Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District #1
Filing
36
MEMORANDUM OPINION AND ORDER denying 9 Motion for Preliminary Injunction (Written Opinion). Signed by Judge John R. Tunheim on September 30, 2011. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CHILD EVANGELISM FELLOWSHIP
OF MINNESOTA,
Civil No. 10-2687 (JRT/JJK)
Plaintiff,
MEMORANDUM OPINION AND
ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION
v.
MINNEAPOLIS SPECIAL SCHOOL
DISTRCT No. 1,
Defendant.
G. Craig Howse, HOWSE & THOMPSON, PA, 3189 Fernbrook Lane
North, Plymouth, MN 55447; Stephen M. Crampton, LIBERTY
COUNSEL, 100 Mountain View Drive, #2150, Lynchburg, VA 24502, for
plaintiff.
Michael J. Vanselow and Marie L. van Uitert, OPPENHEIMER WOLFF
& DONNELLY LLP, Plaza VII Building, Suite 3300, 45 South 7th Street,
Minneapolis, MN 55402, for defendant.
Child Evangelism Fellowship of Minnesota (“CEF”) brought this action against
Minneapolis Special School District No. 1 (“the District”) seeking preliminary injunctive
relief preventing the District from violating CEF’s freedom of speech, free exercise of
religion, and other constitutional rights. CEF alleges that the District abruptly revoked
CEF’s right to participate in an after school program upon a complaint that CEF was
engaging in religious activity with students. Because the Court finds it unlikely that CEF
20
will prevail on the merits of its claim and that no irreparable harm will accrue to CEF if
preliminary injunctive relief is denied, the Court denies CEF’s motion for a preliminary
injunction.
BACKGROUND
I.
CHILD EVANGELISM FELLOWSHIP
The Child Evangelism Fellowship of Minnesota is the local chapter of an
international non-profit Christian organization headquartered in Missouri. Among the
ministries sponsored by CEF is the Good News Club (“GNC”), an after-school program
open to children ages five through twelve. (Decl. of David Tunell ¶¶ 1-2, Oct. 31, 2010,
Docket No. 12.) CEF describes its activities as encouraging learning, spiritual growth,
service to others, and providing activities that support the development of social, mental,
physical, and creative abilities of school-age children as structured youth programs. (Id.
¶ 2.)
CEF conducts GNC meetings after school, generally on public elementary
campuses, because it finds them convenient and safe for students and parents. (Id. ¶ 5.)
GNC meetings include Bible lessons, creative learning activities, stories about
missionaries and biblical figures modeling spiritual and personal leadership, songs, and
scripture memorization. Additionally, at GNC meetings children are “introduced to Jesus
Christ as their savior.” (Decl. of Stephen M. Crampton, Jan. 3, 2011, Exs. M-N, Docket
No. 11.) At oral argument, counsel for CEF acknowledged that prayer occurs at GNC
meetings.
No fees are charged for attending GNC meetings, and no tithes or
contributions are taken during meetings.
-2-
GNC meetings are open to all children regardless of religion, so long as they
obtain written permission from their parents. CEF produces flyers to promote GNC
meetings, which say: “At clubs, children are introduced to Jesus Christ as Savior and
taught Biblical principles for living.” (Aff. of Sandra McDonald, Jan. 21, 2011, Ex. C,
Docket No. 17.)
Another flyer states, “CEF is an interdenominational missionary
organization that seeks to evangelize boys and girls with the Gospel of the Lord Jesus
Christ and to disciple them in the Word of God . . . .” (Aff. of Linnea Hacket, Jan. 21,
2011, Ex. B, Docket No. 21.)
GNCs do not provide after-school transportation. Thus, the central location of an
elementary school, and use of the after school activities bus to bring students home
allows parents to register their children in the GNC as they would for other organizations’
programs. (Tunell Decl. ¶¶ 5-6.)
II.
MINNEAPOLIS SPECIAL SCHOOL DISTRICT NO. 1 AND THE
COMMUNITY PARTNER ONLINE PROCESS
The District implemented the Community Partner Online (“CPO”) process in the
2005-06 school year in order to formalize the way in which the District screens
individuals or organizations that interact with students or are on District property when
students are present. (Aff. of Robyn Cousin ¶ 2, Jan. 24, 2011, Docket No. 18.) The
District’s policies provide that “any non-school, non-district sponsored group or
individual may apply to become a Community Partner (“CP”) with the Minneapolis
Public Schools” through the CPO process. (District Policy 1301, Cousin Aff. Ex. B.) In
order for individuals or organizations to become certified as a Community Partner, they
-3-
must complete the application, review and execute a “Standard Assurances” signature
page, submit proof of insurance, and, in some circumstances, provide Articles of
Incorporation or proof of appropriate licensure. (Cousin Aff. Exs. C, E.)
District Policies 1301 and 1301A describe the selection that occurs in the CPO
process to determine which Standard Assurances the individual or organization is
required to sign and any additional requirements that must be met in the application
process to obtain certification. To complete the CPO process, potential CPs must also
execute a written contract relating to their participation with the District which also needs
to be signed by a school principal or Site Coordinator. (Id. Exs. D-E.) Once the CPO
application is complete, the District provides potential CPs with a Discussion guide (Id.
Ex. F) to help the District and the proposed CP determine if and how they will work
together to reach an agreement on a CPO contract.
The partnership eventually agreed upon may include various types of
arrangements, including use of the District’s facilities, the opportunity for the CP to
distribute flyers through the District’s flyer distribution process, the CP’s work at the
school during school hours, or participation by the CP in the District’s After-School
Program. (Id. ¶¶ 8, 10-12.) The District distributes CPs’ flyers to students to take home
to their parents for review. All flyers distributed through the District flyer distribution
process must include the following disclaimer: “The Minneapolis Public Schools is
legally unable to and cannot sponsor, endorse or recommend the activities announced by
this flyer.” (Aff. of Colleen Sanders, Jan. 25, 2011, Ex. H, Docket No. 19.) Meetings
-4-
and recreational spaces are free of charge to not-for-profit groups that provide programs
and services to children and other community members. (Id. ¶ 6.) Once the CP and the
District reach an understanding of the relationship and their respective roles, the CP and
the school principal or site administrator for the District sign a contract, completing the
CPO process.
