CASE 0:08-cv-05165-ADM-AJB Document 1 Filed 09/11/08 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

CHILD EVANGELISM FELLOWSHIP OF MINNESOTA,
Plaintiff,
vs.
ELK RIVER AREA SCHOOL DISTRICT, #728
Defendant.

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Case No.

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VERIFIED COMI'LAINT FOR DECLARATORY .JUDGMENT, PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF AND DAMAGES
COMES NOW the Plaintift~ CHILD EVANGELISM FELLOWSHIP OF MINNESOTA (hereinafter "Plaintiff" or "CEF"), by and through its undersigned counsel, and files this civil action and respectfltlly requests this Com1 to issue injunctive relief, declaratory judgment and award damages for violations of the United States Constitution by Defendant, THE ELK RIVER AREA SCHOOL DISTRICT #728 (hereafter "the District"). In support thereof, l)laintiff shows unto the

Court as follows:

I.

Plaintiffseeks preliminary and permanent injunctive reliefenjoining the District, its

agents, servants and employees and those acting in active concert and with actual notice thereof,

from enforcing District Policy 1011, 4.1, entitled "Distribution ofOfficial aod Nonschool-sponsored

Materials" (hereinafter "Policy") and from violating Plaintift's right to freedom of speech, equal

protection, and free exercise of religion guaranteed by the First and Fourteenth Amendments to the

United States Constitution.

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2. Plaintiffalso prays for declaratory judgment to determine the constitutionality ofthe Policy and the District's actions in denying Plaintiff the opportunity to exercise its Constitutional rights and to declare the Policy, both on its face and as applied, unconstitutional as a direct violation of the First and Fourteenth Amendments to the United States Constitution.
3. Plaintiff also seeks damages. 4. An actual controversy exists between the parties involving substantial constitutional issues, in that the challenged Policy, on its face and as applied, violates the United States Constitution.
JURISDICTION AND VENUE
5. This action arises under the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983.
6. This Court has jurisdiction of this claim under, and by virtue of, 28 U.S.C. §§ 1331, 2201-02.
7. Venue is proper under 28 U.S.C. § 1391 (b). Each and all ofthe acts alleged herein were done by the District under the color and pretense of the statutes, ordinances, regulations, customs, policies, procedures, and law of the Elk River Area School District #728 and/or the State of Minnesota.
8. This Court is authorized to grant declaratory judgment under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, implemented through Rule 57 of the Federal Rules of Civil Procedure, and to issue the injunctive reliefrequested by Plaintitl'under Rule 65 ofthe Federal Rules of Civil Procedure.
9. This Court is authorized to grant Plaintiffs prayer for relief regarding costs,
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including a reasonable attorney's fee, under 42 U.S.C. § 1988.

PARTIES

10. Child Evangelism Fellowship of Minnesota (hereafter "CEF") is a not-for-profit

religious organization, incorporated in Mi.ssouri. II. Defendant Elk River Area School District #728 is the governing body for public
schools in Elk River, MN, with the authority to sue and be sued, and was at all times relevant herein,

acting within the course and scope of its authority and under color of law.

STATEMENT OF FACTS

12. The Good News Club is a club for children sponsored by CEF, that encourages learning, spiritual grovvth, and service to others by providing religious and moral education through lessons from the Bible, encouraging the memorization of Bible verses, singing hymns and reading

stories.

13. CEF wants to usc District facilities to hold Good News Clubs.

14. The Good News Club is sponsored by CE.P.

15. The Good News Club is open to all boys and girls between the ages of five and

. ;

twelve, regardless of religious background, or lack of religious belief. 16. There is no charge or fee for attendance. No fees, tithes or contributions, other than
no-obligation offerings for overseas missionaries, arc taken during meetings, nor are commercial

or fundraising activities permitted. 17. Good News Club meetings are designed only for elementary-age students and include
Bible lessons, creative learning activities, stories about missionaries and biblical figures, songs, and

scripture memory.

