Child Evangelism v. Montgomery County

• Decision Date: 30 June 2004
• Docket Number: No. 03-1534.,03-1534.
• Citation: 373 F.3d 589
• Parties: CHILD 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; Walter N. Lange; Gabe Romero, in their official capacities as members of the Board of Education for Montgomery County, Defendants-Appellees. Clifton Kirkpatrick, as Stated Clerk of the Presbyterian Church; National Association Of Evangelicals; Al Black; Rhonda Black, as Parents and Next Friends of Eric Black; United States Of America; Joseph J. Hills; Amici Supporting Appellants, National School Boards Association; Maryland Association of Boards of Education; National Parent Teacher Association; American Association of School Administrators; Montgomery Soccer, Incorporated; Americans United For Separation of Church And State; The Antidefamation League; People For The American Way; National Education Association; American Civil Liberties Union of The National Capital Area; American Civil Liberties Union Foundation of Maryland, Amici Supporting Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

373 F.3d 589

CHILD 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; Walter N. Lange; Gabe Romero, in their official capacities as members of the Board of Education for Montgomery County, Defendants-Appellees Clifton Kirkpatrick, as Stated Clerk of the Presbyterian Church; National Association Of Evangelicals; Al Black; Rhonda Black, as Parents and Next Friends of Eric Black; United States Of America; Joseph J. Hills; Amici Supporting Appellants National School Boards Association; Maryland Association of Boards of Education; National Parent Teacher Association; American Association of School Administrators; Montgomery Soccer, Incorporated; Americans United For Separation of Church And State; The Antidefamation League; People For The American Way; National Education Association; American Civil Liberties Union of The National Capital Area; American Civil Liberties Union Foundation of Maryland, Amici Supporting Appellees.

No. 03-1534.

United States Court of Appeals, Fourth Circuit.

Argued: September 24, 2003.

Decided: June 30, 2004.

ARGUED:

Nathan Aldrich Adams, IV, Religious Liberty Associates Christian Legal Society, Annandale, Virginia, for Appellants. Gregory George Garre, Civil

Rights Division, United States Department of Justice, Washington, D.C., for Amicus Curiae United States. Judith S. Bresler, Reese & Carney, L.L.P., Columbia, Maryland, for Appellees.

ON BRIEF:

Kimberlee W. Colby, Gregory S. Baylor, Religious Liberty Associates Christian Legal Society, Annandale, Virginia; H. Robert Showers, Simms Showers, L.L.P., Leesburg, Virginia, for Appellants. Ralph F. Boyd, Jr., Assistant Attorney General, David K. Flynn, Eric W. Treene, Angela M. Miller, Civil Rights Division, United States Department of Justice, Washington, D.C., for Amicus Curiae United States. Eric C. Brousaides, Reese & Carney, L.L.P., Columbia, Maryland, for Appellees. Douglas Laycock, Austin, Texas; Scott J. Ward, Stephen S. Kao, GAMMON & GRANGE, P.C., McLean, Virginia, for Amici Curiae Kirkpatrick, et al. Jay Alan Sekulow, Walter M. Weber, American Center For Law And Justice, Alexandria, Virginia, for Amicus Curiae Hills. Julie Underwood, General, National School Boards Association, Alexandria, Virginia; Maribeth Oakes, Director of Legislation, National PTA, Chicago, Illinois; Leon Reed, President, Montgomery Soccer, Inc., Rockville, Maryland; Stephen C. Bounds, Director of Legal & Policy Services, Maryland Association Of Boards Of Education, Annapolis, Maryland; Bruce Hunter, Associate Executive Director, Public Policy, American Association Of School Administrators, Arlington, Virginia, for Amici Curiae School Boards, et al. Ayesha N. Khan, Ilana R. Fisher, Americans United For Separation Of Church And State, Washington, D.C.; Steven M. Freeman, Steven C. Sheinberg, Anti-Defamation League, New York, New York; Elliot M. Mincberg, Judith E. Schaeffer, People For The American Way Foundation, Washington, D.C.; Michael D. Simpson, National Education Association, Washington, D.C.; Arthur B. Spitzer, American Civil Liberties Union Of The National Capital Area, Washington, D.C.; David Rocah, American Civil Liberties Union Of Maryland, Baltimore, Maryland, for Amici Curiae Americans United, et al.

Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.