III.
DISTRICT SPONSORED AFTER-SCHOOL YOUTH ENRICHMENT
PROGRAM
The After-School Youth Enrichment Program (“After-School Program”) allows a
public school board to “initiate a community education program in [their] district[s] and
provide for the general supervision of the program.” Minn. Stat. § 124D.19, subd. 1.
“Each board may, as it considers appropriate, employ community education staff to
further the purposes of the community education program.” Id. Pursuant to this statute,
the District created a Community Education Department (“CED”) to provide
opportunities for local citizens, schools, agencies, and institutions to become active
partners in addressing education and community concerns. (Aff. of Jack Tamble ¶ 2,
Jan. 25, 2011, Docket No. 20.)
The statute further provides:
Subd. 12. Youth after-school enrichment programs. Each district
operating a community education program under this section may establish
a youth after-school enrichment program to maintain and expand
participation by school-age youth in supervised activities during nonschool
hours. The . . . programs must include activities that support development
of social, mental, physical, and creative abilities of school-age youth;
provide structured youth programs during high-risk times; and design
programming to promote youth leadership development and improved
academic performance.
-5-
Subd. 13. Youth after-school enrichment program goals. The goals of
youth after-school enrichment programs are to:
(1) collaborate with and leverage existing community resources that
have demonstrated effectiveness;
(2) reach out to children and youth, including at-risk youth, in the
community;
(3) increase the number of children participating in adult-supervised
programs during nonschool hours;
(4) support academic achievement; and
(5) increase skills in technology, the arts, sports, and other activities.
Minn. Stat. § 124D.19.
Pursuant to this statute, the District sponsors an After-School Program at several
schools, including at Jenny Lind Elementary (“Jenny Lind”). The After-School Program
at Jenny Lind is sponsored by the District, which hires, monitors, and manages the Site
Coordinators who are selected and paid by the District to implement the District’s
programming. (Tamble Aff. ¶ 6.) The Site Coordinators report to managers and other
supervisors within the CED, and each site with an After-School Program also has a Site
Coordinator who is an employee of the CED.
(Id. ¶ 7.)
The Site Coordinator is
responsible for setting the classes offered through the District’s After-School Program
and meeting with organizations and individuals in the community who have expressed
interest in participating in the Program. (Hackett Aff. ¶ 2, Docket No. 21.)
The District’s Site Coordinators are also responsible for managing and monitoring
After-School Program’s activities by: (1) assisting with obtaining supplies as needed;
(2) collecting and organizing student registrations for the After-School Program through
the “class choices” form that the Site Coordinators and other District staff create and
-6-
distribute; (3) ensuring that teachers of each class receive a list of students attending;
(4) taking attendance for each of the class meetings; (5) arranging busing and snacks at
the District’s expense for students participating in the classes; and (6) assisting teachers
of classes with any behavior management issues that arise during the program. (Hackett
Aff. ¶ 4; Tamble Aff. ¶¶ 8-9; McDonald Aff. ¶ 4.) In addition, before the After-School
Program classes begin, the Site Coordinators must orient the groups and individuals to
the expectations of the students and District and, in some instances, help reshape the
messages of the class in order to better meet the needs of the students. (Hacket Aff. ¶ 3.)
The After-School Program organizations are largely a subset of the CPs which
complete the CPO process. There are many more CPs than there are organizations in the
After-School Program. Thus, each Site Coordinator is responsible for deciding which
group or individual CP may participate in the District’s After-School Program. (Cousin
Aff. ¶ 11; Hackett Aff. ¶ 2.) The Site Coordinator has the ability to determine that a
proposed class is not appropriate for District sponsorship, in which case the program can
be part of the CPO process and use District facilities, but it cannot be part of the AfterSchool Program. (Id.)
Some religiously affiliated groups have been included as part of the After-School
Program, such as the Boy Scouts and the YWCA. (Sanders Aff. ¶ 4 & Ex. A.) However,
“[a]ccording to the information provided by the groups and the District’s monitoring and
supervision of these programs, none of the groups that participated in the After-School
Program during the 2009-10 school year participated in proselytizing or praying with
students.” (Id. ¶ 4.)
-7-
IV.
GNC AT JENNY LIND ELEMENTARY
In approximately 2000, CEF approached the site coordinator at Jenny Lind and
asked to be permitted to hold its meetings at the school. (Hackett Aff. ¶ 6.) CEF
provided Linnea Hacket, then the Community Education Coordinator for the District at
Jenny Lind, with a copy of a legal judgment and told her that the judgment stated the
GNC was entitled to hold its meetings at the school. (Id. ¶¶ 1, 6.) Hackett spoke with her
supervisors who agreed that the District would permit CEF to hold GNC meetings at
Jenny Lind. However, CEF did not ask for the GNC to be part of the After-School
Program at that time, it only asked to use the space with its own permits. (Id.) Hackett
testified that although the GNC used the District facilities and was allowed to pass out
flyers starting in approximately 2000, she did not believe that CEF had a contract with
the District prior to the implementation of the CPO process in the 2005-06 school year.
CEF printed its own flyers regarding GNC meetings that were distributed by the District
as part of the flyer-distribution process for community groups.
