FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEANNE E. CALDWELL, 

Plaintiff-Appellant,

v.

ROY L. CALDWELL, in his official

capacity as Director of the

University of California Museum No. 06-15771

of Paleontology; DAVID LINDBERG, D.C. No.

in his official capacity as Chair of  CV-05-04166-PJH

the Integrative Biology OPINION Department of the University of

California-Berkeley; MICHAEL D.

PIBURN, in his official capacity as

Program Director for the National

Science Foundation,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted

May 14, 2008—San Francisco, California

Filed October 3, 2008

Before: Betty B. Fletcher and Pamela Ann Rymer,

Circuit Judges, and Kevin Thomas Duffy,* District Judge.

*The Honorable Kevin Thomas Duffy, Senior United States District

Judge for the Southern District of New York, sitting by designation. 

14079
Opinion by Judge Rymer;

Concurrence by Judge B. Fletcher

14080 CALDWELL v. CALDWELL
COUNSEL

Larry Caldwell, Quality Science Education for All, Roseville,

California, Kevin T. Snider (argued), Pacific Justice Institute,

Sacramento, California, for the plaintiff-appellant. 

William J. Carroll (argued), Katharine Demgen, Morgenstein

& Jubelirer LLP, San Francisco, California, Jeffrey A. Blair,

Christopher M. Patti, University of California, Office of the

General Counsel, Oakland, California, for defendantsappellees Roy L. Caldwell, Ph.D., and David Lindberg. 

Robert M. Loeb, Lowell V. Sturgill Jr. (argued), United States

Department of Justice, Civil Division, Washington, D.C., for

defendant-appellee David Campbell. 

OPINION

RYMER, Circuit Judge: 

We must decide whether Jeanne E. Caldwell, who asserts

an interest in being informed about how teachers teach the

theory of evolution in biology classes, has standing to pursue

an Establishment Clause claim arising out of her offense at

the discussion of religious views on the “Understanding Evolution” website created and maintained by the University of

California Museum of Paleontology and funded in part by the

National Science Foundation. She avers that the website

endorses beliefs which hold that religion is compatible with

evolutionary theory and disapproves beliefs, such as her own,

that are to the contrary, thereby exposing her to governmentendorsed religious messages and making her feel like an outsider. In a published opinion, the district court concluded that

Caldwell’s allegations state only a generalized grievance

insufficient for injury in fact, and dismissed the complaint.

Caldwell v. Caldwell, 420 F.Supp.2d 1102, 1007 (N.D. Cal.

14082 CALDWELL v. CALDWELL
2006). We also conclude that the harm asserted by Caldwell

to her interest in being informed about the teaching of evolutionary theory is too generalized and remote to confer standing against the University of California faculty who

administer the website and develop its content on behalf of

the Museum of Paleontology. Caldwell’s complaint against

the Director of the National Science Foundation has become

moot since her appeal was taken. Therefore, we affirm. 

I

Caldwell’s complaint pursuant to 42 U.S.C. § 1983 alleges

that she is the parent of children in the California public

schools, and is actively involved in elections and debates

about the selection of instructional materials for science

classes. She uses the website, “Understanding Evolution,” to

participate as an informed citizen in these elections, debates,

and processes. 

Roy L. Caldwell, Director of the University of California’s

(UC) Museum of Paleontology, and David Lindberg, Chair of

the Integrative Biology Department at UC Berkeley, developed the website’s content and administer it.1

 They applied

for a grant from the National Science Foundation (NSF)2 to

create a website “to provide professional development opportunities to broaden and deepen the disciplinary knowledge and

pedagogical skills of teachers, thus improving their ability to

deliver rich and challenging science, mathematics and technology education to all students.” NSF awarded the grant on

May 10, 2001. 

1Professor Lindberg and the Museum Director are sued in their official

capacities as University employees, so we refer to them collectively as

“UC.” 

2Michael D. Piburn was the NSF Program Director at the time. As he

was sued in his official capacity, we substitute the current Program Director, David Campbell. 

