Date: 06-20-2017

Case Style:

Case Number: 16-1049

Judge: Lucero

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Kansas (Shawnee County)

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

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

Description: 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
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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 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 (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
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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
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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.”
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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
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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
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number of schools throughout the district. And plaintiffs contend that DCSD leaders
tolerate what they view as endorsement of religion.
D
Plaintiffs 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 resources or the school email
system to promote religious groups, or allowing district employees to pray and
proselytize while supervising student groups.
On cross motions for summary judgment, the district court concluded that
plaintiffs lacked standing. It held that Zoe did not have standing because her son’s
exposure to allegedly unconstitutional activities at Cougar Run lacked “a degree of
constancy or conspicuousness” present in similar cases. The court concluded that the
Roes did not possess standing because their son was not personally exposed to the
events described above at DCHS, and that any potential injury to their daughter was
not certainly impending. It further held that none of the plaintiffs fit within the zone
of interest protected by the EAA, and it rejected all plaintiffs’ claims of municipal
taxpayer standing. Finally, because none of the individual plaintiffs possessed
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standing, the court held that AHA lacked associational standing. Plaintiffs filed a
timely notice of appeal.1
II
We review de novo a district court’s dismissal for lack of standing. Merida
Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005). To establish Article III
standing, a plaintiff must show: (1) that he has “suffered an injury in fact”; (2) that
the injury is “fairly traceable to the challenged action of the defendant”; and (3) that
it is “likely” that “the injury will be redressed by a favorable decision.” Ariz.
Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133-34 (2011) (quotations and
alterations omitted).
“Each plaintiff must have standing to seek each form of relief in each claim.”
Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007). A plaintiff who has
suffered a concrete and particularized injury possesses standing to seek retrospective
relief. Tandy v. City of Wichita, 380 F.3d 1277, 1284 (10th Cir. 2004). “To seek
prospective relief, the plaintiff must be suffering a continuing injury or be under a
real and immediate threat of being injured in the future.” Id. at 1283. Past injuries
are relevant to showing a risk of future harm, but “past exposure to illegal conduct
does not in itself show a present case or controversy regarding injunctive relief if
unaccompanied by any continuing, present adverse effects.” City of Los Angeles v.
Lyons, 461 U.S. 95, 102 (1983) (quotation and alterations omitted).
1 Jill Roe did not appeal.
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We have previously noted that “the concept of injury for standing purposes is
particularly elusive in Establishment Clause cases.” Awad, 670 F.3d at 1120
(quotation omitted). In Valley Forge Christian College v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464 (1982), the Supreme Court held that
plaintiffs lacked standing to challenge a transfer of surplus federal property to a
religious college because they failed to “identify any 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
which one disagrees.” Id. at 485 (emphasis omitted). However, the Court made clear
that it was not rejecting its “earlier holdings that standing may be predicated on
noneconomic injury.” Id. at 486. It reaffirmed the standing of schoolchildren and
parents “who are directly affected by the laws and practices against which their
complaints are directed.” Id. at 486 n.22 (quoting Sch. Dist. of Abington Twp. v.
Schempp, 374 U.S. 203, 224 n.9 (1963)). Such plaintiffs possess standing “because
impressionable schoolchildren [are] subjected to unwelcome religious exercises or
[are] forced to assume special burdens to avoid them.” Id.
“Since Valley Forge, the Supreme Court has not provided clear and explicit
guidance on the difference between psychological consequence from disagreement
with government conduct and noneconomic injury that is sufficient to confer
standing.” Awad, 670 F.3d at 1121 (footnote omitted). However, our case law is
clear that “alleging only personal and unwelcome contact with government-sponsored
religious symbols is sufficient to establish standing.” Id. at 1122 (quotation omitted);
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see also O’Connor v. Washburn Univ., 416 F.3d 1216, 1223 (10th Cir. 2005)
(“Allegations of personal contact with a state-sponsored image suffice to demonstrate
this kind of direct injury.”).
We have accordingly held that plaintiffs possess standing in a variety of
Establishment Clause cases, including college students who observed an allegedly
anti-Catholic statue on campus, O’Connor, 416 F.3d at 1219, 1223, citizens who
drove by roadside crosses commemorating fallen highway patrol troopers, Am.
Atheists, Inc. v. Davenport, 637 F.3d 1095, 1113 (10th Cir. 2010), individuals
exposed to crosses as a city’s symbol, Weinbaum v. City of Las Cruces, 541 F.3d
1017, 1028-29 (10th Cir. 2008), a plaintiff who observed a city seal depicting a
temple, Foremaster v. City of St. George, 882 F.2d 1485, 1490-91 (10th Cir. 1989),
and parents challenging teacher-led religious meetings that occurred in their
children’s classrooms prior to the start of the school day, Bell v. Little Axe Indep.
