Child Evang. Fellowship, Nj v. Stafford Tp. School
| Decision Date | 15 October 2004 |
| Docket Number | No. 03-1101.,03-1101. |
| Citation | 386 F.3d 514 |
| Parties | CHILD EVANGELISM FELLOWSHIP OF NEW JERSEY INC., A New Jersey Not-For-Profit Corporation; Child Evangelism Fellowship of New Jersey, Inc. Bayshore Chapter, A New Jersey Unincorporated Association v. STAFFORD TOWNSHIP SCHOOL DISTRICT; Ronald L. Meinders, In His Official Capacity as Superintendent of Stafford Township School District; Ellen Bernstein; Brian Delaney;<SMALL><SUP>*</SUP></SMALL> Thomas Dellane; Lisa Devaney; Raymond Fix; Denise Harrington; Scott Moses; William Power; Carol Williams, in their official capacities as members of the Board of Education for Stafford Township School District, Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
Appeal from the United States District Court for the District of New Jersey, Mary Little Cooper, J.
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Arthur G. Stein (argued), Stein, Supsie & Hoffman, Forked River, for Appellant.
Alex J. Luchenitser, Americans United for the Separation of Church & State, Washington, for Amicus Appellants, Americans United for Separation of Church and State, The Anti-Defamation League, People for the American Way, New Jersey Education Association, Stafford Township Education Association.
Nathan A. Adams, IV (argued), Kimberlee W. Colby, Annandale, for Appellee.
Eric W. Treene (argued), Angela M. Miller, United States Department of Justice, Washington, for Amicus-Appellee, United States.
Francis J. Manion, New Hope, for Amicus-Appellee, Joseph J. Hills.
Douglas Laycock, University of Texas at Austin School of Law, Austin, for Amicus-Appellees, National Association of Evangelicals Clifton Kirkpatrick, As Stated Clerk of the Presbyterian Church (U.S.A.) Union of Orthodox Jewish Congregations of America Pat Afalese Cathy Capozzi Gretchen Davis B. Keith Drayton Kimberly Freewsick Keith Ruff Lori Ruff.
Julie Underwood, National School Boards Association, Alexandria, for Amicus-Appellee, National School Boards Association.
Before ALITO, BARRY, and AMBRO, Circuit Judges.
In this appeal, Stafford Township School District ("Stafford") and Stafford officials (collectively "Stafford") contesta preliminary injunction granted by the United States District Court for the District of New Jersey in favor of Child Evangelism Fellowship of New Jersey, Inc. and Child Evangelism of New Jersey, Inc.-Bayshore Chapter (collectively "Child Evangelism"). Finding that Child Evangelism was likely to succeed in showing that Stafford was engaging in viewpoint discrimination and that this discrimination was not required by the Establishment Clause, the District Court ordered Stafford to treat Child Evangelism like other community organizations with respect to the distribution and posting of materials and participation in so-called "Back-to-School nights." We affirm.
Stafford operates four schools, including Ocean Acres Elementary School ("Ocean Acres") and McKinley Avenue Elementary School ("McKinley"). Ocean Acres instructs students in grades pre-Kindergarten through second, and McKinley instructs students in the third and fourth grades. JA 304.1 Stafford has adopted written policies on the use of its facilities by community groups2 and the distribution of community group materials to students.3 In addition, Stafford has developed practices concerning the placement of flyers on school walls and the distribution of flyers and the staffing of tables at Back-to-School nights.
Distribution of community group materials. Stafford proclaims that it has an overall policy of assisting community groups. Its written policy on the use of its facilities states that the schools should be used "to the fullest extent possible by community groups and agencies." JA 624. Similarly, its written policy on the distribution of community group literature expresses a "commitment to assist all organizations in our rapidly growing community." JA 190 (emphasis added). This policy sets out the following standards regarding materials that may be handed out to students:
Material being sent home with pupils should relate to school matters or pupil-related community activities. Except when it pertains to the individual pupil, all such material must be approved in advance by the superintendent/designee.
Pupils shall not be used to distribute partisan materials or partisan information pertaining to a school or general election, budget or bond issues, or negotiations. Pupils shall not be exploited for the benefit of any individual, group, or profit-making organization.