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I

18. Children are taught biblical principles, moral values, character qualities, respect for authority, relationships, morals, character development, and issues ofimportance to the community.
19. Good News Clubs are nondenominational. 20. As Good News Clubs are nondenominational, the Clubs do not meet in churches. 21. As Good News Clubs are tor elementary-aged children, the meetings are conducted on elementary school campuses after school. 22. Due to the difficulty with parents having to provide transportation off school premises, the elementary school provides the best location for such clubs. 23. Good News Clubs do not provide separate transportation, and most parents are not capable of providing transportation to and from Good News Club meetings. However, the central location of an elementary school allows parents to send their children to a Good News Club and to pick up the children in a convenient locale. 24. Using elementary schools for Good News Club meetings is also done for safety. Transporting young children away from the school, or requiring them to walk otT campus, increases the risk of injury, abduction and death, Parents and their children need a safe, familiar place where they may attend after-school activities that begin as soon as school ends. There are no other suitable nor available options in which to provide meetings for the elementary school students to meet. 25. District Policy I0 II, 4, 1, entitled, ''Distribution ofOfficial and Nonschool-sponsored Materials" (hereinafter "Policy") states: "Materials for distribution by giving the students for the students or for delivery to parents shall be restricted to materials directly relating to official and school-sponsored activities and materials directly in support of school activities. Materials from organizations that fall within the category of 'designated patriotic youth organizations' as de.fined
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by the No Child Left Behind Act will also, subject to staff review, be eligible tbr distribution to parents and/or directly to students." (A copy ofthe Policy is attached to the Complaint as Exhibit
A).
26. Pursuant to the Policy, organizations that are listed under the No Child Left Behind Act are granted permission to distribute their literature at such events as Open Houses, and using the school bulletin boards.
27. Some of the organizations listed under the Act are: Boy Scouts of America, Boys & Girls Clubs of America, Future Farmers of America, Girls Scouts, and Little League Baseball. CEF is not listed under the Act.
28. CEF is similar to these organizations but for its religious content and viewpoint. 29. The District has created a limited public forum. 30. The District has in fact permitted the Boy Scouts and similar organizations to distribute its literature throughout the schools in the District. 31. Good News Clubs address many of the same subjects addressed by Boy Scouts, except these subjects are addressed from a religious, and particularly a Christian, viewpoint. Good News Clubs support the ideals of Scouting by teaching children to be trustworthy, loyal, helpful, lriendly, courteous, kind, obedient, cheerful, thrifty, brave, clean and reverent. Good News Clubs teach moral and character development. 32. The Good News Clubs in Elk River begin each meeting by reciting the Pledge of Allegiance. 33. Much of the focus of the Good News Clubs is on teaching the children on how to become good citizens, they are taught respect for authority, to be responsible, and how to develop
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leadership skills. All of these facets of the Good News Club aids the children in becoming good citizens and patriots of the United States.
34. Each year, the Elk River School District hosts two Open Houses at the beginning of the school year. One Open House is for kindergartners and the second Open House is for first through fifth graders.
35. Parents are invited to meet teachers at the Open Houses and be informed of various programs that are afforded to the students. Upon information and beliefthe groups allowed to attend the Open Houses distribute their literature about their programs to students and their parents.
36. Upon information and bcliefgr01.1ps such as Boy Scouts, Girl Scouts, the local youth hockey team and others have been granted access to be present at these Open Houses and/or to distribute their literature at these events.
37. On or about August 28,2007, Sharilyn Nydam as District Director for CEF, met with Jana Hennen-Burr, the Assistant Superintendent for the District (hereinafter ''Asst. Superintendent Hennen-Burr"), about allowing CEF to be present at the following night's Open House and the ability to distribute its literature for the coming year.
38. Asst. Superintendent Hennen-Burrtold Ms. Nydam that CEF would not be permitted to attend the Open House unless CEF could prove that it was a patriotic organization under the No Child I.eft Behind Act.
39. Counsel for CEF wrote a letter to the District on August 28, 2007, stating that CEF should be allowed to be present at the Open House the following night and also should be able to distribute its literature on the same basis as the Boy Scouts and other similar organizations. (A copy of the letter is attached to the Complaint as Exhibit B).
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40. That same day, Counsel for CEF received a response from Mr. lvars Krafts, Legal Counsel for the District, indicating that since CEF was not an organization listed under Title 36 of the llnited States Code, it would not be allowed to be present at the Open House nor to distribute its literature. (A copy ofthe response is attached to the Complaint as Exhibit C).
41. Counsel for CEF wrote another letter to the District on August 29, 2007, stating that it was irrelevant that CEF was not an organization listed under Title 36 since the District had opened its forum to groups similar to CEF such as the Boy Scouts and similar organizations.(A copy ofthe letter is attached to the Complaint as Exhibit D).
42, The letter again requested that CEF be permitted to attend that evening's Open House and be given permission to distribute its literature to the students. See id.
43. The District refused to allow CEF to participate in the kindergarten Open House of August 29, 2007, and the first through fifth grade Open House the following night.
44. The District has again denied CEF's request to distribute its literature for this school year, or even to distribute its literature to parents and families arriving at the Open Houses by means of flyers handed out by CEF representatives stationed on the sidewalks outside the Open Houses.
45, The refusal by the District to allow CEF to be present at the Open Houses and to di.stribute its literature caused a dramatic reduction in the attendance ofGNC's in four of the five. elementary schools in the Elk River School District from the 2006-2007 school year to the 20072008 school year, from approximately 45% to almost 70%. 1

1 School Hassan Meadowvale Otsego Parker

No. of students who attended GNC in 2006-2007 22 18 22 29
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2007·2008 12 8
7
14

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46. Plaintiff 's counsel met with Defendant's representatives on August 25, 2008, including Attomey !vats Krafts, Asst. Superintendent Hennen-Burr, and Mark Bezek, the District Superintendent.
47. At this meeting, the Defendant again affirmed its earlier position and refused to allow CEF to be present at the Open Houses for the upcoming school year, and also prohibited CEF from distributing its literature to the students on the same basis as other similarly situated groups.
48. In 200 l, the United States Supreme Court ruled in Good News Club v. Milford Cemral School District, 533 U.S. 98 (2001), that a public school may not deny privileges to grottps such as CEF when those privileges have been extended to Boy Scouts and other similar organizations.
49. The Policy and actions ofthe District are clear, blatant and intentional violations of
well-established law. 50. The District's denial of the request to attend the Open Houses and distribute its
literature violates CEF's rights. 51. The Policy is discriminatory as it allows the Boy Scouts and similar orgarJizations to
enjoy privileges that have been denied to CEF. 52. Due to the District's unconstitutional Policy and actions, CEF has been irreparably
From the above numbers it is apparent that the District's actions have had an adverse effect on the attendance at GNC's in Elk River. From 91 students at these four schools in the school year 20062007, to only 41 in2007-2008. These numbers translate into an average drop in eac.h club of about 45%.
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harmed.
COUNT I - VIOLATION OF PLAINTIFF'S FREEDOM OF SPEECH UNDER THE UNITED STATES CONSTITUTION
53. Plaintitl' hereby reiterates and adopts each and every allegation in the preceding
paragraphs numbered I through 52. 54. The Free Speech Clause of the Fir~! Amendment to the United States Constitution,
in conjunction with the Fourteenth Amendment, prohibits the District from abridging Plaintiff's

freedom of speech. 55. The Policy, on its face and as applied, denies CEF the abillty to communicate with
the students in the District on the same basis as the Boy Scouts or other organizations listed under

Title 36. 56.

The Policy, on its face and as applied, discriminates on the basis of content and

viewpoint.
57.

There is no compelling government interest sufficient to justiJY the District's

action in applying the Policy to Plaintiff. 58. The Policy, on its face and as applied, is not the least restrictive means to accomplish
any permissible government purpose sought to be served.
59. The Policy, on its face and as applied, is not a narrowly tailored restriction on free

speech.
60.

The Policy, on its face and as applied, does not serve a significant govcmment

interest. 61.

