Caldwell v. Caldwell ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEANNE E. CALDWELL, 
Plaintiff-Appellant,
v.
ROY L. CALDWELL, in his official
capacity as Director of the
University of California Museum No. 06-15771
of Paleontology; DAVID LINDBERG,
in his official capacity as Chair of  D.C. No.
CV-05-04166-PJH
the Integrative Biology
OPINION
Department of the University of
California-Berkeley; MICHAEL D.
PIBURN, in his official capacity as
Program Director for the National
Science Foundation,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted
May 14, 2008—San Francisco, California
Filed October 3, 2008
Before: Betty B. Fletcher and Pamela Ann Rymer,
Circuit Judges, and Kevin Thomas Duffy,* District Judge.
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
14079
14080 CALDWELL v. CALDWELL
Opinion by Judge Rymer;
Concurrence by Judge B. Fletcher
14082 CALDWELL v. CALDWELL
COUNSEL
Larry Caldwell, Quality Science Education for All, Roseville,
California, Kevin T. Snider (argued), Pacific Justice Institute,
Sacramento, California, for the plaintiff-appellant.
William J. Carroll (argued), Katharine Demgen, Morgenstein
& Jubelirer LLP, San Francisco, California, Jeffrey A. Blair,
Christopher M. Patti, University of California, Office of the
General Counsel, Oakland, California, for defendants-
appellees Roy L. Caldwell, Ph.D., and David Lindberg.
Robert M. Loeb, Lowell V. Sturgill Jr. (argued), United States
Department of Justice, Civil Division, Washington, D.C., for
defendant-appellee David Campbell.
OPINION
RYMER, Circuit Judge:
We must decide whether Jeanne E. Caldwell, who asserts
an interest in being informed about how teachers teach the
theory of evolution in biology classes, has standing to pursue
an Establishment Clause claim arising out of her offense at
the discussion of religious views on the “Understanding Evo-
lution” website created and maintained by the University of
California Museum of Paleontology and funded in part by the
National Science Foundation. She avers that the website
endorses beliefs which hold that religion is compatible with
evolutionary theory and disapproves beliefs, such as her own,
that are to the contrary, thereby exposing her to government-
endorsed religious messages and making her feel like an out-
sider. In a published opinion, the district court concluded that
Caldwell’s allegations state only a generalized grievance
insufficient for injury in fact, and dismissed the complaint.
Caldwell v. Caldwell, 420 F.Supp.2d 1102, 1007 (N.D. Cal.
CALDWELL v. CALDWELL 14083
2006). We also conclude that the harm asserted by Caldwell
to her interest in being informed about the teaching of evolu-
tionary theory is too generalized and remote to confer stand-
ing against the University of California faculty who
administer the website and develop its content on behalf of
the Museum of Paleontology. Caldwell’s complaint against
the Director of the National Science Foundation has become
moot since her appeal was taken. Therefore, we affirm.
I
Caldwell’s complaint pursuant to 42 U.S.C. § 1983 alleges
that she is the parent of children in the California public
schools, and is actively involved in elections and debates
about the selection of instructional materials for science
classes. She uses the website, “Understanding Evolution,” to
participate as an informed citizen in these elections, debates,
and processes.
Roy L. Caldwell, Director of the University of California’s
(UC) Museum of Paleontology, and David Lindberg, Chair of
the Integrative Biology Department at UC Berkeley, devel-
oped the website’s content and administer it.1 They applied
for a grant from the National Science Foundation (NSF)2 to
create a website “to provide professional development oppor-
tunities to broaden and deepen the disciplinary knowledge and
pedagogical skills of teachers, thus improving their ability to
deliver rich and challenging science, mathematics and tech-
nology education to all students.” NSF awarded the grant on
May 10, 2001.
1
Professor Lindberg and the Museum Director are sued in their official
capacities as University employees, so we refer to them collectively as
“UC.”
2
Michael D. Piburn was the NSF Program Director at the time. As he
was sued in his official capacity, we substitute the current Program Direc-
tor, David Campbell.