Sch. Dist. No. 70, 766 F.2d 1391, 1398 (10th Cir. 1985), disapproved on other
grounds by Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299 (1986). Although
plaintiffs in some of these cases altered their routines in response to the challenged
state action, we have expressly held that a plaintiff need not change his behavior to
establish standing. Foremaster, 882 F.2d at 1491 (plaintiff had standing based on
“direct personal contact with offensive municipal conduct” even though “he did not
contend he changed his behavior”).
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A
The district court concluded that Zoe lacks standing because she “only
received one flyer and one email” about the Guatemala mission trip, and thus her
claimed injury lacked the “degree of constancy or conspicuousness” present in our
other Establishment Clause cases, citing Weinbaum and Foremaster. Both of those
cases featured “constant” or “pervasive” exposure to religious symbols. See
Weinbaum, 541 F.3d at 1028; Foremaster, 882 F.2d at 1491.
However, nothing in our case law suggests that a single alleged injury is
insufficient to confer standing. The Supreme Court has squarely rejected the
argument that one lacks standing unless she is “significantly” injured. SCRAP, 412
U.S. at 689 n.14. Instead, anyone with “a direct stake in the outcome of a
litigation—even though small” has standing. Id. Noting that it had adjudicated
important cases in which plaintiffs had “no more at stake in the outcome of an action
than a fraction of a vote, a $5 fine and costs, and a $1.50 poll tax,” the Court
concluded that “an identifiable trifle is enough for standing to fight out a question of
principle.” Id. (citations and quotation omitted).
Similarly, our court has held that a party possesses standing to appeal a
nominal damages award of one dollar. Sprint Nextel Corp. v. Middle Man, Inc., 822
F.3d 524, 527-28 (10th Cir. 2016). We have also concluded plaintiffs had standing to
challenge a one-time delay in a permit application that did not result in any
compensatory damages. Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d
1248, 1256 (10th Cir. 2004). Other circuits have been more explicit in holding that
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“[t]here is no minimum quantitative limit required to show injury.” Saladin v. City
of Milledgeville, 812 F.2d 687, 691 (11th Cir. 1987); see also Cramer v. Skinner, 931
F.2d 1020, 1027 (5th Cir. 1991) (“The Constitution draws no distinction between
injuries that are large, and those that are comparatively small.”); Action Alliance of
Senior Citizens v. Heckler, 789 F.2d 931, 937 (D.C. Cir. 1986) (injury “will not
suffice if it is too speculative, but it need not be large or intense” (citation omitted)).
Given this authority, were we to affirm the judgment below, we would have to
impose a quantitative threshold as a special requirement for Establishment Clause
standing. Yet we have no basis to conclude Establishment Clause plaintiffs should
be subject to a heightened burden, and good reason to think otherwise. In Lee v.
Weisman, 505 U.S. 577 (1992), the Supreme Court held that a father presented a
“live and justiciable controversy” after his child was exposed to approximately two
minutes of prayer at a middle school graduation and a similar prayer was likely to
occur at the child’s high school graduation. Id. at 583-84. It explained that the
“injury caused by the government’s action” was “that the State, in a school setting, in
effect required participation in a religious exercise.” Id. at 594. Although it was a
“brief exercise,” the court rejected any suggestion that this injury could be
characterized as de minimis:
[T]he intrusion is greater than the two minutes or so of time consumed
for prayers like these. Assuming, as we must, that the prayers were
offensive to the student and the parent who now object, the intrusion
was both real and, in the context of a secondary school, a violation of
the objectors’ rights.
Id.
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Addressing a nearly identical question to that presented here, the Third Circuit
held that a district court was “incorrect” to “read the direct, unwelcome contact
standard to include a frequency requirement” in an Establishment Clause case.
Freedom from Religion Found. Inc. v. New Kensington Arnold Sch. Dist., 832 F.3d
469, 477 (3d Cir. 2016). Imposing a quantitative contact requirement, the court
explained, would be “inconsistent with the concept that a single ‘trifle’ is sufficient
to establish standing.” Id. (quoting SCRAP, 412 U.S. at 689 n.14). And although
courts have on occasion referenced the frequency of unwelcome contact, they have
not done so in the context of stating the requirements for standing. Id. at 477-78
(collecting cases). Accordingly, the court held that a citizen “may establish standing
by showing direct, unwelcome contact with the allegedly offending object or event,
regardless of whether such contact is infrequent.” Id. at 479.
