Minnesota federal district court upholds school district’s restrictions on outside religious group’s access to after school program
Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No. 1, No. 10-2687 (D. Minn. Sept. 30, 2010)
Abstract: A federal district court in Minnesota has denied an outside religious organization’s motion for a preliminary injunction that would require a school district to grant it the additional benefits provided to participants in the after school program. The court determined that the school district had created a limited designated public forum when it set up its after school program, which allowed it to restrict access to the forum provided the restrictions were reasonable and viewpoint neutral.
The district court concluded that the school district, which had already provided the organization with access to use of school facilities and the flyer distribution system, was not engaging in constitutionally impermissible viewpoint discrimination, but rather content discrimination by barring prayer and proselytizing from the forum. It held that the school district’s restrictions would “likely be found reasonable in light of a legitimate government interest,” thus, the organization “is unlikely to prevail on its claims of violations of its First Amendment Rights.” This factor, explained the court, weighs against granting a preliminary injunction.
The court also agreed with the school district that its “constitutional interests in not violating the Establishment Clause outweigh [the organization’s] free speech interests in being allowed to use the District’s busing and snacks.” After concluding that it is likely that organizations participating in the after school program are engaged in school-sponsored public speech and, as such, subject to the Establishment Clause prohibitions regarding religious speech, the court applied the three-prong test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), to determine if the school district’s restrictions on membership in the after school program pass Establishment Clause muster. Based on its Lemon analysis, the court stated that “it is likely that the District could demonstrate that [the organization’s] participation in the After-School Program violates the Establishment Clause.”
Facts/Issues: Child Evangelism Fellowship of Minnesota (CEF-MN) is the local chapter of a national religious organization. Among CEF-MN’s ministries is the Good News Club (GNC), an after school program for children ages 5-12. CEF-MN conducts GNC meetings after school, generally on public elementary campuses, because it finds them convenient and safe for students and parents. GNC meetings include Bible lessons, creative learning activities, stories about missionaries and biblical figures modeling spiritual and personal leadership, songs, and scripture memorization. Additionally, at GNC meetings children are “introduced to Jesus Christ as their savior.” CEF-MN acknowledges that prayer occurs during GNC meetings.
During the 2005-2006 school year, Minneapolis Special School District No. 1 (MSSD1) implemented the Community Partner Online (“CPO”) process in order to formalize the way in which MSSD1 screens individuals or organizations that interact with students or are on District property when students are present. The school district’s policies say “any non-school, non-district sponsored group or individual may apply to become a Community Partner (‘CP’) with the Minneapolis Public Schools” through the CPO process. MSSD1 Policies 1301 and 1301A lay out requirements of the CPO process necessary for an organization to obtain CP certification, which involves executing a contract with the school district.
State law allows local school boards to operate after school programs. MSSD1 created a Community Education Department (CED) to develop programs. Some, but not all, of MSSD’s CPs participate in the after school program. Some of the participants, such as the Boy Scouts and the Y.W.C.A., have religious affiliations. However, none of those groups participating in the after school program have engaged in proselytizing or praying with students.
In 2000, CEF-MN requested and was provided with space at Jenny Lind Elementary School (JLES) to hold GNC meetings. At the time, CEF-MN did not ask to be part of the after school program, but was allowed to distribute flyers promoting GNC. At some point GNC became a part of the after school program at JLES, which meant students would be provided with snacks and bus transportation home. In the fall of 2009, JLES officials informed CEF-MN that GNC was being removed from the list of CPs participating in the after school program because of the description of the club in its flyers and the proselytizing and prayer at GNC meetings. In 2010, MSSD1′s assistant general counsel informed CEF-MN by letter: “CEF programming was not appropriate because CEF Programming included leading the children in prayer, teaching them that Jesus Christ is their savior, and studying Biblical passages.” The letter also stated that the after school program is “wholly funded coordinated, reviewed and monitored by the District. The District is not able to separate from or remove its sponsorship of the After-School Program, and must remain neutral towards religion.”
CEF-MN subsequently filed suit against MSSD1 alleging that the GNC’s removal from the after school program violated CEF-MN’s First Amendment free speech rights. It filed a motion for a preliminary injunction that would require MSSD1 to reinstate GNC in the program until the court could decide on the merits of CEF-MN’s claim that removal of the GNC from the program because of the club’s religious nature constituted impermissible viewpoint discrimination in violation of CEF-MN’s free speech rights.
