The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHILD EVANGELISM FELLOWSHIP OF
MARYLAND, INCORPORATED, a
Maryland not-for-profit corporation;
CHILD EVANGELISM FELLOWSHIP OF
NORTHWEST MARYLAND, a Maryland
association,
Plaintiffs-Appellants,
v.
MONTGOMERY COUNTY PUBLIC
SCHOOLS; JERRY D. WEAST, in his
official capacity as Superintendent
of Montgomery County Public
Schools; PATRICIA O’NEILL; SHARON
W. COX; KERMIT V. BURNETT;
REGINALD M. FELTON; CHARLES No. 03-1534
HAUGHEY; WALTER N. LANGE; GABE
ROMERO, in their official capacities
as members of the Board of
Education for Montgomery County,
Defendants-Appellees.
CLIFTON KIRKPATRICK, as Stated
Clerk of the Presbyterian Church;
NATIONAL ASSOCIATION OF
EVANGELICALS; AL BLACK; RHONDA
BLACK, as Parents and Next Friends
of Eric Black; UNITED STATES OF
AMERICA; JOSEPH J. HILLS;
Amici Supporting Appellants,
2 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
NATIONAL SCHOOL BOARDS
ASSOCIATION; MARYLAND
ASSOCIATION OF BOARDS OF
EDUCATION; NATIONAL PARENT
TEACHER ASSOCIATION; AMERICAN
ASSOCIATION OF SCHOOL
ADMINISTRATORS; MONTGOMERY
SOCCER, INCORPORATED; AMERICANS
UNITED FOR SEPARATION OF
CHURCH AND STATE; THE ANTI-
DEFAMATION LEAGUE; PEOPLE FOR THE
AMERICAN WAY; NATIONAL
EDUCATION ASSOCIATION; AMERICAN
CIVIL LIBERTIES UNION OF THE
NATIONAL CAPITAL AREA; AMERICAN
CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND,
Amici Supporting Appellees.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-03-162-8-PJM).
Argued: September 24, 2003
Decided: June 30, 2004
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Reversed and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Shedd joined. Judge Michael wrote a sepa-
rate dissenting opinion.
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 3
COUNSEL
ARGUED: Nathan Aldrich Adams, IV, RELIGIOUS LIBERTY
ASSOCIATES CHRISTIAN LEGAL SOCIETY, Annandale, Vir-
ginia, for Appellants. Gregory George Garre, Civil Rights Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Amicus Curiae United States. Judith S. Bresler, REESE &
CARNEY, L.L.P., Columbia, Maryland, for Appellees. ON BRIEF:
Kimberlee W. Colby, Gregory S. Baylor, RELIGIOUS LIBERTY
ASSOCIATES CHRISTIAN LEGAL SOCIETY, Annandale, Vir-
ginia; H. Robert Showers, SIMMS SHOWERS, L.L.P., Leesburg,
Virginia, for Appellants. Ralph F. Boyd, Jr., Assistant Attorney Gen-
eral, David K. Flynn, Eric W. Treene, Angela M. Miller, Civil Rights
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Amicus Curiae United States. Eric C. Brousaides,
REESE & CARNEY, L.L.P., Columbia, Maryland, for Appellees.
Douglas Laycock, Austin, Texas; Scott J. Ward, Stephen S. Kao,
GAMMON & GRANGE, P.C., McLean, Virginia, for Amici Curiae
Kirkpatrick, et al. Jay Alan Sekulow, Walter M. Weber, AMERICAN
CENTER FOR LAW AND JUSTICE, Alexandria, Virginia, for
Amicus Curiae Hills. Julie Underwood, General Counsel,
NATIONAL SCHOOL BOARDS ASSOCIATION, Alexandria, Vir-
ginia; Maribeth Oakes, Director of Legislation, NATIONAL PTA,
Chicago, Illinois; Leon Reed, President, MONTGOMERY SOCCER,
INC., Rockville, Maryland; Stephen C. Bounds, Director of Legal &
Policy Services, MARYLAND ASSOCIATION OF BOARDS OF
EDUCATION, Annapolis, Maryland; Bruce Hunter, Associate Exec-
utive Director, Public Policy, AMERICAN ASSOCIATION OF
SCHOOL ADMINISTRATORS, Arlington, Virginia, for Amici
Curiae School Boards, et al. Ayesha N. Khan, Ilana R. Fisher,
AMERICANS UNITED FOR SEPARATION OF CHURCH AND
STATE, Washington, D.C.; Steven M. Freeman, Steven C. Sheinberg,
ANTI-DEFAMATION LEAGUE, New York, New York; Elliot M.
Mincberg, Judith E. Schaeffer, PEOPLE FOR THE AMERICAN
WAY FOUNDATION, Washington, D.C.; Michael D. Simpson,
NATIONAL EDUCATION ASSOCIATION, Washington, D.C.;
Arthur B. Spitzer, AMERICAN CIVIL LIBERTIES UNION OF THE
NATIONAL CAPITAL AREA, Washington, D.C.; David Rocah,
AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, Balti-
more, Maryland, for Amici Curiae Americans United, et al.
4 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Child Evangelism Fellowship of Maryland, Inc. ("CEF") brought
this suit to obtain access to certain established communication forums
in public elementary schools. The district court refused to issue a pre-
liminary injunction requiring a school district to permit CEF access
to the district’s take-home flyer forum in order to distribute Good
News Club flyers. The court believed that allowing CEF this access
might constitute an unconstitutional establishment of religion and, for
this reason, found that CEF had failed to demonstrate the necessary
likelihood that it would ultimately succeed on the merits. Controlling
precedent, however, strongly indicates that permitting CEF access to
this forum does not run afoul of the Establishment Clause. Thus, CEF
has demonstrated a clear likelihood of success on the merits. Accord-
ingly, we must reverse and remand for further proceedings.
I.