DCSD cites two cases for the contrary proposition, but neither suggests that
some undefined number of unwelcome religious contacts is required to establish
standing. In Freedom from Religion Foundation, Inc. v. Obama, 641 F.3d 803 (7th
Cir. 2011), the Seventh Circuit concluded that plaintiffs lacked standing to challenge
a statute requiring an annual presidential proclamation designating a national day of
prayer. Id. at 805. The opinion does not discuss the frequency of the plaintiffs’
exposure to unwelcome religious messages. It distinguished cases in which plaintiffs
were exposed to religious displays based on Seventh Circuit case law holding that
such plaintiffs have standing only if they alter their routines in some way to avoid
religious imagery. Id. at 807-08 (citing Freedom from Religion Found., Inc. v.
15
Zielke, 845 F.2d 1463 (7th Cir. 1988)). Our circuit has rejected this requirement.
Foremaster, 882 F.2d at 1491. DCSD also cites Caldwell v. Caldwell, 545 F.3d 1126
(9th Cir. 2008). There, the court held a plaintiff lacked standing to challenge a
website created by the University of California Museum of Paleontology that
discussed evolution. Id. at 1128. Again, the opinion makes no mention of the
frequency of the plaintiff’s contact with the site; the court held that she lacked
standing because “there is too slight a connection between [plaintiff’s] generalized
grievance, and the government conduct about which she complains.” Id. at 1133.
The Caldwell court specifically distinguished cases in which plaintiffs were “parents
whose children are directly exposed to unwelcome religious exercises in the
classroom and the school district.” Id.
In light of the foregoing authorities, we conclude that the district court erred in
holding that a plaintiff must suffer pervasive exposure to establish standing.
Applying the general rule that “an identifiable trifle is enough for standing to fight
out a question of principle,” SCRAP, 412 U.S. at 689 n.14 (quotation omitted), and
our circuit precedent that “personal and unwelcome contact with governmentsponsored
religious symbols is sufficient to establish standing,” Awad, 670 F.3d at
1122 (quotation omitted), we hold that even infrequent contact suffices.
The record demonstrates that Zoe was directly and personally solicited by
school officials to donate to a “mission” trip, and she was informed that a class at her
son’s school was “partnering with” a religious group, the “Fellowship of Christian
Athletes,” to conduct the fundraiser. The solicitation further advised that checks for
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the event should be written to the school. Zoe avers that she took the solicitation to
mean that school officials “expected participation,” and that it made her family “feel
like outsiders and unwelcome in our own community.”2 These unwelcome contacts
are sufficient to establish injury with respect to Zoe’s claim to retrospective relief.3
The district court also stated that Zoe’s injury was not fairly traceable to the
challenged conduct. In so ruling, the court misidentified the relevant injury. It stated
that later maltreatment of Zoe’s son by other children was unrelated to the
fundraising solicitations. But these are not the injuries upon which Zoe rests her
constitutional claim. She relies on the unwelcome contact itself, which we have
concluded is sufficient. In Bell, we reversed under almost identical circumstances.
2 In addition to their argument regarding the infrequency of contact, DCSD
appears to argue that the solicitation to participate in the fundraiser does not
constitute endorsement of any religion. But, as to standing, “the question is not
whether the alleged injury rises to the level of a constitutional violation. That is the
issue on the merits.” Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1088
(10th Cir. 2006) (en banc). “For purposes of standing, we must assume the
Plaintiffs’ claim has legal validity.” Id. at 1093. We decline to rule on the merits of
Zoe’s claim and do not express any view on that score.
3 The complaint seeks retrospective declaratory relief and nominal damages.
As the Supreme Court has instructed, nominal damages “are the appropriate means of
vindicating rights whose deprivation has not caused actual, provable injury.”
Memphis Cmty. Sch. Dist., 477 U.S. at 308 n.11 (quotation omitted). And although
“[i]t may seem odd that a complaint for nominal damages could satisfy Article III’s
case or controversy requirements, . . . this Court has squarely so held.” Utah Animal
Rights Coal., 371 F.3d at 1257 (footnote omitted). In Faustin v. City & County of
Denver, 268 F.3d 942 (10th Cir. 2001), we ruled that a plaintiff lacked standing to
enjoin a statute because she did not show a real and immediate threat that she would
be prosecuted under it in the future, but we concluded she had standing to seek
nominal damages and declaratory relief as to her past prosecution. Id. at 946, 948;
see also Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1526-27 (10th
Cir. 1992) (remanding for consideration of nominal damages following dismissal of
claims for prospective relief as moot).
