CHILD EVANGELISM FELLOWSHIP OF NEW JERSEY INC., A New Jersey Not-For-Profit Corporation v. Stafford Township School District

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-1101
CHILD EVANGELISM FELLOWSHIP
OF NEW JERSEY INC., A New Jersey
Not-For-Profit Corporation; CHILD
EVANGELISM FELLOWSHIP OF
NEW JERSEY, INC. BAYSHORE
CHAPTER, A New Jersey
Unincorporated Association
v.
STAFFORD TOWNSHIP SCHOOL
DISTRICT; RONALD L. MEINDERS,
In His Official Capacity as
Superintendent of Stafford
Township School District; ELLEN
BERNSTEIN; BRIAN DELANEY;
*THOMAS DELLANE; LISA
DEVANEY; RAYM OND FIX; DENISE
HARRINGTON;
SCOTT MOSES; WILLIAM POWER;
CAROL WILLIAMS, in their official
capacities as members of the Board of
Education for Stafford
Township School District,
Appellants
*(Amended in accordance with Clerk's
Order dated 2/3/03)
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY
(Dist. Court No. 02-cv-04549)
District Court Judge: Mary Little Cooper
Argued: September 11, 2003
Before: ALITO, BARRY, and AMBRO,
Circuit Judges.
(Opinion Filed: October 15, 2004)
Arthur G. Stein (argued)
Stein, Supsie & Hoffman
1041 West Lacey Road
P.O. Box 1070
Forked River, NJ 08731
Attorney for Appellant
Alex J. Luchenitser
Americans United for the Separation
of Church & State
518 C Street N.E.
Washington, DC 20002
Attorney for Amicus Appellants,
Americans United for Separation
of Church and State,
The Anti-Defamation League,
People for the American Way,
New Jersey Education Association,
Stafford Township Education Association
Nathan A. Adams, IV (argued)
Kimberlee W. Colby
Christian Legal Society Center for
Law & Religious Freedom
4208 Evergreen Lane
Suite 222
Annandale, VA 22003
Attorney for Appellee
Eric W. Treene (argued)
Angela M. Miller

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United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Attorney for Amicus-Appellee,
United States
Francis J. Manion
American Center for Law and Justice
6375 New Hope Road
New Hope, KY 40052
Attorney for Amicus-Appellee,
Joseph J. Hills
Douglas Laycock
University of Texas at Austin
School of Law
727 East 26th Street
Austin, TX 78705
Attorney for Amicus-Appellees,
National Association of Evangelicals
Clifton Kirkpatrick, As Stated Clerk
of the Presbyterian Church (U.S.A.)
Union of Orthodox Jewish Congregations
of America
Pat Afalese
Cathy Capozzi
Gretchen Davis
B. Keith Drayton
Kimberly Freewsick
Keith Ruff
Lori Ruff
Julie Underwood
National School Boards Association
1680 Duke Street
Alexandria, VA 22314
Attorney for Amicus-Appellee,
National School Boards Association
OPINION OF THE COURT
ALITO, Circuit Judge:
In this appeal, Stafford Township
School District (“Stafford”) and Stafford
officials (collectively “Stafford”) contest a
preliminary injunction granted by the
United States District Court for the District
of New Jersey in favor of Child
Evangelism Fellowship of New Jersey,
Inc. and Child Evangelism of New Jersey,
Inc.––Bayshore Chapter (collectively
“Child Evangelism”). Finding that Child
Evangelism was likely to succeed in
showing that Stafford was engaging in
viewpoint discrimination and that this
discrimination was not required by the
Establishment Clause, the District Court
ordered Stafford to treat Child Evangelism
like other community organizations with
respect to the distribution and posting of
materials and participation in so-called
“Back-to-School nights.” We affirm.
I.
A.
Stafford operates four schools,
including Ocean Acres Elementary School
(“Ocean Acres”) and McKinley Avenue
Elementary School (“McKinley”). Ocean
Acres instructs students in grades pre-
Kindergarten through second, and
McKinley instructs students in the third
and fourth grades. JA 304.1 Stafford has
1“JA” denotes the Joint Appendix.

