                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-15-2004

Child Evangelism v. Stafford Twp Sch
Precedential or Non-Precedential: Precedential

Docket No. 03-1101




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"Child Evangelism v. Stafford Twp Sch" (2004). 2004 Decisions. Paper 168.
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                   PRECEDENTIAL               (Dist. Court No. 02-cv-04549)
                                         District Court Judge: Mary Little Cooper
    UNITED STATES COURT OF
           APPEALS
     FOR THE THIRD CIRCUIT                     Argued: September 11, 2003

                                         Before: ALITO, BARRY, and AMBRO,
             No. 03-1101                            Circuit Judges.

                                           (Opinion Filed:   October 15, 2004)
CHILD EVANGELISM FELLOWSHIP
OF NEW JERSEY INC., A New Jersey         Arthur G. Stein (argued)
 Not-For-Profit Corporation; CHILD       Stein, Supsie & Hoffman
 EVANGELISM FELLOWSHIP OF                1041 West Lacey Road
 NEW JERSEY, INC. BAYSHORE               P.O. Box 1070
     CHAPTER, A New Jersey               Forked River, NJ 08731
    Unincorporated Association           Attorney for Appellant

                  v.                     Alex J. Luchenitser
                                         Americans United for the Separation
  STAFFORD TOWNSHIP SCHOOL               of Church & State
DISTRICT; RONALD L. MEINDERS,            518 C Street N.E.
       In His Official Capacity as       Washington, DC 20002
       Superintendent of Stafford        Attorney for Amicus Appellants,
   Township School District; ELLEN       Americans United for Separation
   BERNSTEIN; BRIAN DELANEY;             of Church and State,
     *THOMAS DELLANE; LISA               The Anti-Defamation League,
DEVANEY; RAYM OND FIX; DENISE            People for the American Way,
            HARRINGTON;                  New Jersey Education Association,
 SCOTT MOSES; WILLIAM POWER;             Stafford Township Education Association
  CAROL WILLIAMS, in their official
 capacities as members of the Board of   Nathan A. Adams, IV (argued)
         Education for Stafford          Kimberlee W. Colby
      Township School District,          Christian Legal Society Center for
               Appellants                 Law & Religious Freedom
 *(Amended in accordance with Clerk's    4208 Evergreen Lane
          Order dated 2/3/03)            Suite 222
                                         Annandale, VA 22003
                                         Attorney for Appellee
 ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE            Eric W. Treene (argued)
   DISTRICT OF NEW JERSEY                Angela M. Miller
United States Department of Justice
950 Pennsylvania Avenue, N.W.                       OPINION OF THE COURT
Washington, DC 20530
Attorney for Amicus-Appellee,
United States
                                             ALITO, Circuit Judge:
Francis J. Manion                                    In this appeal, Stafford Township
American Center for Law and Justice          School District (“Stafford”) and Stafford
6375 New Hope Road                           officials (collectively “Stafford”) contest a
New Hope, KY 40052                           preliminary injunction granted by the
Attorney for Amicus-Appellee,                United States District Court for the District
Joseph J. Hills                              of New Jersey in favor of Child
                                             Evangelism Fellowship of New Jersey,
Douglas Laycock                              Inc. and Child Evangelism of New Jersey,
University of Texas at Austin                Inc.––Bayshore Chapter         (collectively
School of Law                                “Child Evangelism”). Finding that Child
727 East 26th Street                         Evangelism was likely to succeed in
Austin, TX 78705                             showing that Stafford was engaging in
Attorney for Amicus-Appellees,               viewpoint discrimination and that this
National Association of Evangelicals         discrimination was not required by the
Clifton Kirkpatrick, As Stated Clerk         Establishment Clause, the District Court
of the Presbyterian Church (U.S.A.)          ordered Stafford to treat Child Evangelism
Union of Orthodox Jewish Congregations       like other community organizations with
of America                                   respect to the distribution and posting of
Pat Afalese                                  materials and participation in so-called
Cathy Capozzi                                “Back-to-School nights.” We affirm.
Gretchen Davis
B. Keith Drayton                                                   I.
Kimberly Freewsick                                                 A.
Keith Ruff
Lori Ruff                                           Stafford operates four schools,
                                             including Ocean Acres Elementary School
Julie Underwood                              (“Ocean Acres”) and McKinley Avenue
National School Boards Association           Elementary School (“McKinley”). Ocean
1680 Duke Street                             Acres instructs students in grades pre-
Alexandria, VA 22314                         Kindergarten through second, and
Attorney for Amicus-Appellee,                McKinley instructs students in the third
National School Boards Association           and fourth grades. JA 304. 1 Stafford has


                                                    1
                                                        “JA” denotes the Joint Appendix.

                                         2
adopted written policies on the use of its                  Pupils shall not be used to
facilities by community groups 2 and the                    distribute partisan materials
distribution of community group materials                   or partisan inform ation
to students.3 In addition, Stafford has                     pertaining to a school or
developed practices concerning the                          general election, budget or
placement of flyers on school walls and                     bond issues, or negotiations.
the distribution of flyers and the staffing of              Pupils shall not be exploited
tables at Back-to-School nights.                            for the benefit of any
                                                            individual, group, or profit-
        Distribution of community group
                                                            making organization.
materials. Stafford proclaims that it has
an overall policy of assisting community                    No staff member may
groups. Its written policy on the use of its                distribute any materials on
facilities states that the schools should be                school property without
used “to the fullest extent possible by                     prior approval of the
community groups and agencies.” JA 624.                     superintendent.
Similarly, its written policy on the
                                                            All surveys, questionnaires
distribution of community group literature
                                                            or other similar items
expresses a “commitment to assist all
                                                            r e q u i ri n g p u pil o r
organizations in our rapidly growing
                                                            parent/guardian response
community.” JA 190 (emphasis added).
                                                            shall be reviewed and
This policy sets out the following
                                                            approved           by   the
standards regarding materials that may be
                                                            superintendent prior to
handed out to students:
                                                            distribution.
       Material being sent home
                                                     JA 189.
       with pupils should relate to
       school matters or pupil-                             To implement these standards,
       r e l a te d c o m m u n i t y                Stafford has adopted the following specific
       activities. Except when it                    rules:
       pertains to the individual
                                                                    1. The principal is
       pupil, all such material must
                                                            authorized to duplicate
       be approved in advance by
                                                            scheduled memos and send
       the superintendent/designee.
                                                            the m home with the
                                                            children. All school
                                                            activities may be advertised
       2
       See “Use of School Facilities.” JA                   on these memos.
624-34.                                                           2. The following
       3                                                    non-profit organizations are
        See “Distribution of Materials by
                                                            permitted to distribute
Pupils and Staff Policy.” JA 189.

                                                 3
        information to go                               4. All activities must
        home with the                             be directly associated with
        children:                                 the children who are
                                                  enrolled in the Stafford
        a. PTA
                                                  Township School District.
        b. Stafford Athletic
                                                          5. Exceptions: The
           Association
                                                  PTA       may      collect
        c. Boy Scouts/Girl Scouts                 membership fees and class
                                                  sponsor moneys through the
        d. Four-H Club
                                                  office of the principal.
        e. Southern Regional High
                                                         6. A ll o the r
           School
                                                  associations must receive
        f. Lions Club                             special approval from the
                                                  board of education.
        g. Civil Defense
                                           JA 190-91.
        h. Stafford Township Fire
           Department                              The Stafford policy thus addresses
                                           both the groups whose materials may be
        i. Elks
                                           distributed and the types of materials that
        j. Other groups will               are allowed. As for the groups, ten named
           be added at discretion of       organizations are specifically approved,
           the superintendent.             and the superintendent is given the
                                           “discretion” to add other non-profit
        3. None of the
                                           groups.4 Although Stafford has not kept a
a f o r e m e n t i o n e d
                                           comprehensive record of the groups whose
organizations may solicit
                                           materials have been sent home at Ocean
money through the children
                                           Acres and M cKinley, these groups include
for any activity. The board
                                           the Cub Scouts, Ocean County Girl Scouts,
permits them to advertise
                                           Long Beach Island Foundation of the Arts
their fund raising activity,
                                           and Sciences, Southern Ocean County
however, the principal has
                                           Hospital, Stafford Wrestling Club, College
no authority to collect
                                           Funding 101, Stafford Basketball
money for the associations.
                                           Association, Municipal Alliance, Ocean
Flyers must be prepared by
t h e o r g a n i z at i o n an d
packaged in 35's then given
                                                  4
to the school secretaries                          No explanation for the selection of
who will distribute to the                 the ten named groups is provided, and no
target group.                              criteria to guide the exercise of the
                                           superintendent’s discretion are revealed.