14084 CALDWELL v. CALDWELL
The website consists of some 840 pages. Its stated purpose
is:
Understanding Evolution is a non-commercial, edu-
cation website, teaching the science and history of
evolutionary biology. This site is here to help you
understand what evolution is, how it works, how it
factors into your life, how research in evolutionary
biology is performed, and how ideas in this area
have changed over time.
http://evolution.berkeley.edu. The website has a number of
subsites, one of which is “Understanding Evolution for
Teachers.” This subsite in turn is organized into a number of
sections, including one called “Misconceptions” that
addresses misconceptions about evolution and the mecha-
nisms of evolution. Caldwell’s complaint focuses on a page
titled “Misconception: ‘Evolution and Religion are Incompati-
ble.’ ” http://evolution.berkeley.edu/evosite/misconceps/IVA
andreligion.shtml. Beneath text elaborating the point3 is a car-
toon that depicts a smiling scientist in a lab coat holding a fos-
sil skull shaking hands with a smiling cleric in a collar
holding a book marked with a small cross.
3
The page has been edited over time, but in the version attached to the
complaint, opened with text that stated in full:
Misconception: “Evolution and religion
are incompatible.”
Response: Religion and science (evolution) are very different
things. In science (as in science class), only natural causes are
used to explain natural phenomena, while religion deals with
beliefs that are beyond the natural world.
The misconception that one has to choose between science and
religion is divisive. Most Christian and Jewish religious groups
have no conflict with the theory of evolution or other scientific
findings. In fact, many religious people, including theologians,
feel that a deeper understanding of nature actually enriches their
faith. Moreover, in the scientific community, there are thousands
of scientists who are devoutly religious and also accept evolution.
CALDWELL v. CALDWELL 14085
Caldwell alleges that the site endorses the religious view-
point that religious beliefs are limited to the spiritual world;
that the theory of evolution is not in conflict with properly
understood Christian religious beliefs; that the “Misconcep-
tion” page links to a National Center for Science Education
(NCSE) web page that includes statements by many religious
organizations in support of the endorsed position that most
Christian and Jewish religious groups have no conflict with
the theory of evolution; and that the site seeks to proselytize
public school students and the public to adopt these view-
points. The complaint avers that Caldwell is offended by the
government’s endorsement of religions and religious denomi-
nations when she visits the site; that people such as she who
believe that their religious belief is incompatible with evolu-
tionary theory are made to feel like outsiders by the State of
California and the United States; and that she has been
exposed to the government-endorsed religious messages to
her harm because UC has opened the site to the general pub-
lic. Caldwell requests an injunction restraining publication of
the website and a judgment declaring that inclusion of the
religious and anti-religious materials in the Understanding
Evolution website is unconstitutional.
UC and NSF moved to dismiss for lack of standing. The
district court held that Caldwell failed to make out taxpayer
standing with respect to both the federal and state parties, an
issue that is not appealed. Relying on Valley Forge Christian
College v. Americans United for Separation of Church and
State, Inc., 454 U.S. 464, 472 (1982), the court also found that
Caldwell’s allegations constitute no more than the generalized
grievances of one who observes government conduct with
which she disagrees. Accordingly, it dismissed the complaint
on the ground that Caldwell has not shown injury in fact.
Meanwhile, Caldwell had moved at oral argument for leave
to amend her complaint to include additional allegations that
the Understanding Evolution website is aimed at the general
public as well as at K-12 teachers, and that UC has expressly
14086 CALDWELL v. CALDWELL
invited members of the general public to visit and use the
website. Asked to clarify its dismissal order in this respect,
the court explained that it denied leave to amend because the
additional allegations would have no bearing on whether
Caldwell adequately alleged cognizable injury in fact given
that the court’s decision was based on the understanding that
UC’s website was always open to the public.
Caldwell timely appealed.
II
[1] We first consider the status of Caldwell’s action against
NSF because mootness has been suggested. Paragraph 16 of
the complaint alleges that the grant “runs through October 31,
2006,” and ¶ 19 avers: “The grant started on April 1, 2001,
and expires on October 31, 2006.” The government represents
that this is so, i.e., the grant in fact expired on October 31,
2006, and that no funding has occurred since then or is likely
to occur in the future. See Chandler v. Miller, 520 U.S. 305,
313 n.2 (1997). Caldwell does not seriously contend other-
wise. For these reasons, the appeal as to NSF is moot.