CALDWELL v. CALDWELL 14083
The website consists of some 840 pages. Its stated purpose

is: 

Understanding Evolution is a non-commercial, education website, teaching the science and history of

evolutionary biology. This site is here to help you

understand what evolution is, how it works, how it

factors into your life, how research in evolutionary

biology is performed, and how ideas in this area

have changed over time. 

http://evolution.berkeley.edu. The website has a number of

subsites, one of which is “Understanding Evolution for

Teachers.” This subsite in turn is organized into a number of

sections, including one called “Misconceptions” that

addresses misconceptions about evolution and the mechanisms of evolution. Caldwell’s complaint focuses on a page

titled “Misconception: ‘Evolution and Religion are Incompatible.’ ” http://evolution.berkeley.edu/evosite/misconceps/IVA

andreligion.shtml. Beneath text elaborating the point3 is a cartoon that depicts a smiling scientist in a lab coat holding a fossil skull shaking hands with a smiling cleric in a collar

holding a book marked with a small cross. 

3The page has been edited over time, but in the version attached to the

complaint, opened with text that stated in full: 

Misconception: “Evolution and religion

are incompatible.”

Response: Religion and science (evolution) are very different

things. In science (as in science class), only natural causes are

used to explain natural phenomena, while religion deals with

beliefs that are beyond the natural world. 

The misconception that one has to choose between science and

religion is divisive. Most Christian and Jewish religious groups

have no conflict with the theory of evolution or other scientific

findings. In fact, many religious people, including theologians,

feel that a deeper understanding of nature actually enriches their

faith. Moreover, in the scientific community, there are thousands

of scientists who are devoutly religious and also accept evolution.

14084 CALDWELL v. CALDWELL
Caldwell alleges that the site endorses the religious viewpoint that religious beliefs are limited to the spiritual world;

that the theory of evolution is not in conflict with properly

understood Christian religious beliefs; that the “Misconception” page links to a National Center for Science Education

(NCSE) web page that includes statements by many religious

organizations in support of the endorsed position that most

Christian and Jewish religious groups have no conflict with

the theory of evolution; and that the site seeks to proselytize

public school students and the public to adopt these viewpoints. The complaint avers that Caldwell is offended by the

government’s endorsement of religions and religious denominations when she visits the site; that people such as she who

believe that their religious belief is incompatible with evolutionary theory are made to feel like outsiders by the State of

California and the United States; and that she has been

exposed to the government-endorsed religious messages to

her harm because UC has opened the site to the general public. Caldwell requests an injunction restraining publication of

the website and a judgment declaring that inclusion of the

religious and anti-religious materials in the Understanding

Evolution website is unconstitutional. 

UC and NSF moved to dismiss for lack of standing. The

district court held that Caldwell failed to make out taxpayer

standing with respect to both the federal and state parties, an

issue that is not appealed. Relying on Valley Forge Christian

College v. Americans United for Separation of Church and

State, Inc., 454 U.S. 464, 472 (1982), the court also found that

Caldwell’s allegations constitute no more than the generalized

grievances of one who observes government conduct with

which she disagrees. Accordingly, it dismissed the complaint

on the ground that Caldwell has not shown injury in fact. 

Meanwhile, Caldwell had moved at oral argument for leave

to amend her complaint to include additional allegations that

the Understanding Evolution website is aimed at the general

public as well as at K-12 teachers, and that UC has expressly

CALDWELL v. CALDWELL 14085
invited members of the general public to visit and use the

website. Asked to clarify its dismissal order in this respect,

the court explained that it denied leave to amend because the

additional allegations would have no bearing on whether

Caldwell adequately alleged cognizable injury in fact given

that the court’s decision was based on the understanding that

UC’s website was always open to the public. 

Caldwell timely appealed. 

II

[1] We first consider the status of Caldwell’s action against

NSF because mootness has been suggested. Paragraph 16 of

the complaint alleges that the grant “runs through October 31,

2006,” and ¶ 19 avers: “The grant started on April 1, 2001,

and expires on October 31, 2006.” The government represents

that this is so, i.e., the grant in fact expired on October 31,

2006, and that no funding has occurred since then or is likely

to occur in the future. See Chandler v. Miller, 520 U.S. 305,

313 n.2 (1997). Caldwell does not seriously contend otherwise. For these reasons, the appeal as to NSF is moot. 