CEF describes itself as a non-profit "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 local church for Christian liv-
ing." As one of its functions, CEF establishes Good News Clubs that
meet in elementary schools throughout the country. During these
meetings, the "children recite Bible verses, sing songs, play games,
learn Bible stories, and pray under the leadership of trained staff who
primarily are volunteers." Beginning in 1996, the Good News Club
began holding after-school meetings in the elementary schools of
Montgomery County, Maryland and currently holds meetings at two
schools in that school district — Mill Creek Towne Elementary
School and Clearspring Elementary School.
The Montgomery County Public School District ("the District")
operates 125 elementary schools. The District permits certain govern-
mental and non-profit organizations to use the "take-home flyer
forum" in those schools to distribute flyers and permission slips for
students to take home to their parents. Although the record reveals
conflicting testimony regarding what policy (if any) actually guides
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 5
school administrators’ discretion in granting access to this forum,
community groups clearly must obtain prior administrative approval
to use the forum. If approved, the organization is responsible for sup-
plying the requisite number of flyers at its own expense.
The method of distribution varies among the schools in the District,
but Mill Creek and Clearspring Elementary School employ the same
basic procedure. Either a representative of the community group or
the District office staff places the flyers in the teachers’ mailboxes,
generally after receiving permission from the school’s principal. The
teachers retrieve the flyers from their mailboxes and either personally
deliver them to the students or the students’ cubbies, or have a teach-
er’s aide or student do so. The distribution of flyers typically occurs
at the end of the school day. Students are expected to bring home all
items from their cubbies including student art work, homework, class-
work, other school related information, and the flyers. But nothing in
the record indicates that students receive any punishment for failing
to bring flyers home and parents are not required to acknowledge
receipt of the flyers.
In August 2001, CEF sought to have a flyer notifying parents of the
Good News Club meetings and requesting permission for their child’s
attendance included in the take-home folders of students at these
schools. Although the District has permitted many organizations,
including several religious groups, to avail themselves of the take-
home flyer forum, it denied CEF’s requests, including CEF’s offer to
enclose the flyer in a sealed envelope. The District explained its refus-
als as rooted in the "religious nature" of the Good News Club and
concerns about separation of church and state.
CEF then filed this action seeking a preliminary injunction to bar
the District from refusing to include CEF’s flyer in the students’ take-
home folders, and limiting access to other school forums. CEF alleged
that in refusing to allow equal access to these forums, the District
engaged in discriminatory treatment in violation of the Free Speech,
Free Exercise, Establishment, and Equal Protection Clauses of the
United States Constitution and the parallel provisions of the Maryland
Constitution. The district court granted a preliminary injunction pre-
venting the District from denying or limiting CEF’s access to some
6 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
forums — back to school nights, open houses, and bulletin boards or
tables generally open to other groups.
The court, however, denied CEF’s request for a preliminary injunc-
tion with respect to the take-home flyer forum.1 Although the court
determined that precedent compelled its conclusion that denying CEF
this access would infringe on the group’s free speech rights, it decided
that further hearings might lead it to ultimately conclude that the "es-
tablishment problem trumps [the] free [speech] problem." Because of
this "real clash of constitutional interests," the district court held that
CEF failed to demonstrate a likelihood of success on the merits.
In determining whether to grant a preliminary injunction, a court
must balance: (1) the likelihood of irreparable harm to the plaintiff if
the injunction is denied; (2) the likelihood of harm to the defendant
if it is granted; (3) the likelihood that the plaintiff will succeed on the
merits; and (4) the public interest. See Direx Israel v. Breakthrough
Med. Corp., 952 F.2d 802, 812 (4th Cir. 1992); Blackwelder Furni-
ture Co. v. Seilig Mfg. Co., 550 F.2d 189, 195-96 (4th Cir. 1977). We
review the district court’s grant or denial of a preliminary injunction
for abuse of discretion, accepting the court’s findings of fact absent
clear error, but reviewing its conclusions of law de novo. Although
CEF argues that the district court committed several legal errors in
applying the preliminary injunction standard, given our conclusion as
to one of these — assessment of CEF’s likelihood of success on the
merits — we need not reach the other asserted errors.
II.
CEF initially contends that barring Good News Club flyers from
the take-home flyer forum constitutes viewpoint discrimination in
violation of CEF’s free speech rights.
The parties do not dispute the facts giving rise to this argument.
Between August 2001 and February 2003, the District permitted over
225 groups to access the take-home flyer forum and circulate 415 fly-
ers. During this time, the District only denied thirty-two requests for
1
The district court also denied access to the "school wall forum," but
CEF has not appealed this denial.
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 7
access to this forum; of those, thirteen were excluded specifically
because they were profit-driven. The approved flyers came from
groups as diverse as the American Red Cross, the Shakespeare The-
atre, the Montgomery County Recreation Department, the American
Diabetes Association, the Audubon Naturalist Society, and the Wash-
ington Gas Company. The topics of the flyers included information
about community, charitable, and education-related activities, cultural
and sporting events, and health issues. MCPS even permitted reli-
gious organizations access to this forum, allowing circulation of flyers
from the Salvation Army, the Holy Redeemer Summer Play School,
the Norbeck Community Church, the Cedar Lane Unitarian Univer-
sity Church, the Jewish Community Center, the Boy Scouts, the Girl
Scouts, the YMCA, and the Boys and Girls Club.
In its appellate brief, the District maintained that it legally excluded
CEF’s Good News Club flyers from its take-home flyer forum. The
District contended that it did not exclude the Club because of its reli-
gious viewpoint, but because the flyer forum was not open to "prose-
lytization" or "evangelical" groups. Brief of Appellees at 57-59. At
oral argument, however, the District conceded that under controlling
precedent, excluding CEF’s flyers from the forum constituted uncon-
stitutional viewpoint discrimination. This concession is well-taken.
When a group seeks to speak from a religious viewpoint on a "sub-
ject otherwise permissible" in a particular forum, the government can-
not constitutionally exclude the speech. Lamb’s Chapel v. Center
Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993). CEF’s
flyers promote educational, cultural, and recreational activities, albeit
from a religious perspective, that fit squarely within the contours of
the take-home flyer forum. Given the broad access the District grants
to other organizations, the Supreme Court’s recent decision in Good
News Club v. Milford, 533 U.S. 98 (2001), directly controls CEF’s
free speech claim.
