PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

COPE, a/k/a 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 her 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; K.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 Leiby as Next Friends; P.L., a Minor, 

by and through his parents Michael Leiby 

No. 14-3280 

FILED 

United States Court of Appeals

Tenth Circuit 

April 19, 2016

Elisabeth A. Shumaker 

Clerk of Court

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and Bre Ann Leiby as Next Friends; Z.L., a 

Minor, by and through his parents Michael 

Leiby and Bre Ann Leiby 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 - Appellants, 

v. 

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 

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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; 

KANSAS STATE DEPARTMENT OF 

EDUCATION; BRAD 

NEUENSWANDER, Acting 

Commissioner of the Kansas State 

Department of Education, in her official 

capacity only, 

 Defendants - Appellees. 

_________________________________ 

Appeal from the United States District Court 

for the District of Kansas 

(D.C. No. 5:13-CV-04119-DDC-JPO)

_________________________________ 

John H. Calvert, Calvert Law Firm, Kansas City, Missouri, (Michelle W. Burns, Kellie 

K. Warren, and Douglas J. Patterson, Property Law Firm, Leawood, Kansas; Kevin Trent 

Snider, Pacific Justice Institute, Sacramento, California, on the briefs), for PlaintiffsAppellants. 

Dwight Carswell, Office of the Attorney General for the State of Kansas, Topeka, 

Kansas, (Jeffrey A. Chanay, Cheryl L. Whelan, and Stephen Phillips, Office of the 

Attorney General for the State of Kansas, Topeka, Kansas; Richard Scott Gordon, Kansas 

State Department of Education, Topeka, Kansas, on the briefs), for DefendantsAppellees. 

_________________________________ 

Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges. 

_________________________________ 

LUCERO, Circuit Judge. 

_________________________________ 

 In 2013, the Kansas Board of Education (the “Board”) adopted curriculum 

standards establishing performance expectations for science instruction in 

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kindergarten through twelfth grade. Appellants—Citizens for Objective Public 

Education, Kansas parents, and school children (collectively, “COPE”)—contend that 

although the standards purport to further science education, their concealed aim is to 

teach students to answer questions about the cause and nature of life with only nonreligious explanations. COPE thus claims injury under the Establishment Clause 

because: (1) the Board’s adoption of the Standards has communicated a religious 

symbol or message and breached plaintiff parents’ trust; and (2) Kansas schools’ 

implementation of the Standards is imminent and will result in anti-religious 

instruction. COPE also asserts two plaintiffs have standing as taxpayers who object 

to their tax dollars being used to implement the Standards. The district court 

disagreed, and dismissed the suit without prejudice for lack of standing. 

We conclude all three theories of injury fail. Exercising jurisdiction under 

28 U.S.C. § 1291, we affirm. 

I 

In 2011, the National Research Council1

 published the Framework for K-12 

Science Education: Practices, Crosscutting Concepts, and Core Ideas (the 

“Framework”). The Framework was intended to “articulate a broad set of 

expectations for students in science” through twelfth grade. Based on the 

Framework, a group of 26 states developed and published the Next Generation 

 1

 The National Research Council is the principal operating agency of the 

National Academy of Sciences—a non-governmental organization organized under 

Congressional charter in 1863 to advise the federal government on scientific and 

engineering issues. 

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Science Standards (the “NGSS”) to “provide performance expectations that depict 

what . . . student[s] must do to show proficiency in science.” In 2013, the Board 

adopted the Framework and NGSS (together, the “Standards”) pursuant to a Kansas 

state law requiring the Board to adopt curriculum standards. Kan. Stat. § 72-

6479(b).2

 

As the Standards themselves state, they are “not intended to define course 

structure.” Instead, Kansas law provides that they are guideposts for school districts, 

which retain control to shape and adopt their own curricula. Kan. Stat. § 72-6479(b) 

(curriculum standards “shall [not] be construed in any manner so as to impinge upon 

any district’s authority to determine its own curriculum”). Thus, the Standards 

simply establish performance expectations for what students should “know and be 

able to do” at each grade level.3

 Kan. Admin. Regs. § 91-31-31(d). Accordingly, they 

acknowledge that they “do not prescribe specific curricula, [although] they do 

provide some criteria for designing curricula.” And they expressly state that teachers 

 2

 The parties cite Kan. Stat. § 72-6439. Kansas repealed § 72-6439 effective 

July 1, 2015. 2015 Kansas Session Laws Ch. 4 § 81. But the legislature enacted a 

new statute that contains all of the provisions previously in § 72-6439. 2015 Kan. 

Sess. Laws Ch. 4 § 20; Kan. Stat. § 72-6479. For ease, we cite the new statute. 

