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Child Evangelism Fellowship of Minn. v. Elk River Area School Dist. #728: US District Court : 1ST AMENDMENT | EDUCATION | INJUNCTION - preliminary injunction; if Boy Scouts in, others too

Child Evangelism Fellowship of
v. Civil No. 08-5165 ADM/AJB
Elk River Area School District #728,
Stephen M. Crampton, Esq., Liberty Counsel, Lynchburg, VA, on behalf of the Plaintiff.
Paul Engh, Esq., Engh Law Office, Minneapolis, MN on behalf of the Defendant.
This matter is before the undersigned United States District Judge on Plaintiff Child
Evangelism Fellowship of Minnesotas (CEF) Motion for Preliminary Injunction [Docket No.
6] and Defendant Elk River Area School District # 728s (Elk River) Motion to Dismiss
[Docket No. 12]. CEF seeks to enjoin implementation of Elk Rivers policy of allowing only
organizations identified as patriotic organizations under 20 U.S.C. 7905(b)(1) and Title 36 to
distribute literature and attend district Open Houses. For the reasons set forth below, the
preliminary injunction is granted and the motion to dismiss is denied.
CEF is a non-profit religious organization that sponsors the Good News Club, an
organization for children that encourages learning, spiritual growth, and service to others by
providing religious and moral education through lessons from the Bible. Verified Compl.
[Docket No. 1] 10, 12, 13. The Good News Club is open to all children between the ages of
five and twelve regardless of their religious beliefs. Id. 15. Meetings for the Good News Club
are held on elementary school campuses, and the children are taught biblical principles, moral
values, character qualities, respect for authority, relationships, character development, and
important community issues. Id. 18, 21.
Elk River regulates the distribution of official, nonschool-sponsored materials pursuant to
District Policy 1011,4.1, which provides:
Material for distribution by giving the students for the students or
for delivery to parents shall be restricted to materials directly
relating to official and school-sponsored activities and materials
directly in support of school activities. Materials from organizations
that fall within the category of designated patriotic youth
organizations as defined by the No Child Left Behind Act will also,
subject to staff review, be eligible for distribution to parents and/or
directly to students.
Id. 25. Elk River allows "designated patriotic organizations", including the Boy Scouts of
America, to distribute literature at the district Open Houses and on school bulletin boards. Id.
26, 27, 30. Two Open Houses are held at the beginning of each school year, and parents are
invited to meet teachers and receive information about various programs available to the
students. Id. 34, 35.
On August 28, 2007, Sharilyn Nydam (Nydam), a District Director for CEF, met with
Elk River Assistant Superintendent Jana Hennen-Burr (Hennen-Burr) to discuss allowing CEF
to participate in the Open Houses. Id. 37. Hennen-Burr told Nydam that CEF would not be
allowed to participate in the Open Houses unless it could prove it was designated a patriotic
organization under the No Child Left Behind Act. Id. 38. Because CEF is not a patriotic
organization listed in Title 36 of the United States Code, Elk River did not allow CEF to
participate in the 2007 Open Houses. Id. 40, 43. In 2008, CEF again asked to be allowed to
distribute literature at the Open Houses, and this request was also denied. Id. 44. CEF alleges
not being allowed to distribute literature through the school and attend the Open Houses has
caused participation in the Good News Clubs in the district to markedly decline. Id. 45. This
action followed.
A. Preliminary Injunction
The Eighth Circuit held in Dataphase Systems, Inc. v. C L Systems, Inc. that a district
court deciding a motion for a preliminary injunction must balance four factors: (1) the likelihood
of the movants success on the merits; (2) the threat of irreparable harm to the movant in the
absence of relief; (3) the balance between the harm to the movant and the harm that the relief
would cause to the other litigants; and (4) the public interest. 640 F.2d 109, 114 (8th Cir. 1981)
(en banc). A preliminary injunction is an extraordinary remedy, and the burden of establishing
the propriety of an injunction is on the movant. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th
Cir. 2003) (citation omitted).