                                       4
County Library, Stafford Township                            The process of distribution works as
Volunteer Fire Company # 1, Stafford                 follows. Community organizations
Basketball Club, Pop Warner football, and            produce flyers or other information at their
the PTA. JA 119, 199, 210(c).                        own expense and place these materials in
                                                     faculty mailboxes, and the teachers then
       As for the contents of the materials,
                                                     distribute these materials to the students,
it appears that five requirements must be
                                                     usually at the close of the school day just
met. First, materials other than those
                                                     prior to dismissal. JA 200.6 Except when
pertaining to a particular student must be
                                                     a flyer “deals with a current curriculum,
approved in advance by the superintendent
                                                     health or safety issue,” it appears that the
or (perhaps) by a designee.5 Second, there
                                                     materials sent home are not discussed in
must be a nexus between the content of the
                                                     class. Id. As the District Court noted,
materials and the students or school. It is
                                                     “[a]lthough [the] distribution of materials
said that “[m]aterial being sent home with
                                                     occurs and flyers remain hung during
pupils should relate to school matters or
                                                     school hours . . . the messages of these
pupil-related community activities” and
                                                     fora are not incorporated into the
that “[a]ll activities must be directly
                                                     instructional component of the school
associated with the children who are
                                                     day.” Child Evangelism Fellowship of
enrolled in the Stafford Township School
                                                     N.J. v. Stafford Twp. Sch. Dist., 233 F.
District.”    (emphasis added).        Third,
                                                     Supp. 2d 647, 664 (D.N.J. 2002).
materials are prohibited if they are
“partisan” or if they relate to an election or               Back-to-School Nights. Each fall,
“negotiations” (presumably Stafford’s                Ocean Acres and McKinley hold Back-to-
negotiations with its teachers or other              School nights. These events are intended
employees). Fourth, it is said that pupils           for the benefit of parents, but occasionally
are not to be “exploited for the benefit of          a child accompanies a parent or other adult
any individual, group, or profit-making              attendee. JA 194-95. Stafford has no
organization.” Fifth, with the exception of          formal policy governing the materials that
PTA materials, documents sent home may               may be displayed at these events or the
not solicit money but may advertise fund-            groups that are allowed to staff
raising activities.                                  “information tables,” but Stafford asserts


       5                                                    6
         The      docu men t      entitled                   Stafford describes the process in
“Distribution of Materials by Pupils and             this manner: “Generally, the process
Staff” first states that approval may be             involves the task of receiving the bundles,
given by “the superintendent/designee,”              placing them in the mailboxes, having
but three sentences later the document says          them removed from the mailboxes by the
that “[n]o staff member may distribute any           teachers, carrying the bundles to their
materials on school property without prior           respective rooms and actually distributing
approval of the superintendent.” JA 189.             the flyers to the children.” Id.

                                                 5
that it uses the same procedures employed          policy governing the posting of community
with respect to the distribution of                group flyers on school walls, Stafford has
materials. JA 203. When requests are               allowed a variety of groups to post
made for use of the tables, the                    material on the walls of Ocean Acres and
Superintendent gives priority to the largest       McKinley. These groups include the
organizations, those that are viewed as            Rotary Club, Ocean County First Night
having the greatest impact on the                  Activities, the PTA, the New Jersey
curriculum, and those that emphasize               School Boards Association, the Children’s
learning and safety and health issues. Id.         Hospital of Philadelphia, the American
Stafford does not claim that any group             Society for the Prevention of Cruelty to
other than Child Evangelism was ever               Animals, the United States Marine Corps’
denied the opportunity to display its              Toys for Tots Drive, and local theater
literature or staff a table based on the           groups. JA 205-06. Stafford has not
content of the material or the nature of the       argued that its policy or practice with
group, but on one occasion, the Boy                respect to the posting of flyers on the walls
Scouts’ request for a table was denied             of the schools is any more restrictive than
because of space limitations. Id.                  its policy regarding the distribution of
                                                   materials. As the District Court wrote:
        Stafford does not maintain a
                                                   “[T]he school district does not distinguish
comprehensive list of the groups that have
                                                   the criteria for access to the school-wall
previously requested or have been
                                                   forum from the distribution and Back-to-
permitted to participate in Back-to-School
                                                   School Night fora . . . . Nor does the
nights, but groups whose materials have
                                                   school district indicate that groups
been distributed include the Ocean County
                                                   promoting character building and moral
Library System, the PTA, the Municipal
                                                   and social development, such as the Girl
Alliance/D.A.R.E., STEA, Boy Scouts,
                                                   Scouts and Boy Scouts, would be
and Stafford Township Recreation. Id. at
                                                   excluded.” Child Evangelism of N.J., 233
202. The organizations whose materials
                                                   F. Supp. 2d at 661.
have been distributed at the Back-to-
School nights may have staffed tables at                                 B.
those events “at one time or another.” Id.
                                                          Child Evangelism describes itself as
At the Ocean Acres Back to School night
                                                   a “Bible-centered, worldwide organization
in September 2002, Stafford also allowed
                                                   composed of born-again believers whose
various community groups, including the
                                                   purpose is to evangelize boys and girls
Rotary Club and the American Cancer
                                                   with the Gospel of the Lord Jesus Christ
Society, to staff and promote “Extreme
                                                   and to establish (disciple) them in the
Event,” a sporting event involving bikers,
                                                   Word of God and in a local church for
in-line skaters, and skateboarders. JA 237.
                                                   Christian living.”     JA 402.       Child
      Posting materials on school walls.           Evangelism sponsors Good News Clubs,
Although Stafford does not have a written          which host weekly meetings for school-

                                               6
age children during after-school hours.                   choices that will effect [sic]
The stated objectives of the Good News                    the rest of their lives. Using
Clubs include instilling or cultivating                   the Bible as the main
“self-esteem, character, and morals in                    textbook, you will learn how
children,” providing children with a                      to apply the stories and
“positive recreational experience,”                       biblical principles to your
providing a community where “children                     life.
feel loved, respected, and encouraged,”
                                                          Club Activities include a
teaching children “life skills and healthy
                                                          snack, singing, learning
lifestyle choices,” teaching children to
                                                          Bible verses, listening to a
“encourage and lead other children” to the
                                                          Bible lesson and playing
same sorts of choices, improving “memory
                                                          learning games.
skills, grades, attitudes, and behavior at
home,” improving relations among the                      ....
races, instructing children to “overcome
                                                          Have a fun time as you learn
feelings of jealousy” and to treat others as
                                                          from God’s Word . . . .
they want to be treated themselves,
teaching children to be “obedient and to           JA at 212-13.
respect persons in authority,” and
                                                           Students cannot attend a meeting of
instructing children to “follow the
                                                   the Good News Club without the consent
numerous other moral and other teachings
                                                   of a parent or a guardian. See JA 376.
of Jesus Christ.” JA 374. A Good News
                                                   When a student first attends a meeting, the
Club flyer states: “Good News Clubs are
                                                   student must bring a written permission
groups meeting one hour per week
                                                   slip. See JA 212. In addition, Child
designated to serve boys and girls through
                                                   Evangelism’s flyers clearly state that the
Bible-Oriented and character building
                                                   group is not school-sponsored. See JA
learning and moral object lessons, as well
                                                   215 (Child Evangelism Flyer stating: “This
as recreational activities like singing and
                                                   is not a school-sponsored activity.”).
Bible review games.” JA 216.
                                                                        C.
       Another Child Evangelism flyer
describing the Good News Club states:                     The events that led to the filing of
                                                   this action began in early 2002. Child
       You’re Invited to Good
                                                   Evangelism submitted an official Stafford
       News Club!
                                                   form, “Application for Use of Building,”
       Purpose of the Club:                        seeking permission to use a classroom at
       Regular weekly meetings                     McKinley for weekly one-hour after-
       will provide various fun-                   school Good News Club meetings. JA
       filled activities to help                   630. This form was signed as approved by
       young people make smart                     the principal on March 8, 2002, and by the