The District alleges that CEF ultimately became part of the After-School Program
through confusion among District staff regarding the issue of whether CEF and other
religiously affiliated groups were permitted to participate. (Tamble Aff. ¶ 16.) Hackett
testified that during the 2004-05 school year she encountered difficulties when students in
the GNC were not being picked up after meetings, so she decided to send some students
home on the “after-school activities” bus since it was going near their homes, and the
practice continued for several years. (Hackett Aff. ¶ 12.) Hackett also testified that
-8-
sometime in the 2005-06 school year she began including the GNC on the District’s
After-School Program “class choices” form “out of convenience because their meetings
lasted all year and this way the students didn’t have to re-register for the [GNC] meeting
over the course of the year.” (Id. ¶ 11.) Since 2005-06 when the District’s CPO process
began, CEF has been certified as a CP, and has applied for, and been granted,
recertification every year. (Cousin Aff. ¶ 14.)
During the 2008-09 school year, Jenny Lind was assigned a new Site Coordinator,
Sandra McDonald, to administer the After-School Program. In the spring of 2009, the
Director of the CED, Jack Tamble, made a site visit to Jenny Lind as part of his normal
practice of monitoring the Community Education programs. (Tamble Aff. ¶ 14.) During
the visit, McDonald met with Tamble and expressed concern regarding whether the
GNCs were appropriate for the District’s After-School Program given the meetings’
description contained on the District’s flyer, and the proselytizing and prayer at the
meetings. (Id. ¶ 15; McDonald Aff. ¶ 7 (“I became concerned that CEF’s Good News
Club meetings may not be appropriate for the [After-School Program] after . . .
overhearing praying . . . .”).)
In the fall of 2009, Maureen Berger, CEF ministry leader for the Twin Cities area,
was notified by McDonald that CEF had been removed from the list of CPs in the AfterSchool Program, which meant that the District would no longer be able to make available
the after-school activities bus or treats, or include the GNC on the “class choices”
registration form. McDonald also told CEF that it could apply for a permit to use the
District’s facilities and distribute its own flyer through the District’s flyer distribution
-9-
process. CEF completed a CPO renewal application for the 2009-10 and 2010-11 school
years, both of which were granted. (Crampton Decl. Ex. J.) During the 2009-2011
schools years, CEF applied for and obtained permits to use space at Jenny Lind, and
applied for and was able to distribute its own flyers to students as part of the District’s
flyer distribution process, outside of the After-School Program “class choices” form.
In 2010, CEF’s State Director David Tunell exchanged letters with the District
about why CEF had been removed from the After-School Program. Assistant District
General Counsel Amy Moore wrote to CEF stating that “CEF programming was not
appropriate” because “CEF Programming included leading the children in prayer,
teaching them that Jesus Christ is their savior, and studying Biblical passages.”
(Crampton Dec. Ex. I.) Moore also stated that the After-School Program is “wholly
funded coordinated, reviewed and monitored by the District. The District is not able to
separate from or remove its sponsorship of the After-School Program, and must remain
neutral towards religion.” (Id.)
Thirty-one students attended GNC meetings during the 2004-05 school year, 26
students attended in 2005-06, 36 students in 2006-07, 47 students in 2007-08 and 200809, and 10 students in 2009-10. CEF alleges that this decline in attendance constitutes a
form of irreparable harm. CEF also alleges it has suffered financial harm by not being
listed with other after-school programs because it had to pay for and print separate
invitation flyers to be distributed to students, and provide snacks. (Berger Decl. ¶ 14.)
CEF brought this motion for a preliminary injunction seeking to enjoin the District
from denying CEF access to the additional benefits afforded to participants in the After- 10 -
School Program, such as busing and treats, that are not currently provided to them as
CPs.
ANALYSIS
I.
STANDARD OF REVIEW
In determining whether a party is entitled to preliminary injunctive relief, the
Court considers “(1) the threat of irreparable harm to the movant; (2) the state of the
balance between this harm and the injury that granting the injunction will inflict on other
parties litigant; (3) the probability that [the] movant will succeed on the merits; and
(4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir.
1981). “[T]he question is whether the balance of equities so favors the movant that
justice requires the court to intervene to preserve the status quo until the merits are
determined.”
Id.
“It frequently is observed that a preliminary injunction is an
extraordinary and drastic remedy, one that should not be granted unless the movant, by a
clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968,
972 (1997) (emphasis omitted) (internal quotation marks omitted). “In First Amendment
cases, courts first determine the likelihood of success on the merits because if it is shown
with likelihood that a deprivation of First Amendment freedoms occurred, such a
showing is often determinative under the Dataphase analysis.”
Child Evangelism
Fellowship of Minnesota v. Elk River Area Sch. Dist. #728, 599 F. Supp. 2d 1136, 1139
(D. Minn. 2009).
- 11 -
II.
PROBABILITY OF SUCCESS ON THE MERITS
In evaluating the “probability of success on the merits,” the Court need not discern
with mathematical precision whether the plaintiff has a greater than fifty percent chance
of prevailing. Dataphase, 640 F.2d at 113.
The equitable nature of the proceeding mandates that the court’s approach
be flexible enough to encompass the particular circumstances of each case.
Thus, an effort to apply the probability language to all cases with
mathematical precision is misplaced. . . . [W]here the movant has raised a
substantial question [as to irreparable harm] and the equities are otherwise
strongly in his favor, the showing of success on the merits can be less. . . .
[W]here the balance of other factors tips decidedly toward plaintiff a
preliminary injunction may issue if movant has raised questions so serious
and difficult as to call for more deliberate investigation.
Id. (footnotes omitted).
CEF argues that being denied access to the After-School Program has infringed its
free speech rights, among others, because it does not enjoy the same benefits, such as
treats and busing, provided to other participants in the After-School Program.
The
District first argues that speech has not been infringed since CEF has access to its
facilities and is presently using them. The District also argues that even if it is infringing
CEF’s speech, it is permissible as a compelling government interest in avoiding a
violation of the Establishment Clause.
A.