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adopted written policies on the use of its
facilities by community groups2 and the
distribution of community group materials
to students.3 In addition, Stafford has
developed practices concerning the
placement of flyers on school walls and
the distribution of flyers and the staffing of
tables at Back-to-School nights.
Distribution of community group
materials. Stafford proclaims that it has
an overall policy of assisting community
groups. Its written policy on the use of its
facilities states that the schools should be
used “to the fullest extent possible by
community groups and agencies.” JA 624.
Similarly, its written policy on the
distribution of community group literature
expresses a “commitment to assist all
organizations in our rapidly growing
community.” JA 190 (emphasis added).
This policy sets out the following
standards regarding materials that may be
handed out to students:
Material being sent home
with pupils should relate to
school matters or pupil-
r e l a t e d c o m m u n i t y
activities. Except when it
pertains to the individual
pupil, all such material must
be approved in advance by
the superintendent/designee.
Pupils shall not be used to
distribute partisan materials
or partisan inform ation
pertaining to a school or
general election, budget or
bond issues, or negotiations.
Pupils shall not be exploited
for the benefit of any
individual, group, or profit-
making organization.
No staff member may
distribute any materials on
school property without
prior approval of the
superintendent.
All surveys, questionnaires
or other similar items
r e q u i r i n g p u p i l o r
parent/guardian response
shall be reviewed and
a p p r o v e d b y t h e
superintendent prior to
distribution.
JA 189.
To implement these standards,
Stafford has adopted the following specific
rules:
1. The principal is
authorized to duplicate
scheduled memos and send
them home with the
c h i l d r e n . A l l s c h o o l
activities may be advertised
on these memos.
2. The following
non-profit organizations are
permitted to distribute
2See “Use of School Facilities.” JA
624-34.
3See “Distribution of Materials by
Pupils and Staff Policy.” JA 189.

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

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County Library, Stafford Township
Volunteer Fire Company # 1, Stafford
Basketball Club, Pop Warner football, and
the PTA. JA 119, 199, 210(c).
As for the contents of the materials,
it appears that five requirements must be
met. First, materials other than those
pertaining to a particular student must be
approved in advance by the superintendent
or (perhaps) by a designee.5 Second, there
must be a nexus between the content of the
materials and the students or school. It is
said that “[m]aterial being sent home with
pupils should relate to school matters or
pupil-related community activities” and
that “[a]ll activities must be directly
associated with the children who are
enrolled in the Stafford Township School
District.” (emphasis added). Third,
materials are prohibited if they are
“partisan” or if they relate to an election or
“negotiations” (presumably Stafford’s
negotiations with its teachers or other
employees). Fourth, it is said that pupils
are not to be “exploited for the benefit of
any individual, group, or profit-making
organization.” Fifth, with the exception of
PTA materials, documents sent home may
not solicit money but may advertise fund-
raising activities.
The process of distribution works as
follows. Community organizations
produce flyers or other information at their
own expense and place these materials in
faculty mailboxes, and the teachers then
distribute these materials to the students,
usually at the close of the school day just
prior to dismissal. JA 200.6 Except when
a flyer “deals with a current curriculum,
health or safety issue,” it appears that the
materials sent home are not discussed in
class. Id. As the District Court noted,
“[a]lthough [the] distribution of materials
occurs and flyers remain hung during
school hours . . . the messages of these
fora are not incorporated into the
instructional component of the school
day.” Child Evangelism Fellowship of
N.J. v. Stafford Twp. Sch. Dist., 233 F.
Supp. 2d 647, 664 (D.N.J. 2002).
Back-to-School Nights. Each fall,
Ocean Acres and McKinley hold Back-to-
School nights. These events are intended
for the benefit of parents, but occasionally
a child accompanies a parent or other adult
attendee. JA 194-95. Stafford has no
formal policy governing the materials that
may be displayed at these events or the
groups that are allowed to staff
“information tables,” but Stafford asserts
5 T h e d o c u m e n t e n t i t l e d
“Distribution of Materials by Pupils and
Staff” first states that approval may be
given by “the superintendent/designee,”
but three sentences later the document says
that “[n]o staff member may distribute any
materials on school property without prior
approval of the superintendent.” JA 189.
6Stafford describes the process in
this manner: “Generally, the process
involves the task of receiving the bundles,
placing them in the mailboxes, having
them removed from the mailboxes by the
teachers, carrying the bundles to their
respective rooms and actually distributing
the flyers to the children.” Id.