                                               7
superintendent on M arch 11, 2002. Child                    Counsel for Stafford subsequently
Evangelism also asked to have its flyers            advised Child Evangelism that its request
and permission slips distributed to pupils          to use the school facilities had been
at McKinley, but according to Child                 approved, see JA 630, but Child
Evangelism, the superintendent orally               Evangelism’s other requests were denied
rejected this request on the advice of              due to “concerns about violating the
counsel “due to Establishment Clause                Establishment Clause, the effect of [Child
concerns.” JA 135.                                  Evangelism’s] requests on the children in
                                                    the school system’s care, the effect of
        In May 2002, Child Evangelism
                                                    [Child Evangelism’s] requests on the
contacted the school district again and
                                                    relationship between the schools and the
asked, among other things, that its flyers
                                                    parents as well as the effect of opening the
and permission slips be distributed to
                                                    schools as limited public fora in the future
pupils and that Child Evangelism
                                                    if the schools . . . compl[ied] with [Child
representatives be allowed to hand out
                                                    Evangelism’s] requests.”           JA 201.
materials and staff a table at Back-to-
                                                    Stafford also believed that distributing
School nights. Child Evangelism of N.J.,
                                                    Child Evangelism’s materials would “tend
233 F.Supp. 2d at 652. The school district
                                                    to create divisiveness between and
rejected these requests. In the summer of
                                                    amongst parents to parents and children to
2002, Child Evangelism subm itted
                                                    children, as well as the staff.” JA 210(e).
applications to use classrooms at
McKinley and Ocean Acres during the                        The District Court denied the
upcoming school year, as well as requests           request for temporary restraints but issued
to have Good News Club materials                    an order to show cause why a preliminary
distributed to pupils. JA 633-34.                   injunction should not be issued. After
                                                    further proceedings, the District Court
        On September 12, 2002, the school
                                                    granted the motion for a preliminary
district responded but did not provide a
                                                    injunction, finding that Child Evangelism
final decision on the requests. Because the
                                                    was likely to succeed on the merits of its
dates of the Ocean Acres and McKinley
                                                    claim under the Free Speech Clause of the
Back-to-School nights were approaching,
                                                    First Amendment with respect to the
Child Evangelism advised Stafford that it
                                                    distribution of its materials, the posting of
would be forced to commence litigation,
                                                    its materials on the school walls, and
and it subsequently filed the present action
                                                    participation at Back-to-School nights.
and sought a temporary restraining order.
                                                    Child Evangelism, 233 F. Supp. 2d at 648.
Child Evangelism’s complaint alleged that
                                                    The District Court concluded that Child
Stafford was violating its rights to freedom
                                                    Evangelism was asserting the right to
of speech and the free exercise of religion
                                                    speak in several different fora, including
under the federal and state constitutions, as
                                                    what it termed the “distribution,” “school
well as its federal constitutional right to
                                                    wall,” and “Back-to-School” fora. Id. at
equal protection.

                                                8
659. The Court concluded that it was                     equal protection claims were not likely to
likely that these were “limited public                   prevail, there was a substantial possibility
fora,” but the Court found it unnecessary                that the Stafford policy would be held to
to decide that question, because viewpoint               be facially unconstitutional on the ground
discrimination is unconstitutional even in               of vagueness. Id. at 665-66. Finding that
a non-public forum. Id.                                  the irreparable harm that would be
                                                         suffered by Child Evangelism if a
          With respect to the “distribution
                                                         preliminary injunction did not issue
forum,” the District Court held that Child
                                                         outweighed any harm to Stafford, and
Evangelism had sought “to speak on a
                                                         finding that the public interest would be
topic [that was] otherwise permissible,”
                                                         served by granting the requested relief, the
but had been denied that opportunity
                                                         District Court issued a preliminary
because it wished to address the topic
                                                         injunction ordering Stafford to treat Child
“from a religious perspective.” Id. at 660.
                                                         Evangelism the same as other community
The Court noted that other groups that
                                                         groups with regard to the distribution and
conducted “children’s activities for
                                                         posting of literature and participation at
c h a r a c te r b u i l d i n g a n d s o c i a l
                                                         Back-to-School nights. Stafford then took
development,” such as the Girl Scouts, had
                                                         the present appeal.
been permitted to have their literature
distributed. Id. The Court reached a                                         II.
similar conclusion with respect to the
                                                                We ordinarily use a three-part
“Back-to-School night” and “school wall”
                                                         standard to review a District Court’s
fora. Id. at 661.7
                                                         decision to grant a preliminary injunction.
       The Court then concluded that                     The District Court’s findings of fact are
Stafford was likely to fail in its argument              reviewed for clear error; the District
that discrim ination against Child                       Court’s conclusions of law are evaluated
Evangelism was necessary in order to                     under a plenary review standard; and the
comply with the Establishment Clause. Id.                ultimate decision to grant the preliminary
662. The Court further held that, although               injunction is reviewed for abuse of
Child Evangelism’s free exercise and                     discretion. See Warner-Lambert Co. v.
                                                         Breathasure, Inc., 204 F.3d 87, 89 n.1 (3d
                                                         Cir. 2000). When First Amendment rights
        7                                                are at issue, however, this standard is
        The Court held that Child
                                                         modified. Although we normally will not
Evangelism was not likely to prevail on its
                                                         disturb the factual findings supporting the
claim that Stafford had engaged in
                                                         disposition of a preliminary injunction
viewpoint discrimination in refusing to
                                                         motion in the absence of clear error, we
post Good News materials on certain
                                                         have a constitutional duty to conduct an
school bulletin boards. Child Evanelism,
                                                         independent examination of the record as
233 F.Supp. 2d at 660. This issue is not
                                                         a whole when a case presents a First
before us in this appeal.

