COPE FILES LEGAL COMPLAINT:

COPE, Inc., et al. v. Kansas State Board of Education, et al.
In the Federal District Court of Kansas

Important Case Documents in Chronological Order:

COPE v. Board of Education (the Complaint) (September, 2013)

Defendants' Memorandum in Support of their Motion to Dismiss the Complaint (December 5, 2013)

Plaintiffs' Response to Defendants' Motion to Dismiss (January 27, 2014)

Defendants’ Reply In Support of Their Motion to Dismiss (April 17, 2014)

Plaintiffs' Surreply to Defendants' Reply in Support of their Motion to Dismiss (May 6, 2014, Filing Denied by the Court)

Memorandum and Order dismissing the Complaint. (December 2, 2014)

Plaintiffs’ Appeal to Tenth Circuit Court of Appeals – Opening Brief of Appellants (March 20, 2015)

Response Brief of Defendants-Appellees (June 8, 2015)

Reply Brief of Plaintiff-Appellants (June 25, 2015)

Tenth Circuit Court’s Affirmation of District Court’s Dismissal and Plaintiffs’ Petition for Hearing En Banc (April 19 and May 6, 2016)*
*Note. The Petition for Hearing en banc argues that review is necessary as the Decision is based on the Panel’s erroneous and unsupported conclusion that the Complaint alleges that the Standards establish a non-religious worldview that does not condemn the theistic religion of the Parents and Children, when the Complaint in fact alleges in detail the exact opposite – that the Standards seek to convert the Children’s theistic beliefs into “a non-theistic religious worldview that is materialistic/atheistic.” The Petition further alleges that this misconstruction and holding are (a) inconsistent with the requirement that the allegations of the Complaint be deemed true and valid, (b) unsupported by any legal authority, and (c) inconsistent with five Tenth Circuit cases, four Supreme Court cases, and eight decisions of other U.S. Circuit Courts.

Tenth Circuit’s Denial of Hearing En Banc (May 20, 2016)


FILING OF THE COMPLAINT

COPE Press Release on the Complaint (September 26, 2013)

On September 26, 2013 Citizens for Objective Public Education, Inc. (COPE) filed suit in federal court against the Kansas State Board of Education and the Kansas State Department of Education. The Complaint was filed in Topeka, Kansas, in the U.S. District Court for the District of Kansas. Other plaintiffs in the suit include eight families with children enrolled in Kansas public schools and a family that pays taxes in support of Kansas schools.

The Complaint alleges that the Kansas State Board’s implementation of the Next Generation Science Standards and related A K-12 Framework for Science Education (the “F&S”), adopted by the Board on June 11, 2013, “will have the effect of causing Kansas public schools to establish and endorse a non-theistic religious worldview” in violation of the First and Fourteenth Amendments to the U.S. Constitution.

Attached to the Complaint are analyses that COPE released (on June 1, 2012, and January 29, 2013) objecting to the Standards (NGSS) and the Framework upon which the Standards are based. After the final version of NGSS was released last April, COPE issued a Press Release (April 21, 2013) which reflects COPE’s recommendation against adoption of the Framework and Standards.

At State Board meetings on May 14, 2013, and June 11, 2013, representatives of COPE urged the Board to reject the new Standards and invited the Board to meet with COPE to discuss concerns about the Standards. The Board did not respond to these requests.

Kenneth Willard, a State Board member, urged the Board to delay action on NGSS until they had investigated COPE’s concerns. On June 11 Mr. Willard cautioned the Board: “I fear that adopting them [the NGSS Standards] in Kansas will only lead to a deeply divisive controversy, and even a possible constitutional challenge.” Nevertheless the Board proceeded to take a vote without looking into the matter, and the Framework and Standards (F&S) were approved by an 8-2 margin.