Free Speech
Analyzing a potential violation of a First Amendment free speech right requires
the Court first to determine what type of forum is at issue – whether it is a traditional
“open” public forum, or a more limited forum – and then to determine if the restrictions
- 12 -
or regulations applied to the speech in that forum are constitutionally permissible. See
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266-67 (1988); Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985). CEF alleges that the District
created a public forum through the creation of the After-School Program, and is engaging
in viewpoint discrimination by preventing CEF from participating in the After-School
Program.
1.
Type of Forum
CEF argues that the District has opened a designated or limited public forum
because there is no limit on the groups allowed to use the District’s facilities or the
subjects those groups may address.1 The nature of permissible limitations on speech is
based on the nature of the forum in which the speech is delivered. See Does v. S. Iron R1 Sch. Dist., 498 F.3d 878, 882 (8th Cir. 2007); see also Bronx Household of Faith v.
Cmty. Sch. Dist. No. 10, 127 F.3d 207, 211 (2d Cir. 1997). There are three general types
of forums: (1) traditional public forums, (2) designated public forums, and (3) non-public
forums. See Cornelius, 473 U.S. at 802. “The public schools do not possess all of the
attributes of streets, parks, and other traditional public forums that ‘time out of mind,
have been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions.’” Hazelwood, 484 U.S. 267 (quoting Hague v. CIO, 307 U.S.
1
CEF makes no distinction between the After-School Program as a forum, and the CPO
process as a forum. Because CEF does not distinguish between the After-School Program and
Community Partners who have merely completed the CPO process, the Court assumes that
whenever CEF is discussing exclusion or denial of benefits from a program, they mean the AfterSchool Program, which is the only forum to which they do not presently have access.
- 13 -
496, 515 (1939)). Thus, school facilities may be deemed to be public forums only if
school authorities have “by policy or by practice” opened those facilities “for
indiscriminate use by the general public,” Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 47 (1983) (emphasis added), or by some segment of the public, such
as student organizations. Id. at 46 n.7. “If the facilities have instead been reserved for
other intended purposes, ‘communicative or otherwise,’ then no public forum has been
created, and school officials may impose reasonable restrictions on the speech of
students, teachers, and other members of the school community.” Kuhlmeier, 484 U.S. at
267.
“A designated public forum is a nonpublic forum the government intentionally
opens to expressive activity for a limited purpose such as use by certain groups or use for
discussion of certain subjects.” Bowman v. White, 444 F.3d 967, 975 (8th Cir. 2006)
(citing Perry, 460 U.S. at 46). “A limited public forum is a subset of the designated
public forum that arises where the government opens a non-public forum but limits the
expressive activity to certain kinds of speakers or to the discussion of certain subjects.”
Id. at 976 (internal quotation marks and alterations omitted). The classification of a
forum as a limited designated public forum “is significant because it controls the level of
scrutiny given to restrictions on speech . . . [I]n a limited designated public forum,
‘[r]estrictions on speech not within the type of expression allowed in a limited public
forum must only be reasonable and viewpoint neutral.’” Id. (quoting Make the Road By
Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir. 2004)). In a limited designated
public forum, content discrimination “may be permissible if it preserves the purposes of
- 14 -
that limited forum”; but viewpoint discrimination “is presumed impermissible when
directed against speech otherwise within the forum’s limitations.” Rosenberger v. Rector
and Visitors of Univ. of Va., 515 U.S. 819, 830 (1995). “The principle [of viewpoint
discrimination]. . . ‘is that the First Amendment forbids the government to regulate
speech in ways that favor some viewpoints or ideas at the expense of others.’” Lamb’s
Chapel v. Ctr. Moriches Union Free Sch. Dist, 508 U.S. 384, 394 (1993) (quoting City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)).
Because a school must take some action to make itself a public forum, the Court
evaluates whether the District opened the forum to expressive activity for indiscriminate
use, or for a limited purpose, such as use by certain groups or use for discussion of
certain subjects. Bowman, 444 F.3d at 975; see also Perry, 460 U.S. at 47. The factual
record makes clear that the District has not opened the After-School Program for
indiscriminate use by the general public, and that the After-School Program limits which
groups are entitled to be included on its “class activities” calendars, and utilize its buses
and snacks. (Compare Sanders Aff. Ex. B with Crampton Decl. Ex. J.) The question
then becomes whether the way in which the District limits access to the After-School
Program itself makes the After-School program a limited or designated public forum, or a
non-public forum.
Here, the District has clearly opened the “forum” of the After-School program to
expressive activity, and it has limited the purposes and programs for which the AfterSchool Program can be used. As such, the District may engage in content discrimination
to preserve the purposes of the After-School Program, but the District’s restrictions on
- 15 -
speech must be reasonable and viewpoint neutral. Bowman, 444 F.3d at 975. Thus the
Court must address whether the District has improperly limited access to the limited
designated public forum of the After-School Program through viewpoint discrimination
that is not reasonably related to the purpose for which the forum has been opened.
2.
Viewpoint Discrimination
“The State’s power to restrict speech . . . is not without limits. The restriction
must not discriminate against speech on the basis of viewpoint, and the restriction must
be ‘reasonable in light of the purposes served by the forum.’” Good News Club v.
Milford Cent. Sch., 533 U.S. 98, 106-07 (2001) (citing Rosenberger, 515 U.S. at 829)
(citation omitted); see also Cornelius, 473 U.S. at 806. CEF complains that it should be
allowed the same right of access to the facilities and opportunities offered to other
community groups under the umbrella of the After-School Program, under the same
terms and conditions as secular programs. CEF seeks access to the school activities bus,
treats, and inclusion on the After-School Program “class activities list,” not just the CPO
flyer on which it is presently included. CEF contends that being denied access to these
additional benefits, provided only to programs in the After-School Program, is viewpoint
discrimination, as other groups get access to the treats and busing, whereas CEF does not
because of its religious viewpoint.
