LUCERO, Circuit Judge.
In 2013, the Kansas Board of Education (the "Board") adopted curriculum standards establishing performance expectations for science instruction in kindergarten through twelfth grade. Appellants — Citizens for Objective Public Education, Kansas parents, and school children (collectively, "COPE") — contend that although the standards purport to further science education, their concealed aim is to teach students to answer questions about the cause and nature of life with only non-religious explanations. COPE thus claims injury under the Establishment Clause because: (1) the Board's adoption of the Standards has communicated a religious symbol or message and breached plaintiff parents' trust; and (2) Kansas schools' implementation of the Standards is imminent and will result in anti-religious instruction.
We conclude all three theories of injury fail. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
In 2011, the National Research Council
As the Standards themselves state, they are "not intended to define course structure." Instead, Kansas law provides that they are guideposts for school districts, which retain control to shape and adopt their own curricula. Kan. Stat. § 72-6479(b) (curriculum standards "shall [not] be construed in any manner so as to impinge upon any district's authority to determine its own curriculum"). Thus, the Standards simply establish performance expectations for what students should "know and be able to do" at each grade level.
COPE is an organization formed to promote the religious rights of parents, students, and taxpayers. Its members include individuals whose children are, or expect to be, enrolled in Kansas public schools. COPE alleges that the Standards violate the Establishment Clause, U.S. Const. amend. I, by seeking to establish a non-religious worldview in the guise of science education.
The district court held that it lacked subject matter jurisdiction over this suit because COPE lacks standing. We review the district court's determination regarding subject matter jurisdiction de novo. Niemi v. Lasshofer, 770 F.3d 1331, 1344 (10th Cir.2014). "For purposes of standing, we must assume the Plaintiffs' claim has legal validity." Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1092-93 (10th Cir.2006) (en banc). However, Plaintiffs must show an "injury in fact" that is: (1) "concrete, particularized, and actual or imminent"; (2) "fairly traceable to the challenged action"; and (3) "redressable by a favorable ruling." Clapper v. Amnesty Int'l USA, ___ U.S. ___, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013).
In the Establishment Clause context, "standing is clearly conferred by [injury to] non-economic religious values" but litigants must "identify a 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." Awad v. Ziriax, 670 F.3d 1111, 1122 (10th Cir.2012). As the party invoking federal jurisdiction, COPE bears the burden of establishing these elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). And "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id. at 561, 112 S.Ct. 2130. At the pleading stage, we "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). "[G]eneral factual allegations of injury resulting from the defendant's conduct may suffice" to support the claim. Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
COPE argues it suffered three injuries sufficient to support standing. It contends first that the adoption of the standards created an actual injury both by adopting a religious symbol and by breaching parents' trust in the Kansas school system. It also argues that future injury is imminent because the standards compel Kansas schools to teach objectionable material. Finally, it alleges that two appellants have standing as taxpayers who object to their tax dollars being used for religious (or anti-religious) purposes. Each of COPE's arguments fails.
COPE alleges that the Board's act of adopting the Standards, without more, created concrete injury-in-fact. COPE argues the Standards are a symbol of a nonreligious worldview, adoption of which violates the "right to be free from government that favors one religious view over another." To support this claimed injury, COPE relies on Awad, 670 F.3d 1111, and American Atheists, Inc. v. Davenport, 637 F.3d 1095 (10th Cir.2010). However, COPE does not allege any facts that suggest injury under either case.
In Awad, we held that the adoption of a statute that singled out an individual religion for disfavored legal treatment is sufficient to cause injury to a member of that religion for standing purposes under the Establishment Clause. 670 F.3d at 1122. The relevant statute in Awad targeted the Muslim religion explicitly and interfered with the plaintiff's ability to practice his faith and access legal processes. Id. at 1120, 1122. We held that a statute that "expressly condemns" a particular religion and exposes its members to such disfavored treatment causes sufficient injury to support standing. Id. at 1123. But unlike the statute in Awad, the Standards do not condemn any or all religions and do not target religious believers for disfavored treatment. And COPE offers only threadbare assertions that the Standards intend to promote a non-religious worldview. Thus, COPE's allegations regarding adoption amount to psychological consequences produced by observation of conduct with which it disagrees. Awad, 670 F.3d at 1122. This injury does not suffice. Id. Similarly, in American Atheists, Inc., we held plaintiffs had standing to challenge the placement of crosses along public roadsides as government-sponsored religious symbols with which they had personal and unwelcome contact. 637 F.3d at 1114-1115. But, again, unlike the plaintiffs in American Atheists, COPE does not offer any allegations to support the conclusion that the Standards are a government-sponsored religious symbol.
COPE also contends that the adoption breached its trust by violating both the parents' right to direct their children's religious education, and the children's right to public education without religious (and non-religious) indoctrination, contrary to Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987).
COPE also asserts injury because local school districts' potential implementation of the Standards will cause science to be taught in a manner that violates religious liberties. For this potential future injury to support standing, the injury must be "certainly impending." Clapper, 133 S.Ct. at 1147. But COPE acknowledges that the statute requiring the Board to adopt curriculum standards expressly preserves districts' authority to determine their own curricula. Kan. Stat. § 72-6479. And COPE concedes that it is possible that districts may not adopt the Standards, even if it perceives that possibility as remote.
In sum, because the districts may choose not to adopt the Standards, or may alter the Standards in ways that alleviate Appellants' concerns, potential future injury from the Standards themselves is speculative and insufficient to support standing.
Finally, two appellants assert standing on the theory that they object to their tax dollars being spent to support the Standards. Appellants do not raise this argument in their opening brief, and so it is waived. Adler, 144 F.3d at 679.
The district court's dismissal for lack of standing is