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OJS 44 (Rev. 12/07) CASE 0:10-cv-02687-JCRTIV-JIJLK CDOoVcuEmRenStH1-E1ETFiled 06/28/10 Page 1 of 2

The JS 44 civil coversheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States inSeptember 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Child Evangelism Fellowship of Minnesota

Minneapolis Special School District No. 1

(b) County of Residence of First Listed Plaintiff St. Louis County
(EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant Hennepin County
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(c) Attorney’s (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

HOWSE&THOMPSON 3189 Fernbrook Ln Plymouth MN 55447

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

’ 1 U.S. Government Plaintiff

’ 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

’ 1 ’ 1 Incorporated or Principal Place

’ 4 ’4

of Business In This State

’ 2 U.S. Government Defendant

’ 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

’ 2 ’ 2 Incorporated and Principal Place of Business In Another State

’ 5 ’5

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

Citizen or Subject of a Foreign Country

’ 3 ’ 3 Foreign Nation

FORFEITURE/PENALTY

BANKRUPTCY

’ 6 ’6 OTHER STATUTES

’ 110 Insurance

PERSONAL INJURY

’ 120 Marine

’ 310 Airplane

’ 130 Miller Act

’ 315 Airplane Product

’ 140 Negotiable Instrument

Liability

’ 150 Recovery of Overpayment ’ 320 Assault, Libel &

& Enforcement of Judgment

Slander

’ 151 Medicare Act

’ 330 Federal Employers’

’ 152 Recovery of Defaulted

Liability

Student Loans

’ 340 Marine

(Excl. Veterans)

’ 345 Marine Product

’ 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

’ 350 Motor Vehicle

’ 160 Stockholders’ Suits

’ 355 Motor Vehicle

’ 190 Other Contract

Product Liability

’ 195 Contract Product Liability ’ 360 Other Personal

’ 196 Franchise

Injury

REAL PROPERTY

CIVIL RIGHTS

’ 210 Land Condemnation

’ 441 Voting

’ 220 Foreclosure

’ 442 Employment

’ 230 Rent Lease & Ejectment ’ 443 Housing/

’ 240 Torts to Land

Accommodations

’ 245 Tort Product Liability ’ 444 Welfare

’ 290 All Other Real Property ’ 445 Amer. w/Disabilities -

Employment

’ 446 Amer. w/Disabilities -

Other

’ 440 Other Civil Rights

PERSONAL INJURY ’ 362 Personal Injury -
Med. Malpractice ’ 365 Personal Injury -
Product Liability ’ 368 Asbestos Personal
Injury Product Liability PERSONAL PROPERTY ’ 370 Other Fraud ’ 371 Truth in Lending ’ 380 Other Personal Property Damage ’ 385 Property Damage Product Liability
PRISONER PETITIONS ’ 510 Motions to Vacate
Sentence Habeas Corpus: ’ 530 General ’ 535 Death Penalty ’ 540 Mandamus & Other ’ 550 Civil Rights ’ 555 Prison Condition

’ 610 Agriculture

’ 422 Appeal 28 USC 158

’ 620 Other Food & Drug

’ 423 Withdrawal

’ 625 Drug Related Seizure

28 USC 157

of Property 21 USC 881

’ 630 Liquor Laws

PROPERTY RIGHTS

’ 640 R.R. & Truck

’ 820 Copyrights

’ 650 Airline Regs.

’ 830 Patent

’ 660 Occupational

’ 840 Trademark

Safety/Health

’ 690 Other

LABOR

SOCIAL SECURITY

’ 710 Fair Labor Standards

’ 861 HIA (1395ff)

Act

’ 862 Black Lung (923)

’ 720 Labor/Mgmt. Relations ’ 863 DIWC/DIWW (405(g))

’ 730 Labor/Mgmt.Reporting ’ 864 SSID Title XVI

& Disclosure Act

’ 865 RSI (405(g))

’ 740 Railway Labor Act

FEDERAL TAX SUITS

’ 790 Other Labor Litigation ’ 870 Taxes (U.S. Plaintiff

’ 791 Empl. Ret. Inc.

or Defendant)

Security Act

’ 871 IRS—Third Party

26 USC 7609

IMMIGRATION

’ 462 Naturalization Application

’ 463 Habeas Corpus -

Alien Detainee

’ 465 Other Immigration

Actions

’ 400 State Reapportionment ’ 410 Antitrust ’ 430 Banks and Banking ’ 450 Commerce ’ 460 Deportation ’ 470 Racketeer Influenced and
Corrupt Organizations ’ 480 Consumer Credit ’ 490 Cable/Sat TV ’ 810 Selective Service ’ 850 Securities/Commodities/
Exchange ’ 875 Customer Challenge
12 USC 3410 ’ 890 Other Statutory Actions ’ 891 Agricultural Acts ’ 892 Economic Stabilization Act ’ 893 Environmental Matters ’ 894 Energy Allocation Act ’ 895 Freedom of Information
Act ’ 900Appeal of Fee Determination
Under Equal Access to Justice ’ 950 Constitutionality of State Statutes

V. ORIGIN ’ 1 Original
Proceeding

(Place an “X” in One Box Only)

’ 2 Removed from
State Court

’ 3 Remanded from
Appellate Court

’ 4 Reinstated or
Reopened

’

5

Transferred from another district

(specify)

’ 6 Multidistrict
Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Appeal to District

’7

Judge from Magistrate

Judgment

VI. CAUSE OF ACTION BF4rii2erfsUdteA.sScmr.ipCeti.nonsdeomfcce.an1ust9ea:8c3tiaocntiaolnleaglilneggifnregevisoplaeteiocnh,offreFeirsetxAermciesned, manednterqiguhatlsp. rotection violations.

VII. REQUESTED IN COMPLAINT:

’ CHECK IF THIS IS A CLASS ACTION
UNDER F.R.C.P. 23

DEMAND $

CHECK YES only if demanded in complaint: JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)

IF ANY

(See instructions): JUDGE

DOCKET NUMBER

DATE
06/28/2010

SIGNATURE OF ATTORNEY OF RECORD
/s/ G. Craig Howse

FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

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CASE 0:10-cv-02687-JRT-JJK Document 1-1 Filed 06/28/10 Page 2 of 2
JS 44 Reverse (Rev. 12/07)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and theinformation contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. Thisform, approved by the Judicial Conference of the United Statesin September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil dokcet sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court foreach civil complaint filed. The attorney filing a case should complete the form as follows:

I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or dfeendant is an official within a government agency, identify first the agency and then the official,giving both name and title.

(b) County of Residence. For each civil case filed, exceptU.S. plaintiff cases, enter the name of the county where the firstlisted plaintiff resides at thetime of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment)”.

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdicti on arises under the Constitution of the Unite d States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 US. .C. 1332, where parties are citizens of different states. WhenBox 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diveristy of citizenship was indicated above. Markthis section for each principal party.

IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cnanot be determined, be sure the cause of action, in Section VbI elow, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V. Origin. Place an “X” in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in statecourts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box.

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge’s decision.

VI. Cause of Action. Report the civil statute directlyrelated to the causeof action and give a brief description of the cause.Do not cite jurisdictional statutes

unless diversity.

Example:

U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

CHILD EVANGELISM FELLOWSHIP OF MINNESOTA,
Plaintiff,
v.
MINNEAPOLIS SPECIAL SCHOOL DISTRCT No. 1,
Defendant.

Civil No. 10-2687 (JRT/JJK)
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION

G. Craig Howse, HOWSE & THOMPSON, PA, 3189 Fernbrook Lane North, Plymouth, MN 55447; Stephen M. Crampton, LIBERTY COUNSEL, 100 Mountain View Drive, #2150, Lynchburg, VA 24502, for plaintiff.
Michael J. Vanselow and Marie L. van Uitert, OPPENHEIMER WOLFF & DONNELLY LLP, Plaza VII Building, Suite 3300, 45 South 7th Street, Minneapolis, MN 55402, for defendant.
Child Evangelism Fellowship of Minnesota (“CEF”) brought this action against
Minneapolis Special School District No. 1 (“the District”) seeking preliminary injunctive
relief preventing the District from violating CEF’s freedom of speech, free exercise of
religion, and other constitutional rights. CEF alleges that the District abruptly revoked
CEF’s right to participate in an after school program upon a complaint that CEF was
engaging in religious activity with students. Because the Court finds it unlikely that CEF