THE CLAIMS OF THE COMPLAINT

The Complaint alleges that the Policy explicitly and implicitly seeks to establish a non-theistic religious worldview by leading students to ask “ultimate religious questions” like “where do we come from?” Rather than objectively informing children of the actual state of our scientific knowledge about these questions in an age-appropriate manner, the F&S lead them “to answer the questions with only materialistic/atheistic answers.” This and numerous other deceptive strategies alleged in the Complaint amount to a prescription for indoctrinating student acceptance of a materialistic/atheistic worldview by the time they reach middle school.

The Complaint alleges that the principal tool of indoctrination is the concealed use of an Orthodoxy known as methodological naturalism or scientific materialism. It holds that explanations of the cause and nature of natural phenomena may only use natural, material or mechanistic causes, and must assume that supernatural and teleological or design conceptions of nature are invalid.

The Orthodoxy is an atheistic faith-based doctrine that has been candidly explained by Richard Lewontin, a prominent geneticist and evolutionary biologist, as follows::

"Our willingness to accept scientific claims that are against common sense is the key to an understanding of the real struggle between science and the supernatural. We take the side of science in spite of the patent absurdity of some of its constructs, in spite of its failure to fulfill many of its extravagant promises of health and life, in spite of the tolerance of the scientific community for unsubstantiated just-so stories, because we have a prior commitment, a commitment to materialism. It is not that the methods and institutions of science somehow compel us to accept a material explanation of the phenomenal world, but, on the contrary, that we are forced by our a priori adherence to material causes to create an apparatus of investigation and a set of concepts that produce material explanations, no matter how counter-intuitive, no matter how mystifying to the uninitiated. Moreover, that materialism is absolute, for we cannot allow a Divine Foot in the door." [Richard Lewontin, Billions and Billions of Demons, 44 N.Y. Rev. of Books 31 (Jan. 9, 1997) (emphasis added)]

The Complaint alleges that an implementation of the F&S will cause the state to infringe on the religious rights of parents, students and taxpayers under the Establishment, Free Exercise, Speech and Equal Protection clauses of the U.S. Constitution.

It asks the court to enjoin the implementation of the F&S or, in the alternative, to enjoin the teaching of origins science in grades K through 8, and also in grades 9 through 12 unless measures are taken to teach it objectively so that the effect of the instruction is religiously neutral.

The Complaint is focused on teaching children about the actual state of our scientific knowledge about where we come from, instead of only a materialistic/atheistic view.


DISMISSAL OF COMPLAINT BY DISTRICT COURT

On December 2, 2014, Judge Daniel D. Crabtree of the Federal District Court of Kansas dismissed the Complaint, not on the basis of the legal merits of its claims, but rather on a narrow jurisdictional ground. The District Court ruled that although the Complaint alleges a religious injury to the parents and students, the injury does not rise to a level that is legally sufficient to give them "standing" or the right to complain in Federal Courts about a state Policy that seeks to establish in K-12 Kansas students a non-theistic religious worldview.

The Court's decision is based primarily on the conclusion that the injury to Plaintiffs is nothing more than an "abstract stigmatic injury," because the 850 page Policy adopted by the State Board is not "binding" on the Kansas public schools.
The Plaintiffs believe the Court's ruling should be reversed due to errors of law and fact. The Policy is in fact binding as the law effectively requires schools to develop curricula that implement the goals and objectives adopted by the State Board.

Furthermore, the Plaintiffs' injuries as alleged in the Complaint include injuries other than stigmatic psychological injuries acknowledged by the Court, and none is abstract as all are personal to the Plaintiffs. The additional assaults on the rights of the parents and children alleged in the Complaint and ignored by the Court amount to serious personal injuries that far exceed the very low injury thresholds established by the Tenth Circuit. A Policy of the state to injure Plaintiffs' children through a plan designed to indoctrinate them for 13 years into accepting an atheistic worldview is frightening to a parent who believes the lives and well-being of their children depend on their having and sustaining a theistic religious faith. The injury is especially acute for those parents who lack the knowledge and resources necessary to provide an educational alternative.