The Policy, on its face and as applied, does not leave open ample alternative

channels

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of communication. 62. The Policy, on its tbce and as applied, is unreasonable, and imposes unjustifiable and
unreasonable restrictions on constitutionally-protected speech. 63. The Policy, on its fiwe and as applied, unconstitutionally chills and abridges the right
of Plaintiff to engage in free speech guaranteed by the First Amendment. 64. Plaintiff has no adequate remedy at law to correct the continuing deprivation of its
most cherished constitutional liberties. 65. As a direct and proximate result of the District's continuing violations of Plaintiffs
rights, Plaintiff has in the past and will continue to suffer in the future direct and consequential damages, including but not limited to, the loss of the ability to exercise its constitutional rights.
WHEREFORE, Plaintiff respectfully prays that the Court grant the relief set forth herein. COUNT II- VIOLATION OF PLAINTIFF'S RIGHT TO EQUAL PROTECTION
66. Plaintiff hereby reiterates and adopts each and every allegation in the preceding paragraphs numbered 1 through 52.
67. Plaintiff's right to equal protection under the laws is protected by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
68. The Policy, on its face and as applied, is an unconstitutional abridgement of the Plaintiff's right to equal protection ofthe laws and is not facially neutral.
69. The Policy, on its face and as applied, is an unconstitutional abridgement of Plaintift's right to equal protection of the law because the District is permitted to treat Plaintiff differently from other similarly situated groups on the basis of the content and viewpoint of Plaintiffs message.
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70. The Policy, on its face and as applied, is not supported by a compelling governmental
interest sufficient to justifY its enactment. 71. The Policy, on its face and as applied, is not the least restrictive means to accomplish
any permissible government purpose sought to be served by the actions. 72. The Policy, on its face and as applied, does not leave open ample alternative channels
of communication.
73. The Policy, on its face and as applied, imposes irrational and unjustifiable
restrictions on Plaintiff.
74. The District, in violation of the Equal Protection Clause, has caused, and will continue to cause, Plaintiff to suffer undue and actual hardship and irreparable injury.
75. Plaintiff has no adequate remedy at law to correct the continuing deprivations of Plaintiff's most cherished constitutional liberties.
76. As a direct and proximate result ofthe District's continuing violations of Plaintiffs rights, Plaintiff has In the past and will continue to suffer In the future direct and consequential damages, including but not limited to, the loss of the ability to exercise its constitutional rights.
WHEREFORE, Plaintiff respectfully prays that the Court grant the relief set forth herein. COUNT III- VIOLATION OF THE RIGHT TO FREE EXERCISE OF RELIGION
UNDER THE UNITED STATES CONSTITUTION 77. Plaintiff hereby reiterates and adopts each and every allegation in the preceding paragraphs numbered I through 52.
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78. The Policy and the District's actions violate the Plaintiffs right to free exercise of
religion, as guaranteed by the First and Fourteenth Amendments to the United States Constitution. 79. Plaintiff has a religious belief that it is to teach the .Bible and provide spiritual
and moral guidanc.e to children.
80. Plaintiff carries out this religious belief through sponsoring Good News Club
meetings in school facilities during after school hours. 81. Plaintiff's religious beliefs are sincerely and deeply held. 82. The Policy and the District's actions substantially burden Plaintiff's sincerely-held
religious beliefs. 83. The Policy and the District's actions target religious speech.
84. There is no compelling government interest sufficient to justifY the Policy and
the Distr.ict's actions. 85. The Policy and the District's actions are not the least restrictive means to accomplish
any permissible government purpose sought to be served.
86. The Policy and the District's actions are not narrowly-tailored restrictions on Plaintiff's free exercise of religion, as guaranteed by the First Amendment to the United States
Constitution. 87. The District has failed or refused to accommodate Plaintiff's sincerely-held religious
beliefs. 88. As a direct and proximate result of the District's continuing violations of Plaintiff's
rights, Plaintiff has in the past and will continue to suffer in the future direct and consequential damages, including but not limited to, the loss of the ability to exercise its constitutional rights.
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WHEREFORE, Plaintiff respectfully prays that the Court grant the relief set forth herein.
COUNT IV- VIOLATION OF THE ESTABLISHMENT CLAUSE UNDER THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION
89. Plaintiff hereby reiterates and adopts each and every allegation in the preceding paragraphs numbered 1through 52.
90. The Establishment Clause ofthe First Amendment, incorporated and made applicable to the states by the Fourteenth Amendment to the United States Constitution, prohibits government from establishment of religion.
91. The Establishment Clause prohibits excessive government entanglement with

religion. 92.

The Establishment Clause prohibits the government from showing hostility toward

religion. 93. The District has granted access and literature distribution abilities to secular non-
profit organizations that use District facilities to teach character development and morals to children. 94. The District has refused to extend these same privileges to Plaintiff, because it is not

a secular group. 95. The District, through the Policy, on its face and as applied, bas and will continue to
cause, the Plaintiff to suffer undtte and actual hardship and irreparable injury. 96. Plaintiff has no adequate remedy at law to correct the continuing deprivations of its
most cherished constitutional liberties. 97. As a direct and proximate result of the District's continuing violations of the
Plaintitl's rights, the Plaintiff has in the past and will continue to suffer in the future direct and consequential damages, including but not limited to, the loss of its ability to exercise its