20

will prevail on the merits of its claim and that no irreparable harm will accrue to CEF if preliminary injunctive relief is denied, the Court denies CEF’s motion for a preliminary injunction.
BACKGROUND I. CHILD EVANGELISM FELLOWSHIP
The Child Evangelism Fellowship of Minnesota is the local chapter of an international non-profit Christian organization headquartered in Missouri. Among the ministries sponsored by CEF is the Good News Club (“GNC”), an after-school program open to children ages five through twelve. (Decl. of David Tunell ¶¶ 1-2, Oct. 31, 2010, Docket No. 12.) CEF describes its activities as encouraging learning, spiritual growth, service to others, and providing activities that support the development of social, mental, physical, and creative abilities of school-age children as structured youth programs. (Id. ¶ 2.) CEF conducts GNC meetings after school, generally on public elementary campuses, because it finds them convenient and safe for students and parents. (Id. ¶ 5.) 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.” (Decl. of Stephen M. Crampton, Jan. 3, 2011, Exs. M-N, Docket No. 11.) At oral argument, counsel for CEF acknowledged that prayer occurs at GNC meetings. No fees are charged for attending GNC meetings, and no tithes or contributions are taken during meetings.
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GNC meetings are open to all children regardless of religion, so long as they obtain written permission from their parents. CEF produces flyers to promote GNC meetings, which say: “At clubs, children are introduced to Jesus Christ as Savior and taught Biblical principles for living.” (Aff. of Sandra McDonald, Jan. 21, 2011, Ex. C, Docket No. 17.) Another flyer states, “CEF is an interdenominational missionary organization that seeks to evangelize boys and girls with the Gospel of the Lord Jesus Christ and to disciple them in the Word of God . . . .” (Aff. of Linnea Hacket, Jan. 21, 2011, Ex. B, Docket No. 21.)
GNCs do not provide after-school transportation. Thus, the central location of an elementary school, and use of the after school activities bus to bring students home allows parents to register their children in the GNC as they would for other organizations’ programs. (Tunell Decl. ¶¶ 5-6.)
II. MINNEAPOLIS SPECIAL SCHOOL DISTRICT NO. 1 AND THE COMMUNITY PARTNER ONLINE PROCESS The District implemented the Community Partner Online (“CPO”) process in the
2005-06 school year in order to formalize the way in which the District screens individuals or organizations that interact with students or are on District property when students are present. (Aff. of Robyn Cousin ¶ 2, Jan. 24, 2011, Docket No. 18.) The District’s policies provide that “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. (District Policy 1301, Cousin Aff. Ex. B.) In order for individuals or organizations to become certified as a Community Partner, they
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must complete the application, review and execute a “Standard Assurances” signature page, submit proof of insurance, and, in some circumstances, provide Articles of Incorporation or proof of appropriate licensure. (Cousin Aff. Exs. C, E.)
District Policies 1301 and 1301A describe the selection that occurs in the CPO process to determine which Standard Assurances the individual or organization is required to sign and any additional requirements that must be met in the application process to obtain certification. To complete the CPO process, potential CPs must also execute a written contract relating to their participation with the District which also needs to be signed by a school principal or Site Coordinator. (Id. Exs. D-E.) Once the CPO application is complete, the District provides potential CPs with a Discussion guide (Id. Ex. F) to help the District and the proposed CP determine if and how they will work together to reach an agreement on a CPO contract.
The partnership eventually agreed upon may include various types of arrangements, including use of the District’s facilities, the opportunity for the CP to distribute flyers through the District’s flyer distribution process, the CP’s work at the school during school hours, or participation by the CP in the District’s After-School Program. (Id. ¶¶ 8, 10-12.) The District distributes CPs’ flyers to students to take home to their parents for review. All flyers distributed through the District flyer distribution process must include the following disclaimer: “The Minneapolis Public Schools is legally unable to and cannot sponsor, endorse or recommend the activities announced by this flyer.” (Aff. of Colleen Sanders, Jan. 25, 2011, Ex. H, Docket No. 19.) Meetings
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and recreational spaces are free of charge to not-for-profit groups that provide programs
and services to children and other community members. (Id. ¶ 6.) Once the CP and the
District reach an understanding of the relationship and their respective roles, the CP and
the school principal or site administrator for the District sign a contract, completing the
CPO process.
III. DISTRICT SPONSORED AFTER-SCHOOL YOUTH ENRICHMENT PROGRAM
The After-School Youth Enrichment Program (“After-School Program”) allows a
public school board to “initiate a community education program in [their] district[s] and
provide for the general supervision of the program.” Minn. Stat. § 124D.19, subd. 1.
“Each board may, as it considers appropriate, employ community education staff to
further the purposes of the community education program.” Id. Pursuant to this statute,
the District created a Community Education Department (“CED”) to provide
opportunities for local citizens, schools, agencies, and institutions to become active
partners in addressing education and community concerns. (Aff. of Jack Tamble ¶ 2,
Jan. 25, 2011, Docket No. 20.)
The statute further provides:
Subd. 12. Youth after-school enrichment programs. Each district operating a community education program under this section may establish a youth after-school enrichment program to maintain and expand participation by school-age youth in supervised activities during nonschool hours. The . . . programs must include activities that support development of social, mental, physical, and creative abilities of school-age youth; provide structured youth programs during high-risk times; and design programming to promote youth leadership development and improved academic performance.
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Subd. 13. Youth after-school enrichment program goals. The goals of youth after-school enrichment programs are to:
(1) collaborate with and leverage existing community resources that have demonstrated effectiveness;
(2) reach out to children and youth, including at-risk youth, in the community;
(3) increase the number of children participating in adult-supervised programs during nonschool hours;
(4) support academic achievement; and (5) increase skills in technology, the arts, sports, and other activities.
Minn. Stat. § 124D.19.
Pursuant to this statute, the District sponsors an After-School Program at several
schools, including at Jenny Lind Elementary (“Jenny Lind”). The After-School Program
at Jenny Lind is sponsored by the District, which hires, monitors, and manages the Site
Coordinators who are selected and paid by the District to implement the District’s
programming. (Tamble Aff. ¶ 6.) The Site Coordinators report to managers and other
supervisors within the CED, and each site with an After-School Program also has a Site
Coordinator who is an employee of the CED. (Id. ¶ 7.) The Site Coordinator is
responsible for setting the classes offered through the District’s After-School Program
and meeting with organizations and individuals in the community who have expressed
interest in participating in the Program. (Hackett Aff. ¶ 2, Docket No. 21.)
The District’s Site Coordinators are also responsible for managing and monitoring
After-School Program’s activities by: (1) assisting with obtaining supplies as needed;
(2) collecting and organizing student registrations for the After-School Program through
the “class choices” form that the Site Coordinators and other District staff create and
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distribute; (3) ensuring that teachers of each class receive a list of students attending; (4) taking attendance for each of the class meetings; (5) arranging busing and snacks at the District’s expense for students participating in the classes; and (6) assisting teachers of classes with any behavior management issues that arise during the program. (Hackett Aff. ¶ 4; Tamble Aff. ¶¶ 8-9; McDonald Aff. ¶ 4.) In addition, before the After-School Program classes begin, the Site Coordinators must orient the groups and individuals to the expectations of the students and District and, in some instances, help reshape the messages of the class in order to better meet the needs of the students. (Hacket Aff. ¶ 3.)
The After-School Program organizations are largely a subset of the CPs which complete the CPO process. There are many more CPs than there are organizations in the After-School Program. Thus, each Site Coordinator is responsible for deciding which group or individual CP may participate in the District’s After-School Program. (Cousin Aff. ¶ 11; Hackett Aff. ¶ 2.) The Site Coordinator has the ability to determine that a proposed class is not appropriate for District sponsorship, in which case the program can be part of the CPO process and use District facilities, but it cannot be part of the AfterSchool Program. (Id.)
Some religiously affiliated groups have been included as part of the After-School Program, such as the Boy Scouts and the YWCA. (Sanders Aff. ¶ 4 & Ex. A.) However, “[a]ccording to the information provided by the groups and the District’s monitoring and supervision of these programs, none of the groups that participated in the After-School Program during the 2009-10 school year participated in proselytizing or praying with students.” (Id. ¶ 4.)
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IV. GNC AT JENNY LIND ELEMENTARY In approximately 2000, CEF approached the site coordinator at Jenny Lind and
asked to be permitted to hold its meetings at the school. (Hackett Aff. ¶ 6.) CEF provided Linnea Hacket, then the Community Education Coordinator for the District at Jenny Lind, with a copy of a legal judgment and told her that the judgment stated the GNC was entitled to hold its meetings at the school. (Id. ¶¶ 1, 6.) Hackett spoke with her supervisors who agreed that the District would permit CEF to hold GNC meetings at Jenny Lind. However, CEF did not ask for the GNC to be part of the After-School Program at that time, it only asked to use the space with its own permits. (Id.) Hackett testified that although the GNC used the District facilities and was allowed to pass out flyers starting in approximately 2000, she did not believe that CEF had a contract with the District prior to the implementation of the CPO process in the 2005-06 school year. CEF printed its own flyers regarding GNC meetings that were distributed by the District as part of the flyer-distribution process for community groups.
The District alleges that CEF ultimately became part of the After-School Program through confusion among District staff regarding the issue of whether CEF and other religiously affiliated groups were permitted to participate. (Tamble Aff. ¶ 16.) Hackett testified that during the 2004-05 school year she encountered difficulties when students in the GNC were not being picked up after meetings, so she decided to send some students home on the “after-school activities” bus since it was going near their homes, and the practice continued for several years. (Hackett Aff. ¶ 12.) Hackett also testified that
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sometime in the 2005-06 school year she began including the GNC on the District’s After-School Program “class choices” form “out of convenience because their meetings lasted all year and this way the students didn’t have to re-register for the [GNC] meeting over the course of the year.” (Id. ¶ 11.) Since 2005-06 when the District’s CPO process began, CEF has been certified as a CP, and has applied for, and been granted, recertification every year. (Cousin Aff. ¶ 14.)
During the 2008-09 school year, Jenny Lind was assigned a new Site Coordinator, Sandra McDonald, to administer the After-School Program. In the spring of 2009, the Director of the CED, Jack Tamble, made a site visit to Jenny Lind as part of his normal practice of monitoring the Community Education programs. (Tamble Aff. ¶ 14.) During the visit, McDonald met with Tamble and expressed concern regarding whether the GNCs were appropriate for the District’s After-School Program given the meetings’ description contained on the District’s flyer, and the proselytizing and prayer at the meetings. (Id. ¶ 15; McDonald Aff. ¶ 7 (“I became concerned that CEF’s Good News Club meetings may not be appropriate for the [After-School Program] after . . . overhearing praying . . . .”).)
In the fall of 2009, Maureen Berger, CEF ministry leader for the Twin Cities area, was notified by McDonald that CEF had been removed from the list of CPs in the AfterSchool Program, which meant that the District would no longer be able to make available the after-school activities bus or treats, or include the GNC on the “class choices” registration form. McDonald also told CEF that it could apply for a permit to use the District’s facilities and distribute its own flyer through the District’s flyer distribution
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process. CEF completed a CPO renewal application for the 2009-10 and 2010-11 school years, both of which were granted. (Crampton Decl. Ex. J.) During the 2009-2011 schools years, CEF applied for and obtained permits to use space at Jenny Lind, and applied for and was able to distribute its own flyers to students as part of the District’s flyer distribution process, outside of the After-School Program “class choices” form.
In 2010, CEF’s State Director David Tunell exchanged letters with the District about why CEF had been removed from the After-School Program. Assistant District General Counsel Amy Moore wrote to CEF stating that “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.” (Crampton Dec. Ex. I.) Moore 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.” (Id.)
Thirty-one students attended GNC meetings during the 2004-05 school year, 26 students attended in 2005-06, 36 students in 2006-07, 47 students in 2007-08 and 200809, and 10 students in 2009-10. CEF alleges that this decline in attendance constitutes a form of irreparable harm. CEF also alleges it has suffered financial harm by not being listed with other after-school programs because it had to pay for and print separate invitation flyers to be distributed to students, and provide snacks. (Berger Decl. ¶ 14.)
CEF brought this motion for a preliminary injunction seeking to enjoin the District from denying CEF access to the additional benefits afforded to participants in the After-
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School Program, such as busing and treats, that are not currently provided to them as CPs.
ANALYSIS I. STANDARD OF REVIEW
In determining whether a party is entitled to preliminary injunctive relief, the Court considers “(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that [the] movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). “[T]he question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Id. “It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis omitted) (internal quotation marks omitted). “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.” Child Evangelism Fellowship of Minnesota v. Elk River Area Sch. Dist. #728, 599 F. Supp. 2d 1136, 1139 (D. Minn. 2009).
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II. PROBABILITY OF SUCCESS ON THE MERITS In evaluating the “probability of success on the merits,” the Court need not discern
with mathematical precision whether the plaintiff has a greater than fifty percent chance of prevailing. Dataphase, 640 F.2d at 113.
The equitable nature of the proceeding mandates that the court’s approach be flexible enough to encompass the particular circumstances of each case. Thus, an effort to apply the probability language to all cases with mathematical precision is misplaced. . . . [W]here the movant has raised a substantial question [as to irreparable harm] and the equities are otherwise strongly in his favor, the showing of success on the merits can be less. . . . [W]here the balance of other factors tips decidedly toward plaintiff a preliminary injunction may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation. Id. (footnotes omitted). CEF argues that being denied access to the After-School Program has infringed its free speech rights, among others, because it does not enjoy the same benefits, such as treats and busing, provided to other participants in the After-School Program. The District first argues that speech has not been infringed since CEF has access to its facilities and is presently using them. The District also argues that even if it is infringing CEF’s speech, it is permissible as a compelling government interest in avoiding a violation of the Establishment Clause.
A. Free Speech Analyzing a potential violation of a First Amendment free speech right requires the Court first to determine what type of forum is at issue – whether it is a traditional “open” public forum, or a more limited forum – and then to determine if the restrictions
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or regulations applied to the speech in that forum are constitutionally permissible. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266-67 (1988); Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985). CEF alleges that the District created a public forum through the creation of the After-School Program, and is engaging in viewpoint discrimination by preventing CEF from participating in the After-School Program.
1. Type of Forum CEF argues that the District has opened a designated or limited public forum because there is no limit on the groups allowed to use the District’s facilities or the subjects those groups may address.1 The nature of permissible limitations on speech is based on the nature of the forum in which the speech is delivered. See Does v. S. Iron R1 Sch. Dist., 498 F.3d 878, 882 (8th Cir. 2007); see also Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207, 211 (2d Cir. 1997). There are three general types of forums: (1) traditional public forums, (2) designated public forums, and (3) non-public forums. See Cornelius, 473 U.S. at 802. “The public schools do not possess all of the attributes of streets, parks, and other traditional public forums that ‘time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” Hazelwood, 484 U.S. 267 (quoting Hague v. CIO, 307 U.S.
1 CEF makes no distinction between the After-School Program as a forum, and the CPO process as a forum. Because CEF does not distinguish between the After-School Program and Community Partners who have merely completed the CPO process, the Court assumes that whenever CEF is discussing exclusion or denial of benefits from a program, they mean the AfterSchool Program, which is the only forum to which they do not presently have access.
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496, 515 (1939)). Thus, school facilities may be deemed to be public forums only if school authorities have “by policy or by practice” opened those facilities “for indiscriminate use by the general public,” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 47 (1983) (emphasis added), or by some segment of the public, such as student organizations. Id. at 46 n.7. “If the facilities have instead been reserved for other intended purposes, ‘communicative or otherwise,’ then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community.” Kuhlmeier, 484 U.S. at 267.
“A designated public forum is 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.” Bowman v. White, 444 F.3d 967, 975 (8th Cir. 2006) (citing Perry, 460 U.S. at 46). “A limited public forum is a subset of the designated public forum that arises where the government opens a non-public forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects.” Id. at 976 (internal quotation marks and alterations omitted). The classification of a forum as a limited designated public forum “is significant because it controls the level of scrutiny given to restrictions on speech . . . [I]n a limited designated public forum, ‘[r]estrictions on speech not within the type of expression allowed in a limited public forum must only be reasonable and viewpoint neutral.’” Id. (quoting Make the Road By Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir. 2004)). In a limited designated public forum, content discrimination “may be permissible if it preserves the purposes of
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that limited forum”; but viewpoint discrimination “is presumed impermissible when directed against speech otherwise within the forum’s limitations.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 830 (1995). “The principle [of viewpoint discrimination]. . . ‘is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.’” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist, 508 U.S. 384, 394 (1993) (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)).
Because a school must take some action to make itself a public forum, the Court evaluates whether the District opened the forum to expressive activity for indiscriminate use, or for a limited purpose, such as use by certain groups or use for discussion of certain subjects. Bowman, 444 F.3d at 975; see also Perry, 460 U.S. at 47. The factual record makes clear that the District has not opened the After-School Program for indiscriminate use by the general public, and that the After-School Program limits which groups are entitled to be included on its “class activities” calendars, and utilize its buses and snacks. (Compare Sanders Aff. Ex. B with Crampton Decl. Ex. J.) The question then becomes whether the way in which the District limits access to the After-School Program itself makes the After-School program a limited or designated public forum, or a non-public forum.
Here, the District has clearly opened the “forum” of the After-School program to expressive activity, and it has limited the purposes and programs for which the AfterSchool Program can be used. As such, the District may engage in content discrimination to preserve the purposes of the After-School Program, but the District’s restrictions on
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speech must be reasonable and viewpoint neutral. Bowman, 444 F.3d at 975. Thus the Court must address whether the District has improperly limited access to the limited designated public forum of the After-School Program through viewpoint discrimination that is not reasonably related to the purpose for which the forum has been opened.
2. Viewpoint Discrimination “The State’s power to restrict speech . . . is not without limits. The restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be ‘reasonable in light of the purposes served by the forum.’” Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001) (citing Rosenberger, 515 U.S. at 829) (citation omitted); see also Cornelius, 473 U.S. at 806. CEF complains that it should be allowed the same right of access to the facilities and opportunities offered to other community groups under the umbrella of the After-School Program, under the same terms and conditions as secular programs. CEF seeks access to the school activities bus, treats, and inclusion on the After-School Program “class activities list,” not just the CPO flyer on which it is presently included. CEF contends that being denied access to these additional benefits, provided only to programs in the After-School Program, is viewpoint discrimination, as other groups get access to the treats and busing, whereas CEF does not because of its religious viewpoint. CEF relies heavily on Milford, in which the Supreme Court found that a school district excluded a GNC on the basis of the religious nature of its viewpoint. See Milford, 533 U.S. at 112. The Milford Central School (“Milford”) adopted a policy that district
