AMERICAN HUMANIST ASSOCIATION, INC.; JOHN DOE, individually, and as parent and next friend of Doe Child-1 and Doe Child-2; DOE CHILD-1, a minor; DOE CHILD-2, a minor; JACK ROE, individually and as a parent on behalf of a minor; JANE ZOE, individually and as a parent on behalf of a minor, Plaintiffs - Appellants,
DOUGLAS COUNTY SCHOOL DISTRICT RE-1; DOUGLAS COUNTY BOARD OF EDUCATION; ELIZABETH CELANIA-FAGEN, in her official capacity as Superintendent of Douglas County School District; JOHN GUTIERREZ, in his official capacity as Principal of Cougar Run Elementary School; JERRY GOINGS, in his official capacity as Principal of Highlands Ranch High School, Defendants - Appellees, and JILL ROE, individually and as a parent on behalf of a minor, Plaintiff, and MICHAEL MUNIER, in his individual capacity; WENDY KOCESKI, in her official capacity as Elementary Principal of SkyView Academy; LISA NOLAN, in her official capacity as Executive Director of SkyView Academy, Defendants.
from the United States District Court for the District of
Colorado (D.C. No. 1:14-CV-02878-RBJ)
A. Niose (Monica L. Miller, with him on the briefs), American
Humanist Association, Washington, D.C., for
V. Hall (Stacy Kourlis Guillon, with him on the brief), Lewis
Roca Rothgerber Christie, LLP, Denver, Colorado, for
LUCERO, HARTZ, and McHUGH, Circuit Judges.
LUCERO, Circuit Judge.
families with children enrolled in the Douglas County School
District RE-1 ("DCSD") and the American Humanist
Association ("AHA"), filed this action challenging
various DCSD practices as violations of the Establishment
Clause and the Equal Access Act ("EAA"). They
contend that DCSD has engaged in a pattern and practice of
promoting Christian fundraising efforts and permitting
faculty participation in Christian student groups. Although
we have no doubt that plaintiffs are genuinely and fervently
committed to righting what they view as an injustice, "a
generalized grievance, no matter how sincere, is insufficient
to confer standing." Hollingsworth v. Perry,
133 S.Ct. 2652, 2662 (2013) (quotation omitted). Most of the
plaintiffs have failed to demonstrate that they or their
children experienced "personal and unwelcome contact
with government-sponsored religious" activities.
Awad v. Ziriax, 670 F.3d 1111, 1122 (10th Cir. 2012)
(quotation omitted). Further, they have not made out a case
for municipal taxpayer standing because they have not shown
an expenditure of municipal funds on the challenged
sole exception is plaintiff Jane Zoe. She contends that DCSD
violated the Establishment Clause when school officials
announced they were "partnering" with a Christian
student group and solicited her and her son for donations to
a "mission trip." The district court held that
because Zoe's contacts with the challenged actions were
not conspicuous or constant, she did not suffer an injury for
standing purposes. We find no support in our jurisprudence
for the proposition that an injury must meet some threshold
of pervasiveness to satisfy Article III. As the Supreme Court
has explained, "an identifiable trifle is enough for
standing to fight out a question of principle."
United States v. Students Challenging Regulatory Agency
Procedures (SCRAP), 412 U.S. 669, 689 n.14 (1973)
(quotation omitted). We conclude that Zoe possesses standing
to seek retrospective relief. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm in part and reverse in part.
complaint identifies several different schools and groups of
school officials. We describe the facts as they relate to
each family of plaintiffs.
two children attend Cougar Run Elementary. In 2014, Zoe and
her son were asked to participate in a fundraising event for
a spring break mission trip to Guatemala organized by a
student at Highlands Ranch High School ("HRHS"),
Amanda Berry. Berry planned the trip through an organization
called Adventures in Missions ("AIM"). AIM is a
Christian group that arranges evangelical mission trips to
various destinations. Berry discussed the trip at a meeting
of the HRHS Fellowship of Christian Athletes
("FCA"), a non-curricular club at the school. After
other students expressed interest in participating, Berry
arranged for several fundraisers through the FCA to help
students pay trip expenses.
HRHS teachers, Alex Malach and Bradley Odice, agreed to
chaperone the trip. They both participated in fundraising
activities. Donors were directed to make checks payable to
HRHS, and those funds were deposited into a student-activity
account held by the school. Malach created flyers for some of
the fundraising events, which provided her school email
account as the contact for any questions. Odice also sent an
email containing a flyer to a Cougar Run employee and
encouraged her to share it with staff.
