Metropolitan News-Enterprise

Monday, October 6, 2008

Page 1

Ninth Circuit Rejects Challenge to UC Evolution Website

By SHERRI M. OKAMOTO, Staff Writer

A plaintiff lacked standing to pursue an establishment clause claim based on a University of California websites treatment of religious and anti-religious views on evolution, the Ninth U.S. Circuit Court of Appeals held Friday.

Affirming the district judges dismissal of Jeanne Caldwells complaint, the appellate court ruled that Caldwells asserted interest in being informed about how teachers teach the theory of evolution and general disagreement with how the website addressed the subject did not constitute a cognizable constitutional injury.

Caldwell alleged that she was the parent of children enrolled in public schools, and that she was actively involved in elections and debates about the selection of instructional materials for the schools science classes.

In order to participate as an informed citizen in these election and debates, she claimed that she regularly made use of a website called Understanding Evolution, which was developed and administered by the University of Californias Museum of Paleontology and the Integrative Biology Department at UC Berkeley, and funded in part by a grant from the National Science Foundation.

Her complaint focused on a section of the website entitled Misconception: Evolution and Religion are Incompatible, which linked to a National Center for Science Education web page containing statements by many religious organizations in support of the position that the theory of evolution did not conflict with properly understood Christian religious beliefs.

She argued that the website sought to proselytize public school students and the public to adopt these viewpoints, and that she was offended by the governments endorsement of religions and religious denominations when she visited the website.

Caldwell requested 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 was unconstitutional.

U.S. District Judge Phyllis J. Hamilton of the Northern District of California found that Caldwells allegations were generalized grievances and dismissed the complaint on the ground that Caldwell had not shown injury in fact.

Writing for the appellate court, Judge Pamela Ann Rymer explained that Caldwells asserted interest in being able to have informed participation in public discourse was one we hold in common as citizens in a democracy.

Rymer categorized Caldwells claim as no more than an abstract objection to the websites presentation of the ongoing debate over whether science and religion can coexist.

The jurist differentiated Caldwells situation from that in School District of Abington v. Schempp, (1963) 374 U.S. 203which conferred standing on the parents of public school children who were directly exposed to unwelcome religious exercises in the classroom by a state law mandating the reading of the bible in schoolsreasoning that the plaintiffs in Schempp had been directly affected by the laws and practices of which they complained.

In comparison with Schempp, Rymer concluded there was simply too slight a connection between Caldwells generalized grievance and the government conduct about which she complain[ed] to sustain her standing to proceed.

Senior U.S. District Judge Kevin Thomas Duffy of the Southern District of New York, sitting by designation joined Rymer in her opinion, and Senior Judge Betty B. Fletcher wrote a separate concurrence.

Like Rymer, Fletcher also noted that Caldwell did not allege she or her children were directly affected by the websites content in the same manner as the plaintiffs in Schempp, and distinguished Caldwells situation from Vasquez v. Los Angeles County, (2007) 487 F.3d 1246which conferred standing on a plaintiff who had daily unwelcome contact with an allegedly anti-religious county sealbecause Caldwell had not alleged she had visited the offending website more than once.

Fletcher also distinguished Buono v. Norton, (2004) 371 F.3d 543which held that a plaintiff who was unable to freely use land in a national park because of the presence of a religious symbol had standingbecause the offending material did nor prevent Caldwell from using the remainder of the website.

Although Fletcher suggested that the inability to access a government-run website due to allegedly unconstitutional content could possibly confer standing in some future situation, she concluded Caldwells injury was too de minimis.

The case is Caldwell v. Caldwell, 06-15771.

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