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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 (internal quotation marks omitted). The sponsors of the local GNC asked Milford if it could hold weekly after-school meetings in the school cafeteria. Id. at 103. Milford denied the request because its policy prohibited use by individuals or organizations for a religious purpose. Id. The district also asked for clarification of the GNC’s activities and, after reviewing submissions from the GNC’s attorneys, concluded that the GNC’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 (internal quotation marks omitted).
The Supreme Court determined that Milford had created a limited public forum, and it 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. Id. at 106-07. The Court found that Milford excluded the GNC 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 from a particular viewpoint. Id. at 111 (internal quotation marks omitted). It concluded that under the Free Speech Clause there is “no logical difference in kind between the invocation of Christianity by the Club and the
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invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons.” Id. Thus, the Court determined that teaching morals and character development from a religious viewpoint cannot be restricted.
CEF also points to Elk River, 599 F. Supp. 2d at 1141, in which the court issued a preliminary injunction enjoining implementation of a policy allowing only organizations identified as “patriotic organizations” under 20 U.S.C. § 7905(b)(1) to distribute literature and attend school district open houses, when the GNC was not listed as a “patriotic organization.” However, the court found “even though [Elk River] 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.” Id. at 1141. In a similar case involving allegedly disparate treatment of GNCs as compared to Boy Scout troops, the Eighth Circuit found that CEF demonstrated it had a religious viewpoint regarding moral character and youth development, and that it was impermissible for a school district to discriminate based on the particular perspective by which the Club approaches topics such as moral character and development. Good News/Good Sports Club v. Sch. Dist. of the City of Ladue, 28 F.3d 1501, 1507 (8th Cir. 1994) The court stated that the “only difference [between the Boy Scouts and the Good News Club] is that the [Good News] Club employs a religious perspective.” Id. at 1506 n.7.
These three cases, however, are distinguishable. First, in Milford, the Supreme Court found that the Club’s meetings were not sponsored by the school, as opposed to this case where the District sponsors the After-School Program. Milford, 533 U.S. at
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113. In addition, the remedy sought in Milford was access to Milford’s facilities, which CEF has already been granted by the District through the CPO process. See Milford, 533 U.S. at 108-09.
In Ladue, the Eighth Circuit found it constitutionally impermissible that Ladue excluded all groups from district facilities between 3:00 and 6:00 p.m., except the Boy Scouts and athletic groups. See Ladue, 28 F.3d at 1510. Such is not the case here, where CEF has expressly been granted permission to use the District’s facilities. A similar factual predicate distinguishes Elk River, in which the GNC was excluded entirely from facilities to which the Boy Scouts had access. See Elk River, 599 F. Supp. 2d at 1141.
The GNCs in Ladue and Elk River were not seeking to become part of a districtsponsored program, they were only seeking to use district space during the same time period that the Boy Scouts and athletic groups had access to the space. In this case, the District has not placed timing restrictions on when or where the GNC can meet. CEF has not cited, nor is the Court aware, of any case in which a court concluded that an organization enjoying equal access to a school district’s facilities suffered a First Amendment violation because it was deprived of ancillary benefits such as those at issue here: treats, after-school buses, and inclusion in a class activities list. CEF already has the ability to meet and hand out literature through the CPO Process.
Another relevant distinction between this case and Milford is that in Milford, the Supreme Court found in the record of the case no logical difference between the program and activities offered by CEF and those offered by the Boy Scouts. The exhibits accompanying the affidavits in this case, by contrast, unequivocally demonstrate the
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difference between the programs and activities of Boy Scouts and those of CEF. For instance:
CEF is an interdenominational missionary organization that seeks to evangelize boys and girls with the Gospel of the Lord Jesus Christ and to disciple them in the Word of God . . . . (Hacket Aff. Exs. A-B) (emphasis added).
At clubs, children are introduced to Jesus Christ as Savior . . . . (Hacket Aff. Ex. C.)
Program Purpose/Goals: Introducing children to Jesus Christ as Savior . . . . (Crampton Decl. Ex. M.)
Program Goals: Introducing children to Jesus Christ as Savior . . . . (Crampton Decl. Ex. N.)
Boys & Girls grades K-6 are invited to bring a friend for fun, games, a snack and a bible lesson. (Hacket Aff. Ex. C) (emphasis added). These descriptions suggest that while GNCs do likely teach morals and character development from a religious perspective, which the weight of authority confirms is permissible, GNC activities include prayer and an explicit goal and purpose is to convert children to Christianity, which could run afoul of the Establishment Clause and can be restricted on the basis of content. Analyzing the plain language “to evangelize boys and girls” demonstrates the characteristics that distinguish the activities of the Boy Scouts from those of CEF. “Evangelize” means: “to preach the gospel to [or] to convert to Christianity . . . .” Merriam Webster’s Collegiate Dictionary 400 (10th Ed. 2001). Courts that have analyzed GNC activities have focused on descriptions of programs that included mere religious perspective on otherwise acceptable topics such as leadership and patriotism. What seems clear from CEF’s own materials in this case is that speech
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which cannot be government-sponsored (i.e. prayer, proselytization) is being coupled
with permissible speech (moral and character development from a religious perspective).
(See McDonald Aff. ¶ 7) (“I became concerned . . . after . . . overhearing prayer . . .
during a [GNC] meeting . . . .”); see also Cornelius, 473 U.S. at 806 (“[T]he government
violates the First Amendment when it denies access to a speaker solely to suppress the
point of view he espouses on an otherwise includible subject.” (emphasis added)). CEF
has cited no cases in which a court found proselytizing and prayer proper content for
school-sponsored speech. Here, the District has at most engaged in content
discrimination, in keeping religious prayer and proselytizing from the limited designated
public forum of the After-School Program, while at the same time providing after-school
facilities to CEF as a community partner.
Proselytization in schools has received attention by the Supreme Court, notably in
a concurrence in Milford by Justice Stevens in which he explained:
Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize afterschool discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups - for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan - to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not.
* * * School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk [of divisiveness in the school]. And, just as a school may allow meetings to
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discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. Milford, 533 U.S. at 131-132 (Stevens, J., concurring) (emphasis added); see also id. at 132 (quoting Campbell v. St. Tammany Parish Sch. Bd., 231 F.3d 937, 942 (5th Cir. 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality.”)). CEF argues that being denied access to after-school activities buses, District sponsored snacks, and listing on a “class activities” schedule has infringed its free speech rights under the First Amendment and has caused enrollment in the GNC at Jenny Lind to decrease dramatically. CEF claims 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. The Court disagrees, and finds it unlikely that CEF will prevail on the merits of this claim. Religious instruction, by its very nature, often deals with character development and moral lessons. This realization requires the Court to adopt a finegrained approach to addressing the issue of GNCs in schools. The Court has carefully considered the relevant case law and finds that while part of what GNCs do is in fact analogous to the activities of the Boy Scouts and other secular groups and thus must be
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permitted in the same forums, other GNC activities are not confined to development of morals or character.
Though CEF may have been found in other cases to confine its activities to “influencing character development and spiritual growth,” the evidence in this case suggests identifiable differences, notably proselytization and prayer, between CEF’s activities and goals and those of other organizations, particularly the Boy Scouts. Instead, the Court finds that at least some of CEF’s activities are not religious interpretations of secular topics, but are instead directed towards teaching religion itself. Thus, the District’s restrictions would likely be found reasonable in light of a legitimate government interest, and would not constitute viewpoint restriction. Because CEF is unlikely to prevail on its claims of violations of its First Amendment Rights, this factor weighs against granting a preliminary injunction.
B. Establishment Clause The District argues that its 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. An abridgment of free speech otherwise protected by the First Amendment must be justified by a compelling governmental interest. Lamb’s Chapel, 508 U.S. at 394. A state interest in avoiding an Establishment Clause violation can be characterized as “compelling.” Widmar, 454 U.S. at 271. “[T]here are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the
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elementary and secondary public schools.” Lee v. Weisman, 505 U.S. 577, 592 (1992). In discussing the Establishment Clause, the Supreme Court has stated:
In the course of adjudicating specific cases, this Court has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution’s affairs. Cnty. of Alleghany, et al. v. Am. Civil Liberties Union Greater Pittsburgh Chapter, et al., 492 U.S. 573, 590-91 (1989). In order to determine whether a challenged practice “constitutes an endorsement or disapproval of religion[,]” the practice must be “judged in its unique circumstances.” Id. at 624-25, (O’Connor, J., concurring) (quoting Lynch v. Donnelly, 465 U.S. 668, 694 (1984) (O’Connor, J., concurring)). In addition, the challenged practice must be considered from the perspective of a hypothetical reasonable observer who is “aware of the history and context of the community and forum . . . .” Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O’Connor, J., concurring ). The familiar test from Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), is the standard by which potential violations of the Establishment Clause are evaluated. ACLU Neb. Found. v. City of Plattsmouth, Neb., 419 F.3d 772, 775 (8th Cir. 2005). Under Lemon, there is no Establishment Clause violation if the challenged law or practice (1) has “a secular legislative purpose,” (2) “its principal or primary effect . . . neither advances nor inhibits religion,” and (3) it does not “foster an excessive government entanglement with religion.” Lemon, 403 U.S. at 612-13. In Agostini v. Felton, 521 U.S.
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203, 233 (1997), the Court clarified the third prong of this test, concluding that it is best understood “as an aspect of the inquiry into a statute’s effect.”
An entanglement must be excessive before it runs afoul of the Establishment Clause, and this requires more than mere “[i]nteraction between church and state,” for some level of interaction has always been “tolerated.” Id. As the Supreme Court explained in Agostini, the factors employed “to assess whether an entanglement is ‘excessive’ are similar to the factors . . . use[d] to examine ‘effect.’” Id. at 232. Thus, the Court must look to “the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority.” Id. (quoting Lemon, 403 U.S. at 615).
The Court must first determine if participation in the After-School Program could be considered school-sponsored (or “government”) speech, thus triggering Establishment Clause scrutiny. The Court then evaluates whether permitting CEF to be a part of the After-School Program is permissible within Lemon.
1. District Sponsorship of After-School Program CEF contends that the organizations participating in the After-School Program are not government speakers, and that their speech is private. “[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (quoting Bd. of Ed. of Westside Cmty. Sch. (Dist. 66) v. Mergens, 496 U.S. 226, 250 (1990)). “School
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sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’” Id. at 309-10.
The Court must consider a number of factors when determining whether religious speech is school-sponsored and thus prohibited by the Establishment Clause, or private speech protected by the Free Speech and Free Exercise Clauses. First, the Court must consider the degree of school involvement with the speech and the extent to which the speech bears the imprint of the state. Doe v. Sch. Dist. of the City of Norfolk, 340 F.3d 605, 611 (8th Cir. 2003). Courts also consider the extent to which the school is involved in deciding whether there will be a message, who will speak, or what the speaker will say. Id. at 612. Finally, courts consider whether an objective observer would perceive the speech as state endorsed. Id.
District staff create and distribute the “class choices” forms to students and their parents. The forms clearly identify the District (via the school, or a school representative) as the sponsor of the programs listed on the forms. (See McDonald Aff. Exs. A (“Make checks payable to Jenny Lind C.Ed.”), D (including a logo for the Minneapolis Public Schools).) Further, the class activities form includes the phone number and contact information of a District employee, and the form contains the logo of the Minneapolis School District. The After-School Program bears the imprint of the state.
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Site Coordinators select what programs are included in the After-School Program, and orient the individuals and organizations that participate. District staff are involved in disciplinary issues prior to, during, or directly following class meetings. The District claims that it prepares all of the paperwork regarding enrollment for the students and keeps attendance records for the meetings. The District also claims that it funds and provides after-school activities buses, school supplies, and treats for the students in the After-School Program. These facts, in addition to the fact that District Staff are involved in disciplinary proceedings, could suggest to an objective observer that the After-School Program is school sponsored.
CEF challenges the District’s characterization of its involvement with the AfterSchool Program. First, it argues that the District’s Policy 1301 states that only organizations that are not school or District sponsored may apply to be CPs, and as CEF is a CP, it could not possibly be school-sponsored. Next, CEF argues that there is little editorial control over the content of speech of participants in the After-School Programs. CEF notes that despite its participating in the After-School Program for five years, the District exercised no content restriction or editorial control over the content of the GNCs. CEF argues that an objective observer would not understand the identity of the speaker to be the District, as: (1) no District employee has ever been a speaker at a GNC meeting; (2) GNC meetings are always directed by CEF members; and (3) CEF signed an indemnification agreement as part of the CPO process, and is required to include a disclaimer on its flyers that the Minneapolis Public Schools are legally unable to sponsor
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the activities on its flyer. Finally, CEF argues that the government does not bear ultimate responsibility for the content of the speech at GNC meetings.
Although it is a close question, on balance the Court finds it likely that the organizations participating in the After-School Program engage in school-sponsored public speech. Such organizations are selected by the District for additional benefits separate from those of the larger group of CPs, the forms, flyers, and other information communicated to parents bear the logos and information of District employees, and the Site Coordinators exercise some control over the content of the After-School Program. 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. Though the Court is not required to determine whether the After-School Program is school-sponsored speech at this stage of litigation, the Court concludes that the AfterSchool Program will likely be found to be school-sponsored speech triggering the protections of the Establishment Clause. This factor weighs against CEF’s motion for a preliminary injunction as it provides a defense for the District against CEF’s claims.
2. Lemon Factors The Court next must evaluate whether under Lemon the District’s inclusion of CEF in the After-School Program (1) has “a secular legislative purpose,” (2) “its principal or primary effect . . . neither advances nor inhibits religion,” and (3) it does not
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“foster an excessive government entanglement with religion.” Lemon, 403 U.S. at 61213.
The District first argues that GNCs do not have a secular purpose. One of CEF’s primary goals, as articulated in its flyers and other materials, is to “evangelize” children and teach them that Jesus Christ is their savior. Thus, CEF’s inclusion in the AfterSchool Program could not be understood to have a secular purpose. Next, the District argues that the primary effect of CEF’s involvement with the After-School Program would be to advance religion, again, noting the proselytizing nature of GNC meetings, and CEF’s stated goals. Finally, though a high bar, the District argues that because of the various benefits, and the imprimatur of the District, associated with the After-School Program, inclusion of the GNC in such a program would foster an excessive government entanglement as prohibited by the Establishment Clause.
CEF does not specifically address the Lemon factors. Instead, CEF bases its argument that the District’s Establishment Clause defense is meritless on Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002). In Prince, the Ninth Circuit found that a school could not prevent a student Bible club from using school facilities, supplies, and buses, simply because the club addressed topics from a religious perspective. Id. at 1092 (“Providing meeting space during student/staff time, school supplies and bus transportation is not a direct payment to the World Changer’s coffers, even though it may facilitate the World Changer’s own religious speech.”). The court further concluded that “[t]here is no risk of government indoctrination of students if student/staff time, school supplies and transportation are provided to all student groups, no matter how vociferously
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the World Changers make their point.” Id. at 1093. However, the factors the Ninth Circuit relied on included that the money supporting the benefits came entirely from student fees, and there was no indication the club intended to conduct religious services. Id. at 1093-94 (emphasis added). Additionally, the school in Prince provided supplies and buses to all groups, there was not a subset of groups that were provided specifically sponsored benefits as is the case here. Id. at 1093 (“In light of the numerous and diverse student clubs on the school’s campus, the School District cannot easily grant special favors that might lead to a religious establishment.”).
The Court is not here required to determine whether inclusion of CEF in the AfterSchool Program is itself a violation of the Establishment Clause. It is sufficient that taking all of the present evidence into account, it is likely that the District could demonstrate that CEF’s participation in the After-School Program violates the Establishment Clause.
III. IRREPARABLE HARM To succeed in an action for a preliminary injunction, a movant must first show
irreparable harm that is not compensable with money damages if it prevails on the merits. Travel Tags, Inc. v. UV Color, Inc., 690 F. Supp. 2d 785, 798 (D. Minn. 2010); see also Gen. Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 319 (8th Cir. 2009).
CEF argues that it has, and will continue to, suffer irreparable harm from the District’s refusal to permit CEF access to the “class choices” list, and to buses and treats provided to other groups which are part of the After-School Program. However, CEF
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admits that it is still permitted to offer its GNCs, using the District’s facilities, albeit under “unequal constraints imposed by the District.” CEF’s primary evidence of the harm it has suffered is the drop in attendance at GNC meetings.
CEF has pointed to no authority suggesting that a decrease in an organization’s membership or attendance at meetings constitutes irreparable harm, and the Court does not now so find. CEF also argues that it has been forced to print its own flyers and pay for its own snacks. This argument fails to demonstrate irreparable harm for two reasons: (1) the GNC was already printing its own flyers, and providing its own snacks, prior to the advent of the CPO process; and (2) such harm is specifically compensable through money damages.
Further, CEF has, and continues, to participate in the CPO process, meaning that it can hold meetings on school grounds, and use the District’s flyer distribution process. CEF presently takes advantage of these opportunities. Thus, the Court finds that CEF has not shown a threat of irreparable harm.
IV. BALANCE OF HARMS AND PUBLIC INTEREST CEF argues that the balance of the harms weighs in favor of granting injunctive
relief. According to CEF, the harm it faces is a restraint on speech and diminishment of membership, and the harm to the District is, if anything, confined to administrative costs. CEF argues that it only wants to maintain the “status quo” of its involvement with the After-School Program with full access to the benefits provided to those programs.
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On balance, if CEF’s claims were stronger, the balance of harms would likely tip in its favor, as would the public interest. However, the Court concludes that CEF is unlikely to succeed on the merits of its claims and that granting the preliminary injunction in favor of CEF might cause the District to violate the Establishment Clause. Therefore, the Court finds consideration of the Dataphase factors do not support a grant of a preliminary injunction.
CEF has participated in the Minneapolis School District’s After-School Program since approximately 2000 and in the District’s CP program since the program’s inception. This participation has allowed CEF the use of the District’s facilities for after school programming for children. What is different about this case from other similar cases that have preceded it, such as Milford, is that in this case the record makes clear, as plaintiff readily admits, that CEF’s programming includes prayer and evangelizing. Programming is not limited to teaching moral leadership from a religious point of view. In the Court’s view, based on the record before it, the District has not acted in an unconstitutional manner in denying to CEF the additional benefits of school sponsorship – inclusion in the school activities flyer, and snacks and busing. CEF continues to have access to school facilities as a CP. The Court thus denies CEF’s motion for a preliminary injunction in which it seeks the additional benefits of school sponsorship for its programming.
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ORDER Based on the foregoing and the records, files, and proceedings herein, IT IS HEREBY ORDERED that plaintiff’s Motion for a Preliminary Injunction [Docket No. 9] is DENIED.