In Good News Club, Milford Central School denied the Good
News Club access to its after-school facilities because it deemed the
Club’s activities to be the "equivalent of religious instruction." Id. at
104. The Supreme Court held that this constituted viewpoint discrimi-
nation. Id. at 112. The Court explained that "speech discussing other-
wise permissible subjects cannot be excluded from a limited public
8 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
forum on the ground that the subject is discussed from a religious
viewpoint." Id. Of particular interest here, the Court noted that there
is "no reason to treat the Club’s use of religion as something other
than a viewpoint merely because of any evangelical message it con-
veys." Id. at 112 n.4.
The District admitted at oral argument that it excluded CEF’s flyers
not because of their content, but because the group is evangelical and
its predominate objective is proselytization. See also Brief of Appel-
lees at 57-59. For this reason, as the District ultimately conceded, the
Supreme Court’s ruling in Good News Club virtually assures CEF of
success on its claim that exclusion of the flyers from the take-home
flyer forum constitutes viewpoint discrimination in violation of its
First Amendment free speech rights. Accordingly, the District must
justify this viewpoint discrimination with a compelling governmental
interest in order to prevail. Am. Life League, Inc. v. Reno, 47 F.3d
642, 648 (4th Cir. 1995).
III.
The District proffers a single assertedly compelling governmental
interest: it contends that permitting CEF access to the take-home flyer
forum would constitute the establishment of religion in violation of
the First Amendment. Assuming that violation of the Establishment
Clause constitutes a governmental interest compelling enough to
overcome viewpoint discrimination,2 we believe it plain, under con-
trolling precedent, that allowing CEF access to this forum would not
be likely to violate the Establishment Clause.
The Establishment Clause provides that "Congress shall make no
law respecting an establishment of religion." U.S. Const. amend. I.
The District argues that permitting CEF access to the take-home flyer
forum would violate Establishment Clause principles by sending a
2
In Good News Club, the Court acknowledged that "a state interest in
avoiding an Establishment Clause violation may be characterized as
compelling," and therefore "may justify content-based discrimination,"
but noted that "it is not clear whether a State’s interest in avoiding an
Establishment Clause violation would justify viewpoint discrimination."
533 U.S. at 112-13 (internal quotation marks and citations omitted).
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 9
message of government endorsement of a religious activity, County
of Allegheny v. ACLU, 492 U.S. 573, 592-94 (1989); coercing partici-
pation in a religious activity, Lee v. Weisman, 505 U.S. 577, 587
(1992); and excessively entangling the government in a religious
activity, Lemon v. Kurtzman, 403 U.S. 602, 613 (1971).
Less than three years ago, in Good News Club, school authorities
in New York presented the Supreme Court with similar arguments.
They contended that any viewpoint discrimination arising from their
exclusion of the Good News Club from the elementary school’s after-
school facilities was permissible because permitting access would
violate the Establishment Clause. Brief for Respondent at 16-26,
Good News Club v. Milford, 533 U.S. 98 (2001)(No. 99-2036). The
Court firmly rejected these arguments.
Initially, the Supreme Court emphasized that neutrality towards
religion constitutes a "significant factor in upholding governmental
programs" under the Establishment Clause. Good News Club, 533
U.S. at 114 (internal quotation marks and citations omitted). The
Court explained that the "guarantee of neutrality is respected, not
offended, when the government, following neutral criteria and even-
handed policies, extends benefits to recipients whose ideologies and
viewpoints, including religious ones, are broad and diverse." Id.
(internal quotation marks and citations omitted). Because those seek-
ing to hold Good News Club meetings in elementary schools after
hours were "seek[ing] nothing more than to be treated neutrally," i.e.,
to obtain equal access to a forum available to other community orga-
nizations, the school administration faced "an uphill battle in arguing
that the Establishment Clause compels it to exclude the Good News
Club." Id.
Although in Good News Club the Court acknowledged that it had
earlier noted "in the Establishment Clause context" that "elementary
school children are more impressionable than adults," it explained
that it had never suggested that "when the school was not actually
advancing religion, the impressionability of students would be rele-
vant to the Establishment Clause issue." Id. at 115-16. The Court fur-
ther explained that even if elementary school "children would
misperceive" affording the Good News Club access to the public ele-
mentary schools as "the endorsement of religion," this would be no
10 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
greater "danger" than the chance that "they would perceive a hostility
toward the religious viewpoint if the Club were excluded." Id. at 118.
Thus, the Court concluded that the New York school authorities could
not prevail in the uphill battle to demonstrate an Establishment Clause
violation, even though the case involved, as this one does, elementary
school children. Id. at 115-19.
In view of its conceded unlawful viewpoint discrimination in deny-
ing CEF access to the take-home flyer forum, the District here faces
the same "uphill battle" as the school authorities in Good News Club.
We recognize, however, that certain facts do distinguish the case at
hand from Good News Club. In this case the Good News Club flyers
would be distributed during school hours when the law requires
school attendance, while in Good News Club, club meetings were
held immediately after school hours. Id. at 113. Moreover, here the
students would take the flyers and permission slips home to obtain
parental consent, while in Good News Club, no issue of this sort was
litigated, the only parental consent at issue was that needed prior to
attendance at Club meetings. Id. at 115. Finally, teachers and staff
would be involved in handing out CEF’s flyers, while in Good News
Club, there was no "integration and cooperation" between school
authorities and the Club. Id. at 116 n.6.