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constitutional rights. WHEREFORE, Plaintiff respectfully prays that the Court grant the declaratory and
injunctive relief set forth herein and award such damages to the Plaintiff as are reasonable and just.
PRAYER FOR RELIEF
WHEREFORE, Plaintitl' prays for judgment as follows: A. That this CoUJi issue Preliminary and Permanent injunctions, enjoining the Policy, and enjoining the District, the District's officers, agents, employees and all other persons acting in active concert with them, from enforcing the Policy against Plaintiff so that:
I. The District must allow Plaintiffto be present at future Open Houses and also distribute its literature within the District on an equal basis with nonreligious groups that are permitted to use the school facilities and to distribute their literature.
2. The District will not use the Policy in any manner whatsoever to infringe on Plaintifl' s Constitutional rights.
B. That this Court render a Declaratory Judgment declaring the Policy unconstitutional under the United States Constitution, on its tiiCe and as applied to Plaint itT, and declaring that the District, its officers, agents, employees and other persons acting in active concert with them, unlawfully obstructed Plaintifffrom exercising Plaintiff's constitutionally-protected rights, so that:
I. The District must allow Plaintiff to be present at future Open Houses and also distribute its literalllre within the District on an equal basis with nonreligious groups that are permitted to use the school facilities and to distribute their litemn1re.
2. The District will not use the Policy in any manner whatsoever to infringe on Plaintiff's Constitutional rights.
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D. That this Court adjudge, decree, and declare the rights and other legal relations with the subject matter here in controversy, in order that such declaration shall have the force and e!Tect of final judgment;
E. That this Court retain jurisdiction of this matter for the purpose of enforcing this Court's order;
F. That this Court award Plaintiff the reasonable costs and expenses of this action, including attorney's fees, in accordance with 42 U.S.C. § 1988.
G. That this Court award Plaintiff such damages as arc just and appropriate. H. That this Court grant such other and further relief as this Court deems equitable and just under the circumstances.

Respectfully Submitted,

~ '::tftllt.JIJ<:l:"&~~~:3;'_{__';
C a1g Howse (#208607) mie Anderson (#0308092)
Howse & Thompson, P.A. 3189 Fernbrook Lane N. Plymouth, MN 55447 Telephone; (763) 577-0150 Telefacsimile: (763) 577-0 !51 Attorneys for Plaintiff

Stephen M. Crampton• Mississippi Bar No. 9952 Matthew H. Krause* Texas Bar No. 24060117
LIBERTY COUNSEl.
100 Mountain View Road Lynchburg, VA 24502 Telephone: (434) 592-7000 Telefacsimilc; (434) 592- 7700 Attorneys for Plaintiff

* Pro Hac Vice Motions Submitted
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VERIFICATION
Under penalty of perjury, I declare that I have read the foregoing; that the facts alleged are true, to the best ofmy knowledge and belief. I understand that a false statement in this affidavit will subject me to penalties of perjury.

. /c r;?_L!? .·

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1'

D id Tunell, State Director, Child Evangelism Fellowship of Minnesota

The foregoing instrument was ad:nowledged before me this If: day of , who is personally known to me of who

No ry Public

(/

My Commission expires: I--- .3 '- ,;:..'":' /3

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CASE 0:08-cv-05165-ADM-AJB Document 1-1 Filed 09/11/08 Page 1 of 1

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FOR OFFICE USE ONLY

MAG. JUDGE _ _ _ _ _ _ __

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Child Evangelism Fellowship of Minnesota,

Plaintiff, v.

MEMORANDUM OPINION AND ORDER Civil No. 08-5165 ADM/AJB

Elk River Area School District #728,

Defendant.

______________________________________________________________________________

Stephen M. Crampton, Esq., Liberty Counsel, Lynchburg, VA, on behalf of the Plaintiff.

Paul Engh, Esq., Engh Law Office, Minneapolis, MN on behalf of the Defendant. ______________________________________________________________________________

I. INTRODUCTION

This matter is before the undersigned United States District Judge on Plaintiff Child

Evangelism Fellowship of Minnesota’s (“CEF”) Motion for Preliminary Injunction [Docket No.

6] and Defendant Elk River Area School District # 728’s (“Elk River”) Motion to Dismiss

[Docket No. 12]. CEF seeks to enjoin implementation of Elk River’s policy of allowing only

organizations identified as “patriotic organizations” under 20 U.S.C. § 7905(b)(1) and Title 36 to

distribute literature and attend district Open Houses. For the reasons set forth below, the

preliminary injunction is granted and the motion to dismiss is denied.

II. BACKGROUND

CEF is a non-profit religious organization that sponsors the Good News Club, an

organization for children that encourages learning, spiritual growth, and service to others by

providing religious and moral education through lessons from the Bible. Verified Compl.

[Docket No. 1] ¶¶ 10, 12, 13. The Good News Club is open to all children between the ages of

five and twelve regardless of their religious beliefs. Id. ¶ 15. Meetings for the Good News Club
are held on elementary school campuses, and the children are taught biblical principles, moral
values, character qualities, respect for authority, relationships, character development, and
important community issues. Id. ¶¶ 18, 21.
Elk River regulates the distribution of official, nonschool-sponsored materials pursuant to
District Policy 1011,4.1, which provides:
Material for distribution by giving the students for the student s or for delivery to parents shall be restricted to m aterials directly relating to official and school-sponsored activities and m aterials directly in support of school activities. Materials fromorganizations that fall within the category of “designated patriotic youth organizations” as defined by the NoChild Left Behind Act will also, subject to staff review, be eligible for distribution to parents and/or directly to students.
Id. ¶ 25. Elk River allows "designated patriotic organizations", including the Boy Scouts of
America, to distribute literature at the district Open Houses and on school bulletin boards. Id. ¶¶
26, 27, 30. Two Open Houses are held at the beginning of each school year, and parents are
invited to meet teachers and receive information about various programs available to the
students. Id. ¶¶ 34, 35.
On August 28, 2007, Sharilyn Nydam (“Nydam”), a District Director for CEF, met with
Elk River Assistant Superintendent Jana Hennen-Burr (“Hennen-Burr”) to discuss allowing CEF
to participate in the Open Houses. Id. ¶ 37. Hennen-Burr told Nydam that CEF would not be
allowed to participate in the Open Houses unless it could prove it was designated a patriotic
organization under the No Child Left Behind Act. Id. ¶ 38. Because CEF is not a patriotic
organization listed in Title 36 of the United States Code, Elk River did not allow CEF to
participate in the 2007 Open Houses. Id. ¶¶ 40, 43. In 2008, CEF again asked to be allowed to
2