                                                     9
Amendment claim. See Tenafly Eruv                    contention that the speech at issue in this
Ass’n v. Borough of Tenafly, 309 F.3d                case – i.e., the materials that Child
144, 157 (3d Cir. 2002).                             Evangelism wished to have distributed and
                                                     posted – represented school-sponsored
        “The test for preliminary relief is a
                                                     speech, not private speech, and that
familiar one.        A party seeking a
                                                     Stafford was therefore allowed to control
preliminary injunction must show: (1) a
                                                     the content of that speech under
likelihood of success on the merits; (2) that
                                                     Hazelwood Sch. Dist. v. Kuhlmeir, 484
it will suffer irreparable harm if the
                                                     U.S. 260 (1988), so long as the regulation
injunction is denied; (3) that granting
                                                     served a legitimate pedagogical purpose.
preliminary relief will not result in even
                                                     Appellant’s Br. at 31. This argument falls
greater harm to the nonmoving party; and
                                                     very far from the mark.
(4) that the public interest favors such
relief.” KOS Pharm., Inc. v. Andrx Corp.,                    School- or government-sponsored
369 F.3 d 700 (3d C ir. 2004).                       speech occurs when a public school or
Consequently, “a panel entertaining a                other government entity aims “to convey
preliminary injunction appeal generally              its own message.” Rosenberger v. Rector
decides only whether the district court              and Visitors of the Univ. of Va., 515 U.S.
abused its discretion in ruling on the               819, 833 (1995). By contrast, when a
request for relief and generally does not go         school or other government body
into the merits any farther than is                  facilitates the expression of “a diversity of
necessary to determine whether the                   views from private speakers,” the resulting
moving party established a likelihood of             expression is private. Id. at 834.
success.” The Pitt News v. Pappert, 2004
                                                            Here, Stafford’s purpose is not to
WL 1689681 at *4 (3d Cir. 2004).
                                                     convey its own message through the
However, “a panel is not always required
                                                     distribution and posting of community
to take this narrow approach.           If a
                                                     group materials but to “assist all
preliminary injunction appeal presents a
                                                     organizations” in the community. JA 190
question of law ‘and the facts are
                                                     (emphasis added). Materials that are
established or of no controlling relevance,’
                                                     handed out are written and paid for by
the panel may decide the merits of the
                                                     community groups, and Stafford teachers
claim.” Id. at *4 (emphasis in original
                                                     do no more than retrieve the materials
omitted); see also Thornburgh v. Am.
                                                     from their mailboxes and distribute them
College of Obstetricians & Gynecologists,
                                                     to the children, usually at the end of the
476 U.S. 747, 756-57 (1986); Maldonado
                                                     school day. The teachers do not discuss or
v. Houstoun, 157 F.3d 179, 183-84 (3d
                                                     express approval of the materials.
Cir. 1998).
                                                     Stafford’s standards for acceptable
                      III.                           materials are broad, and a great many
                                                     community groups have had their flyers
       We     first    consider   Stafford’s
                                                     distributed.

                                                10
        Contrary to Stafford’s suggestion,          invocation had previously been delivered
the present case bears little resemblance to        by the school’s student chaplain. Id. at
cases involving school-sponsored speech.            309.       In addition, the speech was
In Hazelwood, a high school newspaper               incorporated into an official school-
was held to represent school-sponsored              sponsored event (a high school football
speech where: the paper was the official            game) that was staged on school property,
school newspaper; it was printed with               and the speech was broadcast on the
school funds and produced by students in            school’s public address system. Id. at 307-
a journalism class that was part of the             08. Moreover, this event was one that
school curriculum; the students’ work was           played a central part in the social life of
reviewed and graded by the teacher; a               the school and that some students (football
faculty member closely supervised all               team and band members) were required to
aspects of the paper, including the                 attend. Id. at 311-12. The school also
selection of the editors, the number of             regulated the identity of the speaker. Id. at
pages in each edition, the assignment of            303-04. Only one student could speak,
stories, and the editing of everything that         and the prescribed method of selecting the
appeared in the paper, including letters to         speaker – an election – insured that
editor; and the entire paper was reviewed           minority views would probably never be
by the principal before publication. See            expressed.     Id.    Finally, the school
Hazelwood, 484 U.S. at 262, 268-69.                 regulated the content of the speech,
                                                    prescribing that it had to be an
        Here, by contrast, the Good News
                                                    “invocation,” a type of address that
Club flyers and permission slips were
                                                    naturally suggests a prayer, and that it
obviously not official Stafford documents.
                                                    could not be denominational or
On the contrary, Stafford had no hand in
                                                    proselytizing. Id. Not one of these
writing the materials in question and did
                                                    features is present in the case at hand.
not pay for them. Nothing in the materials
suggested that Stafford had any role in                     While this case is unlike
their production or approved of their               Hazelwood and Santa Fe, it is comparable
content. Indeed, the Good News Club                 to cases in which public educational
flyer contained an express disclaimer               institutions have properly facilitated
stating that the Good News Club was “not            speech by a broad array of private groups.
a school sponsored activity.” JA 215.               See, e.g., Good News Club v. Milford
                                                    Cent. Sch., 533 U.S. 98 (2001) (use of
       Nor do the materials at issue here
                                                    school facilities by community groups);
resemble the pre-game invocation that was
                                                    Lamb’s Chapel v. Ctr. Moriches Union
held to be school-sponsored speech in
                                                    Free Sch. Dist., 508 U.S. 384 (1993)
Santa Fe Indep. Sch. Dist. v. Doe, 530
                                                    (same); Rosenberger, 515 U.S. 819
U.S. 290 (2000). There, past practice
                                                    (university program subsidizing broad
clothed the speech with the mantle of
                                                    array of student activities). Like those
school approval, since the pre-game

                                               11
cases, this case involves private, not                viewpoint.” Id. (citations omitted).8
school-sponsored, speech.
                                                             Second, even if the three fora were
                     IV.                              not limited public fora but were closed,
                                                      Stafford still could not engage in
       Stafford next contends that, even if
                                                      viewpoint discrimination. As the Supreme
the speech at issue here was private,
                                                      Court observed in Lamb’s Chapel, 508
Stafford was permitted to regulate the
                                                      U.S. at 392-93 (emphasis added),
content of the speech because the three
                                                      “[c]ontrol over access to a nonpublic
fora identified by the District Court were
                                                      forum can be based on subject matter and
“closed.” We disagree.
                                                      speaker identity so long as the distinctions
       First, as the District Court                   drawn are reasonable in light of the
suggested, it is evident that Stafford                purpose served by the forum and are
created limited public fora when it opened            viewpoint neutral.” See also Cornelius v.
up the three fora at issue for speech by a            NAACP Legal Def. & Educ. Fund, 473
broad array of community groups on                    U.S. 788, 806, 811 (1985) (the “existence
matters related to the students and the               of reasonable grounds for limiting access
schools. Stafford had no constitutional               to a nonpublic forum . . . will not save a
obligation to distribute or post any                  regulation that is in reality a facade for
community group materials or to allow any             viewpoint-based discrimination”); Christ’s
such groups to staff tables at Back-to-               Bride Ministries, Inc. v. Southeastern Pa.
School nights. But when it decided to                 Transp. Auth., 148 F.3d 242, 247 (3d Cir.
open up these fora to a specified category            1998). Therefore, assuming for the sake
of groups (i.e., non-profit, non-partisan             of argument that the fora at issue in this
community groups) for speech on                       case were non-public, if Stafford engaged
particular topics (i.e., speech related to the        in viewpoint discrimination, it violated
students and the schools), it established a           Child Evangelism’s free-speech rights.
limited public fora. See, e.g., ISKCON v.
                                                                            V.
Lee, 505 U.S. 672, 678 (1992); Widmar v.
Vincent, 454 U.S. 263 (1981). As a                           We thus turn to the central
consequence, it is bound to “respect the              questions in this case – whether Stafford
lawful boundaries it has itself set.”                 excluded Child Evangelism from the fora
Rosenberger, 515 U.S. at 829. It “may not             at issue pursuant to viewpoint-neutral
exclude speech where its distinction is not
‘reasonable in light of the purpose served
                                                             8
by the forum,’ . . . nor may it discriminate                  Stafford’s policy that all materials
against speech on the basis of its                    be reviewed and approved in advance does
                                                      not render the fora non-public. See
                                                      Southeastern Promotions, Ltd. v. Conrad,
                                                      420 U.S. 546, 554-55 (1976); Widmar v.
                                                      Vincent, 454 U.S. at 268-69.