III

Next we address Caldwell’s contention that she could have

added amendments to her complaint that would have sufficiently pleaded injury in fact, as well as meritorious Establishment Clause claims. There is no issue as to the latter because

the merits were neither reached by the district court nor raised

on appeal. As to standing, the proffered amendments would

be meaningless because ¶ 26 of the complaint already alleges

that UC opened the Understanding Evolution website to the

public. Both the district court, and we, take it as true for purposes of whether dismissal is proper that, as pled, the website

is public. 

14086 CALDWELL v. CALDWELL
IV

The heart of Caldwell’s position is that Valley Forge,

embraced as the controlling authority by UC and the district

court, is inapposite and that the “cross” cases, exemplified by

Buono v. Norton, 371 F.3d 543 (9th Cir. 2004), provide the

more apt analogy. See also Separation of Church and State

Comm. v. City of Eugene, 93 F.3d 617 (9th Cir. 1996)

(SCSC); Ellis v. City of La Mesa, 990 F.2d 1518 (9th Cir.

1993). Caldwell submits that, like the plaintiffs in those cases,

she also came into direct contact with a religious symbol on

property owned by the government which she finds offensive;

and that, just as the inability of plaintiffs in those cases freely

to use public land sufficed as injury in fact, so too should it

suffice that she is inhibited from freely using a government

resource without running into religious symbols and theological statements which offend her. 

[2] A party has Article III standing if she suffers an “injury

in fact,” the injury is fairly traceable to the challenged conduct, and the injury is likely to be redressed by a favorable

judicial decision. Buono, 371 F.3d at 546; see Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Even so,

“the Court has refrained from adjudicating ‘abstract questions

of wide public significance’ which amount to ‘generalized

grievances,’ pervasively shared and most appropriately

addressed in the representative branches.” Valley Forge, 454

U.S. at 474-75 (quoting Warth v. Seldin, 422 U.S. 490, 499-

500 (1975)). 

[3] In Valley Forge, Americans United for Separation of

Church and State along with four of its employees, based in

the Washington, D.C. area, learned through a news release

that surplus government property had been transferred to Valley Forge Christian College in Chester County, Pennsylvania.

They challenged the transfer on Establishment Clause

grounds. The Court held that Americans United were without

standing as taxpayers, and had not established standing by virCALDWELL v. CALDWELL 14087
tue of an injury in fact. Elaborating the requirement for injury

in fact, the Court observed that it is not enough for a party to

claim that the Establishment Clause has been violated; “[s]uch

claims amount to little more than attempts to employ a federal

court as a forum in which to air . . . generalized grievances

about the conduct of government.” Id. at 483 (internal quotations and citations omitted). Thus, the complaint of Americans United was deficient because “[t]hey fail to identify any

personal injury suffered by them as a consequence of the

alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct

with which one disagrees. That is not an injury sufficient to

confer standing under Art. III, even though the disagreement

is phrased in constitutional terms.” Id. at 485-86 (emphasis in

original).4

In Buono, the plaintiff, a retired employee of the Park Service who had been Assistant Superintendent of the Mojave

National Preserve and regularly visited it, complained that a

Latin cross atop Sunrise Rock violated the Establishment

Clause and was offensive to him. He regarded the cross as

offensive because it was on federal property — not because

of the cross as such — and the district court found that Buono

would tend to avoid Sunrise Rock as long as the cross

remained standing. We held that Valley Forge “drew a distinction between abstract grievances and personal injuries, not

ideological and religious beliefs,” 371 F.3d at 547, and that

Buono’s inhibition from freely using the Preserve sufficed as

4Having so concluded, the Court reiterated that standing may be predicated on noneconomic injury, citing United States v. SCRAP, 412 U.S. 669

(1973). SCRAP recognized that plaintiffs who used natural resources for

recreational and aesthetic purposes that would be adversely affected by a

municipal fee had standing, as they alleged specific and perceptible harm

that distinguished them from other citizens who had not used these

resources. In Valley Forge, however, the Court “simply [could not] see . . .

injury of any kind, economic or otherwise.” Id. at 486 & n.23 (emphasis

in original). 