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There, the district court held that a school’s religious policy was not “the proximate
cause of any injuries inflicted by others.” 766 F.2d at 1408. We concluded that the
district court “viewed the issue too narrowly,” and noted that a “distinction must be
made between the injuries caused by others and those inflicted by the actions of
defendants that violated the Establishment Clause.” Id. The injury at issue in this
case is thus fairly traceable to the challenged action of DCSD employees. Ariz.
Christian Sch. Tuition Org., 563 U.S. at 134. We also conclude that the injury is
redressable. See Tandy, 380 F.3d at 1290 (“It is likely, and not merely speculative,
that compensatory or nominal damages can redress [plaintiff’s] injury in fact.”).4
We reach the opposite conclusion, however, as to Zoe’s claim to prospective
relief. Although she has stated a past injury, the record does not suggest that Zoe is
likely to receive similar fundraising solicitations in the future. See Lyons, 461 U.S.
at 102 (“[P]ast exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief if unaccompanied by any continuing, present
adverse effects.” (quotation and alterations omitted)). The mission trip to Guatemala
was a one-time event initiated by a student at another school. Cougar Run’s principal
4 The district court concluded that AHA lacks associational standing because
none of its individual members have standing. Because we have concluded that Zoe
possesses standing to pursue retrospective relief, we reverse that ruling. We leave it
to the district court on remand to consider the remaining associational standing
factors. See Colo. Taxpayers Union, Inc. v. Romer, 963 F.2d 1394, 1397-98 (10th
Cir. 1992). And as the Supreme Court recently reminded us, “a plaintiff must
demonstrate standing for each claim he seeks to press and for each form of relief that
is sought.” Town of Chester v. Laroe Estates, Inc., S. Ct. No. 16-605 (June 5, 2017),
slip op. at 5 (quotation omitted). We also leave to the district court in the first
instance to determine the scope of the claim for which Zoe has standing.
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was unaware of the religious aspect of the trip and testified that he would not have
allowed such a fundraiser had he been aware. Although it is possible that Zoe might
be subject to a similar injury, we cannot say such an injury is “certainly impending.”
Tandy, 380 F.3d at 1283 (quotation omitted).
Zoe also identified practices at Cresthill Middle School and HRHS, where she
intends to send her children in the future. She notes that an HRHS teacher and a
faculty member at Cresthill worked together to introduce FCA at Cresthill, that
HRHS faculty advisors participate in FCA events, and that several HRHS teachers
are involved in an annual prayer event at HRHS. But these contentions fail to
demonstrate that Zoe’s children will likely face “personal and unwelcome contact
with government-sponsored religious symbols . . . sufficient to establish standing.”
Awad, 670 F.3d at 1122 (quotation omitted). Some children at Cresthill or HRHS
may be subject to unwelcome personal contact with religious symbols, but such
contact is not “certainly impending” as to Zoe’s children. Tandy, 380 F.3d at 1283
(quotation omitted); see also Roberts v. Madigan, 921 F.2d 1047, 1052 (10th Cir.
1990) (concluding plaintiffs lacked standing to seek injunctive relief because there
was no more than a “speculative likelihood” that their children would matriculate
into the specific classroom in which alleged Establishment Clause violations
occurred).
Finally, Zoe and the other plaintiffs argue that they are currently injured by a
district policy permitting Christian fundraising activities throughout DCSD, relying
on Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). In that case,
19
the Court rejected an argument that plaintiffs had “made a premature facial
challenge” to a revised school policy regarding prayer at high school football games.
Id. at 313. Because “the text of the [revised] policy alone reveals that it has an
unconstitutional purpose” and the context of the revised policy confirmed a purpose
of endorsing school prayer, the Court held it “need not wait for the inevitable
[prayer] to confirm and magnify the constitutional injury.” Id. at 314, 316.
Although the Santa Fe decision does not discuss standing at all, plaintiffs point
to the Court’s statement that the Establishment Clause guards against “constitutional
injuries,” including “mere passage by the District of a policy that has the purpose and
perception of government establishment of religion.” Id. at 314. But we do not read
this statement as sub silentio overruling our direct and unwelcome contact standard.
See Gad v. Kan. State Univ., 787 F.3d 1032, 1040 (10th Cir. 2015) (explaining that
so-called “drive-by jurisdictional rulings,” in which a court decides a question
without directly addressing a possible jurisdictional issue, “have no precedential
effect” (quotation omitted)); see also Ariz. Christian Sch. Tuition Org., 563 U.S. at
144 (“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.”).