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

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

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

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

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

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

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

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13
criteria that are reasonable in light of the
purpose of the fora or whether, as the
District Court suggested, Stafford engaged
in viewpoint discrimination. The answers
to these questions are clear.
A.
We have summarized Stafford’s
rules regarding access to the distribution
forum, and as the District Court noted, it
appears that Stafford’s criteria for access
to the school-wall and Back-to-School
night fora were similar. Thus, the relevant
requirements seem to be as follows: the
group must be non-profit and the speech
must: (1) receive prior approval by the
district, (2) have a nexus with the students
or school, (3) be non-partisan and
unrelated to an election or labor
negotiations, (4) not seek to “exploit[]”
children “for the benefit of any individual,
group, or profit-making organization,” and
(5) not solicit money (except for the PTA).
See JA 189-91.
Child Evangelism and its materials
satisfy all the view point-neutra l
requirements set out in this list. Indeed,
Stafford’s briefs make no direct effort to
show that Child Evangelism’s materials
fail to meet any of these requirements, and
any such effort would be fruitless. Child
Evangelism is a non-profit group, and (1)
it sought advance approval from the
superintendent; (2) its materials, which
invite students to attend club meetings on
school premises after school, relate to the
students and the school; (3) the materials
are not “partisan” and have nothing to do
with elections or negotiations; (4) they do
not seek to exploit children for commercial
gain; and (5) they do not solicit money.
In its brief, Stafford offers a list of
other, purportedly viewpoint-neutral
reasons for excluding Child Evangelism.
Stafford contends that it excludes: (1) all
groups representing “special interests”
(Appellants’ Br. at 38), (2) all groups that
do not restrict themselves to “mundane
recreational activities” (id. at 34), (3) all
groups whose views are “divisive” or
“controversial” (id. at 29-30), (4) all
speech that promotes any point of view,
whether “religious, commercial or secular”
(id. at 21), (5) all groups that proselytize
(id. at 28), and (6) all speech about
religion (id.). These rationalizations are
either incoherent or euphemisms for
viewpoint-based religious discrimination.
(1) Every group in a sense
represents “special interests,” namely, the
interests to which the group is dedicated.
Even a noncontroversial and beneficent
organization like the Stafford PTA
represents “special interests” – the
interests of the Stafford pupils and schools
– and at times even these interests may
conflict with those of others in the
community. Thus, if this criterion is
literally interpreted and applied, it fails to
set a meaningful, viewpoint-neutral
standard. Of course, the term special
interest group is often used to express the
view that the group in question is
dedicated to ends that conflict with the
common good. If Stafford uses the term in
this sense, the criterion is not viewpoint-
neutral.

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14
(2) Stafford’s argument that it
excludes groups that promote anything
other than “mundan e recreational
activities” is hard to take seriously. If a
group of parents organized a youth team in
a sport not popular in this country – say,
cricket – would Stafford refuse to
distribute their flyer on the ground that the
activity was not “mundane”? If parents
organized a club dedicated to the study of
an uncommon foreign language, would
Stafford refuse to hand out their materials
because the activity was neither
“mundane” nor “recreational”? Nothing in
the record suggests that Stafford would
rebuff such requests.
(3) To exclude a group simply
because it is controversial or divisive is
viewpoint discrimination. A group is
controversial or divisive because some
take issue with its viewpoint. See
Cornelius, 473 U.S. at 812 (warning that
“the purported concern to avoid
controversy excited by particular groups
may conceal a bias against the viewpoint
advanced by the excluded speakers”).
Although the ten groups specifically
approved by Stafford are apparently not
controversial or divisive in that
community, at least some would be
controversial and divisive elsewhere.
Even in the school setting, “a mere desire
to avoid the discomfort and unpleasantness
that always accompany an unpopular
viewpoint” is not enough to justify the
suppression of speech.9 Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S.
503, 509 (1969).
(4) All community-group speech
promotes a point of view. All of the
specifically approved groups, including
such familiar and well-regarded groups as
the PTA and the 4-H Club, have a point of
view. Thus, this criterion is devoid of
meaning.
(5) To proselytize means both “to
recruit members for an institution, team, or
group” and “to convert from one religion,
belief, opinion, or party to another.”
WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1821 (1976). The record
shows that Stafford does not reject groups
that proselytize in the sense of recruiting
members. Many of the groups specifically
approved in the Stafford rules do so, and
the record contains numerous flyers –
produced by groups from the Cub Scouts
to the local wrestling club – that Stafford
9Schools may regulate private
speech that occurs on school premises
during the school day if it “materially and
substan tially interfere[s] with the
requirements of appropriate discipline,”
but an “und ifferentiated fea r or
apprehension of disturbance is not enough
to overcome the right to freedom of
expression.” Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503, 508-09
(1969) (internal quotation marks omitted).
For this reason, (a) Stafford cannot simply
ban all “controversial” speech but (b) there
is no merit to Stafford’s contention that if
it distributes the literature of the Good
News Club, it will have to distribute the
literature of virulent racist groups.

