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December 10, 2002


The opinion of the court was delivered by: Cooper, District Judge


This is an action to enjoin a school district from denying a religious organization, inter alia, access to certain elementary schools to promote meetings and activities. The original complaint in this matter was filed pursuant to 42 U.S.C. § 1983 and 1988 for deprivations of plaintiffs' rights secured by the First and Fourteenth Amendments of the United States Constitution. (Compl. at 2.) Plaintiffs also brought claims under parallel provisions of the New Jersey Constitution. (Id. at 10-11.) The matter now comes before the Court on an Order to Show Cause as to why a preliminary injunction should not be issued. For the reasons stated herein, we will grant, in part, the Order to Show Cause.


I. The Parties

Plaintiff Child Evangelism Fellowship of New Jersey, Inc. ("CEF-NJ") is a nonprofit corporation affiliated with Child Evangelism Fellowship, Inc. ("CEF"), a "non-profit inter-denominational religious organization," establishing clubs known as Good News Clubs ("Clubs") at schools around the country. (Mem. in Supp. of Pls.' Applic. for an Order to Show Cause with Temp. Restraints ("Temp. Restraint Mem.") at 7.) The Clubs provide religious instruction to children ages six to twelve, whose parents grant permission. (Id. at 7-8.) Plaintiff Child Evangelism Fellowship of New Jersey, Inc., Bayshore Chapter acts on behalf of CEF-NJ, sponsoring Clubs at various school districts including defendant Stafford Township School District ("school district").*fn1 (Id. at 7.)

According to CEF's Mission Statement, it is a "Bible-centered, worldwide organization composed of born-again believers whose purpose is to evangelize boys and girls with the Gospel of the Lord Jesus Christ and to establish (disciple) them in the Word of God and in a local church for Christian living." (Defs.' Exs. in Opp. to Prelim. & Perm. Inj. ("Defs.' Exs."), Ex. X, CEF Fact Sheet.) CEF flyers are more lighthearted in tone, emphasizing that children will learn "biblical principles, moral values, character qualities, [and] respect for authority" through Bible lessons, missionary stories, singing, and other activities.*fn2 (Pls.' Certif. of Exs., Ex. H; Pls.' 2d Certif. of Exs., Ex. N.) Local Director Bruce Wood ("Wood") describes CEF as a "non-profit [organization] that seek[s] to foster self-esteem in youth and to instill or cultivate morals and character in children, as well as to provide a positive recreational experience." (Pls.' 2d Certif. of Exs., Ex. L, Wood Decl.)

The school district consists of four schools, two of which are at issue: (1) the Ocean Acres Elementary School ("Ocean"), attended by pupils ages three to seven, and (2) the McKinley Avenue Elementary School ("McKinley"), attended by pupils ages eight to ten. (Defs.' Mem. of Law in Opp. to Prelim. & Perm. Inj. ("Defs.' Opp.") at 1.) The school district maintains written policies on both the distribution of materials to pupils and the use of facilities by community groups and agencies. (Pls.' Certif. of Exs., Exs. A & E.) In addition, the school district has developed practices of allowing particular groups to (1) post flyers on school walls, (2) post flyers on school bulletin boards, and (3) staff tables and post flyers at Back-to-School Nights. (See Factual Background and Proc. Hist., Part IV, infra.)