                                                 12
criteria that are reasonable in light of the        not seek to exploit children for commercial
purpose of the fora or whether, as the              gain; and (5) they do not solicit money.
District Court suggested, Stafford engaged
                                                            In its brief, Stafford offers a list of
in viewpoint discrimination. The answers
                                                    other, purportedly viewpoint-neutral
to these questions are clear.
                                                    reasons for excluding Child Evangelism.
                     A.                             Stafford contends that it excludes: (1) all
                                                    groups representing “special interests”
        We have summarized Stafford’s
                                                    (Appellants’ Br. at 38), (2) all groups that
rules regarding access to the distribution
                                                    do not restrict themselves to “mundane
forum, and as the District Court noted, it
                                                    recreational activities” (id. at 34), (3) all
appears that Stafford’s criteria for access
                                                    groups whose views are “divisive” or
to the school-wall and Back-to-School
                                                    “controversial” (id. at 29-30), (4) all
night fora were similar. Thus, the relevant
                                                    speech that promotes any point of view,
requirements seem to be as follows: the
                                                    whether “religious, commercial or secular”
group must be non-profit and the speech
                                                    (id. at 21), (5) all groups that proselytize
must: (1) receive prior approval by the
                                                    (id. at 28), and (6) all speech about
district, (2) have a nexus with the students
                                                    religion (id.). These rationalizations are
or school, (3) be non-partisan and
                                                    either incoherent or euphemisms for
unrelated to an election or labor
                                                    viewpoint-based religious discrimination.
negotiations, (4) not seek to “exploit[]”
children “for the benefit of any individual,                (1) Every group in a sense
group, or profit-making organization,” and          represents “special interests,” namely, the
(5) not solicit money (except for the PTA).         interests to which the group is dedicated.
See JA 189-91.                                      Even a noncontroversial and beneficent
                                                    organization like the Stafford PTA
          Child Evangelism and its materials
                                                    represents “special interests” – the
sa t isf y all the view point-neutra l
                                                    interests of the Stafford pupils and schools
requirements set out in this list. Indeed,
                                                    – and at times even these interests may
Stafford’s briefs make no direct effort to
                                                    conflict with those of others in the
show that Child Evangelism’s materials
                                                    community. Thus, if this criterion is
fail to meet any of these requirements, and
                                                    literally interpreted and applied, it fails to
any such effort would be fruitless. Child
                                                    set a meaningful, viewpoint-neutral
Evangelism is a non-profit group, and (1)
                                                    standard. Of course, the term special
it sought advance approval from the
                                                    interest group is often used to express the
superintendent; (2) its materials, which
                                                    view that the group in question is
invite students to attend club meetings on
                                                    dedicated to ends that conflict with the
school premises after school, relate to the
                                                    common good. If Stafford uses the term in
students and the school; (3) the materials
                                                    this sense, the criterion is not viewpoint-
are not “partisan” and have nothing to do
                                                    neutral.
with elections or negotiations; (4) they do


                                               13
        (2) Stafford’s argument that it              Moines Indep. Cmty. Sch. Dist., 393 U.S.
excludes groups that promote anything                503, 509 (1969).
other than “mundan e recreational
                                                            (4) All community-group speech
activities” is hard to take seriously. If a
                                                     promotes a point of view. All of the
group of parents organized a youth team in
                                                     specifically approved groups, including
a sport not popular in this country – say,
                                                     such familiar and well-regarded groups as
cricket – would Stafford refuse to
                                                     the PTA and the 4-H Club, have a point of
distribute their flyer on the ground that the
                                                     view. Thus, this criterion is devoid of
activity was not “mundane”? If parents
                                                     meaning.
organized a club dedicated to the study of
an uncommon foreign language, would                          (5) To proselytize means both “to
Stafford refuse to hand out their materials          recruit members for an institution, team, or
because the activity w as neither                    group” and “to convert from one religion,
“mundane” nor “recreational”? Nothing in             belief, opinion, or party to another.”
the record suggests that Stafford would              W EBSTER’S T HIRD N EW INTERNATIONAL
rebuff such requests.                                D ICTIONARY 1821 (1976). The record
                                                     shows that Stafford does not reject groups
       (3) To exclude a group simply
                                                     that proselytize in the sense of recruiting
because it is controversial or divisive is
                                                     members. Many of the groups specifically
viewpoint discrimination. A group is
                                                     approved in the Stafford rules do so, and
controversial or divisive because some
                                                     the record contains numerous flyers –
take issue with its viewpoint.         See
                                                     produced by groups from the Cub Scouts
Cornelius, 473 U.S. at 812 (warning that
                                                     to the local wrestling club – that Stafford
“the purported concern to avoid
controversy excited by particular groups
may conceal a bias against the viewpoint
advanced by the excluded speakers”).                 during the school day if it “materially and
Although the ten groups specifically                 substan tially interfere[s] with the
approved by Stafford are apparently not              requirements of appropriate discipline,”
controversial or divisive in that                    but an “und ifferentiated fea r or
community, at least some would be                    apprehension of disturbance is not enough
controversial and divisive elsewhere.                to overcome the right to freedom of
Even in the school setting, “a mere desire           expression.” Tinker v. Des Moines Indep.
to avoid the discomfort and unpleasantness           Cmty. Sch. Dist., 393 U.S. 503, 508-09
that always accompany an unpopular                   (1969) (internal quotation marks omitted).
viewpoint” is not enough to justify the              For this reason, (a) Stafford cannot simply
suppression of speech.9 Tinker v. Des                ban all “controversial” speech but (b) there
                                                     is no merit to Stafford’s contention that if
                                                     it distributes the literature of the Good
       9
       Schools may regulate private                  News Club, it will have to distribute the
speech that occurs on school premises                literature of virulent racist groups.

                                                14
has distributed and that seek to recruit           religious perspective.” Rosenberger, 515
members. See JA 338, 346-47, 350, 352-             U.S. at 832. The Court observed:
57.
                                                          It is, in a sense, something
        What Stafford appears to mean                     of an understatement to
when it says that it excludes groups that                 speak of religious thought
proselytize is that it rejects religiously                and discussion as just a
affiliated groups that attempt to recruit                 viewpoint, as distinct from a
new members and persuade them to adopt                    comprehensive body of
the group’s views. This is viewpoint                      thought. . . . We conclude,
discrimination.                                           nonetheless, that here, as in
                                                          Lamb’s Chapel, viewpoint
        (6) Finally, Stafford’s attempt to
                                                          discrimination is the proper
justify its actions on the ground that it
                                                          w ay to interp ret th e
excludes all speech on “religion as a
                                                          University’s objections to
subject or category of speech” flies in the
                                                          Wide Awake.
face of Supreme Court precedent.
“[P]rivate religious speech, far from being        Id. at 831.
a First Amendment orphan, is as fully
                                                           Most recently, in Good News Club
protected under the Free Speech Clause as
                                                   v. Milford Cent. Sch., supra, the Supreme
secular private expression.”        Capitol
                                                   Court rejected an argument that was
Square Review & Advisory Bd. v. Pinette,
                                                   virtually identical to the one that Stafford
515 U.S. 753, 760 (1995). Cases such as
                                                   advances here. The school allowed its
Lamb’s Chapel, Rosenberger, and Good
                                                   facilities to be used for “instruction in any
News Club establish that if government
                                                   branch of education, learning or the arts”
permits the discussion of a topic from a
                                                   and for “social, civic and recreational
secular perspective, it may not shut out
                                                   meetings and entertainment events, and
speech that discusses the same topic from
                                                   other uses pertaining to the welfare of the
a religious perspective. In Lamb’s Chapel,
                                                   community,” provided that the events were
a school district was held to have violated
                                                   open to the general public. Good News
the right of free speech by permitting
                                                   Club, 533 U.S. at 102. The school refused,
“school property to be used for the
                                                   however, to permit the use of its facilities
presentation of all views about family
                                                   by a Good News Club, stating that “‘the
issues and child rearing except those
                                                   kinds of activities proposed to be engaged
dealing with the subject matter from a
                                                   in by the Good News Club were not a
religious standpoint.” Lamb’s Chapel, 508
                                                   discussion of secular subjects such as child
U.S. at 393. In Rosenberger, a free speech
                                                   rearing, development of character and
violation occurred because the university
                                                   development of morals from a religious
refused to support a student publication
                                                   perspective, but were in fact the equivalent
called Wide Awake “on the ground that the
                                                   of religious instruction itself.’” Id. at 103-
contents of Wide Awake reveal an avowed