Ruling/Rationale: The district court denied CEF-MN’s motion for a preliminary injunction, concluding that it was not probable that CEF-MN would succeed on the merits of its claim.
First, it found that the school district’s after school program was a designated limited public forum, which it described as “a nonpublic forum the government intentionally opens to expressive activity for a limited purpose such as use by certain groups or use for discussion of certain subjects.” While acknowledging that viewpoint discrimination would not be permissible in such a forum, it pointed out that “content discrimination may be permissible if it preserves the purposes of that limited forum.”
The issue, therefore, is whether MSSD1 improperly limited access to the forum through viewpoint discrimination that is not reasonably related to the purpose for which the forum was opened. It rejected CEF-MN’s contention that by denying GNC the additional benefits, i.e., snacks and bus service, available to groups participating in the after school program, the district was discriminating based on viewpoint. CEF-MN placed significant reliance on the U.S. Supreme Court’s decision in Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001), in which the Court held that a school district had engaged in impermissible viewpoint discrimination against a GNC by denying it access to school facilities for club meetings based on the GNC’s religious viewpoint, as well as two other cases in which their respective courts had followed Milford.
The court distinguished the Milford cases from the current one. In Milford the Court found that the club’s meetings were not supported by the school, whereas here MSSD1 is sponsoring the after school program. It also emphasized that in Milford the local CEF chapter was seeking access to the school facilities, while here CEF-MN already had obtained such access. Second, in Milford the Supreme Court found that there was no difference in the program and activities offered by GNC and those offered by the Boy Scouts, while in the present case the evidence demonstrates that GNC, unlike the Boy Scouts, engaged in proselytizing and prayer. The court stated: “CEF has cited no cases in which a court found proselytizing and prayer proper content for school-sponsored speech.”
It concluded that at most MSSD1 had engaged in content discrimination in order to keep prayer and proselytizing out of its school-sponsored after school program. The court, therefore, rejected CEF-MN’s claim “that being denied membership in the After-School Program is unconstitutional viewpoint discrimination, and is not reasonable in light of the purpose served by the forum.” It concluded that CEF-MN would prevail on the merits of this claim.
The court then considered whether MSSD1’s constitutional interests in not violating the Establishment Clause outweigh CEF’s free speech interests in being allowed to use the District’s busing and snacks, the court noted, “An abridgment of free speech otherwise protected by the First Amendment must be justified by a compelling governmental interest.” Avoiding an Establishment Clause violation can be a compelling interest.
Noting the deep involvement of the school district in the after school program — by creating and distributing class choice forms to students with the district listed as program sponsor, selecting programs to be included and orienting organizations that participate, involving staff in disciplinary issues that take place during class meetings, maintaining enrollment records, and providing buses, school supplies and treats — the court said that an objective observer could view the program as school sponsored. As such, the program would be subject to the Establishment Clause prohibitions regarding religious speech.
The court applied the three-prong test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), to determine if the school district’s restrictions on membership in the after school program passes Establishment Clause muster. The court found it likely that the organizations participating in the after school program engage in school sponsored public speech, as they are selected by MSSD1 for additional benefits separate from the larger group of CP’s. “Further, an objective observer, including the parents of After-School Program attendees, could reasonably believe that a religious program held on school grounds, for which they gave permission on a sheet including other school-sponsored activities, and which involves travel on a school bus, has the imprimatur and support of the school itself.”The court concluded, “it is likely that the District could demonstrate that CEF’s participation in the After-School Program violates the Establishment Clause.”
Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No. 1, No. 10-2687 (D. Minn. Sept. 30, 2010)
[Editor's Note: Although the ability to distribute materials such as promotional flyers was not an issue in this case, courts follow a similar analysis when they consider questions of that type. In May 2011, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit in Victory Through Jesus Sports Ministry v. Lee's Summit R-7 Sch. Dist. The panel held that a school district’s policy, known as the “Backpack Flyers for Students” program, which restricted in-school distribution of outside organizations’ flyers to a once a year opportunity did not violate an outside religious group’s free speech rights. The panel agreed with the lower court that the forum created by the policy was not a designated public forum, opening backpack flyer distribution to the general public, but instead was either a non-public or limited public forum in which the school district could impose reasonable, viewpoint neutral restrictions on in-school distribution of flyers.
The editor's note contains a link to NSBA's chart on cases addressing materials distribution in schools.]