III
Next we address Caldwell’s contention that she could have
added amendments to her complaint that would have suffi-
ciently pleaded injury in fact, as well as meritorious Establish-
ment Clause claims. There is no issue as to the latter because
the merits were neither reached by the district court nor raised
on appeal. As to standing, the proffered amendments would
be meaningless because ¶ 26 of the complaint already alleges
that UC opened the Understanding Evolution website to the
public. Both the district court, and we, take it as true for pur-
poses of whether dismissal is proper that, as pled, the website
is public.
CALDWELL v. CALDWELL 14087
IV
The heart of Caldwell’s position is that Valley Forge,
embraced as the controlling authority by UC and the district
court, is inapposite and that the “cross” cases, exemplified by
Buono v. Norton, 371 F.3d 543 (9th Cir. 2004), provide the
more apt analogy. See also Separation of Church and State
Comm. v. City of Eugene, 93 F.3d 617 (9th Cir. 1996)
(SCSC); Ellis v. City of La Mesa, 990 F.2d 1518 (9th Cir.
1993). Caldwell submits that, like the plaintiffs in those cases,
she also came into direct contact with a religious symbol on
property owned by the government which she finds offensive;
and that, just as the inability of plaintiffs in those cases freely
to use public land sufficed as injury in fact, so too should it
suffice that she is inhibited from freely using a government
resource without running into religious symbols and theologi-
cal statements which offend her.
[2] A party has Article III standing if she suffers an “injury
in fact,” the injury is fairly traceable to the challenged con-
duct, and the injury is likely to be redressed by a favorable
judicial decision. Buono, 371 F.3d at 546; see Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Even so,
“the Court has refrained from adjudicating ‘abstract questions
of wide public significance’ which amount to ‘generalized
grievances,’ pervasively shared and most appropriately
addressed in the representative branches.” Valley Forge, 454
U.S. at 474-75 (quoting Warth v. Seldin, 422 U.S. 490, 499-
500 (1975)).
[3] In Valley Forge, Americans United for Separation of
Church and State along with four of its employees, based in
the Washington, D.C. area, learned through a news release
that surplus government property had been transferred to Val-
ley Forge Christian College in Chester County, Pennsylvania.
They challenged the transfer on Establishment Clause
grounds. The Court held that Americans United were without
standing as taxpayers, and had not established standing by vir-
14088 CALDWELL v. CALDWELL
tue of an injury in fact. Elaborating the requirement for injury
in fact, the Court observed that it is not enough for a party to
claim that the Establishment Clause has been violated; “[s]uch
claims amount to little more than attempts to employ a federal
court as a forum in which to air . . . generalized grievances
about the conduct of government.” Id. at 483 (internal quota-
tions and citations omitted). Thus, the complaint of Ameri-
cans United was deficient because “[t]hey fail to identify any
personal injury suffered by them as a consequence of the
alleged constitutional error, other than the psychological con-
sequence presumably produced by observation of conduct
with which one disagrees. That is not an injury sufficient to
confer standing under Art. III, even though the disagreement
is phrased in constitutional terms.” Id. at 485-86 (emphasis in
original).4
In Buono, the plaintiff, a retired employee of the Park Ser-
vice who had been Assistant Superintendent of the Mojave
National Preserve and regularly visited it, complained that a
Latin cross atop Sunrise Rock violated the Establishment
Clause and was offensive to him. He regarded the cross as
offensive because it was on federal property — not because
of the cross as such — and the district court found that Buono
would tend to avoid Sunrise Rock as long as the cross
remained standing. We held that Valley Forge “drew a dis-
tinction between abstract grievances and personal injuries, not
ideological and religious beliefs,” 371 F.3d at 547, and that
Buono’s inhibition from freely using the Preserve sufficed as
4
Having so concluded, the Court reiterated that standing may be predi-
cated on noneconomic injury, citing United States v. SCRAP, 412 U.S. 669(1973). SCRAP recognized that plaintiffs who used natural resources for
recreational and aesthetic purposes that would be adversely affected by a
municipal fee had standing, as they alleged specific and perceptible harm
that distinguished them from other citizens who had not used these
resources. In Valley Forge, however, the Court “simply [could not] see . . .
injury of any kind, economic or otherwise.” Id. at 486 & n.23 (emphasis
in original).