3

 For example, the “Biological Evolution” section of the Standards states that 

by the end of grade two students should know that “[s]ome kinds of plants and 

animals that once lived on Earth (e.g., dinosaurs) are no longer found anywhere”; 

“[l]iving things can only survive where their needs are met”; and “there are many 

different kinds of living things in any area, and they exist in different places on land 

and in water.” 

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may go “beyond the standards to ensure their students’ needs are met” and that 

educators and curriculum developers maintain a “great deal of discretion.” 

COPE is an organization formed to promote the religious rights of parents, 

students, and taxpayers. Its members include individuals whose children are, or 

expect to be, enrolled in Kansas public schools. COPE alleges that the Standards 

violate the Establishment Clause, U.S. Const. amend. I, by seeking to establish a nonreligious worldview in the guise of science education.4

 It argues that such a 

worldview will be inculcated in children throughout their thirteen-year public school 

experience by requiring students, beginning in kindergarten, to answer questions 

about the cause and nature of life with only scientific, non-religious explanations. 

COPE contends that the Standards omit relevant evidence, and are driven by a covert 

attempt to guide children to reject religious beliefs. However, COPE appears not to 

object to the Standards’ methods generally, having conceded that the methods 

“ha[ve] utility in many areas of science.” Nor does COPE categorically object to 

 4

 COPE’s complaint also alleges that the Standards violate the First 

Amendment’s Free Exercise and Free Speech Clauses and the Fourteenth 

Amendment’s Equal Protection Clause. COPE makes only passing references to 

these claims on appeal. In particular, COPE does not identify or apply the test for 

determining whether a cognizable injury exists for these claims. See Ward v. Utah, 

321 F.3d 1263, 1267 (10th Cir. 2003) (test for speech claim); see also Ne. Fla. 

Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 

666 (1993) (test for equal protection claim). Instead, COPE limits its arguments to 

demonstrating standing under the Establishment Clause. Accordingly, any challenge 

to the district court’s dismissal of COPE’s Free Exercise, Free Speech, and 

Fourteenth Amendment claims is waived, Adler v. Wal-Mart Stores, Inc., 144 F.3d 

664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are 

waived.”), and we exclusively consider whether COPE has suffered a cognizable 

injury under the Establishment Clause. 

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teaching evolution or origins science. Rather, it proposes that all biological theories, 

including evolution, should be taught “objectively to generate a religiously neutral 

effect.” COPE also objects to teaching origins science to young children before they 

are mature enough to critically analyze scientific theory. Thus, it seeks a declaration 

that the Standards violate the Establishment Clause. It further seeks an injunction 

against implementation of the Standards in their entirety or, in the alternative, an 

injunction against teaching origins science until high school, and then requiring that 

it be taught in a manner COPE believes is objective. 

II 

The district court held that it lacked subject matter jurisdiction over this suit 

because COPE lacks standing. We review the district court’s determination 

regarding subject matter jurisdiction de novo. Niemi v. Lasshofer, 770 F.3d 1331, 

1344 (10th Cir. 2014). “For purposes of standing, we must assume the Plaintiffs’ claim 

has legal validity.” Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1092-93 

(10th Cir. 2006) (en banc). However, Plaintiffs must show an “injury in fact” that is: 

(1) “concrete, particularized, and actual or imminent”; (2) “fairly traceable to the 

challenged action”; and (3) “redressable by a favorable ruling.” Clapper v. Amnesty 

Int’l USA, 133 S. Ct. 1138, 1147 (2013). 

In the Establishment Clause context, “standing is clearly conferred by [injury 

to] non-economic religious values” but litigants must “identify a 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 

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which one disagrees.” Awad v. Ziriax, 670 F.3d 1111, 1122 (10th Cir. 2012). As the 

party invoking federal jurisdiction, COPE bears the burden of establishing these 

elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). And “each 

element must be supported in the same way as any other matter on which the plaintiff 

bears the burden of proof, i.e., with the manner and degree of evidence required at 

the successive stages of the litigation.” Id. at 561. At the pleading stage, we “must 

accept as true all material allegations of the complaint, and must construe the 

complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501 

(1975). “[G]eneral factual allegations of injury resulting from the defendant’s 

conduct may suffice” to support the claim. Lujan, 504 U.S. at 561. However, 

“[t]hreadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

Thus, plaintiffs must adequately allege a plausible claim of injury. Walker, 450 F.3d 

at 1089. 