CEF relies heavily on Milford, in which the Supreme Court found that a school
district excluded a GNC on the basis of the religious nature of its viewpoint. See Milford,
533 U.S. at 112. The Milford Central School (“Milford”) adopted a policy that district
- 16 -
residents could use the school for “instruction in any branch of education, learning or the
arts” and for “social, civic and recreational meetings and entertainment events, and other
uses pertaining to the welfare of the community, provided that such uses shall be
nonexclusive and shall be opened to the general public.” Id. at 102 (internal quotation
marks omitted). The sponsors of the local GNC asked Milford if it could hold weekly
after-school meetings in the school cafeteria. Id. at 103. Milford denied the request
because its policy prohibited use by individuals or organizations for a religious purpose.
Id. The district also asked for clarification of the GNC’s activities and, after reviewing
submissions from the GNC’s attorneys, concluded that the GNC’s activities were not “a
discussion of secular subjects such as child rearing, development of character and
development of morals from a religious perspective, but were in fact the equivalent of
religious instruction itself.” Id. at 104 (internal quotation marks omitted).
The Supreme Court determined that Milford had created a limited public forum,
and it could be justified in reserving its forum for certain groups or for the discussion of
certain topics, but could not discriminate against speech on the basis of viewpoint. Id. at
106-07. The Court found that Milford excluded the GNC on the basis of the religious
nature of its viewpoint and did not reach the issue of whether the policy was
unreasonable in light of the purposes served by the forum. Id. at 107. It found that
something that is “quintessentially religious” or “decidedly religious in nature” can also
teach morals and character development from a particular viewpoint. Id. at 111 (internal
quotation marks omitted). It concluded that under the Free Speech Clause there is “no
logical difference in kind between the invocation of Christianity by the Club and the
- 17 -
invocation of teamwork, loyalty, or patriotism by other associations to provide a
foundation for their lessons.” Id. Thus, the Court determined that teaching morals and
character development from a religious viewpoint cannot be restricted.
CEF also points to Elk River, 599 F. Supp. 2d at 1141, in which the court issued a
preliminary injunction enjoining implementation of a policy allowing only organizations
identified as “patriotic organizations” under 20 U.S.C. § 7905(b)(1) to distribute literature
and attend school district open houses, when the GNC was not listed as a “patriotic
organization.” However, the court found “even though [Elk River] has not discriminated
on the basis of viewpoint, Congress has done so by classifying certain organizations as
patriotic. This classification endorses a certain patriotic viewpoint while leaving other
viewpoints, that may be equally patriotic, off the list.” Id. at 1141. In a similar case
involving allegedly disparate treatment of GNCs as compared to Boy Scout troops, the
Eighth Circuit found that CEF demonstrated it had a religious viewpoint regarding moral
character and youth development, and that it was impermissible for a school district to
discriminate based on the particular perspective by which the Club approaches topics
such as moral character and development. Good News/Good Sports Club v. Sch. Dist. of
the City of Ladue, 28 F.3d 1501, 1507 (8th Cir. 1994) The court stated that the “only
difference [between the Boy Scouts and the Good News Club] is that the [Good News]
Club employs a religious perspective.” Id. at 1506 n.7.
These three cases, however, are distinguishable. First, in Milford, the Supreme
Court found that the Club’s meetings were not sponsored by the school, as opposed to
this case where the District sponsors the After-School Program. Milford, 533 U.S. at
- 18 -
113. In addition, the remedy sought in Milford was access to Milford’s facilities, which
CEF has already been granted by the District through the CPO process. See Milford, 533
U.S. at 108-09.
In Ladue, the Eighth Circuit found it constitutionally impermissible that Ladue
excluded all groups from district facilities between 3:00 and 6:00 p.m., except the Boy
Scouts and athletic groups. See Ladue, 28 F.3d at 1510. Such is not the case here, where
CEF has expressly been granted permission to use the District’s facilities. A similar
factual predicate distinguishes Elk River, in which the GNC was excluded entirely from
facilities to which the Boy Scouts had access. See Elk River, 599 F. Supp. 2d at 1141.
The GNCs in Ladue and Elk River were not seeking to become part of a districtsponsored program, they were only seeking to use district space during the same time
period that the Boy Scouts and athletic groups had access to the space. In this case, the
District has not placed timing restrictions on when or where the GNC can meet. CEF has
not cited, nor is the Court aware, of any case in which a court concluded that an
organization enjoying equal access to a school district’s facilities suffered a First
Amendment violation because it was deprived of ancillary benefits such as those at issue
here: treats, after-school buses, and inclusion in a class activities list. CEF already has
the ability to meet and hand out literature through the CPO Process.
Another relevant distinction between this case and Milford is that in Milford, the
Supreme Court found in the record of the case no logical difference between the program
and activities offered by CEF and those offered by the Boy Scouts.
The exhibits
accompanying the affidavits in this case, by contrast, unequivocally demonstrate the
- 19 -
difference between the programs and activities of Boy Scouts and those of CEF. For
instance:
CEF is an interdenominational missionary organization that seeks to
evangelize boys and girls with the Gospel of the Lord Jesus Christ and
to disciple them in the Word of God . . . . (Hacket Aff. Exs. A-B)
(emphasis added).
At clubs, children are introduced to Jesus Christ as Savior . . . . (Hacket
Aff. Ex. C.)
Program Purpose/Goals: Introducing children to Jesus Christ as
Savior . . . . (Crampton Decl. Ex. M.)
Program Goals: Introducing children to Jesus Christ as Savior . . . .
(Crampton Decl. Ex. N.)
Boys & Girls grades K-6 are invited to bring a friend for fun, games,
a snack and a bible lesson. (Hacket Aff. Ex. C) (emphasis added).