The District contends that these factual distinctions constitute
important legal differences compelling adoption of its view that here,
unlike Good News Club, permitting the requested equal access would
constitute government endorsement, coercion, and entanglement in
violation of the Establishment Clause. Those arguments might per-
suade us if Good News Club constituted the only relevant precedent
controlling our decision. But it does not. Rather, several other cases
from the Supreme Court and our own court provide clear guidance here.3
3
Although not binding on us, we note that our holding accords with
that of most other courts, which have held that a public elementary
school does not violate the Establishment Clause by similar distributions
of flyers from private religious organizations. See Hills v. Scottsdale Uni-
fied Sch. Dist., 329 F.3d 1044 (9th Cir. 2003) (distribution of religious
summer camp brochures would not violate Establishment Clause); Sher-
man v. Cmty. Consol. Sch. Dist. 21, 8 F.3d 1160 (7th Cir. 1993) (distri-
bution of Boy Scout materials did not violate Establishment Clause);
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 11
In fact, in Board of Education of Westside Community Schools v.
Mergens, 496 U.S. 226 (1990), the Supreme Court rejected an Estab-
lishment Clause challenge to communications involving all of the
assertedly pivotal facts distinguishing the case at hand from Good
News Club. A critical examination of Mergens and other relevant pre-
cedents requires us to conclude that the factual distinctions between
the two cases lack any legal significance.
A.
The District first relies on the fact that the communication here
would occur during school hours when students are compelled to
attend school, not after hours as in Good News Club. The essential
difficulty with reliance on this difference is that simply issuing a com-
munication involving a religious organization during school hours
does not render the communication state speech, nor does it invari-
ably create a perception of endorsement or coercion by government
officials. Peck v. Upshur County Bd. of Educ., 155 F.3d 274, 282-83
(4th Cir. 1998).
For example, in Mergens, 496 U.S. at 247, the Supreme Court held
that the Equal Access Act required a high school to grant "official
recognition" to a student Christian club. More importantly for our
purposes, the Court found that this requirement did not contravene the
Establishment Clause even though under the school’s policy, "official
Child Evangelism Fellowship v. Stafford Township Sch. Dist., 233 F.
Supp. 2d 647 (D.N.J. 2002) (distribution of Good News Club flyers
would not violate Establishment Clause); Daugherty v. Vanguard Char-
ter Sch. Acad., 116 F. Supp. 2d 897 (W.D. Mich. 2000) (distribution of
religious groups’ materials did not violate Establishment Clause). Some
courts, however, have held to the contrary; we do not find their rationales
persuasive, and not even the dissent relies on these cases. See Culbertson
v. Oakridge Sch. Dist., 258 F.3d 1061 (9th Cir. 2001) (holding, with little
discussion, that distribution of Good News Club permission slips would
violate Establishment Clause); Rusk v. Crestview Local Sch., 220 F.
Supp. 2d 854 (N.D. Ohio 2002) (failing to distinguish Good News Club
when holding that distribution of church advertisements violated the
Establishment Clause and prohibiting these distributions did not violate
the Free Speech Clause).
12 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
recognition" allowed the Christian club access to the school newspa-
per, bulletin boards, and public address system, id. at 247, 253; and
even though, as we later noted, "[u]ndoubtedly, the distribution of the
school newspaper, student viewing of school bulletin boards, and
announcements over the public address system . . . all occurred during
school hours." Peck, 155 F.3d at 282 (emphasis added). Similarly, in
Brown v. Gilmore, 258 F.3d 265, 272, 278, 282 (4th Cir. 2001), we
held that requiring a minute of silence during school hours did not
violate the Establishment Clause even when the classroom teacher
advised students that the time could be used for prayer. And in Peck,
155 F.3d at 282, 288, we found that allowing private entities to offer
Bibles to secondary school students during school hours did not vio-
late the Establishment Clause.
Like the communications at issue in Mergens, Brown, and Peck,
the CEF flyers would be distributed during "non-instructional" time
(at the end of the school day), and nothing suggests that the flyers
would be part of the curriculum or integrated into the teacher’s
instruction. Accordingly, the timing of the flyer distribution — that
it would take place during school hours — cannot serve as a legally
cognizable distinction from Good News Club.4
B.
The second basis on which the District argues Good News Club
legally differs from the case at hand focuses on the level of student
4
Nor does the District strengthen its argument by asserting that CEF
is "us[ing] the authority of the state, through its compulsory attendance
law, to provide a captive audience for the Club’s advertising." Brief of
Appellees at 28. The Supreme Court rejected precisely this argument in
Mergens, 496 U.S. at 249 (noting that petitioner contended that "because
the State’s compulsory attendance laws bring the students together (and
thereby provide a ready-made audience for student evangelists), an
objective observer in the position of a secondary school student will per-
ceive official school support for such religious meetings"), as did we in
Peck, 115 F.3d at 282 (noting that appellants argued that making Bibles
available "during school hours when state law mandates student atten-
dance" would compel "a ‘captive audience’ of students to receive the
religious message"). Precedent, therefore, requires us to reject it here.
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 13
"coercion." Parental consent was a necessary prerequisite to attending
the after-school Christian club meetings in Good News Club, as it is
here. The District, however, maintains that requiring students to bring
CEF’s informational flyers and permission slips home to their parents
(an issue apparently not litigated in Good News Club) would amount
to unconstitutional coercion.
But, of course, school administrators can "coerce" student action of
all kinds without engaging in unconstitutional coercion; they can even
require student contributions to a fund that ultimately supports a reli-
gious organization without running afoul of the Establishment Clause.
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 841-
46 (1995). Thus, the critical question here is not just whether the Dis-
trict would be "coercing" students to distribute CEF’s flyers (which,
in the broadest sense of the term, it would), but whether that translates
into unconstitutional government coercion in violation of the Estab-
lishment Clause.
To resolve this question, we must determine whether the District
would be coercing students "to support or participate in religion or its
exercise, or otherwise act in a way which establishes a [state] religion
or religious faith, or tends to do so." Lee, 505 U.S. at 587 (internal
quotation marks and citations omitted). The Supreme Court has only
found unconstitutional government coercion when the government
singled out a religious group for a special benefit not afforded to other
similarly situated non-religious groups and advanced an inherently
religious activity, such as prayer. See, e.g., Santa Fe Indep. Dist. v.