                                              15
04. The Second Circuit sustained this               against Child Evangelism because it
policy, holding that the Good News Club’s           teaches “morals and character, from a
activities fell “outside the bounds of pure         religious standpoint,” Good News Club,
‘moral and character development’”                  533 U.S. at 109, but it also appears that
because they were “quintessentially                 Stafford disfavored Child Evangelism
religious.” Good News Club v. Milford               because of the particular religious views
Cent. Sch., 202 F.3d 502, 510-11 (2000),            that Child Evangelism espouses. Several
rev’d 533 U.S. 98 (2001)                            of the groups that Stafford has allowed to
                                                    distribute and post materials – specifically
       Applying Lamb’s Chapel and
                                                    the Boy Scouts, the Girl Scouts, and the
Rosenberger, the Supreme Court reversed
                                                    Elks – espouse religious views and require
and held that the school had engaged in
                                                    or encourage members to endorse these
impermissible viewpoint discrimination.
                                                    beliefs.
The Court pointed out that the Good News
Club sought “to address a subject                             The Boy Scouts describes itself as
otherwise permitted under [the school’s             “an organization with strong religious
rules], the teaching of morals and                  tenets.” JA 514. The stated mission of
character, from a religious standpoint,”            the Boy Scouts is to “prepare young people
Lamb’s Chapel, 533 U.S. at 109, and the             to make ethical and moral choices over
Court rejected the Second Circuit’s                 their lifetimes by instilling in them the
position that “something that is                    values of the Scout Oath and Law.” JA
‘quintessentially religious’ or ‘decidedly          516. The well-known Boy Scout Oath
religious in nature’ cannot also be                 begins with the words “On my honor I will
characterized properly as the teaching of           do my best / To do my duty to God and my
morals and character development from a             country.” JA 517. In describing this
particular viewpoint.” Id. at 111. The              portion of the Oath, official Boy Scout
Court elaborated: “What matters for                 literature states: “Our nation is founded on
purposes of the Free Speech Clause is that          showing reverence to a higher faith. In
we can see no logical difference in kind            these words, the Scout promises to
between the invocation of Christianity by           recognize, to honor and to respect his
the Club and the invocation of teamwork,            religious faith. And in the Boy Scouts of
loyalty, or patriotism by other associations        America, he is given an opportunity to
to provide a foundation for their lessons.”         grow in that faith and to respect the beliefs
Id. This holding forecloses Stafford’s              of others.” Id. And though the Boy
argument that its disparate treatment of            Scouts of America is a nonsectarian group,
Child Evangelism was not viewpoint                  it still “maintains that no child can develop
discrimination.                                     to his or her fullest potential without a
                                                    spiritual element in his or her life.” Id.
                     B.
                                                         The Girl Scout Promise includes a
       Not only did Stafford discriminate
                                                    commitment to “serve God.” JA 524. The

                                               16
group takes the view that God can be                        The Supreme Court has not settled
“interpreted in a number of ways” and                the question whether a concern about a
permits the word “God” in the Promise to             possible Establishment Clause violation
be replaced by “whatever word [a girl’s]             can justify viewpoint discrimination. See
spiritual beliefs dictate.”   Id.   The              Good News Club, 533 U.S. at 112-13
Benevolent and Protective Order of Elks              (“[While] [w]e have said that a state
of the United States of America requires             interest in avoiding an Establishment
its members to “believe in God.” Id. at              Clause violation ‘may be characterized as
528.                                                 compelling,’ and therefore may justify
                                                     content-based discrimination . . . , it is not
        In discovery, Stafford propounded
                                                     clear whether a State’s interest in avoiding
an extraordinary set of requests for
                                                     an Establishment Clause violation would
admissions that sought to elicit Child
                                                     justify viewp oin t disc rimi natio n.”)
Evangelism’s admission that it adheres to
                                                     (internal citation omitted) (quoting
a variety of traditional Christian doctrines.
                                                     Widmar v. Vincent, 454 U.S. 263, 271
See JA 369. Stafford’s brief highlighted
                                                     (1981)). But we need not decide this issue
these beliefs as grounds for its actions, see
                                                     here, because giving Child Evangelism
Appellant’s Br. at 10, and at argument
                                                     equal access to the fora at issue would not
Stafford’s counsel stated: “We were
                                                     violate the Establishment Clause. The
concerned that, what the Child Evangelism
                                                     Supreme Court has repeatedly “rejected
Fellow ship teaches appears to be
                                                     the position that the Establishment Clause
inconsistent with what we’re obligated to
                                                     even justifies, much less requires, a refusal
teach, that being diversity and tolerance.”
                                                     to extend free speech rights to religious
Oral Arg. Tr. at 10. Suppressing speech
                                                     speakers who participate in broad-reaching
on this ground is indisputably viewpoint-
                                                     government programs neutral in design.”
based.
                                                     Rosenberger, 515 U.S. at 839.
                      VI.
                                                                           B.
                      A.
                                                            Contrary to the arguments of
      Stafford argues that even if it                Stafford and its amici, equal access would
engaged in viewpoint discrimination, its             not result in an impermissible endorsement
conduct was justified for the purpose of             of religion.        An unconstitutional
avoiding a violation of the Establishment            endorsement of religion is said to occur
Clause. Similar arguments were rejected              when government makes “adherence to a
in Lamb’s Chapel, 508 U.S. at 394-97,                religion relevant in any way to a person’s
Rosenberger, 515 U.S. at 845-46, and                 standing in the political community.’”
Good News Club, 533 U.S. at 112-120,                 Allegheny County v. Greater Pittsburgh
and Stafford’s rendition here is no more             ACLU, 492 U.S. 573, 625 (1989)
convincing.                                          (O’Connor, J., concurring) (quoting Lynch
                                                     v. Donnelly, 465 U.S. 668, 687 (1984)

                                                17
(O’Conn or, J., concu rring)).                       possible message of official endorsement
“‘Endorsement sends a message to                     of or preference for religion or a particular
nonadherents that they are outsiders, not            religious belief.” Id. Official recognition
full members of the political community,             of the club “carrie[d] with it access to the
and an accompanying message to                       school newspaper, bulletin boards, the
adherents that they are insiders, favored            public address system, and the annual Club
members of the political community.’” Id.            Fair,” id. at 247, fora very similar to those
“Disapproval of religion conveys the                 at issue in the present case.
opposite message.” Id.
                                                                In Lamb’s Chapel, the Court ruled
       In order to determine whether a               that allowing a film with a religious
challenged practice “‘constitutes an                 message to be shown on school premises
endorsement or disapproval of religion,’”            after school hours in a gathering that was
the practice must be “‘judged in its unique          sponsored by a private group and open to
circumstances.” Allegheny County, 492                the public would not have created any
U.S. at 624-25 (O’Connor, J., concurring)            “realistic danger that the community would
(quoting Lynch, 465 U.S. at 694                      think that the District was endorsing
(O’Connor, J., concurring)) (emphasis in             religion or any particular creed.” 508 U.S.
Allegheny). In addition, the challenged              at 395. And in Good News Club, 533 U.S.
practice must be considered from the                 at 118, the Court concluded that even
perspective of a hypothetical reasonable             small children would not perceive that
observer who is “aware of the history and            allowing the Good News Club, like other
context of the community and forum.”                 community groups, to meet on school
Capitol Square Review & Advisory Bd. v.              premises represented an endorsement by
Pinette, 515 U.S. 753, 780 (1995)                    the school of the group’s beliefs. The
(O’Connor, J., concurring in part and                Court added: “[E]ven if we were to inquire
concurring in judgment).                             into the minds of schoolchildren in this
                                                     case, we cannot say the danger that
       The Supreme Court has repeatedly
                                                     c h i l d re n wo uld m isperc eive th e
held that granting equal access to facilities
                                                     endorsement of religion is any greater than
in educational institutions does not offend
                                                     the danger that they would perceive a
this principle. In Bd. of Educ. of the
                                                     hostility toward the religious viewpoint if
Westside Cmty. Schs. v. Mergens, 496
                                                     the Club were excluded from the public
U.S. 226, 252 (1990), the Court found that
                                                     forum.” Id.
a public school’s recognition of a religious
student club would not be perceived as                     Applying these precedents, we see
endorsement where the school recognized              no endorsement problem here. Child
a “broad spectrum” of clubs and allowed              Evangelism’s flyers specifically disclaim
its students to “initiate and organize               any school sponsorship. In addition, a
additional student clubs.” These features,           reasonable observer, “aware of the history
the Court held, “counteract[ed] any                  and context of the community and forum,”