These descriptions suggest that while GNCs do likely teach morals and character
development from a religious perspective, which the weight of authority confirms is
permissible, GNC activities include prayer and an explicit goal and purpose is to convert
children to Christianity, which could run afoul of the Establishment Clause and can be
restricted on the basis of content. Analyzing the plain language “to evangelize boys and
girls” demonstrates the characteristics that distinguish the activities of the Boy Scouts
from those of CEF. “Evangelize” means: “to preach the gospel to [or] to convert to
Christianity . . . .” Merriam Webster’s Collegiate Dictionary 400 (10th Ed. 2001). Courts
that have analyzed GNC activities have focused on descriptions of programs that
included mere religious perspective on otherwise acceptable topics such as leadership
and patriotism. What seems clear from CEF’s own materials in this case is that speech
- 20 -
which cannot be government-sponsored (i.e. prayer, proselytization) is being coupled
with permissible speech (moral and character development from a religious perspective).
(See McDonald Aff. ¶ 7) (“I became concerned . . . after . . . overhearing prayer . . .
during a [GNC] meeting . . . .”); see also Cornelius, 473 U.S. at 806 (“[T]he government
violates the First Amendment when it denies access to a speaker solely to suppress the
point of view he espouses on an otherwise includible subject.” (emphasis added)). CEF
has cited no cases in which a court found proselytizing and prayer proper content for
school-sponsored speech.
Here, the District has at most engaged in content
discrimination, in keeping religious prayer and proselytizing from the limited designated
public forum of the After-School Program, while at the same time providing after-school
facilities to CEF as a community partner.
Proselytization in schools has received attention by the Supreme Court, notably in
a concurrence in Milford by Justice Stevens in which he explained:
Distinguishing speech from a religious viewpoint, on the one hand, from
religious proselytizing, on the other, is comparable to distinguishing
meetings to discuss political issues from meetings whose principal purpose
is to recruit new members to join a political organization. If a school
decides to authorize afterschool discussions of current events in its
classrooms, it may not exclude people from expressing their views simply
because it dislikes their particular political opinions. But must it therefore
allow organized political groups - for example, the Democratic Party, the
Libertarian Party, or the Ku Klux Klan - to hold meetings, the principal
purpose of which is not to discuss the current-events topic from their own
unique point of view but rather to recruit others to join their respective
groups? I think not.
*
*
*
School officials may reasonably believe that evangelical meetings designed
to convert children to a particular religious faith pose the same risk [of
divisiveness in the school]. And, just as a school may allow meetings to
- 21 -
discuss current events from a political perspective without also allowing
organized political recruitment, so too can a school allow discussion of
topics such as moral development from a religious (or nonreligious)
perspective without thereby opening its forum to religious proselytizing
or worship.
Milford, 533 U.S. at 131-132 (Stevens, J., concurring) (emphasis added); see also id. at
132 (quoting Campbell v. St. Tammany Parish Sch. Bd., 231 F.3d 937, 942 (5th Cir. 2000)
(“Under the Supreme Court’s jurisprudence, a government entity such as a school board
has the opportunity to open its facilities to activity protected by the First Amendment,
without inviting political or religious activities presented in a form that would disserve its
efforts to maintain neutrality.”)).
CEF argues that being denied access to after-school activities buses, District
sponsored snacks, and listing on a “class activities” schedule has infringed its free speech
rights under the First Amendment and has caused enrollment in the GNC at Jenny Lind to
decrease dramatically. CEF claims that being denied membership in the After-School
Program is unconstitutional viewpoint discrimination, and is not reasonable in light of the
purpose served by the forum.
The Court disagrees, and finds it unlikely that CEF will prevail on the merits of
this claim.
Religious instruction, by its very nature, often deals with character
development and moral lessons. This realization requires the Court to adopt a finegrained approach to addressing the issue of GNCs in schools. The Court has carefully
considered the relevant case law and finds that while part of what GNCs do is in fact
analogous to the activities of the Boy Scouts and other secular groups and thus must be
- 22 -
permitted in the same forums, other GNC activities are not confined to development of
morals or character.
Though CEF may have been found in other cases to confine its activities to
“influencing character development and spiritual growth,” the evidence in this case
suggests identifiable differences, notably proselytization and prayer, between CEF’s
activities and goals and those of other organizations, particularly the Boy Scouts.
Instead, the Court finds that at least some of CEF’s activities are not religious
interpretations of secular topics, but are instead directed towards teaching religion itself.
Thus, the District’s restrictions would likely be found reasonable in light of a legitimate
government interest, and would not constitute viewpoint restriction. Because CEF is
unlikely to prevail on its claims of violations of its First Amendment Rights, this factor
weighs against granting a preliminary injunction.
B.
Establishment Clause
The District argues that its constitutional interests in not violating the
Establishment Clause outweigh CEF’s free speech interests in being allowed to use the
District’s busing and snacks. An abridgment of free speech otherwise protected by the
First Amendment must be justified by a compelling governmental interest.
Lamb’s
Chapel, 508 U.S. at 394. A state interest in avoiding an Establishment Clause violation
can be characterized as “compelling.” Widmar, 454 U.S. at 271. “[T]here are heightened
concerns with protecting freedom of conscience from subtle coercive pressure in the
- 23 -
elementary and secondary public schools.” Lee v. Weisman, 505 U.S. 577, 592 (1992).
In discussing the Establishment Clause, the Supreme Court has stated:
In the course of adjudicating specific cases, this Court has come to
understand the Establishment Clause to mean that government may not
promote or affiliate itself with any religious doctrine or organization, may
not discriminate among persons on the basis of their religious beliefs and
practices, may not delegate a governmental power to a religious institution,
and may not involve itself too deeply in such an institution’s affairs.
Cnty. of Alleghany, et al. v. Am. Civil Liberties Union Greater Pittsburgh Chapter, et al.,
492 U.S. 573, 590-91 (1989).
In order to determine whether a challenged practice “constitutes an endorsement
or disapproval of religion[,]” the practice must be “judged in its unique circumstances.”
Id. at 624-25, (O’Connor, J., concurring) (quoting Lynch v. Donnelly, 465 U.S. 668, 694
(1984) (O’Connor, J., concurring)). In addition, the challenged practice must be
considered from the perspective of a hypothetical reasonable observer who is “aware of
the history and context of the community and forum . . . .” Capitol Square Review &
Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O’Connor, J., concurring ).