COPE argues it suffered three injuries sufficient to support standing. It 

contends first that the adoption of the standards created an actual injury both by 

adopting a religious symbol and by breaching parents’ trust in the Kansas school 

system. It also argues that future injury is imminent because the standards compel 

Kansas schools to teach objectionable material. Finally, it alleges that two appellants 

have standing as taxpayers who object to their tax dollars being used for religious (or 

anti-religious) purposes. Each of COPE’s arguments fails. 

A 

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COPE alleges that the Board’s act of adopting the Standards, without more, 

created concrete injury-in-fact. COPE argues the Standards are a symbol of a nonreligious worldview, adoption of which violates the “right to be free from 

government that favors one religious view over another.” To support this claimed 

injury, COPE relies on Awad, 670 F.3d 1111, and American Atheists, Inc. v. 

Davenport, 637 F.3d 1095 (10th Cir. 2010). However, COPE does not allege any 

facts that suggest injury under either case. 

In Awad, we held that the adoption of a statute that singled out an individual 

religion for disfavored legal treatment is sufficient to cause injury to a member of 

that religion for standing purposes under the Establishment Clause. 670 F.3d at 

1122. The relevant statute in Awad targeted the Muslim religion explicitly and 

interfered with the plaintiff’s ability to practice his faith and access legal processes. 

Id. at 1120, 1122. We held that a statute that “expressly condemns” a particular 

religion and exposes its members to such disfavored treatment causes sufficient 

injury to support standing. Id. at 1123. But unlike the statute in Awad, the Standards 

do not condemn any or all religions and do not target religious believers for 

disfavored treatment. And COPE offers only threadbare assertions that the Standards 

intend to promote a non-religious worldview. Thus, COPE’s allegations regarding 

adoption amount to psychological consequences produced by observation of conduct 

with which it disagrees. Awad, 670 F.3d at 1122. This injury does not suffice. Id. 

Similarly, in American Atheists, Inc., we held plaintiffs had standing to challenge the 

placement of crosses along public roadsides as government-sponsored religious 

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symbols with which they had personal and unwelcome contact. 637 F.3d at 1114-

1115. But, again, unlike the plaintiffs in American Atheists, COPE does not offer 

any allegations to support the conclusion that the Standards are a governmentsponsored religious symbol. 

COPE also contends that the adoption breached its trust by violating both the 

parents’ right to direct their children’s religious education, and the children’s right to 

public education without religious (and non-religious) indoctrination, contrary to 

Edwards v. Aguillard, 482 U.S. 578 (1962).5

 In Edwards, the Court held that it is the 

parents’ right to direct the religious education of their children. 482 U.S. at 583-84. 

The Court noted that public schools must uphold the trust that the State will not use 

the classroom to “advance religious views that may conflict with the private beliefs 

of the student and his or her family,” id., and that families “condition their trust [of 

public schools] on the understanding that the classroom will not purposely be used to 

advance religious views,” id. at 584.6

 COPE argues that the Standards violate this 

 5

 Edwards and other cases COPE relies on do not discuss standing, and so do 

not stand for the proposition that a standing defect did not exist on the facts of those 

cases. Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144 (2011) 

(“When a potential jurisdictional defect is neither noted nor discussed in a federal 

decision, the decision does not stand for the proposition that no defect existed.”). 

Nevertheless, the analysis in these cases is instructive. Accord Awad, 670 F.3d at 

1121 n.6 (finding previous merits decisions instructive in defining the contours of 

standing under the Establishment Clause). 

6

 Although we do not reach the merits, we note that COPE asks the court to 

implement a requirement identical to the one imposed by the statute in Edwards. 

COPE frames the materialism of evolutionary theory as a religious belief competing 

with COPE’s own teleological religion, and demands that if evolution is taught, 

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trust by sending a message of religious endorsement to guide school districts; and by 

causing fear and anxiety that the students may have to opt-out of religiously biased 

classroom instruction. However, as noted supra, COPE does not offer any facts to 

support the conclusion that the Standards condemn any religion or send a message of 

endorsement. And any fear of biased instruction is premised on COPE’s predictions 

of school districts’ responses to the Standards—an attempt by COPE to recast a 

future injury as a present one. For reasons discussed infra, we reject this claim as 

well. 

B 

COPE also asserts injury because local school districts’ potential 

implementation of the Standards will cause science to be taught in a manner that 

violates religious liberties. For this potential future injury to support standing, the 

injury must be “certainly impending.” Clapper, 133 S. Ct. at 1147. But COPE 

acknowledges that the statute requiring the Board to adopt curriculum standards 

expressly preserves districts’ authority to determine their own curricula. Kan. Stat. 

§ 72-6479. And COPE concedes that it is possible that districts may not adopt the 

Standards, even if it perceives that possibility as remote.7

 Moreover, even if 

 

teleological origins theories must also be taught. The Edwards Court expressly held 

such a requirement unconstitutional. 482 U.S. at 592. 

