COPE FILES LEGAL COMPLAINT:

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

Supreme Court Chooses not to Review 10th Circuit Decision Affirming Dismissal for Lack of Standing.

The U.S. Supreme Court’s November 14, 2016, denial of Plaintiffs’ Petition for review was disappointing, but not surprising. The Court reviews only 70-80 cases out of the 8,000 or so petitions filed each year. Furthermore, the Court was a 4-4 divided Court that was avoiding the review of cases involving religious and political issues.

The Tenth Circuit Decision holds that Parents and Students are not personally injured by their State’s adoption of the Next Generation Science Standards and related Framework for K-12 Science Education (the “Standards”) that seek to replace their theistic beliefs with a non-theistic religious worldview that is Materialistic/Atheistic in violation of their religious rights.

The following is a summary of the effect of the Decision on future First Amendment challenges to the Standards. The various briefs that detail the legal and factual arguments relating to the Decision follow the Summary in chronological order.

1. History and Summary of the Case

In April 2013 the Standards were finalized over COPE’s detailed written objections of June 1, 2012 and January 29, 2013. They explained how the Standards use incremental, progressive, comprehensive and deceptive methods to establish a non-theistic religious worldview that is materialistic/atheistic and that promotes the core tenets of Religious (“Secular”) Humanism. Three months later the Kansas State Board of Education was among the first to adopt the Standards.

The Complaint alleges that the adoption and implementation of the Standards violate the exclusive rights of Parents to direct the religious education of their children and the rights of children to not be indoctrinated by the state to accept a particular religious view. It therefore prayed that the violation be declared and enjoined. Delay was not an option due to the significant costs involved in implementing the program throughout the nation.

A greater fear was that the program once fully implemented would become so entrenched and institutionalized that it would be nearly impossible to correct. The Standards are designed to cohere with all subjects taught in the public schools. Teachers would be trained to teach the atheistic worldview and thereby become its advocates. Nationally standardized assessments, curricula, lesson plans and text books would be written to apply it. A growing non-theistic religious bias established in the schools would also become established in our legal and political institutions, making correction nearly impossible.

COPE’s concern is justified as Pew Research shows that non-theistic worldviews in the US are growing at over 1% per annum, having reached about 25% in 2016.

Accordingly, 15 Kansas parents, their 21 children, two resident taxpayers and COPE filed suit to enjoin implementation of the Standards three months after their adoption.

The State Board moved to dismiss the Complaint on two grounds. One motion sought to dismiss the Complaint on its “merits” – on the ground that it failed to state any claim upon which relief could be granted. The District Court Judge newly appointed by President Obama declined to rule on this issue.

However, the District Court did rule for the State Board on the second ground for dismissal. That ground was the assertion that the Complaint failed to allege that any of the Plaintiffs suffered a personal and concrete injury in fact by either the adoption or threatened implementation of the Standards – that no Plaintiff had legal “standing” to complain. This basis for dismissal was surprising as the Complaint alleges that the standards seek to replace the Children’s Christian beliefs with a “non-theistic religious worldview that is materialistic/atheistic.”

The Plaintiffs appealed the District court finding of no standing. The principal reason was that in concluding that the Complaint alleged insufficient injury, the District Court ignored allegations of Paragraphs 124 and 125 of the Complaint that allege that the adoption of the Standards violated the religious rights of the Parents to direct the religious education of their children and the rights of the children to not be indoctrinated by the state to accept a particular religious view. The actual violation of these rights is both personal and concrete as the Children are the objects of the program of indoctrination.

The three judge Tenth Circuit panel that considered the appeal consisted of two appointed by President Obama and one by President Clinton. The Panel recognized that the Parents have the right to direct the religious education of their Children and that the Children have the right to not be indoctrinated by the State as to a particular religious view. However, the Panel sustained the District Court’s ruling against standing by misstating the complaint as one that alleged that the Standards are “non-religious.” This foundation of the Decision is false as the Complaint in fact alleges the opposite in extreme detail. Relying on the false conclusion that the Complaint alleges the standards to be not religious when it does the opposite, the Court incorrectly concluded that that the Plaintiffs failed to allege religious injury and therefore failed to allege standing. Thus the penultimate conclusion of the court is in fact inconsistent with the allegations of the Complaint which the Panel, at the pleading stage, was required to deem to be true.

Plaintiffs’ Petition to the Supreme Court details eight Supreme Court cases and seven Circuit Court cases that conflict with the Decision.

2. The complaint about the Standards is enormously important and must be continued to protect the religious rights of every Parent, Child and taxpayer in the U.S.

The case is important as the Standards have been adopted by 20 states and the District of Columbia in three years. If the adoptions continue at this rate the entire U.S. will be subject to the Program by 2022. Thirteen years later, by 2035 every public K-12 student in the U.S. will have received the entire 13 year program of indoctrination in a non-theistic religious worldview that is materialistic/atheistic. A majority of voters will likely be non-theists, and God will be absent from both public and private venues.

