Kansas NGSS Case — State’s Appeal Brief

Writing about creationist litigation can be interesting, but when such cases get to the appellate stage, it can be tedious to follow every step. At the appellate level there are no witnesses and no courtroom drama. The loser in the lower court files a brief, then the other side responds, and then months go by until finally the court makes a ruling.

That’s the situation we’re in now regarding what we call the Kansas NGSS Case. The correct name is in this link to the plaintiffs’ original complaint — it’s a 51-page pdf file: COPE et al. v. Kansas State Board of Education et al. The lead plaintiff’s initials stand for their Orwellian name, “Citizens for Objective Public Education.” Their suit was an attempt to invalidate the state’s adoption of the evolution-friendly Next Generation Science Standards (the “NGSS”).

We always recommend that you take a look at “Exhibit A,” starting on page 37 of the complaint. It’s a letter that COPE (one of the plaintiffs) wrote back in June 2012, listing their objections to what were then the state’s proposed science standards. It’s an amazing catalog of creationist arguments — one of the best collections we’ve ever seen, and is likely to be the only reason this case is remembered.

Among the lawyers for the creationist plaintiffs is John Calvert, who made a name for himself during the Kansas evolution hearings back in 2005. Wikipedia lists him among the participants and says that he “has worked closely with the Discovery Institute in finding constitutionally allowable ways to bring intelligent design and failing there, Teach the Controversy, into public schools.”

At the trial court level, the state filed a motion to dismiss based on, among other things, sovereign immunity, the plaintiffs have no standing, the science standards (the NGSS) are secular, not religious, and therefore they don’t violate the Constitution’s equal protection clause or restrict the plaintiffs’ right of free speech. Then — wonder of wonders! — that motion was granted and the case was dismissed.

Our friends at the National Center for Science Education (NCSE) are tracking the case and have an archive of the pleadings here: COPE v. Kansas State BOE. Also, you can find links to a lot of information at the Justia website: COPE et al v. Kansas State Board of Education et al, but you can’t access the court’s docket, which lists what’s been filed, and you can’t read the pleadings without a PACER subscription.

NCSE has archived a copy of the trial court judge’s order dismissing the case, which you can read here: Order on Motion to Dismiss. It’s a 37-page pdf file. COPE filed an appeal, and then their initial brief, which we discussed six weeks ago — see Kansas NGSS Case — Creationists’ Brief Is Filed. And that brings you up-to-date.

The big news today is that the state has filed their brief. NCSE has an article about it, Kansas answers COPE again, and they have a link to the state’s brief — BRIEF OF DEFENDANTS-APPELLEES. It’s a 64-page pdf file.

The issues the brief discusses are the same as in their motion to dismiss at the trial court level: the plaintiffs aren’t injured by the state’s adoption of the NGSS, local schools can adopt their own curricula, there’s no evidence that the standards are actually being implemented in any school where the plaintiffs have children enrolled, and the plaintiffs aren’t directly injured by the NGSS.

As we understand it, the state’s key argument is based on the plaintiffs’ lack of Standing, which Wikipedia describes as: “the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case.” The plaintiffs would have standing to sue the state if, for example they were contesting an unconstitutional tax the state was trying to collect from them, or a regulation being imposed on them, or some action like the misconduct of a state official that has directly injured them. But the plaintiffs’ “injury” in this case is only that they don’t like evolution. Wikipedia says:

In the United States, the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that he/she/it is or will “imminently” be harmed by the law. Otherwise, the court will rule that the plaintiff “lacks standing” to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. To have a court declare a law unconstitutional, there must be a valid reason for the lawsuit. The party suing must have something to lose in order to sue unless it has automatic standing by action of law.

The state’s brief, at page 10, says:

Plaintiffs’ Complaint alleges that the Science Standards “endorse a non-theistic religious worldview” in violation of the Establishment, Free Exercise, and Free Speech Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. In particular, Plaintiffs appear to challenge the teaching of scientific concepts such as evolution, and they advocate “objective” science education, by which they presumably mean a science curriculum that includes the teaching of intelligent design. According to Plaintiffs, the Science Standards represent a materialistic explanation of origins science that conflicts with what they call the “teleological hypothesis,” which teaches “that the apparent design that may be observed in many naturally occurring patterns may be real and therefore due to an intelligent cause.”


Contrary to Plaintiffs’ claims, the Science Standards do not address religious questions such as the existence of a god or gods, the purpose of life, or whether life exists after death. The Science Standards also do not condemn any specific religion or religion generally. Plaintiffs’ description of the Science Standards as “atheistic” is a gross mischaracterization.

All of this was thrashed out at the trial court level, where the judge properly dismissed the complaint. The appeal doesn’t introduce anything new. If you like reading legal briefs, go ahead and indulge yourself. We don’t see much reason to go any further into this than we already have.