7

 COPE argues that implementing the Standards is effectively or practically 

required—and thus certainly impending—because: (1) Kansas law requires that 

districts meet or exceed minimum requirements, and the adopted Standards can be 

viewed as the baseline for these requirements; (2) the Standards are intended to, and 

do, guide local revisions to curricula; (3) the Board controls accreditation and 

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implementation were certainly impending, we find nothing to suggest that injury 

from implementation is also impending. COPE alleges injury because it believes the 

Standards do not reflect an objective or neutral view of evolution, and require schools 

to teach science to young children who cannot critically analyze scientific theories. 

These claimed injuries would result from what is allegedly not in the Standards—an 

objective view of origins science. But nothing prevents school districts from adding 

to or altering the Standards as they develop curricula.8

 And the Standards themselves 

encourage districts to teach the limits of scientific knowledge. They state that 

students should “develop an understanding that . . . science and engineering . . . are 

human endeavors,” and that some science- or engineering-related questions have 

“moral . . . underpinnings that vary across cultures,” the answers to which are “not 

solved by scientific and engineering methods alone.” Moreover, the Kansas NGSS 

Review Committee expressly recommends that districts “push beyond these 

 

financing for teacher training, and may use these tools to guide curriculum 

development; (4) the districts have implemented similar standards in the past; (5) 

some districts are in the process of implementing the Standards; and (6) the 

Standards are detailed and comprehensive, so even though districts may change them, 

it is easier for them to simply adopt the Standards as-is. However, COPE did not 

raise any of these arguments below, and they are waived. Wilburn v. Mid-S. Health 

Dev., Inc., 343 F.3d 1274, 1280 (10th Cir. 2003). Moreover, these factors do not 

eliminate the districts’ discretion, and so do not demonstrate that implementation is 

beyond doubt or certainly impending. Clapper, 133 S. Ct. at 1147. 

8

 COPE argues that districts will likely implement the Standards without 

change. It is difficult to grasp how districts would do so, given the Standards’ 

statements that they are not curricula, and their plea that districts reach beyond the 

Standards to ensure students’ needs are met. Nevertheless, COPE asserts that 

implementation-without-change is an option, and we have assumed that assertion is 

accurate for purposes of our analysis. 

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standards” as they develop curricula. Because the Standards expressly recommend 

objective curricula, and the committee advises districts to add to the Standards, 

districts may choose to delve deeper into the limitations of the scientific method or to 

teach alternative origins theories.9

 In the face of this uncertainty, we cannot know 

whether COPE will find the curricula districts adopt adequately objective.10 

In sum, because the districts may choose not to adopt the Standards, or may 

alter the Standards in ways that alleviate Appellants’ concerns, potential future injury 

from the Standards themselves is speculative and insufficient to support standing.11 

 9

 Relatedly, COPE argues that it will be onerous or impossible for objecting 

parents to opt-out of the Standards, which will permeate all aspects of school 

curricula. But until school districts implement the Standards in an objectionable way, 

there is nothing to opt-out of. 

10 Regardless, COPE has not shown that these alleged future injuries are fairly 

traceable to the challenged action. Id. COPE acknowledges that evolution is the 

dominant origins theory in American culture, which suggests COPE would fear 

objectionable teaching of origins sciences even without the Standards’ 

recommendations. This suggestion is supported by COPE’s assertion below that the 

previous version of the Standards incorporated the same methods COPE finds 

objectionable in the new version. Thus, the alleged absence of objective curricula is 

not fairly traceable to the Standards. 

11 COPE’s alleged injuries are also not redressable by a favorable ruling. Id.

COPE asks us to issue a declaratory judgment and to enjoin the Standards either 

entirely or as applied to elementary and middle school students, and to require 

objective teaching of origins science in high school. But none of these remedies 

would redress the alleged threat of a biased, subjective version of evolution. Again, 

schools may incorporate the Standards or other curricula regardless of whether the 

Board has officially adopted them. And even with a favorable ruling from this court, 

schools could teach evolution in a manner COPE finds objectionable. 

Implementation therefore turns on the decisions of third-parties that are not before us. 

Allen, 468 U.S. at 757. We will not “endorse standing theories that require 

guesswork as to how independent decisionmakers will exercise their judgment.” 

Clapper, 133 S. Ct. at 1150. 

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C 

Finally, two appellants assert standing on the theory that they object to their 

tax dollars being spent to support the Standards. Appellants do not raise this 

argument in their opening brief, and so it is waived. Adler, 144 F.3d at 679. 

III 

The district court’s dismissal for lack of standing is AFFIRMED. 

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