Doe, 530 U.S. 290, 302-13 (2000); Lee, 505 U.S. at 587-99. Con-
versely, when the government has merely provided a religious group
with access equal to that afforded similar non-religious groups and
has not advanced an inherently religious activity, the Court has uni-
formly refused to find unconstitutional government coercion. See,
e.g., Rosenberger, 515 U.S. at 841-46; Mergens, 496 U.S. at 251.
Relevant Supreme Court case law thus indicates that these two fac-
tors should serve as guides in "draw[ing] the line[ ]" between the
competing constitutional guarantees at issue here — permissible
accommodation of private religious beliefs and impermissible govern-
ment establishment of religion. See Rosenberger, 515 U.S. at 847-48
(O’Connor, J., concurring). Thus, first, and perhaps most importantly,
14 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
we look to the context in which the assertedly coerced activity occurs:
in particular, whether the government is granting preferential treat-
ment to a religious organization or merely providing equal access.
Second, we must also examine the character of the activity itself: in
this case, the student distribution of CEF’s informational flyer.
1.
To determine whether government has engaged in unconstitutional
coercion, we must initially view the purportedly coerced activity in
context. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 656
(2002) (explaining that in assessing whether Ohio’s voucher program
imposes unconstitutional coercion, "[t]he Establishment Clause ques-
tion . . . must be answered by evaluating all options Ohio provides
Cleveland schoolchildren, only one of which is to obtain a scholarship
and then choose a religious school") (emphasis in original); Lynch v.
Donnelly, 465 U.S. 668, 680 (1984) (determining whether a city-
erected holiday display, which included a crèche, violated the Estab-
lishment Clause and refusing to consider the crèche in isolation
because "[f]ocus[ing] exclusively on the religious component of any
activity would inevitably lead to its invalidation under the Establish-
ment Clause").
In an equal access case, like this one, context is particularly reveal-
ing because providing access to a "broad . . . spectrum of groups is
an important index of secular [rather than religious] effect." Widmar
v. Vincent, 454 U.S. 263, 274 (1981); accord Rosenberger, 515 U.S.
at 843-44.5 Indeed, the Supreme Court has never found unconstitu-
tional coercion in an equal access case. See, e.g., Rosenberger, 515
U.S. at 841-42; Mergens, 496 U.S. at 251. This does not mean that
an equal access case could not pose Establishment Clause concerns,
but only that equality of treatment is critical when assessing whether
5
Thus, the prayer cases, on which the District so heavily relies, do not
provide an appropriate analogue. Those cases did not involve equal
access; rather, government officials there granted an inherently religious
activity (prayer) sole access to student audiences. See Santa Fe, 530 U.S.
290; Lee, 505 U.S. 577; Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003);
see also Lee, 505 U.S. at 586 (recognizing the distinction between "ac-
commodation" cases and "prayer and religious exercise" cases).
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 15
government authorities have properly "accommodat[ed]" private "reli-
gious beliefs" or engaged in unconstitutional coercion by pervasively
involving themselves in religious activity, so as to "creat[e] a state-
sponsored and state-directed religious exercise in a public school."
Lee, 505 U.S. at 586-87.
Here, it is evident that requiring participation in the take-home
flyer forum does not single out CEF for a special benefit not afforded
other similarly situated groups. As participants in the take-home flyer
forum, students are asked to retrieve (with the hope they will take
home) a variety of materials including their homework, classwork, art
work, other school-related information, and flyers from more than
225 organizations. Over the course of a year-and-a-half, students
received approximately 415 flyers promoting environmental, athletic,
artistic, and religious activities. Directing them to take home these
diverse materials does not coerce them to engage in a religious activ-
ity, any more than it coerces them to engage in an environmental activ-
ity.6 Cf. Widmar, 454 U.S. at 274 (agreeing that an open access policy
including a religious group "would no more commit the University
. . . to religious goals than it is now committed to the goals of the Stu-
dents for a Democratic Society, the Young Socialist Alliance, or any
other group eligible to use its facilities") (internal quotation marks
and citation omitted).
Thus, just as the government does not "coerce" a religious activity
by requiring students to pay fees used to fund expenses of all student
publications, including a magazine established to "provide a unifying
focus for Christians," Rosenberger, 515 U.S. at 826, 842, so too it
does not "coerce" a religious activity by requiring students to take
home a host of flyers and other materials, including CEF’s informa-
tional flyer. See also Mergens, 496 U.S. at 247, 251 (requiring stu-
dents to listen to all student announcements, including an
6
Of course, there is a constitutional "difference . . . between coercing
religious activity and coercing environmental activity," post at 22, but
that does not in any way diminish the force of this comparison — just
as requiring students to carry home an environmental flyer does not
make the delivery of that flyer an environmental activity, so too requiring
them to carry home a religious flyer does not make that delivery, in and
of itself, a religious activity.
16 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
announcement inviting students to an after-school religious club
meeting, does not amount to unconstitutional coercion).
2.
Looking beyond this broader context to the character of the particu-
lar "coerced" activity at issue further demonstrates that requiring stu-
dents to pick up CEF’s flyer and bring it home simply does not
require them to "support or participate in religion or its exercise."
Lee, 505 U.S. at 587 (emphasis added). Unlike the cases in which the
Supreme Court has found unconstitutional coercion, students here
would not be participating in an inherently religious activity. They
would not be forced to engage in any formal religious exercise; they
would not be made to read the Bible or to pray, nor would they be
bound to sit by while other students or faculty pray. See Santa Fe, 530
U.S. 290; Lee, 505 U.S. 577; Mellen, 327 F.3d 355. They would not
be required, or even encouraged, to accept a religious tract, or asked
to read or listen to a religious message. See Berger v. Rensselaer
Cent. Sch. Dist., 982 F.2d 1160, 1164 (7th Cir. 1993). In fact, as the
District expressly (and properly) acknowledged at oral argument,
CEF’s flyers contain no evangelical or overtly religious language.