14088 CALDWELL v. CALDWELL
injury in fact5

 and constituted “personal injury suffered . . . as

a consequence of the alleged constitutional error.” Id.

(emphasis in original) (quoting Valley Forge, 454 U.S. at

485). 

Since Buono, we have also considered standing to pursue

an Establishment Clause challenge in the context of a government seal. In Vasquez v. Los Angeles County, a county

employee was forced to have daily contact with a county seal

from which a cross had been removed and which he regarded,

for this reason, as an offensive anti-religious symbol. 487

F.3d 1246, 1249 (9th Cir. 2007). We held that Vasquez had

standing even though he had taken no affirmative steps to

avoid areas where the symbol was located; we did not think

it necessary to require a change of behavior — in his case, to

quit his job — in order to vindicate spiritual harm from

unwelcome direct contact with an allegedly offensive religious (or anti-religious) symbol. Nor did we think Vasquez’s

contact with the symbol too tenuous, indirect, or abstract to

give rise to Article III standing given that he held himself out

as a member of the community where the seal was located, as

someone forced into frequent regular contact with it, and as

someone directly affected by unwelcome direct contact with

a symbol that was pervasively on display. We thought Valley

Forge distinguishable in this respect, because the plaintiffs

there were physically removed from the allegedly unconstitutional conduct, and because Vasquez had alleged more than

“a mere abstract objection” to removal of the cross from the

county seal. Id. at 1251 (quoting Suhre v. Haywood County,

131 F.3d 1083, 1086 (4th Cir. 1997)). 

Caldwell’s situation does not fit neatly into a place already

5We had so held before in SCSC, 93 F.3d at 619 n.2, and Ellis, 990 F.2d

at 1523. In each, parties offended by the presence of a cross on government property alleged that the cross prevented them from unreservedly

using the area where the cross was installed. See Buono, 371 F.3d at 547

(citing both cases). 

CALDWELL v. CALDWELL 14089
staked out along the continuum of Establishment Clause

standing. She is neither so removed from the conduct challenged as the plaintiffs were in Valley Forge, nor so close as

the plaintiff was in Vasquez. Her connection to the writing on

the website is more tenuous than Buono’s to the Preserve

where the offending symbol was a Latin cross that was permanently installed on a top of a hill, while her complaint is

more abstract and her contact less forced than Vasquez’s. 

It is instructive to compare School District of Abington v.

Schempp, 374 U.S. 203 (1963), and Doremus v. Board of

Education, 342 U.S. 429 (1952), as the Supreme Court did in

Valley Forge. 454 U.S. at 486 n.22. Schempp is the source of

the rule which informed our decision in the seal case, that

unwelcome direct contact with an allegedly offensive religious or anti-religious symbol, suffices for Article III standing. See Vasquez, 487 F.3d at 1251-53. In Schempp, children

enrolled in public school together with their parents objected

to a Bible reading in the classroom that was mandated by state

law. The Court found the interests asserted sufficient for

standing because these plaintiffs were “directly affected by

the laws and practices against which their complaints are

directed.” Schempp, 374 U.S. at 224 n.9. This contrasts with

Doremus, in which the same issues were raised but in which

parents lost standing to sue when their children were graduated. 342 U.S. at 432-33. See also Elk Grove Unified School

Dist. v. Newdow, 542 U.S. 1, 12-18 (2004) (holding that parent whose custodial rights were unclear lacked prudential

standing to pursue an Establishment Clause claim aimed at

recitation of the Pledge of Allegiance in his daughter’s classroom). As the Court explained in Valley Forge, “[t]he plaintiffs in Schempp had standing, not because their complaint

rested on the Establishment Clause — for as Doremus demonstrated, that is insufficient — but because impressionable

schoolchildren were subjected to unwelcome religious exercises or were forced to assume special burdens to avoid

them.” 454 U.S. at 486 n.22. 