February 2014, Micki Benge, a teacher at Cougar Run, emailed
Odice and Malach about organizing a supply drive for the
Guatemala trip. Malach responded that she was "in
charge" of "the trip to Guatemala as a whole"
and would be happy to involve Cougar Run students. On March
6, Benge sent an email to the Cougar Run staff stating that a
supply drive for the Guatemala trip would occur the following
week. The email states: "We are partnering with HRHS on
this effort - specifically the FCA (Fellowship of Christian
Athletes) organization." In a follow-up email about the
supply drive, Benge told teachers "we appreciate any
positive talk you can give it in your classrooms."
March 10, Zoe received an email from her son's teacher,
Cammile Espinosa, forwarding Benge's March 6 message
requesting supply donations for the Guatemala trip in
partnership with FCA. At the beginning of the forwarded
message, Espinosa wrote: "Parents, A great opportunity
to pay it forward! Thank you in advance for your
support!" Zoe's son was also sent home with a flyer
describing the supply drive. The flyer indicates that the
supply drive is "Sponsored by Cougar Run 6th Graders
partnering with the FCA (Fellowship of Christian Athletes),
" that "FCA students will take [donated supplies]
with them to run camps during their Spring Break mission to
San Pedro, " and that monetary donations can be provided
with "checks payable to Cougar Run Elementary."
her son showed her the flyer, Zoe told him that they would
not be supporting the fundraiser. Zoe avers that her son
"felt coerced into participating and contributing to
this religious fundraiser" and that school officials
"expected participation." She states that
"[a]s non-Christians, the school's actions in
promoting and endorsing a Christian organization . . . made
us feel like outsiders and unwelcome in our own
members from HRHS later visited Cougar Run to pick up the
supplies donated by students. The group visited Guatemala in
March 2014. They engaged in various proselytizing activities
during the trip, some of which were aided by the supplies
raised at Cougar Run.
intends to send her children to Cresthill Middle School and
HRHS. She learned during this litigation that a teacher at
HRHS worked with a teacher at Cresthill to introduce FCA at
Cresthill. At HRHS, faculty advisors initiated prayers with
students at FCA meetings and led various club activities.
Several teachers attended FCA meetings not as supervisors,
but simply to be part of the group. Zoe also identifies as
problematic an annual prayer event called "See You at
the Pole, " which takes place before school hours at
HRHS. Numerous faculty members take part in this event, and
HRHS teachers have used their school email addresses to
invite Christian pastors to the gathering.
and Jill Roe have a son at Douglas County High School
("DCHS") and a daughter they intend to send to DCHS
as a freshman for the 2017-18 school year. In December 2014,
when the Roes' son was a junior at DCHS, two DCHS
teachers promoted participation in Operation Christmas Child
("OCC") during their Freshman Transition classes.
OCC is a program run by an evangelical Christian
organization, Samaritan's Purse, which collects boxes to
send to impoverished children in third world countries during
the Christmas season. Christian reading materials are also
inserted in the boxes at processing facilities. The Roes'
son did not personally encounter any OCC-related activities.
this litigation, the Roes learned that the FCA advisor at
DCHS, Lon Smith, had a particularly active role in FCA, which
suggested a greater involvement in the group than mere
faculty supervisor. Smith directed student questions about
FCA to himself in morning announcements and frequently
referred to the club using the first person plural. The Roes
also discovered that DCHS teachers distributed information
regarding an FCA football camp using school email addresses.
The Roes state that these activities are troubling to them,
and they are reconsidering whether to send their daughter to
Doe is the parent of two children at a charter school in
DCSD. Both children are also plaintiffs in this litigation.
Doe originally brought claims against officials at his
children's school, but voluntarily dismissed one official
and settled his remaining claims as to the charter school.
Doe's remaining claims against DCSD are based solely on
his assertion of municipal taxpayer standing.
adult plaintiffs assert municipal taxpayer standing based on
the activities at their children's respective schools as
well as a number of actions at other DCSD schools. They note
that in 2012, Rockridge Elementary included in its spirit
week fundraising activities an event related to the Tim Tebow
Foundation, a Christian charity. They also point to OCC
activities and faculty participation in FCA clubs at a number
of schools throughout the district. And plaintiffs contend
that DCSD leaders tolerate what they view as endorsement of
filed suit in October 2014, bringing claims both individually
and as next friends of their children. They allege that
defendants violated the First Amendment by endorsing
Christianity, and violated the EAA, 20 U.S.C. § 4071(c),
by permitting faculty to participate in Christian student
groups. They sought nominal damages; a declaratory judgment
that defendants' actions violated the Establishment
Clause and the EAA; and a permanent injunction prohibiting
defendants from affiliating with any religious organization,
using school ...