1. Likelihood of Success on the Merits
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. See Phelps-Roper v. Nixon,
545 F.3d 685, 690 (8th Cir. 2008). CEF argues that Elk Rivers policy contravenes the Supreme
Courts holding in Good News Club v. Milford Central School, 533 U.S. 98 (2001), because
under the policy, CEF is excluded on the basis of its religious viewpoint. Elk River maintains
that it does not consider viewpoint and limits access to the listed groups, such as the Boy Scouts,
when it is compelled to do so by Congress pursuant to 20 U.S.C. 7905(b)(1).
a. The Milford Decision
The Milford Central School (Milford) adopted a policy that district 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. The sponsors of the local Good News Club asked Milford if it could hold
weekly after school meetings in the school cafeteria. Id. at 103. Milford denied the request
because the policy prohibited use by individuals or organizations for a religious purpose. Id.
The district also asked for clarification of the Clubs activities and after reviewing submissions
from the Clubs attorneys, concluded that the Clubs 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.
The Supreme Court began its analysis by determining the nature of the public forum.
The parties agreed and the Court accepted that Milford had created a limited public forum.
Thus, Milford 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, and the
restriction must be reasonable in light of the purpose served by the forum. Id. at 106-07. The
Court found that Milford excluded the Good News Club 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. Under the Free Speech Clause there is no logical
difference in kind between the invocation of Christianity by the Club and the invocation of
teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons.
b. The Elk River Policy and the Boy Scout Act
Elk River argues that its policy does not consider viewpoint, but rather is dictated by
Congresss enactment of the Boy Scouts of America Equal Access Act (Boy Scout Act), 20
U.S.C. 7905(b)(1), which requires schools to include patriotic organizations designated by
statute as a condition to the receipt of federal education funds. The Boy Scout Act provides:
Notwithstanding any other provision of law, no public elementary
school, secondary school, local education agency, or State education
agency that has a designated open forum or a limited public forum
and that receives funds made available through the Department shall
deny equal access or a fair opportunity to meet to, or discriminate
against, any group officially affiliated with the Boy Scouts of
America, or any other youth group listed in Title 36 of the United
States Code (as a patriotic society), that wishes to conduct a meeting
within that designated open forum or limited public forum, including
denying such access or opportunity or discriminating for reasons
based on the membership or leadership criteria or oath of allegiance
to God and country of the Boy Scouts of America or of the youth
groups listed in Title 36 of the United States Code . . . .
20 U.S.C. 7905(b)(1). In addition to the Boy Scouts, Congress has listed other organizations
under Title 36 including, Big Brothers-Big Sisters of America, Boys & Girls Club of America,
Future Farmers of America, Girl Scouts of America, Little League Baseball, and the Society of
American Florists and Ornamental Horticulturists. The House Conference Report states that the
purpose of the Boy Scout Act is to address access to and use of school facilities by the Boy
Scouts of America or of other groups that prohibit the acceptance of homosexuals, or individuals
1 The Boy Scout Act conditioned receipt of federal education funds on allowing access to
groups, like the Boy Scouts, that discriminate against homosexuals in the wake of the Supreme
Courts decision in Boy Scouts of America v. Dale, 530 U.S. 640 (2000) and the ensuing
removal of Boy Scouts troops from schools that prohibited discrimination on the basis of sexual
orientation. See 147 Cong. Rec. H2618 (daily ed. May 23, 2001) (statement of Rep. Hilleary);
147 Cong. Rec. S6249 (daily ed. June 14, 2001) (statement of Sen. Helms). The Boy Scout Act
was passed in response to Dale and not, as Elk River argues, in response to the holding in
who reject the Boy Scouts or the youth groups allegiance to God and country. H.R. Rep. No.
107-334, at 1600 (2001) (Conf. Rep.).1
Elk River states that its goal in adopting its policy was to avoid discrimination. Def.s
Mem. in Oppn to Prelim. Inj. [Docket No. 16] at 2. It maintains that CEF or religious
viewpoints were not the target of this policy. Rather, in an effort to ensure necessary federal
education funds, it took the only path open to it, namely, closing its forum except to
organizations to whom No Child Left Behind says it must grant access. Id. at 3.
c. Milford and the Boy Scout Act
The parties agree that Elk River has created a limited public forum. As such, it can
designate that forum for certain groups or for the discussion of certain topics. Milford, 533
U.S. at 106. The policy may not, however, discriminate against speech on the basis of
viewpoint, and the restriction must be reasonable in light of the purpose served by the forum.
Id. at 106-07.