distribute literature at the Open Houses, and this request was also denied. Id. ¶ 44. CEF alleges not being allowed to distribute literature through the school and attend the Open Houses has caused participation in the Good News Clubs in the district to markedly decline. Id. ¶ 45. This action followed.
III. DISCUSSION A. Preliminary Injunction
The Eighth Circuit held in Dataphase Systems, Inc. v. C L Systems, Inc. that a district court deciding a motion for a preliminary injunction must balance four factors: (1) the likelihood of the movant’s success on the merits; (2) the threat of irreparable harm to the movant in the absence of relief; (3) the balance between the harm to the movant and the harm that the relief would cause to the other litigants; and (4) the public interest. 640 F.2d 109, 114 (8th Cir. 1981) (en banc). “A preliminary injunction is an extraordinary remedy, and the burden of establishing the propriety of an injunction is on the movant.” Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003) (citation omitted).
1. Likelihood of Success on the Merits In First Amendment cases, courts first determine the likelihood of success on the merits because if it is shown with likelihood that a deprivation of First Amendment freedoms occurred, such a showing is often determinative under the Dataphase analysis. See Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008). CEF argues that Elk River’s policy contravenes the Supreme Court’s holding in Good News Club v. Milford Central School, 533 U.S. 98 (2001), because under the policy, CEF is excluded on the basis of its religious viewpoint. Elk River maintains that it does not consider viewpoint and limits access to the listed groups, such as the Boy Scouts,
3

when it is compelled to do so by Congress pursuant to 20 U.S.C. § 7905(b)(1). a. The Milford Decision The Milford Central School (“Milford”) adopted a policy that district residents could use
the school for “instruction in any branch of education, learning or the arts” and for “social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be opened to the general public.” Id. at 102. The sponsors of the local Good News Club asked Milford if it could hold weekly after school meetings in the school cafeteria. Id. at 103. Milford denied the request because the policy prohibited use by individuals or organizations for a religious purpose. Id. The district also asked for clarification of the Club’s activities and after reviewing submissions from the Club’s attorneys, concluded that the Club’s activities were not “a discussion of secular subjects such as child rearing, development of character and development of morals from a religious perspective, but were in fact the equivalent of religious instruction itself.” Id. at 104.
The Supreme Court began its analysis by determining the nature of the public forum. The parties agreed and the Court accepted that Milford had created a limited public forum. Thus, Milford could be justified “in reserving [its forum] for certain groups or for the discussion of certain topics” but could not discriminate against speech on the basis of viewpoint, and the restriction must be “reasonable in light of the purpose served by the forum.” Id. at 106-07. The Court found that Milford excluded the Good News Club on the basis of the religious nature of its viewpoint and did not reach the issue of whether the policy was unreasonable in light of the purposes served by the forum. Id. at 107. It found that something that is “quintessentially religious” or “decidedly religious in nature” can also teach morals and character development
4

from a particular viewpoint. Id. at 111. Under the Free Speech Clause there is “no logical
difference in kind between the invocation of Christianity by the Club and the invocation of
teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons.”
Id.
b. The Elk River Policy and the Boy Scout Act
Elk River argues that its policy does not consider viewpoint, but rather is dictated by
Congress’s enactment of the Boy Scouts of America Equal Access Act (“Boy Scout Act”), 20
U.S.C. § 7905(b)(1), which requires schools to include patriotic organizations designated by
statute as a condition to the receipt of federal education funds. The Boy Scout Act provides:
Notwithstanding any other provision of law, no public elem entary school, secondary school, local education agency, or State education agency that has a designated open forum or a limited public forum and that receives funds made available through the Department shall deny equal access or a fair opportunity to m eet to, or discrim inate against, any group officially af filiated with the B oy Scouts of America, or any other youth group listed in Title 36 of the United States Code (as a patriotic society), that wishes to conduct a meeting within that designated open forumor limited public forum, including denying such access or opportunity or discrim inating for reasons based on the membership or leadership criteria or oath of allegiance to God and country of the Boy Scouts of Am erica or of the youth groups listed in Title 36 of the United States Code . . . .
20 U.S.C. § 7905(b)(1). In addition to the Boy Scouts, Congress has listed other organizations
under Title 36 including, Big Brothers-Big Sisters of America, Boys & Girls Club of America,
Future Farmers of America, Girl Scouts of America, Little League Baseball, and the Society of
American Florists and Ornamental Horticulturists. The House Conference Report states that the
purpose of the Boy Scout Act is to “address access to and use of school facilities by the Boy
Scouts of America or of other groups that prohibit the acceptance of homosexuals, or individuals
5

who reject the Boy Scouts’ or the youth group’s allegiance to God and country.” H.R. Rep. No. 107-334, at 1600 (2001) (Conf. Rep.).1
Elk River states that its goal in adopting its policy was to avoid discrimination. Def.’s Mem. in Opp’n to Prelim. Inj. [Docket No. 16] at 2. It maintains that CEF or religious viewpoints were not the target of this policy. Rather, in an effort to ensure necessary federal education funds, it “took the only path open to it, namely, closing its forum except to organizations to whom No Child Left Behind says it must grant access.” Id. at 3.
c. Milford and the Boy Scout Act The parties agree that Elk River has created a limited public forum. As such, it can designate that forum “for certain groups or for the discussion of certain topics.” Milford, 533 U.S. at 106. The policy may not, however, discriminate against speech on the basis of viewpoint, and the restriction must be “reasonable in light of the purpose served by the forum.” Id. at 106-07. The Court finds that the Elk River policy discriminates against CEF on the basis of its viewpoint. While the Court sympathizes with Elk River’s frustration in attempting to find a viewpoint neutral way to comply with the requirements of the Boy Scout Act, the nature of the Act itself classifies organizations as either “patriotic” or not. Accordingly, the inclusion on or
1 The Boy Scout Act conditioned receipt of federal education funds on allowing access to groups, like the Boy Scouts, that discriminate against homosexuals in the wake of the Supreme Court’s decision in Boy Scouts of America v. Dale, 530 U.S. 640 (2000) and the ensuing removal of Boy Scouts troops from schools that prohibited discrimination on the basis of sexual orientation. See 147 Cong. Rec. H2618 (daily ed. May 23, 2001) (statement of Rep. Hilleary); 147 Cong. Rec. S6249 (daily ed. June 14, 2001) (statement of Sen. Helms). The Boy Scout Act was passed in response to Dale and not, as Elk River argues, in response to the holding in Milford.
6