Reversed and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge SHEDD joined. Judge MICHAEL wrote a separate dissenting opinion.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Child Evangelism Fellowship of Maryland, Inc. ("CEF") brought this suit to obtain access to certain established communication forums in public elementary schools. The district court refused to issue a preliminary injunction requiring a school district to permit CEF access to the district's take-home flyer forum in order to distribute Good News Club flyers. The court believed that allowing CEF this access might constitute an unconstitutional establishment of religion and, for this reason, found that CEF had failed to demonstrate the necessary likelihood that it would ultimately succeed on the merits. Controlling precedent, however, strongly indicates that permitting CEF access to this forum does not run afoul of the Establishment Clause. Thus, CEF has demonstrated a clear likelihood of success on the merits. Accordingly, we must reverse and remand for further proceedings.

I.

CEF describes itself as a non-profit "Bible-centered, worldwide organization composed of born-again believers whose purpose is to evangelize boys and girls with the Gospel of the Lord Jesus Christ and to establish (disciple) them in the local church for Christian living." As one of its functions, CEF establishes Good News Clubs that meet in elementary schools throughout the country. During these meetings, the "children recite Bible verses, sing songs, play games, learn Bible stories, and pray under the leadership of trained staff who primarily are volunteers." Beginning in 1996, the Good News Club began holding after-school meetings in the elementary schools of Montgomery County, Maryland and currently holds meetings at two schools in that school district — Mill Creek Towne Elementary School and Clearspring Elementary School.

The Montgomery County Public School District ("the District") operates 125 elementary schools. The District permits certain governmental and non-profit organizations to use the "take-home flyer forum" in those schools to distribute flyers and permission slips for students to take home to their parents. Although the record reveals conflicting testimony regarding what policy (if any) actually guides school administrators' discretion in granting access to this forum, community groups clearly must obtain prior administrative approval to use the forum. If approved, the organization is responsible for supplying the requisite number of flyers at its own expense.

The method of distribution varies among the schools in the District, but Mill Creek and Clearspring Elementary School employ the same basic procedure. Either a representative of the community group or the District office staff places the flyers in the teachers' mailboxes, generally after receiving permission from the school's principal. The teachers retrieve the flyers from their mailboxes and either personally deliver them to the students or the students' cubbies, or have a teacher's aide or student do so. The distribution of flyers typically occurs at the end of the school day. Students are expected to bring home all items from their cubbies including student art work, homework, classwork, other school related information, and the flyers. But nothing in the record indicates that students receive any punishment for failing to bring flyers home and parents are not required to acknowledge receipt of the flyers.

In August 2001, CEF sought to have a flyer notifying parents of the Good News Club meetings and requesting permission for their child's attendance included in the take-home folders of students at these schools. Although the District has permitted many organizations, including several religious groups, to avail themselves of the take-home flyer forum, it denied CEF's requests, including CEF's offer to enclose the flyer in a sealed envelope. The District explained its refusals as rooted in the "religious nature" of the Good News Club and concerns about separation of church and state.

CEF then filed this action seeking a preliminary injunction to bar the District from refusing to include CEF's flyer in the students' take-home folders, and limiting access to other school forums. CEF alleged that in refusing to allow equal access to these forums, the District engaged in discriminatory treatment in violation of the Free Speech, Free Exercise, Establishment, and Equal Protection Clauses of the United States Constitution and the parallel provisions of the Maryland Constitution. The district court granted a preliminary injunction preventing the District from denying or limiting CEF's access to some forums — back to school nights, open houses, and bulletin boards or tables generally open to other groups.

The court, however, denied CEF's request for a preliminary injunction with respect to the take-home flyer forum.¹ Although the court determined that precedent compelled its conclusion that denying CEF this access would infringe on the group's free speech rights, it decided that further hearings might lead it to ultimately conclude that the "establishment problem trumps [the] free [speech] problem." Because of this "real clash of constitutional interests," the district court held that CEF failed to demonstrate a likelihood of success on the merits.

In determining whether to grant a preliminary injunction, a court must balance: (1) the likelihood of irreparable harm to the plaintiff if the injunction is denied; (2) the likelihood of harm to the defendant if it is granted; (3) the likelihood that the plaintiff will succeed on the merits; and (4) the public interest. See Direx Israel v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir.1991); Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 195-96 (4th Cir.1977). We review the district court's grant or denial of a preliminary injunction for abuse of discretion, accepting the court's findings of fact absent clear error, but reviewing its conclusions of law de novo. Although CEF argues that the district court committed several legal errors in applying the preliminary injunction standard, given our conclusion as to one of these — assessment of CEF's likelihood of success on the merits — we need not reach the other asserted errors.

II.

CEF...