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Cope v. Kansas State Board of Education

United States District Court, D. Kansas

December 2, 2014

COPE (a.k.a. CITIZENS FOR OBJECTIVE PUBLIC EDUCATION, INC.), ET AL., Plaintiffs,
v.
KANSAS STATE BOARD OF EDUCATION, ET AL., Defendants

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[Copyrighted Material Omitted]

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For COPE, agent of Citizens for Objective Public Education, Inc., Carl Reimer, Mary Angela Reimer, B. R., a Minor, by and through her parents Carl and Mary Angela Reimer as Next Friends, H. R., a Minor, by and through her parents Carl and Mary Angela Reimer as Next Friends, B. R., a Minor, by and through his parents Carl and Mary Angela Reimer as Next Friends, N. R., a Minor, by and through his parents Carl and Mary Angela Reimer as Next Friends, Sandra Nelson, J. N., a Minor, by and through his parent Sandra Nelson as Next Friend, Lee Morss, Toni Morss, L. M., a Minor, by and through her parents Lee and Toni Morss as Next Friends, R. M., a Minor, by and through his parents Lee and Toni Morss as Next Friends, A. M., a Minor, by and through his parents Lee and toni Morss as Next Friends, Mark Redden, Angela Redden, M. R., a Minor, by and through his parents Mark Redden and Angela Redden as Next Friends, Burke Pelton, Kelcee Pelton, B. P., a Minor, by and through her parents Burke Pelton and Kelcee Pelton as Next Friends, L. P., a Minor, by and through her parents Burke Pelton and Kelcee Pelton as Next Friends, Michael Leiby, Bre Ann Leiby, E. L., a Minor, by and through his parents Michael Leiby and Bre Ann Lieby as Next Friends, P. L., a Minor, by and through his parents Michael Leiby and Bre Ann Lieby as Next Friends, Z. L., a Minor, by and through his parents Michael Leiby and Bre Ann Lieby as Next Friends, Jason Pelton, Robin Pelton, C. P., a Minor, by and through her parents Jason Pelton and Robin Pelton as Next Friends, S. P., a Minor, by and through his parents Jason Pelton and Robin Pelton as Next Friends, S. P., a Minor, by and through her parents Jason Pelton and Robin Pelton as Next Friends, C. P., a Minor, by and through her parents Jason Pelton and Robin Pelton as Next Friends, Carl Walston, Marisel Walston, H. W., a Minor, by and through his parents Carl Walston and Marisel Walston as Next Friends, David Prather, Victoria Prather, Plaintiffs: Douglas J. Patterson, Kellie K. Warren, LEAD ATTORNEYS, Property Law Firm, LLC, Leawood, KS; John H. Calvert, LEAD ATTORNEY, PRO HAC VICE, Calvert Law Office, Kansas City, MO; Kevin T. Snider, LEAD ATTORNEY, PRO HAC VICE, Pacific Justice Institute, Sacramento, CA; Michelle W. Burns, LEAD ATTORNEY, Property Law Firm, Leawood, KS.

For Kansas State Board of Education, Janet Waugh, Member of the Kansas State Board of Education, in her official capacity only, Steve Roberts, Member of the Kansas State Board of Education, in his official capacity only, John W. Bacon, Member of the Kansas State Board of Education, in his official capacity only, Carolyn L. Wims-Campbell, Member of the Kansas State Board of Education, in her official capacity only, Sally Cauble, Member of the Kansas State Board of Education, in her official capacity only, Deena Horst, Member of the Kansas State Board of Education, in her official capacity only, Kenneth Willard, Member of the Kansas State Board of Education, in his official capacity only, Kathy Busch, Member of the Kansas State Board of Education, in her official capacity only, Jana Shaver, Member of the Kansas State Board of Education, in her official capacity only, Jim McNiece, Member of the Kansas State Board of Education, in his official capacity only, Diane DeBaker, Commissioner of the Kansas State Department of Education, in her official capacity only, Defendants: Cheryl L. Whelan, Jeffrey A. Chanay, Stephen O. Phillips, LEAD ATTORNEYS, Office of Attorney General - Topeka, Topeka, KS.

For Kansas State Department of Education, Defendant: Jeffrey A. Chanay, Stephen O. Phillips, LEAD ATTORNEYS, Office of Attorney General - Topeka, Topeka, KS.

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MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge.