exclusion from the list constitutes discrimination based on whether an organization is appropriately “patriotic.” The difficulty for Elk River is that even though it has not discriminated on the basis of viewpoint, Congress has done so by classifying certain organizations as patriotic. This classification endorses a certain patriotic viewpoint while leaving other viewpoints, that may be equally patriotic, off the list. And as the Supreme Court has found, The Good News Club and the Boy Scouts promote the same values and ideas, but they do so from different viewpoints. See id. at 111. Although Elk River asserts the Boy Scout Act compels its course of action, the holding in Milford dictates that if Elk River allows the Boy Scouts, or any other listed “patriotic youth group”, access to its limited public fora but does not allow the Good News Club access, it has violated the Free Speech Clause of the First Amendment.
Even if the school's policy were viewpoint neutral, it would still fail because it is not reasonable in light of the purpose served. Elk River’s explanation for why it has adopted this policy is that it is “compelled” to do so by the Boy Scout Act. This statement is based on an incorrect interpretation of the Act. The receipt of federal funds “requires” Elk River to allow access to the Boy Scouts only to the extent it has created a limited public forum. Elk River would still receive federal funding if it decided to close the Open Houses to all non-school groups, including the Boy Scouts, and limit distribution of literature to only internal school programs. Elk River is not required to choose between accepting the Boy Scouts or rejecting federal funding, but if it opens a limited public forum, then it must admit the Boy Scouts to receive funds. Thus, this policy is not reasonable in light of Elk River’s stated purpose since it is not, in fact, compelled to admit the Boy Scouts. For these reasons, CEF is likely to succeed on
7

the merits, and, therefore, the first Dataphase factor weighs in favor of granting the preliminary injunction.
2. Threat of Irreparable Harm The “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Phelps-Roper, 545 F.3d at 690. Because CEF has been denied its First Amendment rights based on its viewpoint, this deprivation constitutes irreparable harm under the second Dataphase factor. 3. Balance of the Harms As discussed above, CEF is irreparably harmed by the loss of its First Amendment rights. On the other hand, the harm that Elk River will experience if the policy is enjoined is that its policy would be voided, and it would need to draft a new policy consistent with the First Amendment. In the interim, it would either have to allow all non-school groups with a patriotic message access to the Open Houses if they request it and provide them with the opportunity to distribute literature through the school or close access to all non-school groups. These requirements would require additional administrative time but not an inordinate amount. It is apparent that the potential harm to Elk River is significantly less than the abridgement of CEF’s constitutional rights. For these reasons, the balance of harms favors CEF. 4. Public Interest The protection of constitutional rights, and specifically the First Amendment, is always in the public interest. See Roper-Nixon, 545 F.3d at 690. In this case, the public, specifically the tax base of Elk River, has a pecuniary interest that will be effected by the potential
8

administrative costs that might be required by allowing CEF and other such groups access to the school. But these relatively minimal costs do not outweigh the public interest in First Amendment expression. Because the Dataphase factors weigh in favor of CEF, the preliminary injunction is granted. B. Elk River’s Motion to Dismiss
Rule 12 of the Federal Rules of Civil Procedure provides that a party may move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss, the pleadings are construed in the light most favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true. Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994); Ossman v. Diana Corp., 825 F. Supp. 870, 879-80 (D. Minn. 1993). Any ambiguities concerning the sufficiency of the claims must be resolved in favor of the nonmoving party. Ossman, 825 F. Supp. at 880. Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings “shall contain a short and plain statement of the claim showing that the pleader is entitled to relief.” A pleading must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).
Elk River's motion is premised upon the argument that the Boy Scout Act has rendered Milford inapposite in this case. Pl.’s Mem. in Supp. of Mot. to Dismiss [Docket No. 14] at 1. The Court disagrees. As explained in the previous section, Milford controls even in light of the Boy Scout Act, and CEF is likely to succeed on the merits. See Part (B)(1)(c). Elk River’s Motion to Dismiss is, therefore, denied.
9

IV. CONCLUSION Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that Plaintiff Christian Evangelism Fellowship of Minnesota’s Motion for a Preliminary Injunction [Docket No. 6] is GRANTED and Defendant Elk River Area School District #728’s Motion to Dismiss [Docket No. 12] is DENIED.

BY THE COURT:

Dated: February 6, 2009.

s/Ann D. Montgomery ANN D. MONTGOMERY U.S. DISTRICT JUDGE

10

 
 CASE 0:08-cv-05165-ADM-AJB Document 26 Filed 02/24/10 Page 1 of 3

IN THE UNITED ST'ATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

CHILD EVANGELISM FELLOWSHIP

)

OF MINNESOTA,

)

)

Plaintiff,

)

)

vs.

)

)

ELK RIVER AREA SCHOOL DISTRICT,

)

#728,

)

)

Defendant.

)

- - · · - - - - - - - - - - - - ~~-)

Case No.: CV:OS-5165

STIPULATION OJ? DISMISSAL

COME NOW Plaintiff, Child Evangelism Fellowship, Inc., Minnesota Chapter ("CEF"), and Defendant, Elk River Area School District #728 ("Elk River"), by and through counsel, and hereby jointly stipulate and agree to the entry of this Stipulation of Dismissal, and state as follows:
WHEREAS, this case involves claims by Plaintiff Child Evangelism Fellowship under 42 U.S.C. §1983 concerning the Plaintiff's Complaint which raises the right to Freedom of Speech and Equal Protection under the First Amendment and Fourteenth Amendments of the United States Constitution, seeking declaratory, preliminary, and permanent injunctive relief and damages; and
WHEREAS, Plaintiff sponsors the Good News Club and sought to be present at the Defendant's Open Houses and to distribute its literature to the students; and