Under limited circumstances, a state’s express condemnation or endorsement
of religion might constitute direct and unwelcome contact. See Awad, 670 F.3d at
1123 (plaintiff’s “allegation—that the proposed state amendment expressly condemns
his religion and exposes him and other Muslims in Oklahoma to disfavored
20
treatment—suffices to establish the kind of direct injury-in-fact necessary to create
Establishment Clause standing”). We need not decide that question in this case.
Plaintiffs do not identify any express DCSD policy endorsing religion. See COPE v.
Kan. State Bd. of Educ., 821 F.3d 1215, 1221 (10th Cir. 2016) (rejecting reliance on
Awad absent express condemnation). Accordingly, we conclude Zoe lacks standing
to seek prospective relief.
B
Jack Roe argues that he possesses standing to seek retrospective relief because
teachers at his son’s school endorsed OCC, a religious project. However, he does not
claim that his son, who was a junior at DCHS in 2014 when two freshman classes
participated in OCC activities, had direct contact with the challenged practices.
Instead, he claims that standing is conferred by his son’s mere presence at a school in
which religious activities are endorsed.
In support of his theory, Roe points to Zorach v. Clauson, 343 U.S. 306
(1952). There, plaintiff parents challenged a program allowing public school
children to be released during the day to attend off-site religious instruction. Id. at
308. In a footnote, the Court stated: “No problem of this Court’s jurisdiction is
posed in this case since, unlike the appellants in Doremus v. Board of Education, 342
U.S. 429 [1952], appellants here are parents of children currently attending schools
subject to the released time program.” Zorach, 343 U.S. at 309 n.4.
We do not read this sentence as setting forth a rule that a parent has standing
to object to any and all conduct occurring at his child’s school. Although the
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particular facts of the case are not patent from the Supreme Court’s decision, it is
clear that the challenged program operated district-wide. See id. at 308 n.1. And
plaintiffs alleged that the program “has resulted and inevitably results in the exercise
of pressure and coercion upon parents and children to secure attendance by the
children for religious instruction.” Id. at 321 (Frankfurter, J., dissenting). It appears
likely that the individual plaintiffs’ children were personally subjected to the
challenged program, and thus the Zorach footnote is consistent with the Court’s
holding, just a few years later, that parents and schoolchildren have standing if they
are “directly affected by the laws and practices against which their complaints are
directed.” Schempp, 374 U.S. at 224 n.9. The Fourth Circuit has rejected an
interpretation of Zorach under which “parents and students currently in school may
challenge the constitutionality of school policies without demonstrating that they
were personally injured in some way by those policies.” Moss v. Spartanburg Cty.
Sch. Dist. Seven, 683 F.3d 599, 605 (4th Cir. 2012). We do as well.
Roe also relies on our decisions in Bell and Lanner v. Wimmer, 662 F.2d 1349
(10th Cir. 1981). Although the children in Bell apparently did not attend the
religious meetings being challenged in that suit, they were confronted with
promotional materials for the meetings, as well as unkind inquiries from classmates
as to their lack of attendance. 766 F.2d at 1396-97. And our decision in Lanner,
which does not discuss standing other than to note that the defendants did not raise
the issue, concerned a release-time program that applied across an entire district. 662
F.2d at 1354-56, 1357 n.8. Neither case suggests that we should depart from our
22
direct and unwelcome contact standard. See Awad, 670 F.3d at 1122. As we held in
Roberts, we have found standing in cases that “involved religious activities occurring
school wide or within the plaintiffs’ own classrooms,” such that students “were
directly affected.” 921 F.2d at 1051. Because Roe has not identified any such
contact, we conclude he lacks standing to pursue retrospective relief.5
As to his claim for prospective relief, Roe contends that his daughter will be
exposed to religious fundraising practices if she enrolls at DCHS as a freshman for
the 2017-18 school year, as planned. However, the OCC programs operated in only
two classes and only in 2014. We think it at best speculative that Roe’s daughter
would be subjected to the OCC program. Roe also complains of various FCA
activities involving faculty members at DCHS, but he has not shown that his
daughter’s potential contact with those activities is “certainly impending.” Tandy,
380 F.3d at 1283 (quotation omitted).
In light of these various DCHS activities to which he objects, Roe stated that
he is “reconsidering whether or not to send [his] daughter to [DCHS].” A parent who
5 Roe briefly states that he asked his children to modify their behavior. This
appears to be a reference to his deposition testimony that he instructed his son not to
discuss religion at school or participate in religious activities. A change in behavior
in response to challenged state action can constitute an injury. See WildEarth
Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1189 n.10 (10th Cir. 2012).
