Child Evangelism Fellowship v. Montgomery County
| Decision Date | 24 March 2005 |
| Docket Number | No. CIV. PJM 03-162.,CIV. PJM 03-162. |
| Citation | 368 F.Supp.2d 416 |
| Parties | CHILD EVANGELISM FELLOWSHIP OF MARYLAND, INC., et al. Plaintiffs v. MONTGOMERY COUNTY PUBLIC SCHOOLS, et al. Defendants |
| Court | U.S. District Court — District of Maryland |
Steven H. Aden, Esquire, Annandale, VA, H. Robert Showers, Jr., Esquire, Leesburg, VA, for Plaintiffs.
Eric Charles Brousaides, Esquire, Judith S. Bresler, Esquire, Columbia, MD, for Defendants.
This case returns to court on remand from the Fourth Circuit, which reversed this Court's partial denial of preliminary injunctive relief to Plaintiffs Child Evangelism Fellowship of Maryland, Inc. and Child Evangelism Fellowship of Northwest Maryland (collectively "CEF"). CEF has filed a Motion for Summary Judgment and Defendants Montgomery County Public Schools, Superintendent Jerry D. Weast, and members of the County School Board in their official capacities (collectively "MCPS") have filed a Motion to Dismiss.
At oral argument on these Motions, the Court thought it might be appropriate for CEF to seek further preliminary injunctive relief until such time as the Court could write an opinion on the merits of the case. CEF has now filed such a motion, which MCPS opposes.1
Having considered the pleadings and the record, however, the Court has determined that it is able to proceed directly to consideration of CEF's Motion for Summary Judgment and MCPS's Motion to Dismiss without the need to consider interim relief.
Accordingly, the Court will DENY CEF's Motion for Summary Judgment and GRANT IN PART and DENY IN PART its Renewed Motion for Permanent Injunction or Alternative Relief. It will GRANT IN PART and DENY IN PART the Motion to Dismiss of MCPS.
A) The background of this litigation is set forth in Child Evangelism Fellowship of Maryland, Inc., et al. v. Montgomery County Public Schools, et al., 373 F.3d 589 (4th Cir.2004) (hereinafter "Child Evangelism Fellowship of Maryland, Inc.").
In brief, CEF is a non-profit nondenominational Christian organization which teaches children ages six to twelve moral values from a religious viewpoint. As one of its functions, it establishes Good News Clubs at public elementary schools that meet during times when the schools are open for use by community groups. In these clubs, the children recite Bible verses, learn Bible stories, and pray under the leadership of trained staff who are primarily volunteers. The clubs also include recreational activities such as playing games and singing songs. In order to attend club meetings, children must have parental permission.
MCPS operates public schools in Montgomery County, Maryland, including Millcreek Towne Elementary School and Clearspring Elementary School.
For some time, MCPS has permitted certain nonprofit community organizations to participate in back-to-school nights, open houses, and bulletin board displays at its schools as well as to submit flyers for students to take home to their parents. To use these fora, the community groups have been required to obtain prior approval from MCPS officials.
Prior to the present litigation, MCPS refused to grant CEF access to any of these fora based on what MCPS understood to be the evangelical and proselytizing nature of CEF's activities. In consequence, CEF brought the suit alleging that MCPS had unconstitutionally abridged its free speech rights under the First Amendment.
By the time the case came on for oral argument before the Court, MCPS had agreed as a matter of policy that CEF would have equal access to back-to-school nights, open houses, and bulletin boards. That agreement was incorporated into this Court's preliminary injunction and was in no way modified by the Fourth Circuit when the case subsequently went up on appeal. Id. at 592.
During the initial phase of the litigation, MCPS did not have a published policy with regard to access that outside community groups might have to the so-called "take-home flyer forum." As a matter of practice, however, MCPS permitted certain governmental and non-profit groups to use that forum, again with the requirement that they first obtain administrative approval from MCPS.2 Typically, as regards this forum, a representative of the community group or MCPS staff would place the flyers in the mailboxes of teachers, who would then deliver them to the students or the students' cubbies. Id. When CEF sought to use the forum so that students might carry home its flyers regarding the Good News Clubs meetings, MCPS denied the request, explaining its refusal as rooted in the `religious nature' of the Good News Club and concerns about separation of church and state. Id.