Accordingly, COPE and its attorneys are seeking to have the ruling reversed on an appeal to the U.S. Court of Appeals for the Tenth Circuit.


FILING OF BRIEFS REGARDING APPEAL TO THE TENTH CIRCUIT

The Plaintiffs filed a notice of appeal of the District Court’s decision to the Tenth Circuit on December 31, 2014. On March 20, 2015 they filed their Opening Brief. For those wishing an overview of the Opening Brief, we suggest you look at:

(a) The detailed Table of Contents which summarizes the arguments (pp ii-v).
(b) The Statement of the Case – which summarizes the state of the case (p 2).
(c) The Summary of the Complaint and the implementation of the Policy (pp 4-9).
(d) The Summary of the Argument (pp 9-11).

The Opening Brief has attached to it a copy of the District Court's Opinion (Exhibit A). The Brief also references “Appellants’ Appendix” or “Applt. App.” That is a five volume compilation of parts of the official record, including briefs that have filed, most of which are already available on this website. If someone might wish a copy of the Appendix, contact us at info@COPEinc.org.

The Plaintiffs’ Opening Brief argues, among other things, that the District Court erred in its decision to dismiss the case by (a) failing to consider the injuries to the Parents and Students alleged in the Complaint, (b) mischaracterizing Plaintiffs’ injuries as abstract when they are actually particularized and concrete due to the fact that the Parents and Children are the objects of the Policy and have a very distinct personal stake in it, (c) incorrectly concluding that the Policy is not required to be implemented by Kansas public schools, and (d) not following existing Supreme Court and Tenth Circuit precedents that necessitate a different result.

On June 8, 2015 the Defendants filed their Response Brief.

On June 25, 2015 the Plaintiffs filed their Reply Brief. The Reply Brief summarizes the arguments made by Defendants in the Summary of Argument beginning on pages 1-3.


AFFIRMATION OF A DISMISSAL OF THE COMPLAINT BY A CIRCUIT COURT PANEL AND PLAINTIFFS’ PETITION FOR AN EN BANC HEARING

On April 19, 2016, a three-judge panel of the Tenth Circuit Court of Appeals affirmed the dismissal of the Complaint on the grounds that the alleged injuries to the Parents and Children amounted to nothing more than the psychological consequence of their “disagreements” with the standards.

On May 6, 2016, the Plaintiffs filed a Petition with the Court for a Hearing en banc (before all judges of the Court) on a number of grounds:

1. The Decision holds that the Complaint does not allege that the Standards endorse a religion or condemn the Children’s theistic religion. This is based on a mischaracterization of a key allegation of the Complaint that the Standards seek to convert the Children’s theistic beliefs into “a non-theistic religious worldview that is materialistic/atheistic.”

2. The Decision is contrary to the rules applicable to the determination of standing at the pleading stage which requires that the allegations of the Complaint be deemed true and valid. Instead, the Court drifted into an analysis of the merits of the Complaint, which is inappropriate at this stage.

3. The Decision cited no supporting legal authority while being inconsistent with at least five Tenth Circuit cases, four Supreme Court cases, and eight cases from other U.S. Circuit Courts of Appeal.

The Petition seeks review by the entire Court because of a number of questions of exceptional importance. These include the question of whether it is permissible for government to apply the rules of standing non-neutrally so that it shows preference for a non-theistic religious worldview over a theistic religious view. The Petition also points out that if the decision is left to stand then no person would appear eligible to challenge any State’s past or future adoption of the Next Generation Science Standards in the entire U.S. This could allow the establishment of a non-theistic religious worldview that is materialistic/atheistic in all U.S. K-12 schools if the allegations are in fact true.

The Decision of the Panel is attached to Plaintiffs’ Petition for Hearing en banc which may be accessed with this link.

On May 20, 2016, the Court denied the Petition for Hearing en banc. The Plaintiffs expect to file a Petition for writ of certiorari with the U.S. Supreme Court for a reversal of the ruling.