DATED: September 30, 2011 at Minneapolis, Minnesota.

____s/

____

JOHN R. TUNHEIM

United States District Judge

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 CASE 0:10-cv-02687-JRT-JJK Document 41 Filed 11/15/11 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

CHILD EVANGELISM FELLOWSHIP OF MINNESOTA,
Plaintiff,
v.
MINNEAPOLIS SPECIAL SCHOOL DISTRCT No. 1,
Defendant.

Civil No. 10-2687 (JRT/JJK)
ORDER GRANTING STAY PENDING APPEAL

Jamie Anderson and G. Craig Howse, HOWSE & THOMPSON, P A, 3189 Fernbrook Lane North, Plym outh, MN 55447; Stephen Crampton, LIBERTY COUNSEL, 100 M ountain View Drive, #2150, Lynchburg, VA 24502, for plaintiff.
Michael Vanselow and Marie va n Uitert, OPPENHEIMER WOLFF & DONNELLY LLP, Plaza VII Buildi ng, Suite 3300, 45 Sout h 7th Street, Minneapolis, MN 55402, for defendant.

This matter is before the Court upon th e Consent M otion to Stay Pr oceedings Pending Appeal filed by the par ties on N ovember 10, 2011 [Docket No. 40]. Plaintiff seeks a formal stay of this Court’s proceed ings pending the fina l resolution of their appeal to the United States Ci rcuit Court of Appeals for the Eighth Circuit. Defenda nt does not oppose a sta y. In th at light, the parties have cons ented to entry of the order.
Based on all the records, file s, and proceedings herein, IT IS HEREBY ORDERED that:

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CASE 0:10-cv-02687-JRT-JJK Document 41 Filed 11/15/11 Page 2 of 2
1. The Consent Motion to Stay Proceedings [Docket No. 40] is GRANTED. 2. The proceedings in this matter sha ll be stayed until the pending appeal to
the Eighth Circuit C ourt of A ppeals and any furt her appeals of the or der denying preliminary injunction are final.

DATED: November 15, 201 at Minneapolis, Minnesota.

s/ John R. Tunheim JOHN R. TUNHEIM United States District Judge

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 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

CHILD EVANGELISM FELLOWSHIP OF MINNESOTA,
Plaintiff,
v.
MINNEAPOLIS SPECIAL SCHOOL DISTRICT NO. 1,
Defendant.

Civil No. 10-2687 (JRT/JJK) ORDER

G. Craig Howse, HOWSE & THOMPSON, PA, 3189 Fernbrook Lane North, Plymouth, MN 55447; Matthew H. Krause and Stephen M. Crampton, LIBERTY COUNSEL, 100 Mountain View Drive, #2150, Lynchburg, VA 24502, for plaintiff.
Michael J. Vanselow and Marie L. Van Uitert, OPPENHEIMER WOLFF & DONNELLY LLP, 222 South Ninth Street, Suite 2000, Minneapolis, MN 55402, for defendant.
The above-captioned matter came before the Court upon the parties’ Stipulation
for Entry of Permanent Injunction and Dismissal with Prejudice, (“the Stipulation”) filed
on October 10, 2012. On January 25, 2013, the Court issued an Order for Entry of
Permanent Injunction and Dismissal with Prejudice. Upon further review, the Court finds
that the Stipulation indicates only that the parties have agreed to settle this matter.
Because the Stipulation does not indicate that the parties have satisfied the requirements
for the entry of a permanent injunction, and the Court’s retention of jurisdiction is
unnecessary, the Court will vacate its previous order.

