Child Evang. Fellowship, Md v. Montgomery Schools

Citation457 F.3d 376
Decision Date10 August 2006
Docket NumberNo. 05-1508.,05-1508.
PartiesCHILD EVANGELISM FELLOWSHIP OF MARYLAND, INCORPORATED, a Maryland not-for-profit corporation; Child Evangelism Fellowship of Northwest Maryland, a Maryland association, Plaintiffs-Appellants, v. MONTGOMERY COUNTY PUBLIC SCHOOLS; Jerry D. Weast, in his official capacity as Superintendent of Montgomery County Public Schools; Patricia O'Neill; Sharon W. Cox; Kermit V. Burnett; Reginald M. Felton; Charles Haughey; Waltern. Lange; Gabe Romero, in their official capacities as members of the Board of Education for Montgomery County, Defendants-Appellees. National Legal Foundation, Amicus Supporting Appellants, National School Boards Association; Maryland Association of Boards of Education, Amici Supporting Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Kimberlee Wood Colby, Center for Law & Religious Freedom, Springfield, Virginia, for Appellants. Jonathan S. Franklin, Hogan & Hartson, L.L.P., Washington, D.C., for Appellees. ON BRIEF: Steven H. Aden, Gregory S. Baylor, Timothy J. Tracey, Christian Legal Society, Springfield, Virginia; H. Robert Showers, Simms Showers, L.L.P., Leesburg, Virginia, for Appellants. Christopher T. Handman, Jake M. Shields, Hogan & Hartson, L.L.P., Washington, D.C.; Judith S. Bresler, Eric C. Brousaides, Reese & Carney, L.L.P., Columbia, Maryland, for Appellees. Steven W. Fitschen, Colleen M. Holmes, The National Legal Foundation, Virginia Beach, Virginia, for Amicus Supporting Appellants. Naomi E. Gittins, Senior Staff Attorney, Francisco M. Negrón, Jr., Thomas Hutton, Lisa Soronen, National School Boards Association, Alexandria, Virginia; Stephen C. Bounds, Director of Legal & Policy Services, Maryland Association Of Boards Of Education, Annapolis, Maryland, for Amici Supporting Appellees.

Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.

Affirmed in part and reversed and remanded in part by published opinion. Judge MOTZ wrote the opinion, in which Judge MICHAEL and Judge SHEDD joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge.

Child Evangelism Fellowship of Maryland, Inc. ("CEF"), which describes itself as a nonprofit "Bible-centered, world-wide organization composed of born-again believers whose purpose is to evangelize boys and girls with the Gospel of the Lord Jesus Christ," appeals to this court a second time. CEF once again seeks injunctive relief to obtain access to the forum established for take-home flyers in Montgomery County public elementary schools. In the first appeal, the district court denied CEF's request for injunctive relief; we reversed and remanded for further proceedings. See Child Evangelism Fellowship of Md., Inc. v. Montgomery County Pub. Schs., 373 F.3d 589 (4th Cir.2004) ("CEF I").

After that decision, Montgomery County Public Schools ("MCPS") enacted a new policy governing access to the take-home flyer forum. Considering this new policy on remand, the district court again refused to issue an injunction requiring MCPS to permit CEF access to this forum in order to distribute its "Good News Club" flyers. Child Evangelism Fellowship of Md., Inc. v. Montgomery County Pub. Schs., 368 F.Supp.2d 416 (D.Md.2005) ("CEF II"). The district court held that MCPS's take-home flyer forum "is a nonpublic forum subject only to a test of reasonableness." Id. at 430. The court then concluded that the restrictions MCPS imposed on access to the forum were reasonable and did not "violate CEF's free speech rights." Id. at 431.

Although we affirm some of the district court's subsidiary rulings, because the unfettered discretion retained by MCPS to control access to the take-home flyer forum in its new policy does not provide adequate protection for viewpoint neutrality, we must reverse the judgment of the district court with respect to that forum.

I.

Beginning in 2001, CEF attempted to inform parents of elementary school children in Montgomery County, Maryland, about its "Good News Club" meetings. At these meetings, held on school property after school hours, "children recite Bible verses, sing songs, play games, learn Bible stories, and pray under the leadership of trained staff who primarily are volunteers." See CEF I, 373 F.3d at 592. CEF sought to communicate information about the Good News Club meetings through several forums in the County's 125 elementary schools, including back-to-school nights, open houses, community bulletin boards and display tables, and each school's take-home flyer forum. See id. (describing content of flyers and method of distribution via the take-home flyer forums).