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15
has distributed and that seek to recruit
members. See JA 338, 346-47, 350, 352-
57.
What Stafford appears to mean
when it says that it excludes groups that
proselytize is that it rejects religiously
affiliated groups that attempt to recruit
new members and persuade them to adopt
the group’s views. This is viewpoint
discrimination.
(6) Finally, Stafford’s attempt to
justify its actions on the ground that it
excludes all speech on “religion as a
subject or category of speech” flies in the
face of Supreme Court precedent.
“[P]rivate religious speech, far from being
a First Amendment orphan, is as fully
protected under the Free Speech Clause as
secular private expression.” Capitol
Square Review & Advisory Bd. v. Pinette,
515 U.S. 753, 760 (1995). Cases such as
Lamb’s Chapel, Rosenberger, and Good
News Club establish that if government
permits the discussion of a topic from a
secular perspective, it may not shut out
speech that discusses the same topic from
a religious perspective. In Lamb’s Chapel,
a school district was held to have violated
the right of free speech by permitting
“school property to be used for the
presentation of all views about family
issues and child rearing except those
dealing with the subject matter from a
religious standpoint.” Lamb’s Chapel, 508
U.S. at 393. In Rosenberger, a free speech
violation occurred because the university
refused to support a student publication
called Wide Awake “on the ground that the
contents of Wide Awake reveal an avowed
religious perspective.” Rosenberger, 515
U.S. at 832. The Court observed:
It is, in a sense, something
of an understatement to
speak of religious thought
and discussion as just a
viewpoint, as distinct from a
comprehensive body of
thought. . . . We conclude,
nonetheless, that here, as in
Lamb’s Chapel, viewpoint
discrimination is the proper
w ay to interp ret th e
University’s objections to
Wide Awake.
Id. at 831.
Most recently, in Good News Club
v. Milford Cent. Sch., supra, the Supreme
Court rejected an argument that was
virtually identical to the one that Stafford
advances here. The school allowed its
facilities to be used 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 the events were
open to the general public. Good News
Club, 533 U.S. at 102. The school refused,
however, to permit the use of its facilities
by a Good News Club, stating that “‘the
kinds of activities proposed to be engaged
in by the Good News Club 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 103-

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16
04. The Second Circuit sustained this
policy, holding that the Good News Club’s
activities fell “outside the bounds of pure
‘moral and character development’”
because they were “quintessentially
religious.” Good News Club v. Milford
Cent. Sch., 202 F.3d 502, 510-11 (2000),
rev’d 533 U.S. 98 (2001)
Applying Lamb’s Chapel and
Rosenberger, the Supreme Court reversed
and held that the school had engaged in
impermissible viewpoint discrimination.
The Court pointed out that the Good News
Club sought “to address a subject
otherwise permitted under [the school’s
rules], the teaching of morals and
character, from a religious standpoint,”
Lamb’s Chapel, 533 U.S. at 109, and the
Court rejected the Second Circuit’s
position that “something that is
‘quintessentially religious’ or ‘decidedly
religious in nature’ cannot also be
characterized properly as the teaching of
morals and character development from a
particular viewpoint.” Id. at 111. The
Court elaborated: “What matters for
purposes 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 invocation of teamwork,
loyalty, or patriotism by other associations
to provide a foundation for their lessons.”
Id. This holding forecloses Stafford’s
argument that its disparate treatment of
Child Evangelism was not viewpoint
discrimination.
B.
Not only did Stafford discriminate
against Child Evangelism because it
teaches “morals and character, from a
religious standpoint,” Good News Club,
533 U.S. at 109, but it also appears that
Stafford disfavored Child Evangelism
because of the particular religious views
that Child Evangelism espouses. Several
of the groups that Stafford has allowed to
distribute and post materials – specifically
the Boy Scouts, the Girl Scouts, and the
Elks – espouse religious views and require
or encourage members to endorse these
beliefs.
The Boy Scouts describes itself as
“an organization with strong religious
tenets.” JA 514. The stated mission of
the Boy Scouts is to “prepare young people
to make ethical and moral choices over
their lifetimes by instilling in them the
values of the Scout Oath and Law.” JA
516. The well-known Boy Scout Oath
begins with the words “On my honor I will
do my best / To do my duty to God and my
country.” JA 517. In describing this
portion of the Oath, official Boy Scout
literature states: “Our nation is founded on
showing reverence to a higher faith. In
these words, the Scout promises to
recognize, to honor and to respect his
religious faith. And in the Boy Scouts of
America, he is given an opportunity to
grow in that faith and to respect the beliefs
of others.” Id. And though the Boy
Scouts of America is a nonsectarian group,
it still “maintains that no child can develop
to his or her fullest potential without a
spiritual element in his or her life.” Id.
The Girl Scout Promise includes a
commitment to “serve God.” JA 524. The