27

BACKGROUND Child Evangelism Fellowship of Minnesota (“CEF”) brought this action against Minneapolis Special School District No. 1 (“the District”) seeking injunctive relief preventing the District from engaging in conduct that allegedly violated CEF’s freedom of speech, free exercise of religion, and other constitutional rights. (Compl., June 28, 2010, Docket No. 1; Mot. for Prelim. Inj., Jan. 3, 2011, Docket No. 9.) CEF sponsors a Good News Club at the District’s Jenny Lind Elementary School. The District operated an after school enrichment program pursuant to Minn. Stat. § 124D.19, subd. 12, which allows districts operating community education programs to offer youth after school programs “that support development of social, mental, physical, and creative abilities of school-age youth.” CEF became a member of the after school program. However, during the 2008-2009 school year the District informed CEF that it would be removed from the after school program, and as a result would not be listed in the District’s after school program registration form, and would no longer have access to transportation and food services from the District. CEF alleged that the District revoked its right to participate in the after school program upon a complaint that CEF was engaging in religious activities with students. The Court denied CEF’s motion for a preliminary injunction, finding that CEF was unlikely to succeed on the merits. (Order, Sept. 30, 2011, Docket No. 36.) The Eighth Circuit reversed, finding that CEF was likely to succeed on the merits of its First Amendment claim. Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No. 1, 690 F.3d 996 (8th Cir. 2012).
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On October 10, 2012, the parties filed the Stipulation indicating that they wish to resolve the case and “avoid the time and expense of further litigation.” (Stipulation ¶ 3, Oct. 10, 2012, Docket No. 51.) Pursuant to the Stipulation the District will pay CEF $100,621 in attorneys’ fees and costs. (Id. ¶ 5.) The Stipulation also prohibits the District from denying CEF’s Good News Club full reinstatement as an after school program at Jenny Lind, including equal access to the facilities and benefits enjoyed by other after school programs. (Id. ¶ 4.) Finally, the Stipulation requests that the Court enter a permanent injunction and “retain jurisdiction over this matter for the purpose of enforcing its permanent injunction.” (Id. ¶¶ 3, 7.)
ANALYSIS I. PERMANENT INJUNCTION
Whether to issue a permanent injunction is a decision committed to the discretion of the district court. Wigg v. Sioux Falls Sch. Dist. 49-5, 382 F.3d 807, 812 (8th Cir. 2004). “According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief.” eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). When considering whether to issue a permanent injunction, one of the four factors that the Court must consider is “the threat of irreparable harm to the movant.” Forest Park II v. Hadley, 336 F.3d 724, 731 (8th Cir. 2003). In determining whether a party faces a threat of irreparable harm, the Court considers the likelihood of future violations and whether an “injunction is necessary to prevent future violations.” United States v. Articles of Drug, 825 F.2d
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1238, 1248 (8th Cir. 1987).1 Where there is no threat of future harm, injunctive relief is not warranted. See LensCrafters, Inc. v. Vision World, Inc., 943 F. Supp. 1481, 1497 (D. Minn. 1996). Consequently, “a defendant’s voluntary cessation ‘is an important factor bearing on the question of whether a court should exercise its power to enjoin defendant.’” Surdyk’s Liquor, Inc. v. MGM Liquor Stores, Inc., 83 F. Supp. 2d 1016, 1020 (D. Minn. 2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 283 (1982)).
Here, the Court finds that the parties have not demonstrated that permanent injunctive relief is necessary or warranted. Instead, the Stipulation reveals the parties’ agreement to settle the action. See Capitol Records, Inc. v. Kurnizki, No. 2:06-cv-2702, 2007 WL 214564, at *1 (E.D. Cal. Jan. 25, 2007) (“[T]he Stipulation does not indicate that Defendant will not abide by the parties’ agreed upon settlement, such that a permanent injunction and retention of jurisdiction to enforce the settlement is required.”). The Stipulation does not reveal that a permanent injunction is necessary to prevent future violations by the District. Instead, because the District has voluntarily agreed to cease the challenged conduct, the Court finds that there is no threat of future irreparable harm to CEF and therefore an injunction should not issue.
1 See also United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (“[T]he moving party must satisfy the court that [injunctive] relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.”).
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II. PERPETUAL EXERCISE OF JURISDICTION Additionally, the Court is not bound by the parties’ stipulation regarding its
continuing exercise of jurisdiction, because retaining jurisdiction over enforcement of a settlement involves a court’s ancillary subject matter jurisdiction. See Gilbert v. Monsanto Co., 216 F.3d 695, 699 (8th Cir. 2000).2 “Parties cannot by agreement confer jurisdiction upon a federal court.” Potter v. Norwest Mortg., Inc., 329 F.3d 608, 611 (8th Cir. 2003). Therefore, it is irrelevant “whether both parties wish for the federal court to retain indefinite jurisdiction to enforce their settlement agreement,” Brass Smith, LLC, v. RPI Indus., Inc., 827 F. Supp. 2d 377, 380 (D.N.J. 2011), because “parties may not confer subject matter jurisdiction by consent.” Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004).3 Instead, “[w]hether or not a court decides to retain ancillary jurisdiction over the settlement agreement is discretionary,” and a district court “is under no obligation to retain jurisdiction over a settlement agreement.” Brass Smith, 827 F. Supp. 2d at 381; see also Martin v. Moorhead Metro. Area Transit, 971 F. Supp. 414, 415 (D. Minn. 1997).
2 Federal courts do not automatically have jurisdiction over the enforcement of settlement agreements. A district court retains ancillary enforcement jurisdiction over a settlement agreement only if “the dismissal order states that the district court is retaining jurisdiction over the agreement or the court incorporates the terms of the agreement into an order.” Jenkins v. Kan. City Mo. Sch. Dist., 516 F.3d 1074, 1081 (8th Cir. 2008) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994)).
3 See also Kokkonen, 511 U.S. at 380 (“If the parties wish to provide for the court’s enforcement of a dismissal-producing settlement agreement, they can seek to do so.” (emphasis in original)); Arata v. Nu Skin Int’l, 96 F.3d 1265, 1269 (9th Cir. 1996) (“[T]he mere fact that the parties agree that the court should exercise continuing jurisdiction is not binding on the court.”).
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“Ancillary enforcement jurisdiction is, at its core, a creature of necessity.”
Peacock v. Thomas, 516 U.S. 349, 359 (1996). Here, the Court finds that the parties’
Stipulation does not demonstrate any necessity for the perpetual exercise of the Court’s
jurisdiction. Instead, it appears from the Stipulation that the parties have reached an
agreement whereby the District has agreed not to deny CEF any of the rights accorded
the District’s other, non-religious after school programs. The Court sees no indication
that the District will violate this agreement, but if the agreement is violated, nothing will
prevent the parties from pursuing a remedy. See Martin, 971 F. Supp. at 416 (declining
to exercise continuing jurisdiction over a consent decree where “[t]he Court [wa]s fully confident that the parties can and will pursue their remedies in regular course”).4
Additionally, the Court declines to exercise continuing jurisdiction consistent with the
Stipulation, because the Stipulation requests the Court to retain jurisdiction indefinitely
over all disputes arising out of CEF’s access to the facilities and benefits provided by the
District to its programs. Where the parties’ proposed retention of ancillary jurisdiction
would subject the Court to perpetual jurisdiction over a broad range of disputes, declining
to exercise jurisdiction is appropriate. See Brass Smith, LLC, 827 F. Supp. 2d at 383
(declining to exercise jurisdiction proposed in a settlement where “there are no temporal
or other limits to the Court’s jurisdiction over the settlement agreement . . . and . . . the
4 The Stipulation in the present case – indicating that the District has agreed to cease its complained of conduct – does not reveal the need for the type of immediate and continuous federal enforcement of its terms that would be provided by a permanent injunction accompanied by the Court’s continued jurisdiction. Instead, the Stipulation contains simple contractual settlement terms that can appropriately be enforced, in the event of a breach of those terms, by state courts. See Kokkonen, 511 U.S. at 382 (explaining that absent the explicit retention of federal jurisdiction “enforcement of the settlement agreement is for the state courts, unless there is some independent basis for federal jurisdiction”).
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parties appear to contemplate that the Court will be available for this limitless period to resolve ‘any disputes pertaining’ to the agreement”).
Because the Court will decline to enter a permanent injunction and exercise continuing jurisdiction over this matter, the Court’s approval of the parties’ Stipulation is no longer necessary, and the document is now simply a private settlement. The parties appear to have agreed to bind each other to the Stipulations’ terms – including that the District will pay CEF’s attorneys’ fees and costs and also allow CEF to enjoy equal access to the facilities and benefits enjoyed by non-religious groups – and request dismissal with prejudice of CEF’s actions. The Court notes, however, that it is “without authority to require parties to comply with a ‘settlement’ different from their own agreement.” Little Rock Sch. Dist. v. Pulaski Cnty. Special Sch. Dist. No. 1., 921 F.2d 1371, 1389 (8th Cir. 1990). Although “a term mandating a court’s continuing jurisdiction over a matter is not properly considered a term of settlement,” Martin, 971 F. Supp. at 415, it is possible that the Court’s refusal to enter a permanent injunction could materially affect the parties’ decision to settle this case and dismiss CEF’s claims with prejudice. Should the parties no longer agree to the entry of judgment in light of the Court’s refusal to issue a permanent injunction, they may file a motion objecting to the Court’s dismissal of this matter within thirty days of the entry of this Order.
ORDER After further review, and based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
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1. The Order for Entry of Permanent Injunction and Dismissal [Docket No. 52] and the accompanying judgment [Docket No. 53] are hereby VACATED.
2. The parties’ Stipulation for Entry of Permanent Injunction and Dismissal with Prejudice [Docket No. 51] is DENIED to the extent it requests the entry of a permanent injunction and the Court’s retention of jurisdiction over this matter.
3. Thirty (30) days from the entry of this Order, the Court will dismiss CEF’s claims with prejudice and direct that judgment be entered, unless any party has filed an objection to such an order.

DATED: March 12, 2013 at Minneapolis, Minnesota.

____s/

____

JOHN R. TUNHEIM

United States District Judge

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 CASE 0:10-cv-02687-JRT-JJK Document 55 Filed 04/25/13 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

CHILD EVANGELISM FELLOWSHIP OF MINNESOTA,
Plaintiff,
v.
MINNEAPOLIS SPECIAL SCHOOL DISTRICT NO. 1,
Defendant.

Civil No. 10-2687 (JRT/JJK) ORDER

G. Craig Howse, HOWSE & THO MPSON, PA, 3189 Fernbrook Lane North, Plymouth, MN 5 5447; Matthew H. K rause and Stephen M. Crampton, LIBERTY COUNSEL, 100 M ountain View Dr ive, #2150, Lynchburg, VA 24502, for plaintiff.
Michael J. Vanselow and Marie L. Van Uitert, OPPENHEIMER WOLFF & DONNELLY LLP, 222 South Ninth Street, Suite 2000, Minneapolis, MN 55402, for defendant.

The above-entitled matter came before the Court upon the Stipu lation for Entry of Permanent Injunction and Dismiss with Prejudice. The Court issu ed an order on March 12, 2013 denying the request for a permanent injunction and directing the parties to file any objections within 30 days. No objections have been filed.
Based upon all the f iles, records, and pro ceedings herein, IT IS HEREBY ORDERED that this matter may be DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.

27

CASE 0:10-cv-02687-JRT-JJK Document 55 Filed 04/25/13 Page 2 of 2

DATED: April 25, 2013 at Minneapolis, Minnesota.

s/John R. Tunheim JOHN R. TUNHEIM United States District Judge

27

 
 CASE 0:10-cv-02687-JRT-JJK Document 49 Filed 09/26/12 Page 1 of 1
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No: 11-3225 Child Evangelism Fellowship of Minnesota
Appellant v. Minneapolis Special School District No. 1
Appellee
______________________________________________________________________________ Appeal from U.S. District Court for the District of Minnesota - Minneapolis (0:10-cv-02687-JRT)
______________________________________________________________________________ ORDER
Appellant shall recover from the appellee the sum of $621.90 (Six hundred twenty-one dollars and ninety cents) as taxable costs on appeal.
The clerk of the United States District Court is directed to place these costs in the previously issued mandate.
September 26, 2012
Order Entered Under Rule 27A(a): Clerk, U.S. Court of Appeals, Eighth Circuit. ____________________________________
/s/ Michael E. Gans
Appellate Case: 11-3225 Page: 1 Date Filed: 09/26/2012 Entry ID: 3957201

 
 CASE 0:10-cv-02687-JRT-JJK Document 51 Filed 10/10/12 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Child Evangelism Fellowship of Minnesota, Plaintiff,
vs. Minneapolis Special School District No. 1,
Defendant.

Court File No. 10-cv-02687 JRT/JJK
STIPULATION FOR ENTRY OF PERMANENT INJUNCTION AND DISMISSAL WITH PREJUDICE

IT IS HEREBY STIPULATED, by and between the above-named parties through their respective counsel:
1. Plaintiff Child Evangelism Fellowship of Minnesota ("CEF"), which sponsors the Good News Club, brought this action challenging the constitutionality of Minn. Stat. § 124D.19, subd. 12 (2006), entitled, "Community Education Programs; Advisory Council" (hereinafter "Statute"), and subdivision 12, entitled, "Youth afterschool enrichment programs," as applied against it, and seeking to have its Good News Club re-instated in Defendant Minneapolis Special School District No. 1's ("District") After School Youth Enrichment Program ("District's Program") at Jenny Lind Elementary School.
2. Although this Court denied CEF's motion for a preliminary injunction, the Eighth Circuit Court of Appeals unanimously reversed, finding that the Plaintiff's First Amendment rights were violated because the actions of the District were not viewpoint neutral.

