I do not know whether Cope will turn out to be the mouse that roared or the Energizer bunny – or maybe Don Quixote – but the Tenth Circuit Court of Appeals heard oral arguments the other day in Cope’s appeal of a ruling in favor of the Kansas State Board of Education. I am inclined toward the Energizer bunny, but the Appeals Court rejected Cope’s attempt to file a surreply, which I gather is sort of a reply to a rejoinder to a response and is generally prohibited. At any rate, the lawsuit against the Kansas State Board of Education (hereinafter, as your lawyer might say, Kansas) was dismissed in December of last year.
PT first reported on Cope here; you may learn more about them here. According to Charity Navigator, their annual income is less than $50,000 per year, so they do not have to file Form 990 with the IRS. Americans United for the Separation of Church and State quoted Steven Case, director of the science center at the University of Kansas, to the effect that their lawsuit was “about as frivolous as lawsuits get.” Evidently, the Judge, Daniel D. Crabtree, agreed; he dismissed the case in large part because the plaintiffs (Cope and a number of others including parents of children in Kansas schools) lacked standing. You may find the documents in the case here.
Standing seems like a concept that only a lawyer could love, but all it says is that you have to be harmed or imminently harmed in order to sue someone (“injury in fact”). Additionally, if you are harmed, you must sue the entity who harmed you, not a third party. And finally (a new one to me), the harm that was done to you must be redressable by a favorable decision by the Court. Taxpayers, not incidentally, do not have standing to sue a government agency merely because they are taxpayers.
Cope, chugging along tirelessly, appealed Judge Crabtree’s ruling in March of this year, and Kansas replied in June. The Tenth Circuit Court of Appeals heard oral arguments last Wednesday morning, so I hopped on a bus and went down to Denver. To no one’s surprise, John Calvert represented Cope. Kansas was represented by Dwight Carswell, an assistant solicitor general for Kansas. I frankly thought that Calvert was somewhat more effective in his presentation than Carswell.
The discussion centered largely on the harm that may have been done to the plaintiffs. Much of the Judges’ questioning concerned the fact that the standards (Next Generation Science Standards) adopted by Kansas are only advisory, and local school districts are not required to adopt them. Indeed, school districts are required to teach science, but not instructed how to do so. The Judges questioned Carswell closely on the content of Kansas law and the discretion of local school boards on implementing standards adopted by the State Board of Education. Additionally, no evidence has been presented to suggest that any school district has adopted the standards, nor that any plaintiff has been harmed by the standards. I think one of the Judges remarked that the school teaches children, and the children are not the plaintiffs. On another occasion, a Judge rhetorically asked Calvert whether he had jumped the gun, filing his lawsuit before any district had actually adopted the standards. Calvert was also asked why he sued Kansas and not a school district. What precisely does he want the Court to enjoin?
Calvert argued that the NGSS adopted by Kansas establish a religious preference - a nontheistic religious worldview - because they support methodological naturalism, which he described as an orthodoxy. He further opined that “origins science” should not be taught at all to children in K-8, because they are too young to engage in such discussions, which Cope considers to be inherently religious. Asked whether he would be satisfied with a clause requiring creationism to be taught in addition, Calvert replied, “No,” and argued that an objective view of science that included “critical thinking” and provided alternatives to methodological naturalism would suffice.
Other questions posed to Calvert: What is the injury in fact? Is a nontheistic religious worldview really being taught? Where do we find methodological naturalism in the standards? Do not local school districts have discretion whether to adopt the standards? What areas of Kansas law are pertinent? Precisely what do you want us to enjoin? Would you be satisfied with a declaratory judgment?
Carswell, who was somewhat hard to understand, was asked what normative standard the NGSS might establish. Asked whether the law precluded alternate theories, he responded that the law recognized that the curriculum may be extended and school districts may teach alternative scientific theories. Asked whether any districts had actually implemented the NGSS, Carswell responded that he did not know of any. There was also some discussion about whether (presuming that harm had in fact been done) a declaratory judgment would redress that harm.
Other questions posed to Carswell: Why do we have standards if districts have discretion about them? Is not this whole case speculative because NGSS has not been implemented? Does not injury depend on actual implementation of the standards, as opposed to their adoption?
After the hearing, I met Clare Leonard, an education activist and fellow Colorado Citizens for Science member, in the hall. Calvert was holding, um, court surrounded by a half-dozen or more of his minions. If the decision is based on acting ability, Calvert wins. But I had the impression that the Court was much more skeptical of his position than of Carswell’s, particularly of his claim that there was an injury in fact.
Cope takes the position that science is a religion. They may be tilting at windmills; but they can still do real damage.
Acknowledgments. Thanks to Glenn Branch for inciting this whole expedition; to Deanna Young and Clare Leonard for pertinent discussion following the hearing; to Clare Leonard for the coffee; and to all three for numerous emendations, including many of the questions posed by the Court..