No staff member may distribute any materials on school property without prior approval of the superintendent.
All surveys, questionnaires or other similar items requiring pupil or parent/guardian response shall be reviewed and approved by the superintendent prior to distribution.
JA 189.
To implement these standards, Stafford has adopted the following specific rules:
1. The principal is authorized to duplicate scheduled memos and send them home with the children. All school activities may be advertised on these memos.
2. The following non-profit organizations are permitted to distribute information to go home with the children:
a. PTA
b. Stafford Athletic Association
c. Boy Scouts/Girl Scouts
d. Four-H Club
e. Southern Regional High School
f. Lions Club
g. Civil Defense
h. Stafford Township Fire Department
i. Elks
j. Other groups will be added at discretion of the superintendent.
3. None of the aforementioned organizations may solicit money through the children for any activity. The board permits them to advertise their fund raising activity, however, the principal has no authority to collect money for the associations. Flyers must be prepared by the organization and packaged in 35's then given to the school secretaries who will distribute to the target group.
4. All activities must be directly associated with the children who are enrolled in the Stafford Township School District.
5. Exceptions: The PTA may collect membership fees and class sponsor moneys through the office of the principal.
6. All other associations must receive special approval from the board of education.
JA 190-91.
The Stafford policy thus addresses both the groups whose materials may be distributed and the types of materials that are allowed. As for the groups, ten named organizations are specifically approved, and the superintendent is given the "discretion" to add other non-profit groups.4 Although Stafford has not kept a comprehensive record of the groups whose materials have been sent home at Ocean Acres and McKinley, these groups include the Cub Scouts, Ocean County Girl Scouts, Long Beach Island Foundation of the Arts and Sciences, Southern Ocean County Hospital, Stafford Wrestling Club, College Funding 101, Stafford Basketball Association, Municipal Alliance, Ocean County Library, Stafford Township Volunteer Fire Company # 1, Stafford Basketball Club, Pop Warner football, and the PTA. JA 119, 199, 210(c).
As for the contents of the materials, it appears that five requirements must be met. First, materials other than those pertaining to a particular student must be approved in advance by the superintendent or (perhaps) by a designee.5 Second, there must be a nexus between the content of the materials and the students or school. It is said that "[m]aterial being sent home with pupils should relate to school matters or pupil-related community activities" and that "[a]ll activities must be directly associated with the children who are enrolled in the Stafford Township School District." (emphasis added). Third, materials are prohibited if they are "partisan" or if they relate to an election or "negotiations" (presumably Stafford's negotiations with its teachers or other employees). Fourth, it is said that pupils are not to be "exploited for the benefit of any individual, group, or profit-making organization." Fifth, with the exception of PTA materials, documents sent home may not solicit money but may advertise fund-raising activities.
The process of distribution works as follows. Community organizations produce flyers or other information at their own expense and place these materials in faculty mailboxes, and the teachers then distribute these materials to the students, usually at the close of the school day just prior to dismissal. JA 200.6 Except when a flyer "deals with a current curriculum, health or safety issue," it appears that the materials sent home are not discussed in class. Id. As the District Court noted, "[a]lthough [the] distribution of materials occurs and flyers remain hung during school hours ... the messages of these fora are not incorporated into the instructional component of the school day." Child Evangelism Fellowship of N.J. v. Stafford Twp. Sch. Dist., 233 F.Supp.2d 647, 664 (D.N.J.2002).
Back-to-School Nights. Each fall, Ocean Acres and McKinley hold Back-to-School nights. These events are intended for the benefit of parents, but occasionally a child accompanies a parent or other adult attendee. JA 194-95. Stafford has no formal policy governing the materials that may be displayed at these events or the groups that are allowed to staff "information tables," but Stafford asserts that it uses the same procedures employed with respect to the distribution of materials. JA 203. When requests are made for use of the tables, the Superintendent gives priority to the largest organizations, those that are viewed as having the greatest impact on the curriculum, and those that emphasize learning and safety and health issues. Id. Stafford does not claim that any group other than Child Evangelism was ever denied the opportunity to display its literature or staff a table based on the content of the material or the nature of the group, but on one occasion, the Boy Scouts' request for a table was denied because of space limitations. Id.
Stafford does not maintain a comprehensive list of the groups...
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