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17
group takes the view that God can be
“interpreted in a number of ways” and
permits the word “God” in the Promise to
be replaced by “whatever word [a girl’s]
spiritual beliefs dictate.” Id. The
Benevolent and Protective Order of Elks
of the United States of America requires
its members to “believe in God.” Id. at
528.
In discovery, Stafford propounded
an extraordinary set of requests for
admissions that sought to elicit Child
Evangelism’s admission that it adheres to
a variety of traditional Christian doctrines.
See JA 369. Stafford’s brief highlighted
these beliefs as grounds for its actions, see
Appellant’s Br. at 10, and at argument
Stafford’s counsel stated: “We were
concerned that, what the Child Evangelism
Fellow ship teaches appears to be
inconsistent with what we’re obligated to
teach, that being diversity and tolerance.”
Oral Arg. Tr. at 10. Suppressing speech
on this ground is indisputably viewpoint-
based.
VI.
A.
Stafford argues that even if it
engaged in viewpoint discrimination, its
conduct was justified for the purpose of
avoiding a violation of the Establishment
Clause. Similar arguments were rejected
in Lamb’s Chapel, 508 U.S. at 394-97,
Rosenberger, 515 U.S. at 845-46, and
Good News Club, 533 U.S. at 112-120,
and Stafford’s rendition here is no more
convincing.
The Supreme Court has not settled
the question whether a concern about a
possible Establishment Clause violation
can justify viewpoint discrimination. See
Good News Club, 533 U.S. at 112-13
(“[While] [w]e have said that a state
interest in avoiding an Establishment
Clause violation ‘may be characterized as
compelling,’ and therefore may justify
content-based discrimination . . . , it is not
clear whether a State’s interest in avoiding
an Establishment Clause violation would
justify viewp oint disc rimi natio n.”)
(internal citation omitted) (quoting
Widmar v. Vincent, 454 U.S. 263, 271
(1981)). But we need not decide this issue
here, because giving Child Evangelism
equal access to the fora at issue would not
violate the Establishment Clause. The
Supreme Court has repeatedly “rejected
the position that the Establishment Clause
even justifies, much less requires, a refusal
to extend free speech rights to religious
speakers who participate in broad-reaching
government programs neutral in design.”
Rosenberger, 515 U.S. at 839.
B.
Contrary to the arguments of
Stafford and its amici, equal access would
not result in an impermissible endorsement
of religion. An unconstitutional
endorsement of religion is said to occur
when government makes “adherence to a
religion relevant in any way to a person’s
standing in the political community.’”
Allegheny County v. Greater Pittsburgh
ACLU, 492 U.S. 573, 625 (1989)
(O’Connor, J., concurring) (quoting Lynch
v. Donnelly, 465 U.S. 668, 687 (1984)