We recognize, of course, that the flyers can be characterized as an
invitation to participate in a religious activity. However, our prece-
dents make clear that receipt of an invitation to a religious activity
(with the hope that students will deliver the invitation to their parents)
simply does not rise to the level of "support or participat[ion] in reli-
gion or its exercise."7 Cf. Mergens, 496 U.S. at 247 (holding, in the
7
To the extent that our friend in dissent seeks to characterize the stu-
dents as "participating in" or "supporting" CEF’s religious activity, i.e.
distributing flyers with a religious purpose, this argument also fails. As
support for this argument, the dissent relies exclusively on cases recog-
nizing a religious group’s Free Exercise right to distribute religious tracts
and flyers. See post at 24-25. But none of the dissent’s cases suggest, let
alone hold, that a person "participates in" or "supports" "religion or its
exercise," simply by receiving flyers and passing them on to another per-
son. Indeed, any such argument would be foreclosed by Mergens. For
there, students were also "coerced" to "participate in" or "support" a reli-
giously motivated person’s issuance of an invitation to attend an after-
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 17
face of an Establishment Clause challenge, that school authorities
could require students to listen to the public address announcement
inviting them to an after-school religious club); Brown, 258 F.3d at
278 (rejecting Establishment Clause challenge even though teachers
required students to remain in their classroom while learning of an
invitation to use a minute of silence to pray). That neither Mergens
nor Brown required the students to deliver the invitation to their par-
ents does not lessen their force here because delivery does not convert
an invitation into a religious act. A student who receives a Good
News Club flyer and delivers it to his parents is no more engaging in
a religious activity than a child who receives the same flyer from a
street-corner evangelist and turns to give it to his mother. In both of
these cases, the children are merely delivering an invitation to partici-
pate in a religious activity, not engaging in that activity.8
school religious club meeting. But, despite this, the Court found "little,
if any, risk of official state . . . coercion." Mergens, 496 U.S. at 251; see
also id. at 261 (Kennedy, J., concurring) (explaining that "enforcement
of the [Equal Access Act] will [not] result in the coercion of any student
to participate in a religious activity").
The sole rationale the dissent offers for disregarding Mergens is that
the students in Mergens could sit "passively" when listening to the "reli-
gious" announcement, while here students would be forced to take a "de-
monstrative act." See post at 28. This minor factual difference is of no
legal consequence. For a student’s act need not be "demonstrative" to
constitute participation in, or support of, a religious activity. After all, as
the dissent itself recognizes, in Lee the Court held that students were
forced to participate in a religious activity — prayer — even though they
merely sat passively while other students prayed around them. See post
at 25-26 (citing Lee, 505 U.S. at 593; id. at 637 (Scalia, J., dissenting)).
8
The dissent disagrees, contending that both the student and the hypo-
thetical child are, in fact, engaging in a "religious" activity by actively
distributing the flyers. But, although a child can certainly "participate in
a religious activity without having any religious motivation for his par-
ticipation," see post at 25 (emphases added), religious motivation is
essential to characterizing the activity itself as religious. Otherwise,
under the dissent’s expansive definition, a mailman would be engaging
in a "religious" activity every time he delivered a religious flyer or pam-
phlet. That the mailman is not "coerced to deliver any mail," post at 27
n.*, is immaterial because the presence of coercion does not transform
an otherwise secular activity into a religious act.
18 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
The Supreme Court itself has implicitly recognized the importance
of this distinction. In Santa Fe, the Court found unconstitutional coer-
cion of religion when a school, after school hours, broadcast prayer
(an inherently religious activity) over its public address system, 530
U.S. at 307-08, while in Mergens, the Court found no constitutional
problem when a school, during school hours, broadcast an announce-
ment merely inviting students to participate in a religious activity over
the same medium — the public address system, 496 U.S. at 247.
In sum, requiring students to carry home, among other items, a
flyer containing an invitation to participate in a religious activity —
an invitation that cannot be accepted absent parental consent — does
not coerce religious activity in violation of the Establishment Clause.
Indeed, if requiring students to bring home this invitation can be
deemed coercion of a religious activity solely because the ultimate
goal of the organization initiating the distribution is of a religious
character, then a number of the other flyers that the District required
children to carry home (e.g., from the Holy Redeemer Nursery
School, the Academy of the Holy Cross, Catholic University, Colum-
bia Union College, the Norbeck Community Church, Cedar Lane
Unitarian University Church, the Jewish Community Center, the Sal-
vation Army, the Boy Scouts, the Girl Scouts, the YMCA, and the
Boys and Girls Club) would also violate the Establishment Clause.
Tellingly, neither the District nor the dissent so contend.
C.
Finally, the District emphasizes the school’s "plenary control" over
the take-home flyer forum, and the teachers’ "active" role in picking
up the flyers from their mailboxes and distributing them to the stu-
dents, contrasting these facts to the lack of "integration and coopera-
tion" between school authorities and the Club in Good News Club,
533 U.S. at 116 n.6. Because of the teachers’ greater role here, the
District maintains that affording CEF access to the take-home flyer
forum would constitute unconstitutional endorsement of religion and
would unconstitutionally entangle the school authorities in a religious
activity.
But, once again, precedent teaches otherwise. In Mergens, the
school authorities certainly had "plenary control" over the public
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 19
address system. Moreover, the provisions of the Equal Access Act
under attack in Mergens permit teachers to perform a custodial over-
sight function to maintain order and ensure good behavior during reli-
gious after-school meetings. 496 U.S. at 253. Yet in Mergens, the
Supreme Court upheld the Equal Access Act and concluded that this
teacher involvement did not impermissibly entangle government offi-
cials in the administration of religious activities or otherwise violate
the Establishment Clause. Id.
The District attempts to distinguish Mergens by characterizing the
teacher involvement there as "non-participatory" compared to the
teachers’ "active" role in this case. But, when we examine the sub-
stance of the teachers’ participation, the teachers’ role in Mergens
arguably raises more endorsement and entanglement concerns than
their involvement here. Under the statute upheld in Mergens, teachers
would actually be present during the religious meetings in a disciplin-
ary capacity. 496 U.S. at 253. Thus, from a student’s perspective, his
public school teacher would not only attend a religious club’s meet-
ing, but would play a truly "active" role when students misbehaved.