Plaintiffs bring this declaratory judgment action seeking to enjoin the Kansas State Department of Education and the Kansas State Board of Education from implementing new science standards for Kansas schools. Plaintiffs[1] consist of students, parents, Kansas resident taxpayers, and a nonprofit organization. They have sued the Kansas Commissioner of Education,[2] the Kansas State Department of Education, the Kansas State Board of Education, and its individual members.[3]

This matter is before the Court on defendants' Motion to Dismiss (Doc. 29) and plaintiffs' Motion for Leave to file a Surreply (Doc. 42). After considering the arguments of the parties, the Court grants defendants' Motion to Dismiss (Doc. 29) and denies plaintiffs' Motion for Leave to File a Surreply (Doc. 42).

I. Background

The following facts are taken from plaintiffs' Complaint (Doc. 1) and viewed in the light most favorable to them. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (" We accept as true all well-pleaded factual allegations in the complaint and view them

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in the light most favorable to the [plaintiffs]." (citation and internal quotation marks omitted)). On June 11, 2013, the Kansas State Board of Education adopted the Next Generation Science Standards (" the Standards" )[4] and the related Framework for K-12 Science Education: Practices, Crosscutting Concepts and Core Ideas (" the Framework" ).[5] Plaintiffs allege that the Kansas State Board of Education's adoption of the Framework and Standards will cause Kansas public schools to establish and endorse a non-theistic religious worldview in violation of the Establishment, Free Exercise, and Speech Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

More specifically, plaintiffs allege that the Framework and Standards take impressionable children, beginning in kindergarten, into the religious sphere by leading them to ask ultimate religious questions such as " what is the cause and nature of life and the universe--'where do we come from?'" Pls.' Compl. (Doc. 1) at ¶ 2. Plaintiffs assert that the Standards fail to inform children objectively about the actual state of our scientific knowledge on these questions in an age appropriate and religiously neutral manner. Instead, plaintiffs claim the Standards use an " Orthodoxy," called methodological naturalism or scientific materialism, which requires that explanations of the cause and nature of natural phenomena only use natural, material, or mechanistic causes, and must assume that supernatural and teleological or intelligent design conceptions of nature are invalid. Plaintiffs contend that the Standards do not adequately disclose this " Orthodoxy" and use other deceptive methods to lead impressionable children to answer questions about the cause of life with only materialistic or atheistic answers. Plaintiffs characterize this " Orthodoxy" as " an atheistic faith-based doctrine." Id. (Doc. 1) at ¶ 9. Plaintiffs argue that the purpose of teaching this Orthodoxy is to indoctrinate children by establishing a non-theistic religious worldview rather than delivering an objective and religiously neutral origins science education.

Plaintiffs seek to enjoin the implementation of the Framework and Standards and ask the Court to enter a declaratory judgment finding that the Framework and Standards violate: (1) the Establishment Clause of the First Amendment; (2) the Free Exercise Clause of the First Amendment; (3) the Equal Protection Clause of the Fourteenth Amendment; and (4) the Speech Clause of the First Amendment. Plaintiffs also seek relief in the alternative, requesting an injunction prohibiting defendants from implementing the portions of the Framework and Standards that seek to teach about the origin, nature, and development of the cosmos and life on earth (" origins science" ) for children in kindergarten through grade 8 entirely and for grades 9 through 12 unless the origins science instruction also includes additional information such as: " an evidence-based teleological alternative competes with the materialistic explanations provided by the Orthodoxy, which is an inference to an intelligent rather than a material cause [of

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origins events]." Pls.' Compl. (Doc. 1) at p. 32 (" Prayer for Relief ¶ c.2.g).

II. Plaintiffs' Motion for Leave to File a Surreply

As an initial matter, the Court must decide whether it may consider plaintiffs' proposed surreply (Doc. 43-1) as part of the briefing on defendants' motion to dismiss. Defendants filed their Motion to Dismiss (Doc. 29) and Memorandum in Support of that Motion (Doc. 30). In response, plaintiffs filed a Memorandum in Opposition to Defendants' Motion to Dismiss (Doc. 40), and defendants filed a Reply (Doc. 41). Afterwards, plaintiffs filed a Motion for Leave to File a Surreply under D. Kan. Rule 15.1(a) (Doc. 42). Defendants filed a Response in opposition to plaintiffs' request to file a surreply (Doc. 44), and plaintiffs filed a Reply (Doc. 46).