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18
( O ’ C o n n o r , J . , c o n c u r r i n g ) ) .
“‘Endorsement sends a message to
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.
“Disapproval of religion conveys the
opposite message.” Id.
In order to determine whether a
challenged practice “‘constitutes an
endorsement or disapproval of religion,’”
the practice must be “‘judged in its unique
circumstances.” Allegheny County, 492
U.S. at 624-25 (O’Connor, J., concurring)
(quoting Lynch, 465 U.S. at 694
(O’Connor, J., concurring)) (emphasis in
Allegheny). 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 in part and
concurring in judgment).
The Supreme Court has repeatedly
held that granting equal access to facilities
in educational institutions does not offend
this principle. In Bd. of Educ. of the
Westside Cmty. Schs. v. Mergens, 496
U.S. 226, 252 (1990), the Court found that
a public school’s recognition of a religious
student club would not be perceived as
endorsement where the school recognized
a “broad spectrum” of clubs and allowed
its students to “initiate and organize
additional student clubs.” These features,
the Court held, “counteract[ed] any
possible message of official endorsement
of or preference for religion or a particular
religious belief.” Id. Official recognition
of the club “carrie[d] with it access to the
school newspaper, bulletin boards, the
public address system, and the annual Club
Fair,” id. at 247, fora very similar to those
at issue in the present case.
In Lamb’s Chapel, the Court ruled
that allowing a film with a religious
message to be shown on school premises
after school hours in a gathering that was
sponsored by a private group and open to
the public would not have created any
“realistic danger that the community would
think that the District was endorsing
religion or any particular creed.” 508 U.S.
at 395. And in Good News Club, 533 U.S.
at 118, the Court concluded that even
small children would not perceive that
allowing the Good News Club, like other
community groups, to meet on school
premises represented an endorsement by
the school of the group’s beliefs. The
Court added: “[E]ven if we were to inquire
into the minds of schoolchildren in this
case, we cannot say the danger that
c h i l d re n wo uld m isperc eive th e
endorsement of religion is any greater than
the danger that they would perceive a
hostility toward the religious viewpoint if
the Club were excluded from the public
forum.” Id.
Applying these precedents, we see
no endorsement problem here. Child
Evangelism’s flyers specifically disclaim
any school sponsorship. In addition, a
reasonable observer, “aware of the history
and context of the community and forum,”

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

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20
“Bible Heroes” and “Bible Tales.” Id. at
1046. Holding that the school district had
engaged in viewpoint discrimination and
that handing out information about the
camp would not have violated the
Establishment Clause, the panel rejected
the school district’s argument that “the
impressionability of elementary-age
students mandate[d] the exclusion of such
material.” Id. at 1053. Among other
things, the panel noted that the brochures’
disclaimer of school sponsorship lessened
any danger that distribution would be
perceived as endorsement, and the panel
thought it of little significance that in some
schools the teachers handed the brochures
directly to students and that distribution
sometimes occurred “at the end of the day”
and “thus technically during school hours.”
Id. at 1054. See also Prince v. Jacoby, 303
F.3d 1074 (9th Cir. 2002) (requiring that a
school club be given equal access to,
among other things, the yearbook, public
address systems, and bulletin boards).
In Rusk v. Crestview Local Sch.
Dist., No. 02-3991, 2004 WL 1793283
(6th Cir. Aug. 12, 2004), an elementary
school had the practice of placing in
students’ scho ol ma ilboxes flyers
advertising the activities of many
community groups, including flyers
advertising religious activities. Holding
that this practice did not violate the
Establishment Clause, the Sixth Circuit
concluded that because the students could
not participate in any of the activities
without parental approval, “the relevant
observers are the parents,” id. at 2, not the
students and added that “even if the . . .
students were the relevant audience, their
youth would not alter the outcome.” Id. at
3.
In Child Evangelism Fellowship of
Md., Inc. v. Montgomery County Pub.
Sch., 373 F.3d 589 (4th Cir. 2004), the
Child Evangelism Fellowship of Maryland
applied for a preliminary injunction
requiring Montgomery County elementary
schools to send home Good News Club
flyers just as they sent home the flyers of
other non-profit community groups. Id. at
591. Reversing the denial of the
application, the Fourth Circuit saw “no
meaningful way to distinguish [the] case
from controlling precedents.” Id. at 602.
The district maintained that allowing the
Good News Club flyers to be sent home
would violate the Establishment Clause in
light of “the age of the students,” but the
Fourth Circuit viewed this argument as
inconsistent with Good News Club. Id.
Even before Good News Club was
decided, the Seventh Circuit held in
Sherman v. Cmty. Consol. Sch. Dist., 8
F.3d 1160 (7th Cir. 1993), that a grade
school did not violate the Establishment
Clause by distributing Boy Scout literature
and allowing Boy Scout posters to be hung
on the school walls. The school’s policy
was challenged by a boy and father whose
membership in the group had been revoked
because they refused to accept the
provision of the Scout Oath requiring a
belief in God. Id. at 1162-63. They
argued that the school violated the
Establishment Clause “by endorsing the
religious message” of the Boy Scouts, but
the Seventh Circuit disagreed and rejected