See also Brown, 258 F.3d at 278 (holding that teacher could engage
in a more participatory role than that involved in this case, i.e., advis-
ing students of their option to pray during the mandatory minute of
silence). Here, in contrast, teachers only act in an administrative
capacity — picking up flyers from their mailboxes and distributing
them to students’ cubbies. And, as part of this same administrative
function, teachers also distribute students’ homework, classwork, and
flyers from other "non-proselytizing" religious organizations and sec-
ular groups. It is not even clear that students witness the distribution.
This minimal activity certainly involves no more endorsement or
entanglement than the teachers’ duties in Mergens or Brown, and
therefore does not meaningfully distinguish this case from Good
News Club.
The District also attempts to distinguish Mergens based on the age
of the students, but, as noted above, in Good News Club itself the
Supreme Court rejected the "suggestion that, when [as here] the
school was not actually advancing religion, the impressionability of
students would be relevant to the Establishment Clause issue." Good
News Club, 533 U.S. at 116; see ante at 9; see also Brown, 258 F.3d
20 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
at 277 (upholding, on basis of Good News Club, statute requiring
mandatory minute of silence in elementary schools).9
D.
In sum, we see no meaningful way to distinguish this case from
controlling precedents. Case law teaches that, notwithstanding the
time and manner of the flyer distribution, allowing CEF access to the
take-home flyer forum would not likely violate the Establishment
Clause.10
IV.
For all of these reasons, we must reverse the district court’s denial
of a preliminary injunction and remand the case for further proceed-
ings in accordance with this opinion.
REVERSED AND REMANDED
MICHAEL, Circuit Judge, dissenting:
The Establishment Clause forbids a state from coercing "anyone to
support or participate in religion or its exercise." Lee v. Weisman, 505
U.S. 577, 587 (1992). If the Montgomery County Public Schools (the
9
Moreover, because in the case at hand students would never view the
flyers without parental consent (since CEF will place them in sealed
envelopes), the age of the students is constitutionally immaterial. Cf.
Peck, 155 F.3d at 287 n.* (reluctantly distinguishing among elementary
and secondary school students when Bibles were immediately accessible
to the students). As in Good News Club, parents control whether their
children have access to the flyers, and as a result parents constitute the
relevant audience for Establishment Clause purposes. Because parents
are less likely than secondary school students to believe school authori-
ties endorse religion by granting CEF equal access, there is even less
concern of perceived endorsement here than in Mergens. Compare Good
News Club, 533 U.S. at 115 with Mergens, 496 U.S. at 250.
10
Because we hold that CEF is entitled to preliminary relief on its
claim under the Free Speech Clause, we do not address its other constitu-
tional challenges.
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 21
School System) give Child Evangelism Fellowship of Maryland, Inc.
(CEF) access to the School System’s take-home flyer forum, elemen-
tary students will be required to distribute CEF’s religious flyers to
their parents. The students, in other words, will be coerced to partici-
pate in a religious activity in violation of the Establishment Clause.
The School System’s interest in avoiding the Establishment Clause
violation, and thereby protecting the individual freedom of the stu-
dents, is sufficiently compelling to justify the viewpoint discrimina-
tion that would result by denying CEF access to the forum. I therefore
respectfully dissent from the majority’s decision to reverse the district
court’s order denying CEF a preliminary injunction that would give
the organization access to the flyer forum.
I.
I disagree with the majority’s conclusion that giving CEF access to
the School System’s flyer forum — which means that students will
be forced to deliver CEF’s religious flyers to their parents — is not
likely to violate the Establishment Clause. It is "beyond dispute that,
at a minimum, the Constitution guarantees that government may not
coerce anyone to support or participate in religion or its exercise, or
otherwise act in a way which ‘establishes a [state] religion or reli-
gious faith, or tends to do so.’" Lee, 505 U.S. at 587 (quoting Lynch
v. Donnelly, 465 U.S. 668, 678 (1984)). If CEF has access to the
forum, the School System will impermissibly coerce its students both
to participate in and to support CEF’s mission "to evangelize boys
and girls with the Gospel of the Lord Jesus Christ and to establish
(disciple) them in the local church for Christian living." J.A. 516.
CEF participation in the School System’s flyer forum means that
students will be required to deliver flyers soliciting their parents to
send them to after-school meetings of the Good News Club. The
majority recognizes that the CEF flyer "contain[s] an invitation to
participate in a religious activity." Ante at 18. Thus, the flyer begins:
"Your kids are invited to come to Good News Club" at their elemen-
tary school. J.A. 46. A permission slip, for a parent to sign, is
included in the flyer. "Each club," the flyer tells parents, "is taught by
a dedicated Christian teacher." J.A. 47. The flyer indicates the reli-
gious nature of Club meetings, where activities include "Bible adven-
tures, missionary adventures," "Bible-oriented . . . learning and moral
22 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
object lessons," and "Bible review games." J.A. 46-47. The focus of
the meetings is to bring "the Gospel message to children." J.A. 516.
The children are led in Bible study, prayer, and religious song, and
they are urged to accept Jesus Christ as their Savior. Club teachers
report two numbers each month to CEF’s regional office: the number
of children attending Club meetings and "the number of children who
have prayed to receive Christ." J.A. 486. It is undisputed, then, that
the Club meetings are a religious activity. Distributing CEF’s flyers
is likewise a religious activity because the flyers are an invitation to
participate in these evangelical meetings. The School System’s stu-
dents would therefore be coerced into participating in a religious
activity if they are required to deliver CEF’s flyers to their parents.
The majority reaches the opposite conclusion. It says there is no
unconstitutional coercion for two reasons: first, CEF would simply
have equal access to the flyer forum; it would not be singled out "for
a special benefit not afforded other similarly situated groups," ante at
15; and second, distributing CEF’s flyers is not a religious activity.
I respectfully disagree.
A.