CASE 0:10-cv-02687-JRT-JJK Document 51 Filed 10/10/12 Page 2 of 3
3. In order to avoid the time and expense of further litigation, and without admitting any liability, the District has decided to stipulate to the Court's entry of a permanent injunction consistent with the terms of the ruling of the Eighth Circuit Court of Appeals.
4. The District, its officers, agents, employees and all other persons acting in active concert with them are hereby permanently enjoined from enforcing or applying the Statute against CEF in a manner denying its Good News Club full reinstatement in the District's Program at Jenny Lind, currently including, but not limited to, registration through the "class choices" form and use of the after-school activities bus, such that the Club enjoys equal access to the facilities and benefits of the District's Program on an equal basis, including the same requirements, eligibility criteria, and limitations, as nonreligious groups.
5. The District will pay CEF one hundred thousand dollars ($100,000.00) for attorney fees, and costs in the amount of $621.90.
6. This action, and all claims asserted herein, may be fully and finally dismissed with prejudice.
7. The District Court shall retain jurisdiction over this matter for the purpose of enforcing its permanent injunction.
2

CASE 0:10-cv-02687-JRT-JJK Document 51 Filed 10/10/12 Page 3 of 3

Dated: September 28, 2012 *Admitted pro hac vice

LIBERTY COUNSEL
/s/Stephen M. Crampton Stephen M. Crampton* 100 Mountain View Road Lynchburg, VA 24502 Telephone: (434) 592-7000 Facsimile: (434) 592- 7700 scrampton@lc.org mkrause@lc.org
Craig Howse Jamie Anderson Howse & Thompson, P.A. 3189 Fembrook Lane N. Plymouth, MN 55447 Telephone: (763) 577-0150 Facsimile: (763) 577-0151
ATTORNEYS FOR PLAINTIFF

Dated: October 10, 2012

OPPENHEIMER WOLFF & DONNELLY LLP

By: /s/ Michael J. Vanselow Michael J. Vanselow Marie L. van Uitert

#152754 #387875

Campbell Mithun Tower, Suite 2000 222 South Ninth Street Minneapolis, Minnesota 55402 Telephone: (612) 607-7000 Facsimile: (612) 607-7100 mvanselow@oppenheimer.com mvanuitert@oppenheimer.com

ATTORNEYS FOR DEFENDANT

3

 
 CASE 0:10-cv-02687-JRT-JJK Document 52 Filed 01/25/13 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

CHILD EVANGELISM FELLOWSHIP OF MINNESOTA,
Plaintiff,
v.
MINNEAPOLIS SPECIAL SCHOOL DISTRCT No. 1,
Defendant.

Civil No. 10-2687 (JRT/JJK)
ORDER FOR ENTRY OF PERMANENT INJUNCTION AND DISMISSAL WITH PREJUDICE

G. Craig Howse, HOWSE & THO MPSON, PA, 3189 F ernbrook Lane North, Plymouth, MN 55447; Matthew Krause and Stephen Crampton, LIBERTY COUNSEL, 100 Mountain View Drive, #2150, L ynchburg, VA 24502, for plaintiff. Michael Vanselow and Marie Van Uitert, OPPENHEIMER WOLFF & DONNELLY LLP, Plaza VII Buil ding, Suite 3300, 45 South 7th Street, Minneapolis, MN 55402, for defendant.
This matter is before the Court on the parties’ Stipulation for Entry of Permanent Injunction and Dismissal with Prejudice, filed on October 10, 2012 [Docket No. 51].
Based upon all the files, records and proceedings herein, IT IS HEREBY ORDERED that the stipulated permanent injunction in favor of the CEF reflecting the terms set forth therein is entered. This action, and all claims asserted herein, may be fully
and finally DISMISSED WITH PREJUDICE, and without further costs to either party. The Court shall retain jurisdiction over this matter for the purpose of enforcing its
permanent injunction.

CASE 0:10-cv-02687-JRT-JJK Document 52 Filed 01/25/13 Page 2 of 2 LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: January 25, 2013 at Minneapolis, Minnesota.

___ s/John R. Tunheim _ JOHN R. TUNHEIM
United States District Judge

20

 
 United States Court of Appeals
For the Eighth Circuit ___________________________
No. 11-3225 ___________________________
Child Evangelism Fellowship of Minnesota
lllllllllllllllllllll Plaintiff - Appellant
v.
Minneapolis Special School District No. 1
lllllllllllllllllllll Defendant - Appellee ____________
Appeal from United States District Court for the District of Minnesota - Minneapolis
____________
Submitted: May 16, 2012 Filed: August 29, 2012
____________
Before WOLLMAN, BEAM, and LOKEN, Circuit Judges. ____________
BEAM, Circuit Judge.
Child Evangelism Fellowship of Minnesota (CEF) appeals the district court's denial of a preliminary injunction against the Minneapolis Special School District No. 1 (the district) in this First Amendment case. We reverse.

I. BACKGROUND
CEF is the local chapter of an international non-profit organization that conducts weekly "good news clubs" (GNC) for children ages 5 through 12, which are available to all elementary-aged students regardless of their religious beliefs or lack thereof. During the meetings t here are Bible stories and lessons on m oral and character development, creative learning activities, prayer, songs and sim ilar activities. The meetings are free for the child attendees. The goals of the GNCs are to encourage learning, spiritual growth, service to others and leadership developemnt. The kids are taught Christian Biblical principles, m oral values such as honesty, forgiveness, and similar character qualities.
In 2000, CEF obtained a per mit from the district which granted it access to facilities at the Jenny Lind Elem entary School to host GNC m eetings. This permit gave CEF access to the district's literature distribution forum. The flyers distributed in this manner by CEF contained a disclaim er that the district did not sponsor or endorse CEF's activity. Pursuant to its permit, CEF apparently operated the GNCs without incident until 2005. During the 2005-06 school year, the district either changed or formalized the way that it screened groups using its facilities for afterschool activities. Groups seeking facility access apply to becom e "community partners" with the school. Community partners have access to district facilities and use the district's flyer distribution system to reach students. A subset of the community partners are asked to be a part of the after-school enrichm ent program, pursuant to Minnesota Statute § 124D.19(12), which provides that districts operating a community education program may offer youth after-school programs designed to encourage social, m ental, physical and creative abilities, prom ote leadership development and improve academic performance. A district implemen ting such a program must use an advisory council whose members represent various community groups defined in the statute. Id. The advisory council is in charge of making sure that groups in the enrichment program promote the values stated in § 124D.19. Also,
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each district must employ a "site coordinator" whose job it is to coordinate the afterschool program and decide which groups will be invited to participate in the program at a particular school.
CEF became a community partner in 2005 after going through the application process and also became a member of the after-school program, without incident, until the 2008-09 school year. That year, the Jenny Lind school hired a new site coordinator, Sandra McDonald, who became concerned about the religious content of the CEF clubs after overhearing a prayer and reference to Jesus Christ during a CEF meeting. Due to these concerns about the "prayer and proselytizing," which occurred at GNC meetings, CEF was ultimately informed that it would be removed from the after-school program effective in the 2009-10 school year. It still had access to school facilities for meetings as a com munity partner, but rem oval from the after-school program meant that it no longer had access to transportation and food services from the district. Attendance at CEF m eetings declined greatly (from 47 students in the 2008-09 school year, to 10 in the 2009-10 school year and just 5 students in the 201011 school year) after its removal from the after-school program. Other community partners which remain in the after-school program include the Boy and Girl Scouts, Big Brothers/Big Sisters, and Boys and Girls Clubs of the Twin Cities.
CEF sought injunctive and declaratory relief and damages under 42 U.S.C. § 1983 for violation of its free speech and equal protection rights under the First and Fourteenth Amendments. The district court denied CEF's motion for a preliminary injunction, concluding that CEF's GNC was distinguishable from those discussed in Good News Club v. Milford Central School , 533 U.S. 98 (2001) and Good News/Good Sports Club v. School District of the City of Ladue , 28 F.3d 1501 (8th Cir. 1994), and that CEF was not likely to prevail in its claimthat the district's actions constituted impermissible viewpoint disc rimination under the First Am endment. Further, the court found that groups participating in the after-school programengaged in school-sponsored speech subject to the restrictions of the Establishm ent Clause.
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Finally, the court found that because CEF was still able to utilize th e premises as a community partner, it could not establish irreparable harm. CEF appeals.
II. DISCUSSION
We review the denial of preliminary injunctive relief for an abuse of discretion. Doe v. S. Iron R-1 Sch. Dist. , 498 F.3d 878, 880 (8th Cir. 2007). An abuse of discretion occurs if the district court based its decision on an erroneous legal premise. FTC v. Freeman Hosp. , 69 F.3d 260, 267 (8th Cir. 1995). We review the district court's legal conclusions de novo. Gr and River Enters. Six Nations, Ltd. v. Beebe , 467 F.3d 698, 701 (8th Cir. 2006).
To receive injunctive relief, a movant must establish the following factors: (1) a likelihood of success on the merits; (2) irreparable harm; (3) that the balance of the harms of granting or denying the injunction are in its favor; and (4) that granting the injunction is in the public's interest. CDI Energy Servs. v. West River Pumps, Inc., 567 F.3d 398, 401-02 (8th Cir. 2009) (citing Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc)). The gravam en of the district court' s decision was that CEF did not establish its likelihood of success on the merits of its constitutional claims. As noted above, the district court also found that CEF could not establish irreparable harm because it could still utilize the school's prem ises. However, we find that the record evidence, showing the loss of attendance at CEF's meetings, from 47 students in the 2008-09 school year to 5 participants during the 2010-11 school year, is enough to establish irreparable harm. Furthermore, as our discussion will demonstrate, infra, CEF can demonstrate that it has a high likelihood of success on the m erits of its First Am endment claim, which is likely enough, standing alone, to establish irreparable harm. Lowry ex rel. Crow v. Watson Chapel Sch. Dist., 540 F.3d 752, 762 (8th Cir. 2008) ("However, ' [t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'") (alteration in original) (quoting Elrod v. Burns , 427 U.S. 347,
-4-