Under D. Kan. Rule 7.1(c), briefing on motions is limited to the motion (with memorandum in support), a response, and a reply. Surreplies typically are not allowed. Taylor v. Sebelius, 350 F.Supp.2d 888, 900 (D. Kan. 2004), aff'd on other grounds, 189 Fed. App'x 752 (10th Cir. 2006). Rather, surreplies are permitted only with leave of court and under " rare circumstances." Humphries v. Williams Natural Gas Co., No. 96-4196-SAC, 1998 WL 982903, at *1 (D. Kan. Sept. 23, 1998) (citations and internal quotation marks omitted). For example, when a moving party raises new material for the first time in a reply, the court should give the nonmoving party an opportunity to respond to that new material (which includes both new evidence and new legal arguments) in a surreply. Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005); Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1139 n.13 (10th Cir. 2003). The rules governing the filing of surreplies " are not only fair and reasonable, but they assist the court in defining when briefed matters are finally submitted and in minimizing the battles over which side should have the last word." Humphries, 1998 WL 982903, at *1 (citation and internal quotation marks omitted).

Here, plaintiffs argue that they should be permitted to file a surreply to address: (1) defendants' citation to the minutes of a June 11, 2013 Kansas Board of Education meeting, a video streamed online of a June 11, 2012 Kansas Board of Education meeting, and a Report and Recommendation of the Next Generation Science Standards Review Committee (" Report and Recommendation" ) because plaintiffs claim they do not have access to these materials " due to a moratorium on discovery" and therefore they are unable to check them for accuracy and completeness; (2) " important errors" in defendants' arguments; and (3) a " new argument" that plaintiffs have changed their theory of injury from the theory asserted in the Complaint.

Defendants oppose plaintiffs' motion for leave to file a surreply, arguing that their citation to the minutes and video and their argument about plaintiffs changing their theory of injury are not " new" arguments but instead respond to arguments made by plaintiffs in their Memorandum in Opposition. Defendants also point out that plaintiffs devote only about 11 lines of their 23-page surreply to the minutes and video and only one sentence to defendants' argument that plaintiffs have changed their theory of injury.

The Court agrees that plaintiffs' proposed surreply does not respond to " new material." Rather, the majority of plaintiffs' proposed surreply addresses what plaintiffs claim are " important errors" in defendants' arguments. But in so doing plaintiffs have rehashed arguments that they made or could have made in their Memorandum in Opposition, including their responses to defendants' arguments

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that plaintiffs have mischaracterized the Framework and Standards,[6] that plaintiffs' alternative prayer for relief would violate the Establishment Clause,[7] and that the Kansas opt out statute provides an opportunity for students to opt out of activities that offend their religious beliefs and therefore defeats a Free Exercise claim.[8] This is precisely why our Court typically does not allow surreplies. See Hall v. Whitacre, No. 06-1240-JTM, 2007 WL 1585960, at *1 (D. Kan. May 31, 2007) (finding " utterly no justification for the surreply" that " essentially provides additional and longer arguments, which also could have been submitted in the first response" ); see also E.E.O.C. v. Int'l Paper Co., No. 91-2017-L, 1992 WL 370850, at *10 (D. Kan. Oct. 28, 1992) (refusing to consider a surreply because the parties' briefing " must have an end point and cannot be allowed to become self-perpetuating" ).

Defendants' reference to the minutes, video, and Report and Recommendation in their Reply is also not " new material." First, the minutes and video of Kansas State Board of Education meetings were cited in defendants' Reply to rebut plaintiffs' argument that the Kansas State Board of Education acted with the purpose of advancing or inhibiting religion when it adopted the Framework and Standards (Doc. 41 at 14). Thus, it is not " new material" but rather part of a response to an existing argument made by plaintiffs. Defendants also provided hyperlinks for the minutes and video directing the reader to internet websites where the minutes and video are located online. Thus, plaintiffs did have access to these materials. Second, defendants cited the Report and Recommendation in their Memorandum in Support of the Motion to Dismiss (Doc. 30 at 32-33) and provided a hyperlink in the Reply that directed the reader to the document on the internet. Plaintiffs argued in their Memorandum in Opposition, as they also do in the proposed surreply, that they have never seen this document " because of the moratorium on discovery" (Doc. 40 at 30). Defendants explained in their Reply that the Report and Recommendation is a public document and that they had provided an internet link to that document in their Memorandum in Support (Doc. 41 at 14). By the time defendants filed their Reply, the internet link they had cited previously was broken, and they provided a new internet address where the Report and Recommendation now is located online and explained that the Report and Recommendation is available on the Kansas Next Generation Science Standards homepage and accessible through a Google search (Doc. 41 at 14 n.5). Plaintiffs therefore did have access to the Report and Recommendation.