                                                18
 Pinette, 515 U.S. at 780, would know that          the Club were excluded from the public
Stafford has a policy of assisting a broad          forum.” Good News Club, 533 U.S. at
range of community groups, that Stafford            118. The Court elaborated:
plays no role in composing the flyers that
                                                           We cannot operate . . . under
are sent home and does not pay for them,
                                                           the assumption that any risk
and that Stafford teachers do not discuss
                                                           that small children would
the flyers in class. If permitting Good
                                                           p e r c e iv e e n d o r s e m e n t
News Club meetings on school premises
                                                           should counsel in favor of
shortly after the end of the school day does
                                                           e x c l u d in g t h e C l u b ’s
not convey a message of endorsement, the
                                                           religious activity.            We
lesser activities at issue here cannot be
                                                           decline to employ
viewed as bearing the school’s implicit
                                                           E s ta b li sh m e n t C l a u s e
approval.
                                                           jurisprudenc e using a
        Stafford and its amici contend that                modified heckler’s veto, in
the relevant reasonable observer in this                   which a group’s religious
case is an elementary school child and that                activity can be proscribed on
such a child is likely to interpret school                 the basis of what the
facilitation of private speech as amounting                youngest members of the
to an endorsement of the speech. Indeed,                   audience might misperceive.
they contend that elementary school                        . . .               The r e a re
children are incapable of understanding the                countervailing constitutional
difference between school-sponsored                        concerns related to rights of
extracurricular activities and privately run               other individuals in the
activities that the school assists in                      community. In this case,
publicizing. However, Good News Club                       those countervailing
and decisions of other courts of appeals                   concerns are the free speech
undermine that argument.                                   rights of the Club and its
                                                           members.
           In Good News Club, it was argued
that young children would interpret the use         Id. at 518-19.
of the school building for club meetings as
                                                           Heeding these comments, recent
signifying that the meetings were endorsed
                                                    court of appeals decisions have rejected
by the school. In response, the Court
                                                    arguments essentially the same as
stated that “even if we were to inquire into
                                                    Stafford’s here. In Hills v. Scottsdale
the minds of the schoolchildren in this
                                                    Unified Sch. Dist., 329 F.3d 1044 (9th Cir.
case, we cannot say the danger that
                                                    2003), a school district had a policy of
c h i l d re n wo uld m isperc eiv e th e
                                                    distributing community-group literature
endorsement of religion is any greater than
                                                    but refused to hand out the brochures for a
the danger that they would perceive a
                                                    summer camp that offered classes on
hostility toward the religious viewpoint if

                                               19
“Bible Heroes” and “Bible Tales.” Id. at              students were the relevant audience, their
1046. Holding that the school district had            youth would not alter the outcome.” Id. at
engaged in viewpoint discrimination and               3.
that handing out information about the
                                                              In Child Evangelism Fellowship of
camp would not have violated the
                                                      Md., Inc. v. Montgomery County Pub.
Establishment Clause, the panel rejected
                                                      Sch., 373 F.3d 589 (4th Cir. 2004), the
the school district’s argument that “the
                                                      Child Evangelism Fellowship of Maryland
impressionability of elementary-age
                                                      applied for a preliminary injunction
students mandate[d] the exclusion of such
                                                      requiring Montgomery County elementary
material.” Id. at 1053. Among other
                                                      schools to send home Good News Club
things, the panel noted that the brochures’
                                                      flyers just as they sent home the flyers of
disclaimer of school sponsorship lessened
                                                      other non-profit community groups. Id. at
any danger that distribution would be
                                                      591.      Reversing the denial of the
perceived as endorsement, and the panel
                                                      application, the Fourth Circuit saw “no
thought it of little significance that in some
                                                      meaningful way to distinguish [the] case
schools the teachers handed the brochures
                                                      from controlling precedents.” Id. at 602.
directly to students and that distribution
                                                      The district maintained that allowing the
sometimes occurred “at the end of the day”
                                                      Good News Club flyers to be sent home
and “thus technically during school hours.”
                                                      would violate the Establishment Clause in
Id. at 1054. See also Prince v. Jacoby, 303
                                                      light of “the age of the students,” but the
F.3d 1074 (9th Cir. 2002) (requiring that a
                                                      Fourth Circuit viewed this argument as
school club be given equal access to,
                                                      inconsistent with Good News Club. Id.
among other things, the yearbook, public
address systems, and bulletin boards).                       Even before Good News Club was
                                                      decided, the Seventh Circuit held in
         In Rusk v. Crestview Local Sch.
                                                      Sherman v. Cmty. Consol. Sch. Dist., 8
Dist., No. 02-3991, 2004 WL 1793283
                                                      F.3d 1160 (7th Cir. 1993), that a grade
(6th Cir. Aug. 12, 2004), an elementary
                                                      school did not violate the Establishment
school had the practice of placing in
                                                      Clause by distributing Boy Scout literature
students’ scho ol ma ilboxes flyers
                                                      and allowing Boy Scout posters to be hung
advertising the activities of many
                                                      on the school walls. The school’s policy
community groups, including flyers
                                                      was challenged by a boy and father whose
advertising religious activities. Holding
                                                      membership in the group had been revoked
that this practice did not violate the
                                                      because they refused to accept the
Establishment Clause, the Sixth Circuit
                                                      provision of the Scout Oath requiring a
concluded that because the students could
                                                      belief in God. Id. at 1162-63. They
not participate in any of the activities
                                                      argued that the school violated the
without parental approval, “the relevant
                                                      Establishment Clause “by endorsing the
observers are the parents,” id. at 2, not the
                                                      religious message” of the Boy Scouts, but
students and added that “even if the . . .
                                                      the Seventh Circuit disagreed and rejected