II. CEF's Requests of the School District

CEF contacted the school district again on May 17, 2002, requesting personnel to (1) post a new flyer on school bulletin boards; (2) distribute flyers and permission slips to pupils; (3) allow CEF to staff tables at Back-to-School Nights and disseminate materials, including permission slips, to parents attending the events; and (4) permit students to distribute CEF materials to other students on school grounds during the school day.*fn3 (Compl. at 7; Defs.' Opp. at 1.) On June 10, 2002, the school district rejected these requests, responding that CEF's original application and proof of insurance to use the facilities were not received. (Temp. Restraint Mem. at 11; Compl. at 8.) CEF then sent these materials on August 13, 2002. (Id. at 8.) When the school district failed to timely respond to this correspondence, CEF sent another letter on September 9, 2002. (Id. at 8-9.) The school district responded on September 12, 2002, but did not offer a final decision on CEF's requests. (Id. at 9.) Because the Back-to-School Nights were scheduled for September 18 and September 24-25 at McKinley and Ocean, respectively, CEF sent a letter to the school district on September 13, 2002, advising that CEF would seek immediate injunctive relief. CEF then sought a Temporary Restraining Order and Order to Show Cause from this Court. (Id.; Defs.' Opp. at 17.)

III. School District's Written Distribution Policy

According to the school district's written distribution policy,*fn4 all materials distributed by faculty to students must be approved in advance by the superintendent and "should relate to school matters or community activities." (Pls.' Certif. of Exs., Ex. A.) In addition, the activities promoted in distributed literature must be "directly associated with the children who are enrolled in" the school district. (Id.) The policy forbids (1) the use of pupils "to distribute partisan information pertaining to a school or general election, budget or bond issue, or negotiations," and (2) the exploitation of pupils "for the benefit of any individual, group, or profit-making organization." (Id.)

The policy also expresses "the board's commitment to assist all organizations in our rapidly growing community." (Id.) Particular non-profit organizations "permitted to distribute information to go home with children" are specified. (Id.) These are the Parent-Teachers Association ("PTA"), the school district Athletic Association, the Boy Scouts, the Girl Scouts, the Four-H Club, the Southern Regional High School, the Lions Club, the Civil Defense, the school district Township Fire Department, the Elks, and "other groups [that] will be added at (sic) discretion of the superintendent." (Id.) "All other associations must receive special approval from the board of education." (Id.) The written distribution policy contains no guidelines on posting flyers in the school or participating in Back-to-School Nights.

IV. The School District's Practices

A. Distribution of Materials by Faculty to Students ("Distribution Forum")

Teachers at both Ocean and McKinley comport with the distribution policy by handing out various materials approved by the superintendent, "usually at the close of the school day, immediately prior to dismissal." (Pls.' Certif. of Exs., Ex. C, Defs.' Resps. to Interrogs., No. 4(c); see Defs.' Opp. at 7-8.) Generally, organizations produce flyers or other information at their own expense and then place these materials in faculty mailboxes. (Pls.' Certif. of Exs., Ex. C, Defs.' Resps. to Interrogs., No. 4(g).) The faculty, in turn, distributes materials to students as they are received; there is no regular distribution schedule. (Id. at No. 4(b))

The school district contends that flyers are limited to information related to "registration in community groups and/or events sponsored by them that complement the school's curriculum, relate to issues of health and/or safety, or which provide recreational activities." (Defs.' Opp. at 8.) In addition, the schools allegedly do not distribute flyers from groups providing "structured formal teaching sessions" or discussion on "topics such as spirituality and satan." (Id.) The school district has permitted distribution of materials by, among others, the Cub Scouts, the Girl Scouts, the Stafford Township Municipal Alliance Committee ("Municipal Alliance"), various athletic and sports teams, the Ocean County Library, the Stafford Township Volunteer Fire Company, the PTA, College Funding 101, Habitat for Humanity, and "a limited number of civic groups." (Defs.' Opp. at 8; Pls.' Reply to Defs.' Mem. in Opp. ("Pls.' Reply") at 9; Pls.' Certif. of Exs., Ex. C, Defs.' Resps. to Interrogs., No. 3(a).)