The creationist appellants may have an opportunity to file a reply brief, and then, after many months, the appellate court will issue its ruling. We anticipate that they will easily affirm the trial court’s decision to dismiss the complaint. After that, the creationists can petition the US Supreme Court to review the matter, and if they do so, it’s likely that their petition will be denied, because there really isn’t anything new here that requires deciding.

We conclude the same way we did our last post about this case: Thus ends today’s episode of the creationist soap opera in Kansas. [*Emotional violin music swells in the background*] Will the good, god-fearing folks of Kansas triumph against the satanic evolutionists? Will the atheist state force its godless theory of evolution on the innocent children? Stay tuned for the next thrilling episode of Kansas, the Flat Earth State — Rapture or Retribution?

Copyright © 2015. The Sensuous Curmudgeon. All rights reserved.

add to del.icio.usAdd to Blinkslistadd to furlDigg itadd to ma.gnoliaStumble It!add to simpyseed the vineTailRankpost to facebook

. AddThis Social Bookmark Button . Permalink for this article

10 responses to “Kansas NGSS Case — State’s Appeal Brief

  1. michaelfugate

    I think COPE actually stands for Chemists for Outlawed Public Education…

    In other news, the Guardian reports that the Discovery Institute received $2.8M from climate change deniers to help spread the disinformation.

  2. Given SC’s famous skills to detect the hottest of all the hot creationist news I’m sure he hasn’t missed this, but simply doesn’t think it important enough to devote an entire article to it. Still it’s worth mentioning.


    I’m sure half the world population would be thrilled to look at the spectacular view of a bunch of pillars and cranes. What are you Americans waiting for?!

  3. Kansas courts better rule soon on this. They will soon not exist if their enlightened governor has anything to say about it it appears. Gov. Brownback has cut school funding so low with his slash and burn tax policies that Kansas is being sued that the levels of funding are below the constitutional minimums. Brownback (and not a few legislators in Kansas) do not want to be told to raise taxes so they’ve employed the nuclear option against the court system. Brownback wants to appoint his own judges (a non-partisan committee does so now) and chief judges. If he doesn’t get it, no money. If he gets his own judges, he’ll get the ruling he wants on funding it appears. Kansas Courts
    (Hope the URL is posted right.)

  4. “…local schools can adopt their own curricula, there’s no evidence that the standards are actually being implemented …”
    What!? Then why the court thing? And the acceptance of the science by the state if no one cares cuz they are doing their own thing??? Just plain weird. Another state not to hire people from as you will be lucky if they can write their own names.

  5. Diogenes' Lamp

    Calvert is quite dishonest even by ID standards. He has been pestering school boards for a decade and a half at least, and when testifying before the Kansas school board in 1999 he claimed he was a geologist.

    He’s a lawyer, and not a very sharp one. Most creationists inflate their credentials, but the ones who falsely call themselves “geologists” of “paleontologists” in front of school boards are especially nuts. +10 crazy points if you wear an Indiana Jones hat or safari vest.

    Oh, and on another occasion Calvert said that in WWII American heroes had fought and died to defeat the evolutionary theory (= Nazism), and here it is back again!

    Calvert’s the perfect ally for the Discovery Institute and Casey “I’m a geologist derpity derp” Luskin.

  6. Derek Freyberg


    The COPE case is actually being heard in Federal courts (now in the 10th Circuit), not Kansas state courts, so won’t be affected by Brownback’s latest shenanigans.
    But on that (defunding the Kansas state courts), it will be very interesting to see what happens. If the KS Supreme Court overturns the law, we may well see a Kansas version of Marbury v. Madison playing out in the 21st century. I don’t see the KS SC backing down.

  7. Diogenes' Lamp

    Brownback wants to be dictator, unhampered by pesky constitutions. Who does he think he is, Jeb Bush?

  8. “Standing” is a slippery notion.

    Technically, for instance, in the infamous Bush v. Gore case, George W. Bush had no standing to sue, since his lawyers’ argument was that Florida voters — not Bush himself — would be harmed by having their votes “diluted.” The courts ignored that argument, and it might likewise be rejected in this case.

  9. Yet another replay of that YECist lame claim:
    When science refuses to be religion, it becomes secular, and thereby science in our public schools becomes an anti-religion religion! And that means that the religion of secularism is being unconstitutionally imposed upon our religious students–because by failing to reinforce their religion, that is unfair blatant discrimination against their religion!

    Yes, I read the Exhibits and I do think that I’ve successfully captured the essence of their argument. I didn’t even need the 37 pages.

  10. At least a few years ago COPE was Jorge Fernandez and some other loon.