CALDWELL v. CALDWELL 14089
injury in fact5 and constituted “personal injury suffered . . . as
a consequence of the alleged constitutional error.” Id.(emphasis in original) (quoting Valley Forge, 454 U.S. at
485).
Since Buono, we have also considered standing to pursue
an Establishment Clause challenge in the context of a govern-
ment seal. In Vasquez v. Los Angeles County, a county
employee was forced to have daily contact with a county seal
from which a cross had been removed and which he regarded,
for this reason, as an offensive anti-religious symbol. 487
F.3d 1246, 1249 (9th Cir. 2007). We held that Vasquez had
standing even though he had taken no affirmative steps to
avoid areas where the symbol was located; we did not think
it necessary to require a change of behavior — in his case, to
quit his job — in order to vindicate spiritual harm from
unwelcome direct contact with an allegedly offensive reli-
gious (or anti-religious) symbol. Nor did we think Vasquez’s
contact with the symbol too tenuous, indirect, or abstract to
give rise to Article III standing given that he held himself out
as a member of the community where the seal was located, as
someone forced into frequent regular contact with it, and as
someone directly affected by unwelcome direct contact with
a symbol that was pervasively on display. We thought Valley
Forge distinguishable in this respect, because the plaintiffs
there were physically removed from the allegedly unconstitu-
tional conduct, and because Vasquez had alleged more than
“a mere abstract objection” to removal of the cross from the
county seal. Id. at 1251 (quoting Suhre v. Haywood County,
131 F.3d 1083, 1086 (4th Cir. 1997)).
Caldwell’s situation does not fit neatly into a place already
5
We had so held before in SCSC, 93 F.3d at 619 n.2, and Ellis, 990 F.2d
at 1523. In each, parties offended by the presence of a cross on govern-
ment property alleged that the cross prevented them from unreservedly
using the area where the cross was installed. See Buono, 371 F.3d at 547
(citing both cases).
14090 CALDWELL v. CALDWELL
staked out along the continuum of Establishment Clause
standing. She is neither so removed from the conduct chal-
lenged as the plaintiffs were in Valley Forge, nor so close as
the plaintiff was in Vasquez. Her connection to the writing on
the website is more tenuous than Buono’s to the Preserve
where the offending symbol was a Latin cross that was per-
manently installed on a top of a hill, while her complaint is
more abstract and her contact less forced than Vasquez’s.
It is instructive to compare School District of Abington v.
Schempp, 374 U.S. 203 (1963), and Doremus v. Board of
Education, 342 U.S. 429 (1952), as the Supreme Court did in
Valley Forge. 454 U.S. at 486 n.22. Schempp is the source of
the rule which informed our decision in the seal case, that
unwelcome direct contact with an allegedly offensive reli-
gious or anti-religious symbol, suffices for Article III stand-
ing. See Vasquez, 487 F.3d at 1251-53. In Schempp, children
enrolled in public school together with their parents objected
to a Bible reading in the classroom that was mandated by state
law. The Court found the interests asserted sufficient for
standing because these plaintiffs were “directly affected by
the laws and practices against which their complaints are
directed.” Schempp, 374 U.S. at 224 n.9. This contrasts with
Doremus, in which the same issues were raised but in which
parents lost standing to sue when their children were gradu-
ated. 342 U.S. at 432-33. See also Elk Grove Unified School
Dist. v. Newdow, 542 U.S. 1, 12-18 (2004) (holding that par-
ent whose custodial rights were unclear lacked prudential
standing to pursue an Establishment Clause claim aimed at
recitation of the Pledge of Allegiance in his daughter’s class-
room). As the Court explained in Valley Forge, “[t]he plain-
tiffs in Schempp had standing, not because their complaint
rested on the Establishment Clause — for as Doremus demon-
strated, that is insufficient — but because impressionable
schoolchildren were subjected to unwelcome religious exer-
cises or were forced to assume special burdens to avoid
them.” 454 U.S. at 486 n.22.