                                                 20
the plaintiffs’ contention “that the age of                    We agree with these decisions and
the children involved tip[ped] the balance             hold that granting Child Evangelism equal
in their favor.” Id. at 1166.10                        access to the fora in question would not
                                                       have constituted an endorsement of
                                                       religion. “The proposition that schools do
       10                                              not endorse everything they fail to censor
         Our decision here and the Fourth,
                                                       is not complicated,” Mergens, 496 U.S. at
Sixth, and Seventh Circuit decisions
                                                       250 (plurality), but if Stafford is
discussed above appear to differ from a
portion of the Ninth Circuit’s decision in
Culbertson v. Oakridge School District
No. 76, 258 F.3d 1061 (9th Cir. 2001), but             Culbertson’s reach. Holding, as noted
we find that portion of Culbertson                     above, that a school district with a broad
unpersuasive.                                          policy of distributing community group
        In Culbertson, a Ninth Circuit panel           literature could not exclude a brochure for
held that an elementary school that opened             a camp with Bible classes, the panel
its doors to after-school use of its facilities        distinguished Culbertson on the following
by a variety of community youth groups                 grounds: the camp in Hills did not meet on
was required to grant similar access to a              school grounds; Culbertson held only that
Good News Club. The panel concluded,                   the club’s permission slips, not its
however, that the school’s distribution of             brochures, could not be handed out; and
Good News Club permission slips would                  the camp brochure in Hills (apparently
violate the Establishment Clause. The                  unlike the permission slips in Culbertson)
panel stated: “Not just an empty classroom             contained an express disclaimer of school
but a teacher’s nod of encouragement is                sponsorship. Hills, 329 F.3d at 1054.
thereby afforded the club’s religious                           We agree that the presence or
program.” Id. at 1065.                                 absence of a disclaimer of school
        We find this analysis unconvincing.            sponsorship is a meaningful (although not
The Culbertson panel did not explain why               necessarily dispositive) factor, but we see
the simple act of handing out permission               little relevance in the distinction between
slips – presumably in the same manner as               a brochure for an extracurricular activity
other community-group literature –                     and a permission slip for the same activity.
amounted to “a nod of encouragement”,                  We also do not see how Culbertson’s
nor did the panel explain why permitting a             holding on the permission slips could have
group to conduct meetings on school                    turned on the fact that the club meetings
premises is less likely to be interpreted as           were to be held on school grounds. After
“a nod of encouragement.” If anything,                 all, Culbertson, following Good News
the opposite seems likely.                             Club, held that the school was obligated to
        Furthermore, the Ninth Circuit’s               allow the club to meet on school grounds.
more recent decision in Hills v. Scottsdale
Unified School District, supra, limits

                                                  21
legitimately worried about possible                 distributed and posted in the schools and
misunderstandings there are obvious steps           by allowing these groups to be represented
that it can take. Stafford can send home an         at Back-to-School nights, Stafford helps to
announcement to parents setting out its             inform families about the wide spectrum
broad-ranging policies and making clear             of activities from which they may choose
that it does not necessarily endorse all the        and to foster the growth of diverse
groups whose materials are distributed or           community groups. These are indisputably
posted. Stafford teachers can explain the           legitimate secular purposes.
point to students.
                                                            Granting equal access would not
                    C.                              have the principal or primary effect of
                                                    advancing religion. Rather, the principal
        Giving Child Evangelism equal
                                                    and primary effect would be to inform
access to the fora in question also would
                                                    school families about available community
not offend the “Lemon test.” See Lemon
                                                    activities and to foster a wide range of
v. Kurtzman, 403 U.S. 602 (1971). Under
                                                    activities in the community. While some
Lemon, there is no Establishment Clause
                                                    religious groups would benefit from equal
violation if the challenged law or practice
                                                    access, so would a great many secular
(1) has “a secular purpose,” (2) “its
                                                    groups. “The provision of benefits to so
principal or primary effect” “neither
                                                    broad a spectrum of groups is an important
advances nor inhibits religion,” and (3) it
                                                    index of secular effect.” Widmar, 454
does not “foster an excessive government
                                                    U.S. at 274. “[A] religious organization’s
entanglement with religion.” Lemon, 403
                                                    enjoyment of merely ‘incidental’ benefits
U.S. at 612-13. In Agostini v. Felton, 521
                                                    does not violate the prohibition against the
U.S. 203, 233-34 (1997), the Court
                                                    ‘primary advancement’ of religion.” Id. at
clarified the third prong of this test,
                                                    273.
concluding that it is best understood “as an
aspect of the inquiry into a statute’s                      Finally, granting equal access to the
effect.” See Tenafly, 309 F.3d at 174 n.36.         three fora would not resu lt in
                                                    unconstitutional        entanglement.      An
        The Lemon test is satisfied in this
                                                    entanglement must be “‘excessive’ before
case. First, granting equal access to the
                                                    it runs afoul of the Establishment Clause,”
three fora has a secular purpose.
                                                    and this requires more than mere
Stafford’s stated goal is to “assist all
                                                    “[i]nteraction between church and state,”
organizations in our rapidly growing
                                                    for some level of interaction has always
community.” JA 190. Stafford appears to
                                                    been “tolerated.” Agostini v. Felton, 521
take the view that the community and its
                                                    U.S. at 233. As the Supreme Court
children are enriched by the opportunity to
                                                    explained in Agostini, the factors
participate in a variety of privately run
                                                    employed “to assess whether an
activities. By permitting a broad range of
                                                    entanglement is ‘excessive’ are similar to
community groups to have their flyers
                                                    the factors . . . use[d] to examine ‘effect.’”

                                               22
Id. at 232. Thus, we must look to “the                part of a commencement program. The
character and purposes of the institutions            Court reasoned that the importance of
that are benefited, the nature of the aid that        commencement in a student’s life puts
the State provides, and the resulting                 pressure on students to attend, that those
relationship between the government and               attending would feel social pressure to
religious authority.” Id. (quoting Lemon,             stand in silence during the invocation, and
403 U.S. at 615.)                                     that this act would be viewed by some
                                                      objectors as amounting to participation in
       Here, granting equal access would
                                                      or approval of the prayer. See id. at 586,
not result in excessive entanglement. As
                                                      593, 595-96.
we have explained, the principal and
primary effects of granting equal access                     In Santa Fe Indep. Sch. Dist. v.
would be secular, and allowing equal                  Doe, supra, the Court held that an
access would produce little additional                invocation held before a high school
interaction between Child Evangelism and              football game likewise exerted improper
Stafford. Child Evangelism would simply               pressure on students to participate in a
send its flyers and permission slips to the           religious ceremony to which they objected.
schools and, space permitting, send a                 The Court noted that some students (team
representative to Back-to-School nights.              and band members and cheerleaders) were
Stafford in turn would merely perform the             required to attend and that others felt peer
largely ministerial tasks needed to                   or social pressure to do so. Santa Fe, 530
distribute and post the materials and                 U.S. at 311-12.
(again, space permitting) accommodate a
                                                             The distribution and posting of
Child Evangelism representative at Back-
                                                      Good News Club flyers and posters and
to-School nights. If there is no excessive
                                                      the presence of a Child Evangelism
entanglement when a public school allows
                                                      representative at Back-to-School nights
a Good News Club to meet on school
                                                      would not result in any similar pressure to
premises during after-school hours, see
                                                      participate in a religious activity. Students
Good News Club, 533 U.S. 98, there
                                                      would receive Good News Club flyers and
certainly would be no exce ssive
                                                      permission slips, just as they have long
entanglement here.
                                                      received materials from a variety of other
                      D.                              community groups.          Receiving these
                                                      materials would not pressure students to
       Nor would granting equal access
                                                      attend Good News Club meetings, and
“coerce anyone to support or participate in
                                                      indeed they could not attend those
religion or its exercise.” Lee v. Weisman,
                                                      meetings without their parents’ written
505 U.S. 577, 587 (1992). In Lee, the
                                                      permission.        Students w ould also
Court held that a school engaged in
                                                      occasionally see Good News Club
improper coercion by including an
                                                      materials, along with information about
invocation led by a member of a clergy as
                                                      other groups, on school walls, but this

                                                 23
likewise would not pressure students to
attend the meetings. Parents would see the
Good News Club flyers and permission
slips when (and if) their children bring
them home, but they would not be
pressured into reading those documents
any more than they are pressured into
reading other unsolicited mail, and
receiving those materials would certainly
not pressure parents into allowing their
children to attend. In short, nothing even
remotely approaching coercion is present
in this case.
                   VI.
        In sum, we hold, based on
undisputed facts in the record and well
established Supreme Court precedent, that
Stafford has clearly engaged in a practice
of viewpoint discrimination that cannot be
justified as an effort to avoid an
Establishment Clause violation.        We
therefore affirm the order of the District
Court and remand for the entry of
permanent injunctive relief and such other
relief as may be appropriate.




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