However, Roe does not claim that he so instructed his son as a result of any of the
challenged practices. He acknowledged that he was unaware of any specific
incidents at DCHS and that he became aware of OCC activities only through this
litigation. Accordingly, even assuming that Roe’s instructions could be treated as a
change in behavior for injury purposes, he has not shown that the injury is “fairly
traceable to the challenged action of the defendant.” Ariz. Christian Sch. Tuition
Org., 563 U.S. at 134 (quotation and alterations omitted).
23
elects to flee a school in response to Establishment Clause violations would certainly
state an injury. See Bell, 766 F.2d at 1399. But Roe’s statement that he is
considering the option of sending his daughter to a different school is insufficient to
show such an injury is “actual or imminent.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 564 (1992). His affidavit bears a striking resemblance to the indefinite
statements in Lujan itself in which plaintiffs expressed a vague intention to travel
“without any description of concrete plans” and which the Court held were wanting.
Id. We conclude that Roe lacks standing to pursue prospective relief.
C
Doe and the other adult plaintiffs argue that they possess municipal taxpayer
standing.6 In Frothingham v. Mellon, 262 U.S. 447 (1923) (decided with
Massachusetts v. Mellon), the Court noted that a federal taxpayer’s interest in
Treasury funds is “shared with millions of others, is comparatively minute and
indeterminable, and the effect upon future taxation, of any payment out of the funds,
[is] . . . remote, fluctuating and uncertain.” Id. at 487. Accordingly, subject to
limited exceptions, see Flast v. Cohen, 392 U.S. 83 (1968), federal taxpayers lack
standing to enjoin federal spending, Frothingham, 262 U.S. at 487. However, relying
on “the peculiar relation of the corporate taxpayer to the [municipal] corporation,”
6 The district court dismissed the Doe children’s claims as moot after the
parties filed a joint motion to dismiss the defendants from the charter school they
attend. Although the Doe children were included in the notice of appeal, they do not
make any argument as to mootness before this court, nor do they claim to be
taxpayers. To the extent they argue that their presence in a school district that
allegedly violates the Establishment Clause is sufficient to confer standing, we reject
that argument for the reasons stated above.
24
the Frothingham Court stated that “resident taxpayers may sue to enjoin an illegal use
of the moneys of a municipal corporation.” Id. at 486.
Since Frothingham, the notion of municipal taxpayer standing has been
reaffirmed by the Supreme Court, but with little exposition or guidance in its
application. In Doremus, the Court considered an Establishment Clause challenge to
a state law brought by plaintiffs identified as “citizen[s]” and “taxpayer[s].” 342
U.S. at 430-31. In assessing plaintiffs’ standing as taxpayers, the Court recited its
prior conclusions in Frothingham that the interests of federal taxpayers are too
indeterminable to provide a basis for standing, but that the interests of municipal
taxpayers may be sufficiently direct. Id. at 433-34. It then concluded that the
holding as to federal taxpayer standing is
equally true when a state Act is assailed: “The [taxpayer] . . . must be
able to show . . . that he has sustained or is immediately in danger of
sustaining some direct injury as the result of its enforcement, and not
merely that he suffers in some indefinite way in common with people
generally.”
Id. at 434 (quoting Frothingham, 262 U.S. at 488). The Court determined that a
“taxpayer’s action can meet this test, but only when it is a good-faith pocketbook
action.” Id. It concluded that plaintiffs lacked standing because they failed to allege
that the challenged “activity is supported by any separate tax or paid for from any
particular appropriation or that it adds any sum whatever to the cost of conducting the
school.” Id. at 433. The Court distinguished a prior taxpayer case, Everson v. Board
of Education, 330 U.S. 1 (1947), on the ground that the plaintiff there “showed a
25
measurable appropriation or disbursement of school-district funds occasioned solely
by the activities complained of.” Doremus, 342 U.S. at 434.
The Doremus opinion does not expressly indicate whether its “good-faith
pocketbook” requirement was intended to apply to state or municipal taxpayers, or
both. Subsequent Supreme Court opinions have characterized Doremus as a state
taxpayer case. See Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 600-
01 (2007); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006). But the Court
has said little else about municipal taxpayer standing since Doremus.7
Our circuit has not addressed the requirements of municipal taxpayer standing
or the application of Doremus thereto. A majority of our sibling circuits to have
addressed the issue apply Doremus and hold that municipal taxpayers possess
standing only for good-faith pocketbook actions. See ACLU-NJ ex rel. Miller v.