373 (1976) (plurality)). Accordingly, we focus our discussion on CEFs'likelihood of success on the merits of its First Amendment claim.
A. Viewpoint Discrimination
CEF argues the district engaged in unconstitutional viewpoint discrimination when it rem oved CEF from the after-school program because of its religious viewpoint while permitting similar secular youth development programs, such as the Boy and Girl Scouts, to remain. When the government targets a particular viewpoint taken by speakers on a general subject, the First Amendment is violated. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 391 (1992). The government may not regulate speech when the specific ideology, opinio n or perspective of the speaker is the rationale for the restriction.1 Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983).
We agree with CEF's assertion that the district has engaged in viewpoint discrimination by ousting CEF from the after-school program . The district nearly concedes the issue, as its briefing and oral argument are replete with references to the fact that the primary difference between CEF and other groups pa rticipating in the after-school program, all of which provide the enrichment programming described in
1While it seems rather uncontroversial that the school has created what the Supreme Court has dubbed a "limited public forum" in this case, seeMilford, 533 U.S. at 106; see also Victory Through Jesus Sports Ministry Found. v. Lee's Summit R-7 Sch. Dist., 640 F.3d 329, 334 (8th Cir.), cert. denied, 132 S. Ct. 592 (2011), because the district's exclusion of CEF fromthe after-school programis viewpoint-based, there is no need to analyze the nature of the forumof the after-school program, or the level of scrutiny given to the restrictions in the various fora. Even in a nonpublic forum, restrictions must be viewpoint neutral. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985) ("Control over access to a nonpublic forumcan be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.").
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Minnesota Statute § 124D.19(12), is that "prayer and proselytizing" take place during CEF's meetings. In other words, CEF provides its enrichment programming from a religious perspective, while the groups who have been allowed to rem ain in the program do not. Excluding CEF on this basis is prohibited viewpoint discrimination. Milford, 533 U.S. at 111; Rosenberger v. Rector and Visitors of Univ. of Virgin, i5a15 U.S. 819, 829-30 (1995); Ladue, 28 F.3d at 1507.
Similar to the instant case, Milfordinvolved a GNC that met on school property after school along with several other character-building after-school programs. The Milford School District had argued that due to the excessively religious (thereby possibly implicating the Establishm ent Clause) nature of the GNC activities, excluding the club fromdistrict premises did not fall within viewpoint discrimination. The Court disagreed, holding that "[w]hat matters for purp oses of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocati on of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons." Milfor,d533 U.S.at 111.
Milford was a reaffirmation of the Supreme Court's earlier precedents inLamb's Chapel v. Center Moriches Union Free School District , 508 U.S. 384 (1983), and Rosenberger, 515 U.S. 819, in which it similarly rejected schools' attempts to justify differential treatment of Christian and substantially similar secular groups. Lamb's Chapel, 508 U.S. at 393-95; Rosenberger , 515 U.S. at 831. In Lam b's Chapel, the school district determined that social, civic or recreational groups could m eet in its after-school forum, but prohibited use "by any group for religious purposes." 508 U.S. at 387. The school district accordingly denied access to a church that wanted to present films teaching family values from a Christian persepctive. The Court held that the films dealt with "fam ily values," a subject "otherwise perm issible" under the district's rules, so the exclusion of the church was u nconstitutional viewpoint discrimination. Id. at 393-94.
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In Rosenberger, a student organization at the University of Virginia was denied funding for printing expenses because its pu blication offered a Christian student viewpoint. 515 U.S. at 826. Other secular student organizations were funded by the university. The Court held that the denail of funding was unconstitutional because the university "select[ed] for disfavored treatment those student journalistic efforts with religious editorial viewpoints." Id. at 831. Im portantly, the Court found that impermissible viewpoint discrimination arises not m erely from exclusion but also from differential disfavored treatment. Id.
The district court below found that the districts' removal of CEF fromthe afterschool program was not viewpoint discrim ination, partly because CEF was m erely accorded less favorable treatm ent than o ther groups, as opposed to being denied access outright. And, the district court concluded that CEF could not prove irreparable harm because it continues to enjoy the status of a community p artner. However, Rosenberger confirms that subjecting a religious organization to disfavored treatment because of its religious viewpoint on an otherwise includible subject matter is impermissible viewpoint discrimination, as is excluding the organization from a speech forum altogether. Id.; see also Ladue, 28 F.3d at 1507.
Moreover, Ladue is particularly hard to square with the district courstd' ecision. In Ladue we held that the school district' s exclusion, pursuant to a written use-ofpremises policy, of a GNC from the 3:00 to 6:00 p.m . after-school program was impermissible viewpoint discrimination because the program remained open to the Boy Scouts and Girl Scouts. 28 F.3d at 1507. The GNC was allowed to use the premises after 6:00 p.m. on weekdays and after 8 a.m. on the weekends, but due to the later time slot, the GNC group's attendees could not take advantage of the late school bus to return hom e. Id. at 1503. This particular fact m akes Ladue compelling precedent. Indeed, in Ladue, the school district did not bar the GNC frommeeting at the school altogether, it simply gave the GNC a disfavored position, making it much
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harder for the GNC to attract the after-school crowd, especially in relation to similar secular groups such as the Boy and Girl Scouts.
The district court in the instant case distinguished Ladueand Milford by noting that in Milford, the Supreme Court found that the GNC meetings were not sponsored by the school, and that the rem edy sought in Milford was access to the premises, whereas here, the district does allegedly sponsor the GNC meetings and CEF has access to the premises, just not the resourcesof the after-school program. The district court similarly distinguished Ladue by pointing out that the GNC in Ladue was completely excluded from the premises (during the prime time slot) whereas CEF is allowed on the premises at the same time as the other after-school groups, it is just excluded from after-school programresources such as the snack and busing programs. We find that any differences between Ladue and Milford and the instant case to be without substantive distinction. Indeed, this is a relatively uncontroversial case of viewpoint discrimination, and the only remaining question is whether the district was justified in its chosen course of action.
B. Compelling Governmental Interest
The district court also found that the district had a com pelling interest in excluding CEF from the after-school program resources in order to avoid an Establishment Clause violation. This finding was driven by the district court' s conclusion that CEF's programming was district or school "sponsored" because it was part of an after-school program that was accorded funding resources available to all such programs. The com pelling interest in avoiding an Establishm ent Clause violation, according to the d istrict, justifies any possible viewpoint discrimination. We disagree.
An abridgement of First Am endment speech rights m ust be justified by a compelling governmental interest, and the governm ent's interest in avoiding an
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Establishment Clause2 violation "'may be'" suchan interest. Lamb's Chape,l508 U.S. at 394 (quoting Widm ar v. Vincent , 454 U.S. 263, 271 (1981)). However, the Supreme Court has mad e it clear that the Establishm ent Clause does not proscribe "private religious conduct during nonschool hours merely because it takes place on school premises." Milford , 533 U.S. at 115. Instead, the Establishm ent Clause requires neutrality, as opposed to hostility, towards religion. Rosenberge,r515 U.S. at 839. And as the Supreme Court has statedand restated, "neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse." Id;. see also Milford, 533 U.S. at 114 (quoting the same passage from Rosenberger).
In balancing the various First Amendment clauses it is important to remember that the Establishment Clause forbids "government speech" which endorses religion, while the Free Speech and Free Exercise Clauses protect private speech endorsing religion. Roark v. S. Iron R-1 Sch. Dist. , 573 F.3d 556, 561 (8th Cir. 2009). Accordingly, whether the content of CEF's GNC meetings was private speech or school-sponsored speech is the key to analyzing the district's Establishm ent Clause defense to its practice of viewpoint discrimination.
We find erroneous the district court's conclusion that the GNC's message was school or district sponsored when it was part of the after-school program. First, the district policy on after-school programs states that participants are "non-school" and non-district-sponsored organizations. The f act that participants in the after-school program are given financial resources does not counsel us to look in the opposite direction. In Rosenberger, the Court held that the speech at issue was not government
2Because CEF is challenging a specific government action (expulsion fromthe after-school club), rather than the specific policies of the district or the state statute, the Lemon v. Kurtzman, 403 U.S. 602 (1971) test is not implicated. Roark v. S. Iron R-1 Sch. Dist., 573 F.3d 556, 563 n.4 (8th Cir. 2009).
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(or school-sponsored) speech because the school provided resources and funding to a diverse group of student organizations, each of which had provided a disclaim er stating that its group was independent from the university. 515 U.S. at 823, 834-35. Given these disclaim ers and the existence of m ultiple student groups receiving funding, the Court pointed out that the university had not fostered any ipmression that the student groups spoke for the university, and instead the "University ha[d] taken pains to disassociate itself from the private speech involved." Id. at 841. Likewise, the district has chosen to provide funding for a variety of participants in the afterschool program, including CEF until its ouster in 2009, and has taken pains to disassociate itself from the private speech of the groups involved.
Further, the factual sim ilarities between this case and Milford and Ladue support the conclusion that CEFs' GNC is not school sponsored, even when given the after-school program resources. Like the GNCs in Milford and Ladue, the meetings are held immediately after school at Jenny Lind Elementary, are open to any student who obtains parental permission to attend, and the forum is available to other secular community groups to foster character building activities. Other GNC cases lend further support to the notion that CEFs' activities were not school sponsored. In Wigg v. Sioux Falls Sch. Dist. 49-5 , 382 F.3d 807, 815 (8th Cir. 2004), we held that the district could not prohibit one of its own teachers from leading an after school GNC on the property of the school where she taugh.tBecause the teacher'sparticipation did not occur during a "school-sponsored event" such as graduation3 or a sporting event involving the school; because she did not affiliate her views with the school district; and because students needed parental perm ission in order to attend while nonparticipating students exited the building before the GNC began, we held that the teacher was participating in private, not school-sponsored speech. Id.
3However, we have held that a parent/school board m ember's prayer at his daughter's graduation ceremony was not school sponsored because he was acting as a private citizen and not in his official school-board capacity. Doe v. Sch. Dist. of the City of Norfolk, 340 F.3d 605, 613 (8th Cir. 2003).
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The record reflects that the organization, structure and activities of the various GNCs around the country have not changed since the program s were litigated in Milford nearly fifteen years ago. The Suprem e Court and our court have both consistently held that this type of speech is private speech, not school sponsored. See Milford, 533 U.S. at 113; Wigg, 382 F.3d at 815; Ladue, 28 F.3d at 1509-10. Our sister circuits have ruled similarly. E.g., Child EvangelismFellowship of New Jersey, Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 525 (3d Cir. 2004) (holding that the purpose of the school' s forum was not to convey its own m essage but to assist all organizations in the community). Fo llowing this precedent, we hold that CEF's meetings, even as part of the after-school program, are not school sponsored.
All of the foregoing makes this case factually distinct from cases cited by the district regarding school involvement in prayer at public events, Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992), as well as the student newspaper restrictions found constitutionally permissible in Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). Given that the content of the GNC meetings was not governm ent speech, the school had no com pelling interest in avoiding an Establishment Clause violation, and there is no other basis upon which it can justify its viewpoint discrimination.
III. CONCLUSION
The district court abused its discretion in denying the preliminary injunction. CEF has a high likelihood of success on the merits of its First Amendment4 claim. The likely First Am endment violation further m eans that the public interest and the balance of harms (including irreparable harm to CEF) favor granting the injunction.
4Because we find CEF has established a likelihood of success on its Fir st Amendment claim, we need not consider its Equal Protection claim.
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See Elrod, 427 U.S. at 373-74. We therefore reverse and remand to the district court for further proceedings consistent with this opinion.
______________________________
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 CaSe: 0:10-cv-02687-JRT-JJK As Of: 06/03/2013 06:52 PM CDT 1 of 6
CLOSED,CV,PHV
U.S. District Court U.S. District of Minnesota (DMN) CIVIL DOCKET FOR CASE #: 0:10−cv−02687−JRT−JJK

Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District #1 Assigned to: Judge John R. Tunheim Referred to: Magistrate Judge Jeffrey J. Keyes Case in other court: USCA 8th Circuit, 11−03225 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/28/2010 Date Terminated: 01/25/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Child Evangelism Fellowship of Minnesota

represented by Jamie Anderson Howse &Thompson, P.A. 3189 Fernbrook Lane N. Plymouth, MN 55447 763−577−0150 Fax: 763−577−0151 TERMINATED: 11/10/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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 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 TERMINATED: 09/22/2011 ATTORNEY TO BE NOTICED

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

V.

CaSe: 0:10-cv-02687-JRT-JJK As Of: 06/03/2013 06:52 PM CDT 2 of 6

Defendant Minneapolis Special School District #1

represented by Marie L Van Uitert Oppenheimer Wolff &Donnelly LLP 222 S 9th St Ste 2000 Mpls, MN 55402 612−607−7000 Fax: 612−607−7100 Email: mvanuitert@oppenheimer.com ATTORNEY TO BE NOTICED

Michael J Vanselow Oppenheimer Wolff &Donnelly LLP 222 S 9th St Ste 2000 Mpls, MN 55402 612−607−7000 Fax: 612−607−7100 Email: mvanselow@oppenheimer.com ATTORNEY TO BE NOTICED

Date Filed 06/28/2010
06/28/2010 06/30/2010 06/30/2010 07/02/2010
07/08/2010 07/09/2010 07/28/2010 10/16/2010 11/15/2010 01/03/2011 01/03/2011

# Docket Text
1 COMPLAINT against Minneapolis Special School District #1 ( Filing fee $ 350 receipt number 4−46476.) assigned to Judge John R. Tunheim per Civil Rights List and referred to Magistrate Judge Jeffrey J. Keyes, filed by Child Evangelism Fellowship of Minnesota. (Attachments: # 1 Civil Cover Sheet). (LMB) (Entered: 06/29/2010)
Summons Issued as to Minneapolis Special School District #1. (LMB) (Entered: 06/29/2010)
2 MOTION for Admission Pro Hac Vice for Stephen M. Crampton by Child Evangelism Fellowship of Minnesota. (Anderson, Jamie) (Entered: 06/30/2010)
3 MOTION for Admission Pro Hac Vice for Matthew H. Krause by Child Evangelism Fellowship of Minnesota. (Anderson, Jamie) (Entered: 06/30/2010)
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 4−046598.Approved by Magistrate Judge Jeffrey J. Keyes on 7/2/10. (MMC) (Entered: 07/06/2010)
4 AFFIDAVIT of Service by Child Evangelism Fellowship of Minnesota re Summons Issued to Minneapolis Special School District # 1 (Crampton, Stephen) (Entered: 07/08/2010)
5 SUMMONS Returned Executed by Child Evangelism Fellowship of Minnesota. Minneapolis Special School District #1 served on 7/7/2010, answer due 7/28/2010. (Crampton, Stephen) (Entered: 07/09/2010)
6 Defendant's ANSWER to Complaint by Minneapolis Special School District #1. (Attachments: # 1 Certificate of Service) (van Uitert, Marie) (Entered: 07/28/2010)
7 NOTICE OF PRETRIAL CONFERENCE: Pretrial Conference set for 10/27/2010 09:45 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (Attachments: # 1 Consent Form)(MMP) (Entered: 10/18/2010)
8 NOTICE by Child Evangelism Fellowship of Minnesota of Hearing on Plaintiff's Motion for Preliminary Injunction (Crampton, Stephen) (Entered: 11/15/2010)
9 MOTION for Preliminary Injunction and Certificate of Service by Child Evangelism Fellowship of Minnesota. (Crampton, Stephen) Modified text on 1/4/2011 (jz). (Entered: 01/03/2011)
10 MEMORANDUM in Support re 9 MOTION for Preliminary Injunction with LR7.1 Word Count and Certificate of Service filed by Child Evangelism

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01/03/2011
01/03/2011 01/03/2011 01/07/2011 01/07/2011 01/26/2011 01/26/2011 01/26/2011 01/26/2011 01/26/2011 01/26/2011 01/26/2011 01/26/2011