The familiar test from Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), is the
standard by which potential violations of the Establishment Clause are evaluated. ACLU
Neb. Found. v. City of Plattsmouth, Neb., 419 F.3d 772, 775 (8th Cir. 2005). Under
Lemon, there is no Establishment Clause violation if the challenged law or practice
(1) has “a secular legislative purpose,” (2) “its principal or primary effect . . . neither
advances nor inhibits religion,” and (3) it does not “foster an excessive government
entanglement with religion.” Lemon, 403 U.S. at 612-13. In Agostini v. Felton, 521 U.S.
- 24 -
203, 233 (1997), the Court clarified the third prong of this test, concluding that it is best
understood “as an aspect of the inquiry into a statute’s effect.”
An entanglement must be excessive before it runs afoul of the Establishment
Clause, and this requires more than mere “[i]nteraction between church and state,” for
some level of interaction has always been “tolerated.” Id. As the Supreme Court
explained in Agostini, the factors employed “to assess whether an entanglement is
‘excessive’ are similar to the factors . . . use[d] to examine ‘effect.’” Id. at 232. Thus,
the Court must look to “the character and purposes of the institutions that are benefited,
the nature of the aid that the State provides, and the resulting relationship between the
government and religious authority.” Id. (quoting Lemon, 403 U.S. at 615).
The Court must first determine if participation in the After-School Program could
be considered school-sponsored (or “government”) speech, thus triggering Establishment
Clause scrutiny. The Court then evaluates whether permitting CEF to be a part of the
After-School Program is permissible within Lemon.
1.
District Sponsorship of After-School Program
CEF contends that the organizations participating in the After-School Program are
not government speakers, and that their speech is private. “[T]here is a crucial difference
between government speech endorsing religion, which the Establishment Clause forbids,
and private speech endorsing religion, which the Free Speech and Free Exercise Clauses
protect.” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (quoting Bd. of Ed.
of Westside Cmty. Sch. (Dist. 66) v. Mergens, 496 U.S. 226, 250 (1990)). “School
- 25 -
sponsorship of a religious message is impermissible because it sends the ancillary
message to members of the audience who are nonadherents ‘that they are outsiders, not
full members of the political community, and an accompanying message to adherents that
they are insiders, favored members of the political community.’” Id. at 309-10.
The Court must consider a number of factors when determining whether religious
speech is school-sponsored and thus prohibited by the Establishment Clause, or private
speech protected by the Free Speech and Free Exercise Clauses.
First, the Court must
consider the degree of school involvement with the speech and the extent to which the
speech bears the imprint of the state. Doe v. Sch. Dist. of the City of Norfolk, 340 F.3d
605, 611 (8th Cir. 2003). Courts also consider the extent to which the school is involved
in deciding whether there will be a message, who will speak, or what the speaker will
say. Id. at 612. Finally, courts consider whether an objective observer would perceive
the speech as state endorsed. Id.
District staff create and distribute the “class choices” forms to students and their
parents.
The forms clearly identify the District (via the school, or a school
representative) as the sponsor of the programs listed on the forms. (See McDonald Aff.
Exs. A (“Make checks payable to Jenny Lind C.Ed.”), D (including a logo for the
Minneapolis Public Schools).)
Further, the class activities form includes the phone
number and contact information of a District employee, and the form contains the logo of
the Minneapolis School District.
The After-School Program bears the imprint of the
state.
- 26 -
Site Coordinators select what programs are included in the After-School Program,
and orient the individuals and organizations that participate. District staff are involved in
disciplinary issues prior to, during, or directly following class meetings. The District
claims that it prepares all of the paperwork regarding enrollment for the students and
keeps attendance records for the meetings. The District also claims that it funds and
provides after-school activities buses, school supplies, and treats for the students in the
After-School Program. These facts, in addition to the fact that District Staff are involved
in disciplinary proceedings, could suggest to an objective observer that the After-School
Program is school sponsored.
CEF challenges the District’s characterization of its involvement with the AfterSchool Program.
First, it argues that the District’s Policy 1301 states that only
organizations that are not school or District sponsored may apply to be CPs, and as CEF
is a CP, it could not possibly be school-sponsored. Next, CEF argues that there is little
editorial control over the content of speech of participants in the After-School Programs.
CEF notes that despite its participating in the After-School Program for five years, the
District exercised no content restriction or editorial control over the content of the GNCs.
CEF argues that an objective observer would not understand the identity of the speaker to
be the District, as: (1) no District employee has ever been a speaker at a GNC meeting;
(2) GNC meetings are always directed by CEF members; and (3) CEF signed an
indemnification agreement as part of the CPO process, and is required to include a
disclaimer on its flyers that the Minneapolis Public Schools are legally unable to sponsor
- 27 -
the activities on its flyer.
Finally, CEF argues that the government does not bear
ultimate responsibility for the content of the speech at GNC meetings.
Although it is a close question, on balance the Court finds it likely that the
organizations participating in the After-School Program engage in school-sponsored
public speech. Such organizations are selected by the District for additional benefits
separate from those of the larger group of CPs, the forms, flyers, and other information
communicated to parents bear the logos and information of District employees, and the
Site Coordinators exercise some control over the content of the After-School Program.
Further, an objective observer, including the parents of After-School Program attendees,
could reasonably believe that a religious program held on school grounds, for which they
gave permission on a sheet including other school-sponsored activities, and which
involves travel on a school bus, has the imprimatur and support of the school itself.
Though the Court is not required to determine whether the After-School Program is
school-sponsored speech at this stage of litigation, the Court concludes that the AfterSchool Program will likely be found to be school-sponsored speech triggering the
protections of the Establishment Clause. This factor weighs against CEF’s motion for a
preliminary injunction as it provides a defense for the District against CEF’s claims.
