Cope v. Kan. State Bd. of Educ.

• Decision Date: 02 December 2014
• Docket Number: Case No. 13–4119–DDC–JPO.
• Citation: 71 F.Supp.3d 1233
• Court: U.S. District Court — District of Kansas
• Parties: COPE (a.k.a. Citizens for Objective Public Education, Inc.), et al., Plaintiffs, v. KANSAS STATE BOARD OF EDUCATION, et al., Defendants.

71 F.Supp.3d 1233

COPE (a.k.a. Citizens for Objective Public Education, Inc.), et al., Plaintiffs

v.KANSAS STATE BOARD OF EDUCATION, et al., Defendants.

Case No. 13–4119–DDC–JPO.

United States District Court, D. Kansas.

Signed Dec. 2, 2014.

Douglas J. Patterson, Michelle W. Burns, Kellie K. Warren, Property Law Firm, LLC, Leawood, KS, John H. Calvert, Calvert Law Office, Kansas City, MO, Kevin T. Snider, Pacific Justice Institute, Sacramento, CA, for Plaintiffs.

Cheryl L. Whelan, Jeffrey A. Chanay, Stephen O. Phillips, Office of Attorney General, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, 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. Plaintiffs¹ 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 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 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.Appx. 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 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...