Stipulation for Dismissal -Page I

CASE 0:08-cv-05165-ADM-AJB Document 26 Filed 02/24/10 Page 2 of 3
WHEREAS, the Court entered a Preliminary Injunction declaring unconstitutional Elk River's Policy I 0 II, 4. I ("the Policy"), granting access to Elk River's literature distribution forum to certain "patriotic youth organizations" and not to others, because it discriminates against CEF on the basis of its religious viewpoint; and
WHEREAS, CEF and Elk River have resolved the outstanding issues raised by this lawsuit and further desire to reach a stipulated agreement, and Elk River has withdrawn the unconstitutional Policy and paid attorneys' fees to CEF's attorneys, and Elk River agrees not to reinstate the Policy;
NOW THEREFORE, the Parties jointly move the Court to dismiss this case with prejudice, with both parties bearing their own costs.
Dated this C:.:' </ ~ day of February, 20 I0.
Stipulation for Dismissal -Page 2

CASE 0:08-cv-05165-ADM-AJB Document 26 Filed 02/24/10 Page 3 of 3

-2- , t'1. 2<P II/
Paul Engh (134685) Suite 215, The Pillsbury Building 220 South Sixth Street Minneapolis, MN 55402 612-252-1100 lvars Krafts (57940) P.O. Box 279 Circle Pines, MN 55014 763-784-2210 Attorneys for Defendant
*Admitted Pro Hac Vice

[£~~/k (!'v_~iJ><J"

Stephen M. Crampton* I

Mississippi Bar No. 9952

.. /

Matthew H. Krause* Texas Bar No. 24060117

LIBERTY COUNSEL
100 Mountain View Road

Lynchburg, VA 24502

Telephone: (434) 592-7000 Telefacsimile: (434) 592- 7700

Craig Howse Jamie Anderson Howse & Thompson, P.A. 3189 Fernbrook Lane N. Plymouth, MN 55447 Telephone: (763) 577-0150 Telefacsimile: (763) 577-0151

Attorneys for Plaintiff

Stipulation for Dismissal - Page 3

 
 CASE 0:08-cv-05165-ADM-AJB Document 27 Filed 02/26/10 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

CHILD EVANGELISM FELLOWSHIP

)

OF MINNESOTA,

)

)

Plaintiff,

)

)

vs.

)

)

ELK RIVER AREA SCHOOL DISTRICT, )

#728,

)

)

Defendant.

)

__________________________________________)

Case No.: CV:08-5165

ORDER OF DISMISSAL It appearing to the Court that the parties having resolved all their differences, and having moved for an order of dismissal, this matter should be, and is hereby, DISMISSED. NOW THEREFORE, IT IS ORDE RED AND ADJUDGED that this case is hereby with prejudice, with both parties bearing their own costs.

Dated: February 26, 2010

s/Ann D. Montgomery

____________________________ ANN UNITED

D. MONTGOMERY STATES DISTRICT JUDGE

 
 CaSe: 0:08-cv-05165-ADM-AJB As Of: 08/31/2012 12:46 PM CDT 1 of 3
CLOSED,CV,PHV
U.S. District Court District of Minnesota (DMN) CIVIL DOCKET FOR CASE #: 0:08−cv−05165−ADM−AJB

Child Evangelism Fellowship of Minnesota v. Elk River Area School District, #728 Assigned to: Judge Ann D. Montgomery Referred to: Chief Mag. Judge Arthur J. Boylan Cause: 42:1981 Civil Rights
Plaintiff

Date Filed: 09/11/2008 Date Terminated: 01/07/2010 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Child Evangelism Fellowship of Minnesota

represented by G Craig Howse Howse &Thompson, PA 3189 Fernbrook Ln N INACTIVE Plymouth, MN 55447 763−577−0150 Fax: 763−577−0151 Email: chowse@howselaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jamie L Anderson Howse &Thompson, PA 3189 Fernbrook Ln N Plymouth, MN 55447 763−577−0150 Fax: 763−577−0151 Email: janderson@howselaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew H Krause Liberty Counsel 100 Mountain View Rd #2150 Lynchburg, VA 24502 434−592−7000 Email: mkrause@lc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen M Crampton Liberty Counsel 100 Mountain View Dr #2150 Lynchburg, VA 24502 434−592−7000 Email: scrampton@lc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Elk River Area School District, #728

represented by Ivars J Krafts PO Box 279 INACTIVE Circle Pines, MN 55014−0279 763−784−2210 Email: ivars@ivarskrafts.com

CaSe: 0:08-cv-05165-ADM-AJB As Of: 08/31/2012 12:46 PM CDT 2 of 3
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul C Engh Paul Engh Law Office 220 S 6th St Ste 215 Mpls, MN 55402 612−252−1100 Email: engh4@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/11/2008
09/12/2008 09/12/2008 09/12/2008 09/15/2008
09/30/2008
10/01/2008 10/07/2008 10/07/2008 10/07/2008 10/07/2008 10/09/2008
10/15/2008

