Am. Humanist Ass'n, Inc. v. Douglas Cnty. Sch. Dist. Re-1

859 F.3d 1243

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,andJill Roe, individually and as a parent on behalf of a minor, Plaintiff,

v. 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,andMichael 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.

No. 16-1049

United States Court of Appeals, Tenth Circuit.

Filed June 20, 2017

David A. Niose (Monica L. Miller, with him on the briefs), American Humanist Association, Washington, D.C., for Plaintiffs-Appellants.

Eric V. Hall (Stacy Kourlis Guillon, with him on the brief), Lewis Roca Rothgerber Christie, LLP, Denver, Colorado, for Defendants-Appellees.

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.

LUCERO, Circuit Judge.

Plaintiffs, 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 , ––– U.S. ––––, 133 S.Ct. 2652, 2662, 186 L.Ed.2d 768 (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 activities.

The 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, 93 S.Ct. 2405, 37 L.Ed.2d 254 (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.

I

Plaintiffs' complaint identifies several different schools and groups of school officials. We describe the facts as they relate to each family of plaintiffs.

A

Zoe's 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.

Two 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.

In 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."

On 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."

After 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 community."

FCA 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.

Zoe 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.

B

Jack 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.

During 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 DCHS.

C

John 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.

All 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 religion.

D

Plaintiffs...