2.
Lemon Factors
The Court next must evaluate whether under Lemon the District’s inclusion of
CEF in the After-School Program (1) has “a secular legislative purpose,” (2) “its
principal or primary effect . . . neither advances nor inhibits religion,” and (3) it does not
- 28 -
“foster an excessive government entanglement with religion.” Lemon, 403 U.S. at 61213.
The District first argues that GNCs do not have a secular purpose. One of CEF’s
primary goals, as articulated in its flyers and other materials, is to “evangelize” children
and teach them that Jesus Christ is their savior. Thus, CEF’s inclusion in the AfterSchool Program could not be understood to have a secular purpose. Next, the District
argues that the primary effect of CEF’s involvement with the After-School Program
would be to advance religion, again, noting the proselytizing nature of GNC meetings,
and CEF’s stated goals. Finally, though a high bar, the District argues that because of the
various benefits, and the imprimatur of the District, associated with the After-School
Program, inclusion of the GNC in such a program would foster an excessive government
entanglement as prohibited by the Establishment Clause.
CEF does not specifically address the Lemon factors. Instead, CEF bases its
argument that the District’s Establishment Clause defense is meritless on Prince v.
Jacoby, 303 F.3d 1074 (9th Cir. 2002). In Prince, the Ninth Circuit found that a school
could not prevent a student Bible club from using school facilities, supplies, and buses,
simply because the club addressed topics from a religious perspective.
Id. at 1092
(“Providing meeting space during student/staff time, school supplies and bus
transportation is not a direct payment to the World Changer’s coffers, even though it may
facilitate the World Changer’s own religious speech.”). The court further concluded that
“[t]here is no risk of government indoctrination of students if student/staff time, school
supplies and transportation are provided to all student groups, no matter how vociferously
- 29 -
the World Changers make their point.” Id. at 1093. However, the factors the Ninth
Circuit relied on included that the money supporting the benefits came entirely from
student fees, and there was no indication the club intended to conduct religious
services. Id. at 1093-94 (emphasis added). Additionally, the school in Prince provided
supplies and buses to all groups, there was not a subset of groups that were provided
specifically sponsored benefits as is the case here. Id. at 1093 (“In light of the numerous
and diverse student clubs on the school’s campus, the School District cannot easily grant
special favors that might lead to a religious establishment.”).
The Court is not here required to determine whether inclusion of CEF in the AfterSchool Program is itself a violation of the Establishment Clause. It is sufficient that
taking all of the present evidence into account, it is likely that the District could
demonstrate that CEF’s participation in the After-School Program violates the
Establishment Clause.
III.
IRREPARABLE HARM
To succeed in an action for a preliminary injunction, a movant must first show
irreparable harm that is not compensable with money damages if it prevails on the merits.
Travel Tags, Inc. v. UV Color, Inc., 690 F. Supp. 2d 785, 798 (D. Minn. 2010); see also
Gen. Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 319 (8th Cir. 2009).
CEF argues that it has, and will continue to, suffer irreparable harm from the
District’s refusal to permit CEF access to the “class choices” list, and to buses and treats
provided to other groups which are part of the After-School Program. However, CEF
- 30 -
admits that it is still permitted to offer its GNCs, using the District’s facilities, albeit
under “unequal constraints imposed by the District.” CEF’s primary evidence of the
harm it has suffered is the drop in attendance at GNC meetings.
CEF has pointed to no authority suggesting that a decrease in an organization’s
membership or attendance at meetings constitutes irreparable harm, and the Court does
not now so find. CEF also argues that it has been forced to print its own flyers and pay
for its own snacks. This argument fails to demonstrate irreparable harm for two reasons:
(1) the GNC was already printing its own flyers, and providing its own snacks, prior to
the advent of the CPO process; and (2) such harm is specifically compensable through
money damages.
Further, CEF has, and continues, to participate in the CPO process, meaning that it
can hold meetings on school grounds, and use the District’s flyer distribution process.
CEF presently takes advantage of these opportunities. Thus, the Court finds that CEF has
not shown a threat of irreparable harm.
IV.
BALANCE OF HARMS AND PUBLIC INTEREST
CEF argues that the balance of the harms weighs in favor of granting injunctive
relief. According to CEF, the harm it faces is a restraint on speech and diminishment of
membership, and the harm to the District is, if anything, confined to administrative costs.
CEF argues that it only wants to maintain the “status quo” of its involvement with the
After-School Program with full access to the benefits provided to those programs.
- 31 -
On balance, if CEF’s claims were stronger, the balance of harms would likely tip
in its favor, as would the public interest. However, the Court concludes that CEF is
unlikely to succeed on the merits of its claims and that granting the preliminary
injunction in favor of CEF might cause the District to violate the Establishment Clause.
Therefore, the Court finds consideration of the Dataphase factors do not support a grant
of a preliminary injunction.
CEF has participated in the Minneapolis School District’s After-School Program
since approximately 2000 and in the District’s CP program since the program’s inception.
This participation has allowed CEF the use of the District’s facilities for after school
programming for children. What is different about this case from other similar cases that
have preceded it, such as Milford, is that in this case the record makes clear, as plaintiff
readily admits, that CEF’s programming includes prayer and evangelizing. Programming
is not limited to teaching moral leadership from a religious point of view. In the Court’s
view, based on the record before it, the District has not acted in an unconstitutional
manner in denying to CEF the additional benefits of school sponsorship – inclusion in the
school activities flyer, and snacks and busing. CEF continues to have access to school
facilities as a CP. The Court thus denies CEF’s motion for a preliminary injunction in
which it seeks the additional benefits of school sponsorship for its programming.
- 32 -
ORDER
Based on the foregoing and the records, files, and proceedings herein, IT IS
HEREBY ORDERED that plaintiff’s Motion for a Preliminary Injunction [Docket
No. 9] is DENIED.
DATED: September 30, 2011
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
- 33 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?