# Docket Text
1 COMPLAINT against Elk River Area School District, #728 ( Filing fee $ 350 receipt number 40026793.) assigned to Judge Ann D Montgomery per Other Civil Rights List and referred to Magistrate Judge Arthur J Boylan, filed by Child Evangelism Fellowship of Minnesota. (Attachments: # 1 Civil Cover Sheet) (kt) (Entered: 09/11/2008)
2 MOTION for Admission Pro Hac Vice for Stephen Crampton by Child Evangelism Fellowship of Minnesota. (Anderson, Jamie) (Entered: 09/12/2008)
3 MOTION for Admission Pro Hac Vice for Matthew Krause by Child Evangelism Fellowship of Minnesota. (Anderson, Jamie) (Entered: 09/12/2008)
Summons Issued as to Elk River Area School District, #728. (JME) (Entered: 09/12/2008)
TEXT ONLY ENTRY − ORDER granting 2 , 3 Motions for Admission Pro Hac Vice of Attorneys Stephen M Crampton and Matthew H Krause for Child Evangelism Fellowship of Minnesota. Fees paid; receipt number 3−004696.Approved by Clerk Richard D Sletten on 09/15/08. (MMC) (Entered: 09/16/2008)
4 DOCUMENT FILED IN ERROR TO BE REFILED − Return of Service Executed for Summons and Complaint Justin Longstrom served on John Kuester−Clerk on September 16, 2008, filed by Child Evangelism Fellowship of Minnesota. (Anderson, Jamie) Modified on 10/1/2008 (VEM). (Entered: 09/30/2008)
5 SUMMONS Returned Executed by Child Evangelism Fellowship of Minnesota. Elk River Area School District, #728 served on 9/16/2008, answer due 10/6/2008. (Anderson, Jamie) (Entered: 10/01/2008)
6 MOTION for Preliminary Injunction by Child Evangelism Fellowship of Minnesota. (Anderson, Jamie) (Entered: 10/07/2008)
7 NOTICE OF HEARING ON MOTION 6 MOTION for Preliminary Injunction : Motion Hearing set for 11/24/2008 02:00 PM in Minneapolis − Courtroom 13W before Judge Ann D. Montgomery. (Anderson, Jamie) (Entered: 10/07/2008)
8 MEMORANDUM in Support re 6 MOTION for Preliminary Injunction filed by Child Evangelism Fellowship of Minnesota. (Anderson, Jamie) (Entered: 10/07/2008)
9 LR7.1 WORD COUNT COMPLIANCE CERTIFICATE by Child Evangelism Fellowship of Minnesota re 8 Memorandum in Support of Motion filed by Child Evangelism Fellowship of Minnesota. (Anderson, Jamie) (Entered: 10/07/2008)
10 CERTIFICATE OF SERVICE by Child Evangelism Fellowship of Minnesota re 9 LR7.1 Word Count Compliance Certificate, 8 Memorandum in Support of Motion, 6 MOTION for Preliminary Injunction, 7 Notice of Hearing on Motion (Anderson, Jamie) (Entered: 10/09/2008)
11 NOTICE OF ATTORNEY APPEARANCE/SUBSTITUTION for Elk River Area School District, #728 (Engh, Paul) (Entered: 10/15/2008)

CaSe: 0:08-cv-05165-ADM-AJB As Of: 08/31/2012 12:46 PM CDT 3 of 3

10/15/2008 10/15/2008
10/15/2008 10/15/2008 10/31/2008 10/31/2008 11/04/2008
11/04/2008 11/05/2008 11/12/2008 11/14/2008 11/14/2008 11/24/2008
02/06/2009
02/24/2010 02/26/2010 02/26/2010

12 MOTION to Dismiss for Failure to State a Claim by Elk River Area School District, #728. (Engh, Paul) (Entered: 10/15/2008)
13 NOTICE OF HEARING ON MOTION 12 MOTION to Dismiss for Failure to State a Claim : Motion Hearing set for 11/24/2008 02:00 PM in Minneapolis − Courtroom 13W before Judge Ann D. Montgomery. (Engh, Paul) (Entered: 10/15/2008)
14 MEMORANDUM in Support re 12 MOTION to Dismiss for Failure to State a Claim filed by Elk River Area School District, #728. (Engh, Paul) (Entered: 10/15/2008)
15 CERTIFICATE OF SERVICE by Elk River Area School District, #728 (Engh, Paul) (Entered: 10/15/2008)
16 MEMORANDUM in Opposition re 6 MOTION for Preliminary Injunction filed by Elk River Area School District, #728. (Engh, Paul) (Entered: 10/31/2008)
17 CERTIFICATE OF SERVICE by Elk River Area School District, #728 (Engh, Paul) (Entered: 10/31/2008)
18 DOCUMENT FILED IN ERROR TO BE REFILED − MEMORANDUM in Opposition re 12 MOTION to Dismiss for Failure to State a Claim filed by all plaintiffs. (Crampton, Stephen) Modified text on 11/5/2008 (vem). (Entered: 11/04/2008)
19 EXHIBIT re 18 Memorandum in Opposition to Motion to Dismiss by all plaintiffs filed by all plaintiffs. (Attachments: # 1 Exhibit(s) Cong. Research Serv. Report)(Crampton, Stephen) (Entered: 11/04/2008)
20 MEMORANDUM in Opposition re 12 MOTION to Dismiss for Failure to State a Claim filed by Child Evangelism Fellowship of Minnesota. (Crampton, Stephen) (Entered: 11/05/2008)
21 REPLY to Response to Motion re 6 MOTION for Preliminary Injunction filed by Child Evangelism Fellowship of Minnesota. (Crampton, Stephen) (Entered: 11/12/2008)
22 REPLY to Response to Motion re 12 MOTION to Dismiss for Failure to State a Claim filed by Elk River Area School District, #728. (Engh, Paul) (Entered: 11/14/2008)
23 CERTIFICATE OF SERVICE by Elk River Area School District, #728 (Engh, Paul) (Entered: 11/14/2008)
24 TEXT ENTRY for proceedings held before Judge Ann D. Montgomery: Motion Hearing held on 11/24/2008 re 12 MOTION to Dismiss for Failure to State a Claim filed by Elk River Area School District, #728, 6 MOTION for Preliminary Injunction filed by Child Evangelism Fellowship of Minnesota. Motions taken under advisement. (Court Reporter Tim Willette) (GS) (Entered: 11/24/2008)
25 MEMORANDUM OPINION AND ORDER granting 6 Plaintiff's Motion for Preliminary Injunction; denying 12 Defendants' Motion to Dismiss (Written Opinion). Signed by Judge Ann D. Montgomery on 02/06/2009. (TLU) (Entered: 02/06/2009)
26 STIPULATION of Dismissal Jointly Filed February 24, 2010 by Elk River Area School District, #728, Child Evangelism Fellowship of Minnesota. (Crampton, Stephen) (Entered: 02/24/2010)
27 ORDER re 26 Stipulation of Dismissal filed by Elk River Area School District, #728, Child Evangelism Fellowship of Minnesota. Signed by Judge Ann D. Montgomery on 2/26/2010. (GS) (Entered: 02/26/2010)
28 JUDGMENT (Attachments: # 1 Civil−8th Circuit Pre−Hearing Conference Notice, # 2 Civil Notice − appeal)(VEM) (Entered: 02/26/2010)