B. is a member of the Smith County High School girls’

soccer team and that, before the beginning of every game, senior players on the team lead a

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 prayer, during which students hold hands in a circle and coaches join or stand in silence.
Defendants deny the remaining allegations and claims in Paragraph 37.
38.

Defendants admit that the coaches of the Smith County High School boys’ soccer

team lead or participate in prayer with students before games. Defendants deny that such prayer
is “official.” Defendants aver that players are told at the beginning of the season that
participation in prayer is voluntary and not required. Defendants lack knowledge or information
sufficient to form a belief concerning the truth of the remaining averments in Paragraph 38.
39.

On information and belief, Defendants admit that H.B. would have performed at

pep rallies at Smith County High School as a member of the marching band. Defendants deny
the remaining allegations and claims in Paragraph 39.
40.

Defendants admit that pep rallies take place during the school day and are

mandatory. Defendants deny the remaining allegations and claims in Paragraph 40.
41.

Defendants admit that a student led a prayer at Smith County High School’s 2019

graduation ceremony. On information and belief, Defendants admit that a school official asked
the audience to remain standing and, following the student’s prayer, welcomed the audience on
behalf of the administration and school board. Defendants deny that such prayer is “official.”
Defendants lack knowledge or information sufficient to form a belief concerning the truth of the
remaining averments in Paragraph 41.
42.

Defendants admit that a student delivered a benediction prayer at Smith County

High School’s 2019 graduation ceremony and that a school official introduced that student.
Defendants lack knowledge or information sufficient to form a belief concerning the truth of the
remaining averments in Paragraph 42.

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 43.

Defendants admit that H.B. is a member of the concert band, and that the concert

band traditionally performs at Smith County High School graduation ceremonies. Defendants
aver that class policy permits students in the concert band who cannot attend or wish not to
attend any of the band’s scheduled concerts, including graduation, to take a test as an alternative
to performing. Defendants lack knowledge or information sufficient to form a belief concerning
the truth of the remaining averments in Paragraph 43.
44.

On information and belief, Defendants admit that a student led a prayer at Smith

County Middle School’s May 2019 graduation ceremony for eighth graders and that all Plaintiffs
attended the ceremony. Defendants deny that such prayer is “official.” Defendants aver that the
school’s student council runs the graduation ceremony.
45.

Denied.

46.

Defendants admit that representatives from The Gideons International visited

Smith County Middle School in October 2019, that they were permitted to enter the school, that
Principal Bell showed them to a fifth grade classroom, that the representatives asked students to
raise their hand if they wanted a Bible, and that one student did not raise his or her hand to
receive one. Defendants deny that school officials invited these representatives to visit the
school. Defendants lack knowledge or information sufficient to form a belief concerning the
truth of the remaining averments in Paragraph 46.
47.

Defendants admit that representatives from The Gideons International were

permitted to distribute Bibles to those fifth grade middle school students who wanted one in
October 2019. Defendants deny that they “were permitted” to distribute Bibles to all fifth
graders.

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 48.

Defendants admit that representatives from The Gideons International visit Smith

County Middle School every year seeking to distribute Bibles to those who want them in the
school’s fifth grade classes. Defendants lack knowledge or information sufficient to form a belief
concerning the truth of the remaining averments in Paragraph 48.
49.

Denied.

50.

Defendants admit that, on one occasion, Principal Bell noticed a Bible laying on a

table in the breezeway, located just inside the middle school’s front doors. Defendants aver that
this Bible was found covered in dust and laying inconspicuously behind a flower arrangement
and owl figurines and that, upon finding it, Principal Bell removed it from that location.
Defendants deny the remaining allegations and claims in Paragraph 50.
51.

Defendants admit that Martha Holladay is Smith County Middle School’s library

teacher and that she has displayed a Bible that was donated to the library as a memorial on the
bookstand at the entrance of the library. Defendants lack knowledge or information sufficient to
form a belief concerning the truth of the averment regarding a Bible on the library’s information
desk. Defendants deny the remaining allegations and claims in Paragraph 51.
52.

Defendants admit that Janet Bailey is Smith County High School’s economics

teacher and that Ms. Bailey keeps Bibles on a bookshelf in her classroom. Defendants aver that
these Bibles, along with several other types of books and magazines, are available for students to
borrow or take if they so desire. Defendants deny the remaining allegations and claims in
Paragraph 52.
53.

Denied.

54.