When MCPS denied it access to all of these various forums, CEF filed this action challenging the constitutionality of that denial and seeking injunctive relief. The district court did grant CEF some injunctive relief. The court required MCPS to provide CEF access "on the same terms that apply to other community groups" to back-to-school nights, open houses, community bulletin boards, and display tables. However, the court denied CEF's request for a preliminary injunction providing it access to the take-home flyer forum. Id. Although the district court recognized that controlling precedent likely compelled the conclusion that denying CEF access to this forum infringed the group's First Amendment free speech rights, it concluded that the asserted Establishment Clause "problem" caused by allowing distribution of the Good News Club flyers might ultimately "trump[ ]" CEF's free speech rights. Weighing these competing interests, the court found that CEF had not established a likelihood of success on the merits as to its claim to access the take-home flyer forum.

In CEF I, we initially noted that, like the district court, MCPS now recognized that excluding CEF from the take-home flyer forum infringed the group's free speech rights. Although MCPS had contended in its appellate brief that excluding CEF because of its proselytizing religious viewpoint did not constitute viewpoint discrimination, at oral argument MCPS changed its position, "conced[ing] that under controlling precedent," the exclusion was "unconstitutional viewpoint discrimination" violating CEF's First Amendment free speech rights. Id. at 593. We found this concession "well-taken." Id. at 593-94 (holding that Good News Club v. Milford Cent. Sch., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), "directly controls"). Moreover, unlike the district court, we concluded that distribution of CEF's flyers would not violate the Establishment Clause. Id. at 594-602. Accordingly, we reversed the district court's denial of preliminary injunctive relief with respect to the take-home flyer forum and remanded for further proceedings.

Shortly after our decision in CEF I, MCPS enacted a new policy regarding distribution of materials in public elementary schools. MCPS instituted the policy for the stated purpose of distributing "informational materials and announcements" while maintaining "a learning environment free from disruption." The policy provides that "the intent of the Board of Education [is] to designate appropriate materials for display and distribution and maintain a limited nonpublic forum."

The policy provides MCPS with broad discretion over flyer distribution at three different points in the process — the "endorsement" stage, the "approval" stage, and the "withdrawal" stage. Five categories of groups may submit flyers to MCPS concerning activities that these groups "sponsor[ ] or endorse[ ]": (1) MCPS itself; (2) "[a]gencies/departments within the county, state, or federal government"; (3) "Parent Teacher Associations/organizations" (4) licensed daycare providers operating on school campuses; and (5) "[n]onprofit organized youth sports leagues." Because "[o]nly information concerning activities sponsored or endorsed by the . . . listed organizations will be approved" by MCPS, any group that is not listed — like CEF — must obtain an endorsement if it wishes to distribute its flyers.

In addition to being one of the groups with endorsement power, MCPS is the sole entity with the authority to approve flyers for distribution. A regulation implementing the new policy requires any organization seeking to distribute a flyer to "provide the appropriate MCPS official . . . a copy of the material . . . at least 15 school days prior to distribution." All flyers must "identify[ ] . . . on the document" the name of the listed group endorsing its distribution. The policy provides that MCPS "may approve" any flyer submitted or endorsed by a listed group for distribution (emphasis added).

Finally, even after approving a flyer, "MCPS retains the right to withdraw approval of material from any source if it is determined that distribution would undermine the intent of this policy." The regulation elaborates on the meaning of this withdrawal power, clarifying that MCPS officials may withdraw approval of any flyer whose distribution "would undermine the intent of [the policy] . . . or could reasonably be predicted to cause substantial disruption of, or material interference with, school activities."

MCPS moved to dismiss CEF's complaint as moot in light of this new policy. CEF responded by moving for summary judgment. It sought a declaration that MCPS violated the First Amendment by excluding it from, and a permanent injunction requiring its admission to, the take-home flyer forum. CEF also sought a permanent injunction regarding the forums to which the district court previously had granted it preliminary injunctive relief — back-to-school nights, open houses, community bulletin boards, and display tables. Additionally, CEF requested costs, attorneys' fees, and nominal damages.

After hearing argument, the district court entered an order denying CEF's request for a permanent injunction and dissolving as moot, in light of the new policy, the existing preliminary injunction as to the various non-flyer forums. The court also denied CEF's ...

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