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21
the plaintiffs’ contention “that the age of
the children involved tip[ped] the balance
in their favor.” Id. at 1166.10
We agree with these decisions and
hold that granting Child Evangelism equal
access to the fora in question would not
have constituted an endorsement of
religion. “The proposition that schools do
not endorse everything they fail to censor
is not complicated,” Mergens, 496 U.S. at
250 (plurality), but if Stafford is
10Our decision here and the Fourth,
Sixth, and Seventh Circuit decisions
discussed above appear to differ from a
portion of the Ninth Circuit’s decision in
Culbertson v. Oakridge School District
No. 76, 258 F.3d 1061 (9th Cir. 2001), but
we find that portion of Culbertson
unpersuasive.
In Culbertson, a Ninth Circuit panel
held that an elementary school that opened
its doors to after-school use of its facilities
by a variety of community youth groups
was required to grant similar access to a
Good News Club. The panel concluded,
however, that the school’s distribution of
Good News Club permission slips would
violate the Establishment Clause. The
panel stated: “Not just an empty classroom
but a teacher’s nod of encouragement is
thereby afforded the club’s religious
program.” Id. at 1065.
We find this analysis unconvincing.
The Culbertson panel did not explain why
the simple act of handing out permission
slips – presumably in the same manner as
other community-group literature –
amounted to “a nod of encouragement”,
nor did the panel explain why permitting a
group to conduct meetings on school
premises is less likely to be interpreted as
“a nod of encouragement.” If anything,
the opposite seems likely.
Furthermore, the Ninth Circuit’s
more recent decision in Hills v. Scottsdale
Unified School District, supra, limits
Culbertson’s reach. Holding, as noted
above, that a school district with a broad
policy of distributing community group
literature could not exclude a brochure for
a camp with Bible classes, the panel
distinguished Culbertson on the following
grounds: the camp in Hills did not meet on
school grounds; Culbertson held only that
the club’s permission slips, not its
brochures, could not be handed out; and
the camp brochure in Hills (apparently
unlike the permission slips in Culbertson)
contained an express disclaimer of school
sponsorship. Hills, 329 F.3d at 1054.
We agree that the presence or
absence of a disclaimer of school
sponsorship is a meaningful (although not
necessarily dispositive) factor, but we see
little relevance in the distinction between
a brochure for an extracurricular activity
and a permission slip for the same activity.
We also do not see how Culbertson’s
holding on the permission slips could have
turned on the fact that the club meetings
were to be held on school grounds. After
all, Culbertson, following Good News
Club, held that the school was obligated to
allow the club to meet on school grounds.

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22
legitimately worried about possible
misunderstandings there are obvious steps
that it can take. Stafford can send home an
announcement to parents setting out its
broad-ranging policies and making clear
that it does not necessarily endorse all the
groups whose materials are distributed or
posted. Stafford teachers can explain the
point to students.
C.
Giving Child Evangelism equal
access to the fora in question also would
not offend the “Lemon test.” See Lemon
v. Kurtzman, 403 U.S. 602 (1971). Under
Lemon, there is no Establishment Clause
violation if the challenged law or practice
(1) has “a secular 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. 203, 233-34 (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.” See Tenafly, 309 F.3d at 174 n.36.
The Lemon test is satisfied in this
case. First, granting equal access to the
three fora has a secular purpose.
Stafford’s stated goal is to “assist all
organizations in our rapidly growing
community.” JA 190. Stafford appears to
take the view that the community and its
children are enriched by the opportunity to
participate in a variety of privately run
activities. By permitting a broad range of
community groups to have their flyers
distributed and posted in the schools and
by allowing these groups to be represented
at Back-to-School nights, Stafford helps to
inform families about the wide spectrum
of activities from which they may choose
and to foster the growth of diverse
community groups. These are indisputably
legitimate secular purposes.
Granting equal access would not
have the principal or primary effect of
advancing religion. Rather, the principal
and primary effect would be to inform
school families about available community
activities and to foster a wide range of
activities in the community. While some
religious groups would benefit from equal
access, so would a great many secular
groups. “The provision of benefits to so
broad a spectrum of groups is an important
index of secular effect.” Widmar, 454
U.S. at 274. “[A] religious organization’s
enjoyment of merely ‘incidental’ benefits
does not violate the prohibition against the
‘primary advancement’ of religion.” Id. at
273.
Finally, granting equal access to the
three fora would not resu lt in
unconstitutional entanglement. 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.” Agostini v. Felton, 521
U.S. at 233. 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.’”

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

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

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