Some organizations, such as the Stafford Wrestling Club, provide flyers promoting purely recreational activities. (See Defs.' Exs., Ex. N.) Others furnish materials to educate pupils about health and safety. For example, the school district Township Volunteer Fire Company flyer promotes its "Annual Fire Safety Poster Contest." (Id., Ex. L.) Other organizations advance activities for character building and moral and social development through their flyers. Handouts from the Girl Scouts, for example, express the organization's aims of instilling "leadership, values, social conscience, and conviction about their own self-worth" in young girls. (Id., Ex. P.) Examples of Girl Scouts activities include field trips, skill-building clinics, community service projects, cultural exchanges, and environmental stewardships. (Id.)

B. Materials Posted on School Bulletin Boards During School Hours "Bulletin-Board Forum"

The school district maintains bulletin boards at both Ocean and McKinley, which are allegedly not for public use, including (1) a bulletin board used by the PTA, but not intended to provide information to students, (2) a bulletin board in the faculty room used by the Stafford Township Education Association (STEA) for position postings and professional materials, and (3) a bulletin board located outside the nurse's office, containing information from area hospitals on health and safety issues. (Defs.' Opp. at 4-5; Pls.' Certif. of Exs., Ex. C., Defs.' Ans. to Interrogs., No. 10.) In addition, each school has a "Greeter's Table" at the main entrance, where visitors sign in. (Defs.' Opp. at 5.) Next to the Greeter's Table is another table containing information for parents from the New Jersey Education Association and the Parent Institute, regarding such topics as homework and reading. (Id.)

C. Materials Posted on School Walls During School Hours ("School-Wall Forum")

The school district also has permitted various organizations to hang posters and flyers on the walls of both Ocean and McKinley. (Pls.' Certif. of Exs., Ex. C, Defs.' Resps. to Interrogs., No. 11.) Such organizations include the Rotary Club, various theater groups, the Children's Hospital of Philadelphia, the American Society for the Prevention of Cruelty to Animals, and the United States Marine Corps' Toys-for-Tots program. (Id.)

D. Back-to-School Nights ("Back-to-School-Night Forum")

Both Ocean and McKinley host Back-to-School Nights each fall. (Defs.' Opp. at 6.) This year, the school district permitted four entities to staff tables and disseminate information to parents at both Ocean's and McKinley's Back-to-School Nights. (Id. at 7.) These were the Ocean County Library System, Municipal Alliance, the PTA, and the school district itself. (Id.) In addition, a conglomeration of community organizations promoting "Extreme Event," a sporting demonstration of bikers, in-line skaters, and skateboarders, staffed a table at Ocean. (Id.) The school district concedes that other organizations, such as the Boy Scouts, may have displayed flyers at Back-to-School Nights this year and staffed tables in previous years. (Pls.' Certif. of Exs., Ex. C, Defs.' Resps. to Interrogs., No. 8(a) & (b).)

V. Procedural History

CEF filed a complaint on September 19, 2002. (Compl.) On September 24, 2002, we denied CEF's request for temporary restraints, but issued an Order to Show Cause as to why a preliminary injunction should not be issued, enjoining the school district from denying CEF's requests to (1) "leave flyers on tables" at Back-to-School Nights, (2) have the schools send CEF's permission slip and flyer home with pupils, and (3) "post [CEF's] flyer (sic) wherever other non-profit community organizations post their materials. (See Order to Show Cause dated 9-24-02.) We held oral argument on October 29, 2002, wherein the parties agreed that neither further discovery nor an evidentiary hearing would likely affect the outcome of our determination on the merits of their claims. (Tr. at 20-23 & 43-44.)

In support of the application for a preliminary injunction, CEF argues that the school district engaged in discriminatory treatment in violation of the Free Speech Clause and the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. CEF further contends that the school district's distribution policy is unconstitutionally overbroad and void for vagueness. The school district disputes these contentions and further argues that CEF cannot satisfy the requirements for injunctive relief.*fn5


I. Jurisdiction

The Court has subject matter jurisdiction over CEF's federal constitutional and statutory claims pursuant to 28 U.S.C. § 1331 and 1343(a)(3). The Court has supplemental jurisdiction over CEF's claims arising under the New ...

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