Fellowship of Minnesota. (Crampton, Stephen) Modified text on 1/4/2011 (jz). (Entered: 01/03/2011)
11 AFFIDAVIT of Stephen M. Crampton in SUPPORT OF 9 MOTION for Preliminary Injunction filed by Child Evangelism Fellowship of Minnesota. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Exhibit(s) D, # 5 Exhibit(s) E, # 6 Exhibit(s) F, # 7 Exhibit(s) G, # 8 Exhibit(s) H, # 9 Exhibit(s) I, # 10 Exhibit(s) J, # 11 Exhibit(s) K, # 12 Exhibit(s) L, # 13 Exhibit(s) M, # 14 Exhibit(s) N, # 15 Exhibit(s) O, # 16 Exhibit(s) P)(Crampton, Stephen) (Entered: 01/03/2011)
12 Declaration of David Tunell in Support of 10 Memorandum in Support of Motion, 9 MOTION for Preliminary Injunction filed by Child Evangelism Fellowship of Minnesota. (Crampton, Stephen) (Entered: 01/03/2011)
13 Declaration of Maureen Berger in Support of 10 Memorandum in Support of Motion, 9 MOTION for Preliminary Injunction filed by Child Evangelism Fellowship of Minnesota. (Crampton, Stephen) (Entered: 01/03/2011)
14 *TEXT ONLY ENTRY* NOTICE of Resetting of Pretrial Conference: 7 NOTICE OF PRETRIAL CONFERENCE: Pretrial Conference set for 10/27/2010 has been reset for 2/2/2011 09:00 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (JEP) (Entered: 01/07/2011)
15 *TEXT ONLY ENTRY* NOTICE of Resetting of Pretrial Conference: 14 7 NOTICE OF PRETRIAL CONFERENCE: Pretrial Conference set for 2/2/2011 has been reset for 3/30/2011 09:30 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (JEP) (Entered: 01/07/2011)
16 MEMORANDUM in Opposition re 9 MOTION for Preliminary Injunction filed by Minneapolis Special School District #1. (Attachments: # 1 LR7.1 Word Count Compliance Certificate Word Count Compliance Certificate)(van Uitert, Marie) (Entered: 01/26/2011)
17 AFFIDAVIT of Sandra McDonald in OPPOSITION TO 9 MOTION for Preliminary Injunction filed by Minneapolis Special School District #1. (Attachments: # 1Exhibits A−D)(van Uitert, Marie) Modified text on 1/27/2011 (jz). (Entered: 01/26/2011)
18 AFFIDAVIT of Robyn Cousin in OPPOSITION TO 9 MOTION for Preliminary Injunction filed by Minneapolis Special School District #1. (Attachments: # 1 Exhibits A−F)(van Uitert, Marie) Modified text on 1/27/2011 (jz). (Entered: 01/26/2011)
19 AFFIDAVIT of Colleen Sanders in OPPOSITION TO 9 MOTION for Preliminary Injunction filed by Minneapolis Special School District #1. (Attachments: # 1 Exhibits A−E)(van Uitert, Marie) Modified text on 1/27/2011 (jz). (Entered: 01/26/2011)
20 AFFIDAVIT of Jack Tamble in OPPOSITION TO 9 MOTION for Preliminary Injunction filed by Minneapolis Special School District #1. (van Uitert, Marie) (Entered: 01/26/2011)
21 AFFIDAVIT of Linnea Hackett in OPPOSITION TO 9 MOTION for Preliminary Injunction filed by Minneapolis Special School District #1. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(van Uitert, Marie) Modified text on 1/27/2011 (jz). (Entered: 01/26/2011)
22 EXHIBIT re 21 Affidavit in Opposition to Motion, by Minneapolis Special School District #1 filed by Minneapolis Special School District #1. (Attachments: # 1 Exhibit D, # 2 Exhibit E, # 3 Exhibit F)(van Uitert, Marie) Modified text on 1/27/2011 (jz). (Entered: 01/26/2011)
23 EXHIBIT re 21 Affidavit in Opposition to Motion, by Minneapolis Special School District #1 filed by Minneapolis Special School District #1. (Attachments: # 1 Exhibit G)(van Uitert, Marie) Modified text on 1/27/2011 (jz). (Entered: 01/26/2011)

CaSe: 0:10-cv-02687-JRT-JJK As Of: 06/03/2013 06:52 PM CDT 4 of 6

01/26/2011
01/27/2011 02/03/2011 02/09/2011 02/17/2011
03/25/2011 05/17/2011 07/07/2011 08/05/2011 09/19/2011 09/21/2011 09/22/2011 09/30/2011 10/12/2011
10/13/2011

24 CERTIFICATE OF SERVICE by Minneapolis Special School District #1 re 20 Affidavit in Opposition to Motion, 22 Exhibit, 23 Exhibit, 16 Memorandum in Opposition to Motion, 21 Affidavit in Opposition to Motion, 17 Affidavit in Opposition to Motion, 19 Affidavit in Opposition to Motion, 18 Affidavit in Opposition to Motion (van Uitert, Marie) (Entered: 01/26/2011)
25 EXHIBIT re 18 Affidavit in Opposition to Motion for Preliminary Injunction by Minneapolis Special School District #1. (Attachments: # 1 Exhibit(s) H)(van Uitert, Marie) (Entered: 01/27/2011)
26 REPLY to Response to Motion re 9 MOTION for Preliminary Injunction filed by Child Evangelism Fellowship of Minnesota. (Crampton, Stephen) (Entered: 02/03/2011)
27 NOTICE OF HEARING ON MOTION 9 MOTION for Preliminary Injunction : Motion Hearing set for 2/16/2011 at 10:00 AM in Courtroom 13E (MPLS) before Judge John R. Tunheim. (HAM) (Entered: 02/09/2011)
28 Minute Entry for proceedings held before Judge John R. Tunheim: Motion Hearing held on 2/17/2011 re 9 MOTION for Preliminary Injunction filed by Child Evangelism Fellowship of Minnesota. Motion taken Under Advisement. Written order forthcoming. (Court Reporter Kristine Mousseau) (HAM) (Entered: 02/17/2011)
29 *TEXT ONLY ENTRY* NOTICE of Resetting of Pretrial Conference: 15 14 7 Pretrial Conference set for 3/30/2011 reset for 5/20/2011 09:30 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (JEP) (Entered: 03/25/2011)
30 *TEXT ONLY ENTRY* NOTICE of Resetting of Pretrial Conference: 29 15 14 7 Pretrial Conference set for 5/20/2011 reset for 7/11/2011 09:30 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (JEP) (Entered: 05/17/2011)
31 *TEXT ONLY ENTRY* NOTICE of Resetting of Pretrial Conference: 30 29 15 14 7 Pretrial Conference set for 7/11/2011 reset for 8/9/2011 10:30 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (JEP) (Entered: 07/07/2011)
32 *TEXT ONLY ENTRY* NOTICE of Resetting of Pretrial Conference: 31 *TEXT ONLY ENTRY* NOTICE of Resetting of Pretrial Conference: 30 29 15 14 7 Pretrial Conference set for 8/9/2011 reset for 9/23/2011 10:00 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (JEP) (Entered: 08/05/2011)
33 *TEXT ONLY ENTRY* NOTICE of Resetting of Pretrial Conference: 32 31 30 29 15 14 7 Pretrial Conference set for 9/23/2011 reset for 12/1/2011 10:30 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (JEP) (Entered: 09/19/2011)
34 NOTICE of Withdrawal as Attorney Jamie L. Anderson (Howse, G) (Entered: 09/21/2011)
35 *TEXT ONLY ENTRY* NOTICE of Resetting of Pretrial Conference: 33 32 31 30 29 15 14 7 Pretrial Conference set for 12/1/2011 reset for 12/2/2011 10:30 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (JEP) (Entered: 09/22/2011)
36 MEMORANDUM OPINION AND ORDER denying 9 Motion for Preliminary Injunction (Written Opinion). Signed by Judge John R. Tunheim on September 30, 2011. (DML) (Entered: 09/30/2011)
37 NOTICE OF APPEAL TO 8TH CIRCUIT and Certificate of Service as to 36 Order on Motion for Preliminary Injunction by Child Evangelism Fellowship of Minnesota. Filing fee $ 455, receipt number 0864−2967239. (Attachments: # 1 COA − Form A)(Crampton, Stephen) Modified text on 10/13/2011 (jz). (Entered: 10/12/2011)
38 TRANSMITTAL OF APPEAL LETTER TO U. S. COURT OF APPEALS, 8TH CIRCUIT, Re: Notice of Appeal to 8th Circuit, 37 . (jz) (Entered: 10/13/2011)

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10/13/2011 11/10/2011 11/15/2011
11/16/2011 08/29/2012 08/29/2012
09/07/2012 09/12/2012 09/14/2012 09/26/2012 09/26/2012
10/01/2012 10/10/2012 01/25/2013 01/25/2013 03/12/2013

39 USCA Case Number 11−3225 for 37 Notice of Appeal to 8th Circuit, filed by Child Evangelism Fellowship of Minnesota. (akl) (Entered: 10/14/2011)
40 Consent MOTION to Stay Proceedings Pending Appeal by all parties. (Krause, Matthew) Modified filers and text on 11/10/2011 (akl). (Entered: 11/10/2011)
41 ORDER granting 40 Motion to Stay. The proceedings in this matter shall be stayed until the pending appeal to the Eighth Circuit Court of Appeals and any further appeals of the order denying preliminary injunction are final. Signed by Judge John R. Tunheim on November 15, 2011. (HAM) CC: Jamie Anderson on 11/15/2011 (MMP). (Entered: 11/15/2011)
42 *TEXT ONLY ENTRY* NOTICE of Cancellation of Pretrial conference: 35 33 32 31 30 29 15 14 7 Pretrial Conference set for 12/2/2011 before Magistrate Judge Jeffrey J. Keyes is cancelled. (JEP). (JEP) (Entered: 11/16/2011)
43 Opinion of USCA Judges Wollman, Beam, and Loken as to 37 Notice of Appeal to 8th Circuit, filed by Child Evangelism Fellowship of Minnesota : We therefore reverse and remand to the district court for further proceedings consistent with this opinion. (Attachments: # 1 Cover Letter)(jam) (Entered: 08/29/2012)
44 USCA JUDGMENT as to 37 Notice of Appeal to 8th Circuit, filed by Child Evangelism Fellowship of Minnesota: it is hereby ordered and adjudged that the judgment of the district court in this cause is reversed and the cause is remanded to the district court for proceedings consistent with the opinion of this court. (received electronically from COA) (jam) (Entered: 08/29/2012)
45 NOTICE OF PRETRIAL CONFERENCE: Pretrial Conference set for 9/27/2012 03:15 PM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (Attachments: # 1 Consent Form)(MMP) (Entered: 09/07/2012)
46 *TEXT ONLY ENTRY* NOTICE of Resetting of Pretrial Conference: 45 Pretrial Conference set for 9/27/2012 reset for 10/16/2012 01:30 PM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (JEP) (Entered: 09/12/2012)
47 ORDER of USCA as to 37 Notice of Appeal to 8th Circuit: The motion of the appellant for an extension of time to file a motion for attorneys' fees is granted. Appellant may have until September 26, 2012 to file the motion. (received electronically from COA) (akl) (Entered: 09/21/2012)
48 MANDATE of USCA as to 37 Notice of Appeal to 8th Circuit, filed by Child Evangelism Fellowship of Minnesota (received electronically from COA) (akl) (Entered: 09/26/2012)
49 ORDER of USCA as to 37 Notice of Appeal to 8th Circuit: Appellant shall recover from the appellee the sum of $621.90 (Six hundred twenty−one dollarsand ninety cents) as taxable costs on appeal. The clerk of the United States District Court is directed to place these costs in the previously issued mandate. (received electronically from COA) (akl) (Entered: 09/27/2012)
50 *TEXT ONLY ENTRY* NOTICE of Cancellation of Pretrial Conference: 46 45 Pretrial Conference set for 10/16/2012 01:30 PM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes is cancelled. (JEP) (Entered: 10/01/2012)
51 STIPULATION for Entry of Permanent Injunction and Dismissal With Prejudice by Child Evangelism Fellowship of Minnesota, Minneapolis Special School District #1. (Vanselow, Michael) (Entered: 10/10/2012)
52 VACATED PER ORDER DATED 03/12/2013 ORDER FOR ENTRY OF PERMANENT INJUNCTION AND DISMISSAL WITH PREJUDICE. Signed by Judge John R. Tunheim on January 25, 2013. (HAM) Modified on 3/12/2013 (jz). (Entered: 01/25/2013)
53 VACATED PER ORDER DATED 03/12/2013 JUDGMENT (Attachments: # 1 Civil Notice − appeal)(jam) Modified on 3/12/2013 (jz). (Entered: 01/25/2013)
54 ORDER 1. VACATING 52 Order for Entry of Permanent Injunction and Dismissal and the accompanying 53 Judgment. 2. DENYING 51 the parties' Stipulation for Entry of Permanent Injunction and Dismissal with Prejudice to the

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04/25/2013 04/25/2013

extent it requests the entry of a permanent injunction and the Court's retention of jurisdiction over this matter. 3. Thirty days from the entry of this Order, the Court will dismiss CEF's claims with prejudice and direct that judgment be entered, unless any party has filed an objection to such an order.(Written Opinion). Signed by Judge John R. Tunheim on March 12, 2013. (DML) (Entered: 03/12/2013)
55 ORDER Dismissing Case. Signed by Judge John R. Tunheim on April 25, 2013. (HAM) (Entered: 04/25/2013)
56 JUDGMENT (Attachments: # 1 Civil Notice − appeal)(jz) (Entered: 04/25/2013)