Defendants admit that Smith County High School has a weight-training room, that

athletic teams use this room for weight-training purposes, that a student-painted mural in this

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 room depicts a Latin cross, and that this mural is displayed alongside the words “In God We
Trust.” Defendants aver that the State of Tennessee mandates that these words be displayed
prominently in every public school in the state. Tenn. Code Ann. § 49-6-2502.
55.

Admitted.

56.

Admitted.

57.

Admitted.

58.

Defendants admit that signs containing Bible verses and religious messages were

posted in the halls and on classroom doors in Smith County High School last school year.
Defendants aver that these signs were created by the school’s cheerleaders, who posted them in
the school during the summer, prior to the start of the school year. Defendants lack knowledge
or information sufficient to form a belief concerning the truth of the remaining averments in
Paragraph 58.
59.

Admitted except that it is denied that the “signs were put up over the course of the

school year.” Defendants aver that these signs were created by the school’s cheerleaders, who
posted them in the school during the summer prior to the start of the school year, and that neither
Mr. Harville nor Ms. Bailey had any input or involvement in posting the signs.
60.

Defendants lack knowledge or information sufficient to form a belief concerning

the truth of the averments in Paragraph 60.
61.

Denied.

62.

Denied.

63.

Admitted.

64.

Defendants admit that Charles Gross is H.B.’s math teacher at Smith County High

School and that, in the past, Mr. Gross has used the term “come to Jesus” in response to students’

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 failing to do homework or underperforming on homework assignments. Defendants aver that
this term was used idiomatically to mean “to change one’s behavior” and that Mr. Gross
frequently teaches his students about idioms in his classroom. Defendants deny the remaining
allegations and claims in Paragraph 64.
65.

Defendants admit that Janet Bailey read a motivational story and a Bible verse to

students who were redirected to her classroom on Homecoming Day last year and that she
explained that this was how she started all of her classes and would do the same that day.
Defendants deny that Ms. Bailey was reading from the Bible.
66.

Defendants admit that Ms. Bailey has continued her practice of reading

motivational stories and Bible verses this year. Defendants deny the remaining allegations and
claims in Paragraph 66.
67.

Defendants admit that economics is a requirement for all students to graduate.

Defendants deny that economics is part of a “university track” curriculum.
68.

Defendants admit that Amy Gentry, formerly a health occupations teacher at

Smith County High School, included a biblical quotation in the “About Me” section of a website
she created. Defendants deny that she directs students to visit this website in order to access her
class syllabi and class paperwork. Defendants aver that Ms. Gentry used a different website for
her class.
69.

Denied.

70.

Defendants admit that FCA meetings are held in the Middle School’s gymnasium

on Tuesday mornings between 7:45 and 8:00 A.M. Defendants aver that these meetings are
available for students who choose to attend, and that they conclude before the instructional day
starts at 8:00 A.M. Defendants lack knowledge or information sufficient to form a belief

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 concerning the truth of the averments in the third and fourth sentences of Paragraph 70 regarding
announcements over the intercom and encouraging students to attend. Defendants deny the
remaining allegations and claims in Paragraph 70.
71.

Denied.

72.

Defendants admit that Smith County High School’s music department and concert

band held an event entitled “An Afternoon of Hymns” on the evening of September 12, 2019 in
the school’s auditorium, that two local church choirs were invited to sing at the event, and that
members of the band, of which H.B. is a part, were required to perform alongside the church
choirs. Defendants deny the remaining allegations and claims in Paragraph 72. Defendants aver
that class policy permits students in the concert band who cannot attend or wish not to attend any
of the band’s scheduled concerts to take a test as an alternative to performing.
73.

Defendants admit that the music department’s promotional material for the

concert featured a photo of the inside of a cathedral, that during the event, a representative of one
of the church choirs took the microphone and spoke to the crowd, and that the choir performed
the hymn alleged in Paragraph 73. On information and belief, Defendants admit the content of
the exchange between the representative and the audience as alleged in Paragraph 73.
Defendants deny that this exchange was a “call-and-response.” Defendants aver that the
representative’s comments and the audience’s responses were spontaneous and unprompted and
were not invited or planned by school officials.
74.

Defendants admit that Smith County School teachers and administrators may,

from time to time, post about school-related activities on social media. Defendants deny the
averment in Paragraph 74 regarding “unconstitutional activities.”

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 75.