The Court finds that the Elk River policy discriminates against CEF on the basis of its
viewpoint. While the Court sympathizes with Elk Rivers frustration in attempting to find a
viewpoint neutral way to comply with the requirements of the Boy Scout Act, the nature of the
Act itself classifies organizations as either patriotic or not. Accordingly, the inclusion on or
exclusion from the list constitutes discrimination based on whether an organization is
appropriately patriotic. The difficulty for Elk River is that even though it 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. And as the Supreme Court
has found, The Good News Club and the Boy Scouts promote the same values and ideas, but
they do so from different viewpoints. See id. at 111. Although Elk River asserts the Boy Scout
Act compels its course of action, the holding in Milford dictates that if Elk River allows the Boy
Scouts, or any other listed patriotic youth group, access to its limited public fora but does not
allow the Good News Club access, it has violated the Free Speech Clause of the First
Even if the school's policy were viewpoint neutral, it would still fail because it is not
reasonable in light of the purpose served. Elk Rivers explanation for why it has adopted this
policy is that it is compelled to do so by the Boy Scout Act. This statement is based on an
incorrect interpretation of the Act. The receipt of federal funds requires Elk River to allow
access to the Boy Scouts only to the extent it has created a limited public forum. Elk River
would still receive federal funding if it decided to close the Open Houses to all non-school
groups, including the Boy Scouts, and limit distribution of literature to only internal school
programs. Elk River is not required to choose between accepting the Boy Scouts or rejecting
federal funding, but if it opens a limited public forum, then it must admit the Boy Scouts to
receive funds. Thus, this policy is not reasonable in light of Elk Rivers stated purpose since it is
not, in fact, compelled to admit the Boy Scouts. For these reasons, CEF is likely to succeed on
the merits, and, therefore, the first Dataphase factor weighs in favor of granting the preliminary
2. Threat of Irreparable Harm
The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976); see
also Phelps-Roper, 545 F.3d at 690. Because CEF has been denied its First Amendment rights
based on its viewpoint, this deprivation constitutes irreparable harm under the second Dataphase
3. Balance of the Harms
As discussed above, CEF is irreparably harmed by the loss of its First Amendment rights.
On the other hand, the harm that Elk River will experience if the policy is enjoined is that its
policy would be voided, and it would need to draft a new policy consistent with the First
Amendment. In the interim, it would either have to allow all non-school groups with a patriotic
message access to the Open Houses if they request it and provide them with the opportunity to
distribute literature through the school or close access to all non-school groups. These
requirements would require additional administrative time but not an inordinate amount. It is
apparent that the potential harm to Elk River is significantly less than the abridgement of CEFs
constitutional rights. For these reasons, the balance of harms favors CEF.
4. Public Interest
The protection of constitutional rights, and specifically the First Amendment, is always in
the public interest. See Roper-Nixon, 545 F.3d at 690. In this case, the public, specifically the
tax base of Elk River, has a pecuniary interest that will be effected by the potential
administrative costs that might be required by allowing CEF and other such groups access to the
school. But these relatively minimal costs do not outweigh the public interest in First
Amendment expression. Because the Dataphase factors weigh in favor of CEF, the preliminary
injunction is granted.
B. Elk Rivers Motion to Dismiss
Rule 12 of the Federal Rules of Civil Procedure provides that a party may move to
dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). In considering a motion to dismiss, the pleadings are construed in the light most
favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true.
Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994); Ossman v. Diana Corp., 825 F. Supp. 870,
879-80 (D. Minn. 1993). Any ambiguities concerning the sufficiency of the claims must be
resolved in favor of the nonmoving party. Ossman, 825 F. Supp. at 880. Under Rule 8(a) of the
Federal Rules of Civil Procedure, pleadings shall contain a short and plain statement of the
claim showing that the pleader is entitled to relief. A pleading must contain enough facts to
state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955,
1974 (2007).
Elk River's motion is premised upon the argument that the Boy Scout Act has rendered
Milford inapposite in this case. Pl.s Mem. in Supp. of Mot. to Dismiss [Docket No. 14] at 1.
The Court disagrees. As explained in the previous section, Milford controls even in light of the
Boy Scout Act, and CEF is likely to succeed on the merits. See Part (B)(1)(c). Elk Rivers
Motion to Dismiss is, therefore, denied.
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS
HEREBY ORDERED that Plaintiff Christian Evangelism Fellowship of Minnesotas Motion
for a Preliminary Injunction [Docket No. 6] is GRANTED and Defendant Elk River Area
School District #728s Motion to Dismiss [Docket No. 12] is DENIED.
s/Ann D. Montgomery
Dated: February 6, 2009.


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