14090 CALDWELL v. CALDWELL
[4] We conclude that Caldwell’s asserted interest —

informed participation as a citizen in school board meetings,

debates, and elections, especially with respect to selection of

instructional materials and how teachers teach the theory of

evolution in biology classes in the public schools — is not

sufficiently differentiated and direct to confer standing on her

to challenge the University of California’s treatment of religious and anti-religious views on evolution. An interest in

informed participation in public discourse is one we hold in

common as citizens in a democracy. While people inside and

outside the academy may (and do) take different views in the

ongoing debate over whether science and religion may coexist, Caldwell’s offense is no more than an “abstract objection”

to how the University’s website presents the subject. The

court must refrain from becoming “a ‘judicial version[ ] of

college debating forums.” Vasquez, 487 F.3d at 1251 (quoting

Valley Forge, 454 U.S. at 473). That she is the parent of

school-age children makes her position no less remote, for her

connection to the University of California website is not similar to the relationship in Schempp between parents whose

children are directly exposed to unwelcome religious exercises in the classroom and the school district. Accordingly, we

believe there is too slight a connection between Caldwell’s

generalized grievance, and the government conduct about

which she complains, to sustain her standing to proceed. 

AFFIRMED. 

FLETCHER, Circuit Judge, concurring: 

I concur in the majority opinion. I write separately to elaborate more fully why Caldwell lacks standing. 

Caldwell’s injury is limited to “the psychological consequence presumably produced by observation of conduct with

which one disagrees.” Valley Forge Christian Coll. v. AmeriCALDWELL v. CALDWELL 14091
cans United for Separation of Church and State, Inc., 454

U.S. 464, 485 (1982). Caldwell does not allege that her children’s school has incorporated the offending views expressed

on the UE website into its science curriculum or that her children’s biology teacher articulated them in response to a student’s question. Thus, there is no allegation that Caldwell’s

children or Caldwell herself were “directly affected” by the

offensive content of the UE website. Cf. School District of

Abington v. Schempp, 374 U.S. 203, 224 n.9 (1963) (holding

that public school pupils and their parents who objected to

Bible reading in school had standing because they were “directly affected by the laws and practices against which their

complaints [were] directed”). 

Caldwell also does not allege that her contact with the

offensive views expressed on the UE website was “frequent

and regular” or “unwelcome.” Vasquez v. Los Angeles

County, 487 F.3d 1246, 1251, 1252 (9th Cir. 2007). There is

no allegation that Caldwell had any reason to visit the offending web page more than once. Cf. id. at 1248, 1249, 1253

(holding that county resident and employee who had daily,

unwelcome contact with allegedly anti-religious county seal

had standing). Nor did the single offending web page prevent

Caldwell from freely using the rest of the UE website: the site

comprises approximately 840 pages, each of which can be

viewed without having first viewed the offending page. Cf.

Buono v. Norton, 371 F.3d 543, 547 (9th Cir. 2004) (holding

that plaintiff who was “unable to freely use” the area of the

Mojave National Preserve around a Latin cross because of the

government’s allegedly unconstitutional actions had standing

(internal quotation marks, editorial marks, and citation omitted)). 

Moreover, while “[w]e have repeatedly held that inability

to unreservedly use public land suffices as injury-in-fact,” id.

(citation omitted), I am not persuaded that inability unreservedly to use a government-run website necessarily also suffices

as injury-in-fact. Accessing and leaving a website is quick and

14092 CALDWELL v. CALDWELL
easy, and the alleged offense from the content of one page out

of 840 that one need not read or tarry over is fleeting at best.

While in certain cases the inability to access a governmentrun website due to allegedly unconstitutional content may

well confer standing, I conclude that Caldwell’s injury is too

de minimis to satisfy the standing doctrine’s core aim of “improving judicial decision-making by ensuring that there is a

specific controversy before the court and that there is an advocate with sufficient personal concern to effectively litigate the

matter.” Vasquez, 487 F.3d at 1250 (internal quotation marks,

editorial marks, and citation omitted).

CALDWELL v. CALDWELL 14093