In addition, defendants' argument about plaintiffs changing their theory of injury is not " new material." Plaintiffs argued in their Memorandum in Opposition that defendants misconceived the nature of the injury alleged in the Complaint and explained that plaintiffs' injury arises from a

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" message of endorsement" (Doc. 40 at 8). Defendants responded to that argument in their Reply by asserting that plaintiffs had changed their theory of injury in the Memorandum in Opposition from what was alleged in the Complaint (Doc. 41 at 7). This is not new argument but instead responds to an argument made by plaintiffs in their Memorandum in Opposition. Plaintiffs contend that they have not had an opportunity to oppose defendants' argument on this point (Doc. 43 at 3-4), but allowing plaintiffs to file a surreply in response to an argument that is not " new" contradicts our rules governing briefing on motions. See D. Kan. Rule 7.1(c) (limiting briefing on motions to the motion (with memorandum in support), a response, and a reply); see also Humphries, 1998 WL 982903, at *1 (the rules " assist the court in defining when briefed matters are finally submitted and in minimizing the battles over which side should have the last word." (citation and internal quotation marks omitted)).

For these reasons, the Court denies plaintiffs' Motion for Leave to File a Surreply. Although the Court will not consider plaintiffs' proposed surreply in the motion to dismiss analysis below, the Court nevertheless has reviewed plaintiffs' proposed surreply and has determined that its arguments do not alter the outcome of defendants' motion. The Court would reach the same result on defendants' Motion to Dismiss regardless of its consideration of the arguments in plaintiffs' proposed surreply.

III. Motion to Dismiss Standard

Defendants move for dismissal of this lawsuit under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.[9] " Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to exercise jurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation omitted). Federal district courts have original jurisdiction of all civil actions arising under the constitution, laws, or treaties of the United States or where there is diversity of citizenship. 28 U.S.C. § 1331; 28 U.S.C. § 1332. " A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citation omitted). Since federal courts are courts of limited jurisdiction, there is a presumption against jurisdiction, and the party invoking federal jurisdiction bears the burden to prove it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

Generally, a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) takes one of two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). " First, a facial attack on the complaint's allegations [of] subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true." Id. at 1002 (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)) (internal citations omitted).

" Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a

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factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and [to conduct] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. at 1003 (internal citations omitted); Los Alamos Study Group v. United States Dep't of Energy, 692 F.3d 1057, 1063-64 (10th Cir. 2012). See also Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324-25 (10th Cir. 2002) (holding that a court must convert a motion to dismiss to a motion for summary judgment under Fed.R.Civ.P. 56 only when the jurisdictional question intertwines with the merits of the case).

IV. Analysis

Defendants seek dismissal of plaintiffs' Complaint in its entirety for four reasons: (1) the Kansas State Board of Education and the Kansas State Department of Education are entitled to Eleventh Amendment sovereign immunity; (2) plaintiffs lack Article III standing; (3) plaintiffs have failed to state a claim under the Establishment Clause of the First Amendment; and (4) plaintiffs have not stated a claim under either the Free Exercise or Free Speech Clauses of the First Amendment or the Equal Protection Clause of the Fourteenth Amendment. Because the Court grants defendants' motion for the first two reasons, it does not reach defendants' arguments that plaintiffs have failed to state a claim. The Court therefore addresses only defendants' sovereign immunity and standing arguments below.

A. Eleventh Amendment Sovereign Immunity

Defendants assert that the Eleventh Amendment bars plaintiffs' claims against the Kansas State Board of Education and the Kansas State Department of Education because they have sovereign immunity under the Eleventh Amendment. The Eleventh Amendment provides: " The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The Eleventh Amendment grants immunity that " accord[s] states the respect owed them as joint sovereigns," " applies to any action brought against a state in federal court, including suits initiated by a state's own citizens," and " applies regardless of whether a plaintiff seeks declaratory or injunctive relief, or money damages." Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1252 (10th Cir. 2007) (citations omitted). " The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court." Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). Eleventh Amendment immunity ...


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