CEF then sought a preliminary injunction in this Court that would order MCPS to grant it access to the take-home flyer forum. The Court denied CEF's request, finding that, even if the denial of access infringed CEF's free speech rights, the Court's ultimate conclusion in the case might well be that CEF's free speech rights would be trumped by the First Amendment's prohibition against the establishment of religion.
On appeal, in a two to one vote, a three-judge panel of the Fourth Circuit reversed the Court's decision. The majority noted inter alia "the broad access the District grants to other organizations," id. at 594, and, marking the concession of MCPS that CEF had been excluded because it was "evangelical" and because "its predominate objective is proselytization," found viewpoint discrimination, triggering application of the compelling governmental interest test. Id. No compelling governmental interest was found. Moreover, the majority found that "allowing CEF access to this forum would not be likely to violate the Establishment Clause." Id. Accordingly the case was remanded to this Court for further proceedings in accordance with the panel's decision.
B) Since the case has returned to this Court, there has been a significant development. In July 2004, approximately one month following the Fourth Circuit's decision, MCPS adopted modifications to MCPS Policy CNA, relating to "Informational Material and Announcements."3 MCPS submits that, with respect to bulletin board/back-to-school night/open house access, the revised policy carries forward exactly what MCPS committed to at the beginning of this litigation. That is, CEF retains the same access to these three fora generally open to other groups. As a result, insofar as those fora are concerned, MCPS suggests that the issue is moot and that no permanent injunctive relief is necessary. As to the take-home flyer forum, MCPS argues that its policy has been materially revised since the case was remanded, such that its restrictions are now speaker-based as opposed to content-based, with the result that the rational governmental interest test applies — a test, says MCPS, that its revised policy satisfies.
CEF contends that, as to the fora other than the take home flyer forum, the issue is not moot since MCPS may well change its policy at any time; therefore permanent injunctive relief remains appropriate. As for the revised policy involving take home flyers, CEF says the policy continues to discriminate against it based on its viewpoint and, even if it does not, that the revised policy as to access to that forum is also subject to change which could discriminate against it. Additionally, CEF asks the Court to award it nominal damages and attorneys fees and costs pursuant to 42 U.S.C. § 1988 to compensate for the illegal conduct of MCPS in preventing CEF's access to all the school fora heretofore. MCPS asserts Eleventh Amendment immunity as to the damages claim, a defense which CEF in turn says MCPS has waived by engaging in this litigation for some two years. MCPS has not addressed CEF's request for attorneys fees and costs incurred in connection with its successful pursuit in the Fourth Circuit of the preliminary injunction with respect to the take-home flyer forum.4
The Court deals with CEF's damages claim first.
CEF seeks nominal damages for the inconvenience caused by MCPS's denial of its right to access to all fora as found by the Fourth Circuit. In support of its claim CEF cites, among other cases, Park v. Shiflett, 250 F.3d 843, 854 (4th Cir.2001) () and Piver v. Pender County Bd. of Educ., 835 F.2d 1076, 1082 (4th Cir.1987) ().
MCPS pleads sovereign immunity, citing the Eleventh Amendment and Federal Maritime Comm'n v. South Carolina Ports Auth., 535 U.S. 743, 766, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002).
Although CEF disputes that MCPS is a state agency entitled to the defense of sovereign immunity, the Court is satisfied that extensive case law establishes just the contrary: MCPS is a state agency which enjoys sovereign immunity. See McNulty v. Bd. of Educ. of Calvert County, 2004 WL 1554401, *4 (D.Md.) (); Lewis v. Board of Education of Talbot County, 262 F.Supp.2d 608, 612-14 (D.Md.2003); Adams v. Calvert County Pub. Schools, 201 F.Supp.2d 516, 521 (D.Md.2002); Biggs v. Bd. of Educ. of Cecil County, 229 F.Supp.2d 437, 444 (D.Md.2002); Jones v. Frederick County Bd. of Educ., 689 F.Supp. 535, 538 (D.Md.1988); Bd. of Educ. of Prince George's County v. Prince George's County Educators' Ass'n, 309 Md. 85, 522 A.2d 931, 936, n. 3 (1987); Montgomery County Educ. Ass'n v. Bd. of Educ. of Montgomery County, 311 Md. 303, 534 A.2d 980, 987 (1987); Bd. of Educ. of Montgomery County v. Montgomery County, 237 Md. 191, 205 A.2d 202, 205 (1964).
Eleventh Amendment immunity applies not only to all forms of relief, legal and equitable, directly against the state or its...
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Child Evang. Fellowship, Md v. Montgomery Schools
...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 ......