Twp. of Wall, 246 F.3d 258, 262-64 (3d Cir. 2001); Doe v. Madison Sch. Dist. No.
321, 177 F.3d 789, 793 (9th Cir. 1999); Clay v. Fort Wayne Cmty. Sch., 76 F.3d 873,
879 (7th Cir. 1996); Thompson v. Cty. of Franklin, 15 F.3d 245, 253 (2d Cir. 1994);
D.C. Common Cause v. District of Columbia, 858 F.2d 1, 4 (D.C. Cir. 1988); see also
7 In ASARCO Inc. v. Kadish, 490 U.S. 605 (1989), the rule of Frothingham
was described as providing for municipal taxpayer standing “if it has been shown that
the ‘peculiar relation of the corporate taxpayer to the municipal corporation’ makes
the taxpayer’s interest in the application of municipal revenues ‘direct and
immediate.’” Id. at 613 (quoting Frothingham, 262 U.S. at 486-87) (alteration
omitted). But this portion of the opinion was joined by only four justices, with one
justice recused. The Court also briefly discussed municipal taxpayer standing in
DaimlerChrysler, but only to conclude that state taxpayers could not “leverage the
notion of municipal taxpayer standing beyond challenges to municipal action” by
seeking “a remedy as to the state taxes.” 547 U.S. at 349, 353.
26
Koenick v. Felton, 190 F.3d 259, 263 (4th Cir. 1999) (applying Doremus standard in
municipal taxpayer case, but not expressly adopting good-faith pocketbook
language).
However, in an en banc opinion, the Sixth Circuit questioned the propriety of
applying the Doremus good-faith pocketbook standard to municipal taxpayers. See
Smith v. Jefferson Cty. Bd. of Sch. Comm’rs, 641 F.3d 197, 211-14 (6th Cir. 2011)
(en banc). The court concluded instead that municipal taxpayers need only claim “an
alleged misuse of municipal funds.” Id. at 210. It rejected the argument that
plaintiffs must point to “an action that reduces the municipality’s total funds, and
thereby increases the risk that taxes will be raised,” instead ruling that they may
“challenge any unconstitutional appropriation or expenditure, regardless of whether
more money would have been spent had the government remained within
constitutional bounds.” Id. at 211. Complicating the issue further, our sibling
circuits that have adopted the good-faith pocketbook requirement have differed
somewhat in describing what it means to bring such an action. See ACLU-NJ ex rel.
Miller, 246 F.3d at 264 (more than de minimis expenditure); D.C. Common Cause,
858 F.2d at 5 (requiring “a measurable appropriation or loss of revenue”); Madison
Sch. Dist. No. 321, 177 F.3d at 794 (“a measurable appropriation or disbursement of
school-district funds occasioned solely by the activities complained of” (quotation
omitted)); United States v. City of New York, 972 F.2d 464, 470 (2d Cir. 1992)
(stating “we presume a municipal taxpayer’s relationship to the municipality is direct
and immediate such that the taxpayer suffers concrete injury whenever the challenged
27
activity involves a measurable appropriation or loss of revenue” (quotations
omitted)).
For purposes of this case, we need not decide whether to adopt the good-faith
pocketbook standard or follow the Sixth Circuit’s approach, as plaintiffs cannot
establish municipal taxpayer standing under either. Irrespective of the specific
language used, every circuit requires a showing of at least some expenditure of
municipal funds. “A plaintiff’s status as a municipal taxpayer is irrelevant for
standing purposes if no tax money is spent on the allegedly unconstitutional activity.”
Zielke, 845 F.2d at 1470.8
Plaintiffs provide a plethora of record citations in support of their argument
that DCSD time and materials were used to support Christian fundraising efforts.
But none of the cited materials show “a measurable appropriation or disbursement of
school-district funds occasioned solely by the activities complained of.” Doremus,
342 U.S. at 434. Instead, the record demonstrates that DCSD faculty used the school
email system to create and exchange messages and electronic copies of flyers,
allowed fundraising activities to be conducted on school grounds, and allowed
student groups to deposit and withdraw funds through a school activities account.
But we do not think that mere use of facilities or employees’ time demonstrates
expenditure of municipal funds. See Madison Sch. Dist. No. 321, 177 F.3d at 794
8 Because plaintiffs have failed to show evidence of a measurable municipal
expenditure, we do not pass on the questions of whether a municipal taxpayer must
also show the challenged action resulted in a net diminution of municipal funds, see
Smith, 641 F.3d at 210-11, or a “likelihood that resulting savings will inure to the
benefit of the taxpayer,” City of New York, 972 F.2d at 466.