CALDWELL v. CALDWELL 14091
[4] We conclude that Caldwell’s asserted interest —
informed participation as a citizen in school board meetings,
debates, and elections, especially with respect to selection of
instructional materials and how teachers teach the theory of
evolution in biology classes in the public schools — is not
sufficiently differentiated and direct to confer standing on her
to challenge the University of California’s treatment of reli-
gious and anti-religious views on evolution. An interest in
informed participation in public discourse is one we hold in
common as citizens in a democracy. While people inside and
outside the academy may (and do) take different views in the
ongoing debate over whether science and religion may coex-
ist, Caldwell’s offense is no more than an “abstract objection”
to how the University’s website presents the subject. The
court must refrain from becoming “a ‘judicial version[ ] of
college debating forums.” Vasquez, 487 F.3d at 1251 (quoting
Valley Forge, 454 U.S. at 473). That she is the parent of
school-age children makes her position no less remote, for her
connection to the University of California website is not simi-
lar to the relationship in Schempp between parents whose
children are directly exposed to unwelcome religious exer-
cises in the classroom and the school district. Accordingly, we
believe there is too slight a connection between Caldwell’s
generalized grievance, and the government conduct about
which she complains, to sustain her standing to proceed.
AFFIRMED.
FLETCHER, Circuit Judge, concurring:
I concur in the majority opinion. I write separately to elabo-
rate more fully why Caldwell lacks standing.
Caldwell’s injury is limited to “the psychological conse-
quence presumably produced by observation of conduct with
which one disagrees.” Valley Forge Christian Coll. v. Ameri-
14092 CALDWELL v. CALDWELL
cans United for Separation of Church and State, Inc., 454
U.S. 464, 485 (1982). Caldwell does not allege that her chil-
dren’s school has incorporated the offending views expressed
on the UE website into its science curriculum or that her chil-
dren’s biology teacher articulated them in response to a stu-
dent’s question. Thus, there is no allegation that Caldwell’s
children or Caldwell herself were “directly affected” by the
offensive content of the UE website. Cf. School District of
Abington v. Schempp, 374 U.S. 203, 224 n.9 (1963) (holding
that public school pupils and their parents who objected to
Bible reading in school had standing because they were “di-
rectly affected by the laws and practices against which their
complaints [were] directed”).
Caldwell also does not allege that her contact with the
offensive views expressed on the UE website was “frequent
and regular” or “unwelcome.” Vasquez v. Los Angeles
County, 487 F.3d 1246, 1251, 1252 (9th Cir. 2007). There is
no allegation that Caldwell had any reason to visit the offend-
ing web page more than once. Cf. id. at 1248, 1249, 1253(holding that county resident and employee who had daily,
unwelcome contact with allegedly anti-religious county seal
had standing). Nor did the single offending web page prevent
Caldwell from freely using the rest of the UE website: the site
comprises approximately 840 pages, each of which can be
viewed without having first viewed the offending page. Cf.
Buono v. Norton, 371 F.3d 543, 547 (9th Cir. 2004) (holding
that plaintiff who was “unable to freely use” the area of the
Mojave National Preserve around a Latin cross because of the
government’s allegedly unconstitutional actions had standing
(internal quotation marks, editorial marks, and citation omit-
ted)).
Moreover, while “[w]e have repeatedly held that inability
to unreservedly use public land suffices as injury-in-fact,” id.(citation omitted), I am not persuaded that inability unreserv-
edly to use a government-run website necessarily also suffices
as injury-in-fact. Accessing and leaving a website is quick and
CALDWELL v. CALDWELL 14093
easy, and the alleged offense from the content of one page out
of 840 that one need not read or tarry over is fleeting at best.
While in certain cases the inability to access a government-
run website due to allegedly unconstitutional content may
well confer standing, I conclude that Caldwell’s injury is too
de minimis to satisfy the standing doctrine’s core aim of “im-
proving judicial decision-making by ensuring that there is a
specific controversy before the court and that there is an advo-
cate with sufficient personal concern to effectively litigate the
matter.” Vasquez, 487 F.3d at 1250 (internal quotation marks,
editorial marks, and citation omitted).