Defendants admit that unofficial Facebook pages for the high school’s football

team and health-occupations club have posted photos or videos of the weight-training room’s
mural featuring a cross and the words “In God We Trust,” and that Murf Murray, the high
school’s head football coach, likewise shared a photo of the mural on his personal Facebook
page in April 2019. Defendants deny that the social media accounts for the football team and
HOSA club are “official,” or that any official Facebook pages exist for these groups.
76.

Defendants admit that Coach Murray posted the message as alleged in Paragraph

76. Defendants aver that this message was posted on Coach Murray’s personal Facebook page.
77.

Upon information and belief, Defendants admit that photos described in

Paragraph 77 were posted to certain social media accounts. Defendants deny that any of the
photos described in Paragraph 77 were posted to any official social media accounts for Smith
County High School or Smith County Middle School.
78.

Defendants admit that a photo described in Paragraph 78 was posted as alleged in

Paragraph 78. Defendants deny that the photo depicted the team praying.
79.

Defendants admit that a Facebook page named “SCHS Football” posted the photo

as alleged in paragraph 79. Defendants deny that the photo depicted the team praying and that
the picture was posted by the team’s “official” Facebook page. No official Facebook page for
the Smith County High School football program exists.
80.

Defendants admit that the middle school’s official Facebook page featured photos

of FCA assemblies run on campus by outside guests, and that a teacher commented on the post to
thank the guests. Defendants deny the remaining allegations and claims in Paragraph 80 of the
Complaint.

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 81.

Denied. No official Facebook page for the Smith County High School football

program exists.
82.

Denied. No official Facebook pages for the Smith County High School girls’

soccer or basketball programs exist.
83.

No response is required to Paragraph 83.

84.

The allegations in Paragraph 84 are either argument or legal conclusions and,

therefore, no response is required. However, to the extent that the Court deems a response
necessary, Defendants deny the allegations and claims in Paragraph 84.
85.

The allegations in Paragraph 85 are either argument or legal conclusions and,

therefore, no response is required. However, to the extent that the Court deems a response
necessary, Defendants deny the allegations and claims in Paragraph 85.
86.

The allegations in Paragraph 86 are either argument or legal conclusions and,

therefore, no response is required. However, to the extent that the Court deems a response
necessary, Defendants deny the allegations and claims in Paragraph 86.
87.

The allegations in Paragraph 87 are either argument or legal conclusions and,

therefore, no response is required. However, to the extent that the Court deems a response
necessary, Defendants deny the allegations and claims in Paragraph 87.
88.

The allegations in Paragraph 88 are either argument or legal conclusions and,

therefore, no response is required. However, to the extent that the Court deems a response
necessary, Defendants deny the allegations and claims in Paragraph 88.
89.

The allegations in Paragraph 89 are either argument or legal conclusions and,

therefore, no response is required. However, to the extent that the Court deems a response
necessary, Defendants deny the allegations and claims in Paragraph 89.

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 90.

The allegations in Paragraph 90 are either argument or legal conclusions and,

therefore, no response is required. However, to the extent that the Court deems a response
necessary, Defendants deny the allegations and claims in Paragraph 90.
91.

The allegations in Paragraph 91 are either argument or legal conclusions and,

therefore, no response is required. However, to the extent that the Court deems a response
necessary, Defendants deny the allegations and claims in Paragraph 91.
Defendants deny that Plaintiffs are entitled to the relief that they seek in the Complaint.
All allegations not previously admitted hereby are denied.

Respectfully submitted,

/s/ H. Rowan Leathers III
H. Rowan Leathers III (BPR No. 10023)
Valerie Diden Moore (BPR No. 31593)
Butler Snow LLP
The Pinnacle at Symphony Place
150 Third Avenue South, Suite 1600
Nashville, TN 37201
Phone: (615) 651-6700
Fax: (615) 651-6701
Rowan.Leathers@butlersnow.com
Valerie.Moore@butlersnow.com
Attorneys for Defendants

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 CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been served via the Court’s ECF system upon the
following this 26th day of December, 2019:
Thomas H. Castelli
ACLU Foundation of Tennessee
P.O. Box 120160
Nashville, TN 37212
tcastelli@aclu-tn.org
Daniel Mach
Heather L. Weaver
American Civil Liberties
Foundation
915 15th Street, NW
Washington, DC 20005
dmach@aclu.org
hweaver@aclu.org

Union

Attorneys for Plaintiffs

/s/ H. Rowan Leathers III
H. Rowan Leathers III

50601388v2

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