28
(no taxpayer standing to challenge graduation prayer, and noting that in Doremus
“the school’s expenditures for teachers’ salaries, equipment, building maintenance,
and the like were insufficient to confer taxpayer standing despite their indirect
support of the Bible reading”); Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 74
(2d Cir. 2001) (rejecting argument that municipal taxpayers have standing any time
challenged actions are conducted by paid employees). This is particularly true here
because the record suggests much of the complained-of employee time and facility
use occurred before or after school hours, and plaintiffs have failed to quantify in any
meaningful way the in-school time spent on challenged conduct.9
Plaintiffs also note that prizes for certain fundraising activities were paid for
through a student government account, donations were made from the proceeds of a
school newspaper sale, and a teacher requested a student aid print copies of a thank
you letter. But they do not point us to record evidence indicating these activities
resulted in expenditures from district tax funds rather than student-raised money. See
Lujan, 504 U.S. at 561 (in response to summary judgment motion, plaintiff bears
burden of coming forward with “specific facts” to support standing (quotation
omitted)). Were it that fundraising in public school facilities or supervision by public
school teachers was enough to meet the threshold, Doremus would have necessarily
9 Plaintiffs cite Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008), for
the proposition that mere use of “municipal funds, in the form of materials and
personnel time” is sufficient to confer standing. Id. at 1267. However, defendants in
that case did not contest that the county “expended public funds to select, invite, and
thank invocational speakers.” Id. at 1281.
29
led to a different result. Because plaintiffs have not shown evidence of a specific,
measurable municipal expenditure on the challenged conduct, they lack municipal
taxpayer standing.10
III
Finally, we consider the district court’s ruling that plaintiffs fall outside the
“zone of interest” of the EAA. As the Supreme Court explained in Lexmark
International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014), “we
presume that a statutory cause of action extends only to plaintiffs whose interests fall
within the zone of interests protected by the law invoked.” Id. at 1388 (quotation
omitted). This test, which is sometimes called “statutory standing” or treated as part
of “prudential standing” considerations, does not implicate Article III standing. Id. at
1386-87 & n.4. Instead, the question is whether a plaintiff “falls within the class of
plaintiffs whom Congress has authorized to sue” under the statute at issue. Id. at
1387. The test “forecloses suit only when a plaintiff’s interests are so marginally
related to or inconsistent with the purposes implicit in the statute that it cannot
reasonably be assumed that Congress authorized that plaintiff to sue.” Id. at 1389
(quotations omitted).
The district court considered the zone of interest test as to each plaintiff.
However, as described in Part II, supra, most of the plaintiffs lack Article III
10 Our reasoning as to municipal taxpayer standing differs somewhat from the
rationale articulated by the district court, but “we may affirm the judgment on any
ground supported by the record.” Nakkhumpun v. Taylor, 782 F.3d 1142, 1157 (10th
Cir. 2015).
30
standing. Although we focused on Establishment Clause injury in the foregoing
analysis, plaintiffs do not identify any other type of injury they have suffered with
respect to their EAA claim. Absent some cognizable injury, the Does’ and Roe’s
EAA claims should have been dismissed for lack of Article III standing.
Having concluded that Zoe does have Article III standing, we must consider
whether she falls within the EAA’s zone of interest. We conclude she does not. The
EAA applies to any “public secondary school.” 20 U.S.C. § 4071(a). And a
“secondary school” is defined as “a public school which provides secondary
education as determined by State law.” § 4072(1). Under Colorado law, a secondary
school is “a public middle, junior, or high school.” Colo. Rev. Stat. § 22-91-102(7).
Because Zoe’s children attend an elementary school, she is plainly outside the class
of plaintiffs authorized to sue under the EAA. See Lexmark, 134 S. Ct. at 1387.

Outcome: For the foregoing reasons, we AFFIRM the district court in all but three
respects. We REVERSE its dismissal of Zoe’s claim for retrospective relief on her
Establishment Clause claim and its dismissal of AHA for lack of associational
standing. And we VACATE its dismissal of the EAA claims asserted by Roe and the
Does under the zone of interest test. We REMAND with instructions to dismiss
Roe’s and the Does’ EAA claims for lack of Article III standing, and for further
proceedings not inconsistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: Editor's Note: It is generally know that the religious right seeks to inject Christian education and believes into the curriculums of America's public schools.

I was subjected to Christian religious beliefs against my will while attending a public school in Cedar County, Missouri.