The cultural consequences arising from the moral and ethical impacts of such change are unfathomable. The COPE Petition to the Supreme Court argued that the issue is perhaps the most important presented to SCOTUS since 1940.

3. The Rulings of the Courts do not deal with the merits of the Complaint, and it was not dismissed with prejudice to filing of future complaints about the same issue.

Because the Complaint was not dismissed on its merits and was dismissed without prejudice, it could be refiled with minor revisions in Kansas against both the state and one or more local school districts or in another State and school district, either in or outside the 10th Circuit.

The ruling against Plaintiffs’ standing was based on (a) the Tenth Circuit’s misstatements of the Complaint and (b) the fact that the Standards had not been implemented when the Complaint was filed immediately after adoption and on an incorrect conclusion that local schools were not required to implement them. The misstatement is clear from the face of the Complaint, and the lack of implementation is no longer an issue as Kansas and 19 other states are now engaged in implementation.

Therefore, the Complaint could be refiled in Kansas or in one or more of the other implementing states against both the State and an implementing local school district by parents and students.

4. Standing based on actual rather than threatened injury to Parents and Students should be clear, as school districts in adopting states have been implementing the Program for up to three years.

The Complaint was filed to enjoin a state from guiding its schools to replace the theistic beliefs of the children with an atheistic worldview. Now that schools are implementing the Standards, the standing of Parents and students of implementing school districts should be clear. This is because a School District’s decision to implement the program places an immediate burden on Parents and children to take steps to avoid its effect.

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)

Plaintiffs’ Petition to the Supreme Court of the United States seeking review of the Tenth Circuit Decision. (August 16, 2016)

Defendants waiver of right to file a Response to the Plaintiffs’ Petition. (August 24, 2016)

Letter of the Supreme Court of the United States, dated September 12, 2016, directing Defendants to file a Response to the Petition on or before October 12, 2016

Defendants Brief in Opposition to Plaintiffs’ Petition to the Supreme Court for review of the Tenth Circuit Decision (October 11, 2016)

Plaintiffs' Reply to Defendants' Response (October 24, 2016)

Supreme Court denies Centiorari (November 14, 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.


PLAINTIFFS’ PETITION TO THE US SUPREME COURT

On August 16, 2016 Plaintiffs’ filed a Petition to the Supreme Court of the United States seeking review of the Tenth Circuit Decision. We believe the issue presented by the Petition – whether K-12 Public Schools may seek to replace Christian and other Theistic beliefs through the promotion of a Materialistic/Atheistic religious worldview – is perhaps the most important issue presented to the Court in recent history.

The Petition sets forth the Question Presented as follows:

QUESTION PRESENTED

This Court and numerous Circuit Courts uniformly hold that non-theistic parents and children have standing to challenge state endorsement of offensive theistic preferences, practices and programs in their public school system (Lee v. Weisman, 505 U.S. 577 (1992); Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963); McCollum v. v. Board Of Education, 333 U.S. 203 (1948).

Do theistic parents and school children have Article III standing to challenge their state's establishment of a 13 year K-12 program of education designed to supplant the children's theistic religious beliefs with non-theistic religious beliefs that are materialistic/atheistic in violation of their rights under the Establishment and Free Exercise Clauses of the First Amendment and the Equal Protection Clause of the 14th Amendment? See "Importance of the Question," infra at 1.

The importance of the Question is discussed at pages 1-4. The Reasons for Review are summarized by the Petition on page 11 as follows:

Review is necessary because (a) the Decision presents questions of exceptional and profound importance to every person in the U.S., (b) the Decision is inconsistent with at least eight decisions of this court and the Decisions of the 2nd, 4th, 5th, 7th, 8th, 9th and 10th Circuits in the context of complaints by parents and children injured by a religious preference in a school context, and (c) because the Decision is clearly and exceptionally wrong.

The Questions of exceptional importance include (a) whether "religion" under the First Amendment is confined to only theistic views, and if not (b) whether the Decision's implicit and improper analysis of the merits of the Complaint will establish a non-theistic religious program of indoctrination for every child in the Country and thereby move the U.S. to become an Atheocracy rather than a truly secular state, and (c), whether the Courts should apply principles of standing neutrally as between competing theistic and non-theistic religions.

PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFFS’ PETITION TO THE U.S. SUPREME COURT FOR REVIEW OF THE 10TH CIRCUIT DECISION

The Defendants declined to respond to Plaintiffs’ petition to the Supreme Court for review per its letter of August 24, 2016. Nonetheless, on September 12, 2016, the Court directed Defendants to file a response. That response was filed on October 11, 2016. The Response did not challenge Plaintiffs' description of the enormous importance of the Petition or its claims that the Tenth Circuit misstated the allegations of the Complaint, but rather argued that the misstatements did not form the basis for its holding, denying standing.

On October 24, 2016, the Plaintiffs filed their Reply to Defendants’ Response. The Reply argues that the Response is inadequate as it does not contest important issues addressed by the Petition, misstates the basis for the Court’s holding, and fails to show why the Decision is inconsistent with 15 cases cited by Plaintiffs’ Petition.