The majority acknowledges that the School System would (in a
broad sense) engage in coercion if it required its students to distribute
the CEF flyer. Ante at 13. But it reasons that this coercion is permissi-
ble under the Establishment Clause because CEF would not receive
"a special benefit not afforded to other similarly situated non-religious
groups." Ante at 13. In other words, because the School System
requires students to carry home materials from many community
groups (the Audubon Society, as one example), it may also require
them to carry home CEF’s flyers. The majority thus concludes that
"[d]irecting [students] to take home these diverse materials does not
coerce them to engage in a religious activity, any more than it coerces
them to engage in an environmental activity." Ante at 15 (emphasis
added). There is a difference, however, between coercing religious
activity and coercing environmental activity. The School System may,
without worrying about the Establishment Clause, require students to
deliver environmental flyers from the Audubon Society advertising
nature classes. J.A. 564. But the Establishment Clause limits the
School System’s power to support religion. For that reason, the
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 23
majority’s observation that CEF only seeks equal access to the flyer
forum begins, rather than ends, the Establishment Clause inquiry.
The Supreme Court has never held or suggested that the govern-
ment may coerce students into participating in a religious activity if
both religious and non-religious groups are given equal access to the
government’s use of its coercive power. (The real benefit here is
access to the School System’s use of its power to require students to
take materials home to their parents.) As the majority appears to
acknowledge, the Supreme Court has yet to confront a situation where
the government provides a religious group equal access to a benefit
that results in government coercion of individuals to participate in a
religious activity on behalf of that group. See ante at 13. Certainly,
determining that a religious group does not receive any special benefit
can provide important insight into certain Establishment Clause ques-
tions, like whether a law has a secular or religious purpose, Widmar
v. Vincent, 454 U.S. 263, 271 (1981), and whether the government
has impermissibly endorsed religion, Board of Education v. Mergens,
496 U.S. 226, 248 (1990) (plurality opinion). Nevertheless, the Estab-
lishment Clause is violated when the government forces a student to
participate in a religious activity, even on behalf of a religious group
that gets no special benefit in the process. As Justice Kennedy has
explained, "it suffices to inquire whether the [government act] vio-
lates either one of two principles." Mergens, 496 U.S. at 260 (Ken-
nedy, J., concurring) (emphasis added). See also Lee, 505 U.S. at 587.
The first principle is that "the government cannot give direct benefits
to religion in such a degree that it in fact establishes a state religion
or religious faith, or tends to do so." Mergens, 496 U.S. at 260 (Ken-
nedy, J., concurring) (internal quotation marks and alteration omit-
ted). This is largely dependent on whether the benefit is available to
a wide variety of groups, both non-religious and religious. See id. (cit-
ing one of the Court’s equal access cases, Widmar, 454 U.S. at 273-
74). The second principle is that "the government cannot coerce any
[person] to participate in a religious activity." Id. Again, the violation
of this second principle alone results in an Establishment Clause vio-
lation. This means that giving religious groups equal access to a bene-
fit cannot avoid an Establishment Clause violation when the benefit
received is access to the government’s power to coerce participation
in a religious activity. Otherwise, for example, public schools would
be free to require all students to attend meetings of a religious club
24 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
so long as they offered the same benefit to secular clubs by requiring
universal attendance at their meetings. Such a result could not be
squared with the Establishment Clause. We must therefore go on to
consider whether the School System’s students will be engaging in a
religious activity if they are required to distribute CEF’s flyers.
B.
The distribution of CEF’s flyers is a religious activity of high
order. "The hand distribution of religious tracts [or literature]," an
essential exercise in some religious movements, "is an age-old form
of missionary evangelism." Murdock v. Pennsylvania, 319 U.S. 105,
108 (1943). Sixty years ago, the Supreme Court in Murdock described
the hand distribution of religious tracts and flyers as "religious activ-
ity" that "occupies the same high estate under the First Amendment
as do worship in the churches and preaching from the pulpits. It has
the same claim to protection as the more orthodox and conventional
exercises of religion." Id. at 109. In short, Murdock held that a person
engaged in the freewill, hand distribution of religious flyers is pro-
tected by the Free Exercise Clause. At about the same time, the
Supreme Court also held that the Free Exercise Clause protects, as
religious activity, the sidewalk distribution of handbills containing an
invitation to a religious gathering and an advertisement for religious
books. Jamison v. Texas, 318 U.S. 413, 414-16 (1943). (I recognize,
of course, that the Supreme Court now analyzes cases involving the
distribution of religious literature under the Free Speech Clause rather
than the Free Exercise Clause; however, the Court has never retreated
from its position that distributing religious tracts or flyers is a reli-
gious activity. See Heffron v. Int’l Soc’y for Krishna Consciousness,
Inc., 452 U.S. 640, 652-53 (1981).) CEF’s flyers serve a religious or
evangelical purpose, just like the tracts and handbills in Murdock and
Jamison. The flyers solicit parents to send their children to Good
News Club meetings at school, where "a dedicated Christian teacher"
will lead the children in Bible study and other religious activity.
Indeed, CEF freely admits that it has "religious reasons for sending
flyers home." Appellant’s Br. at 69. Although the majority claims oth-
erwise, the students’ distribution of CEF’s invitation to the evangeli-
cal meetings of the Good News Club is fundamentally different from
other things, such as attending classes and taking tests, that the School
System may constitutionally coerce its students to do. The difference
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 25
is that the CEF flyer distribution is done for the religious purpose of
increasing attendance at Club meetings, where the teacher works to
"evangelize [the students] with the Gospel of the Lord Jesus Christ."
J.A. 515. It is inescapable that the distribution of CEF’s flyers is a
religious activity, just as the Club meetings themselves are a religious
activity. The Supreme Court has already indicated that a public school
cannot coerce its students into attending meetings of a religious club.
See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 115 (2001).
Similarly, a public school should not be able to coerce its students
into participating in the related religious activity of distributing invita-
tions to those religious meetings.
To support its conclusion that the School System’s children would
not engage in a religious activity if they distributed CEF’s flyers, the
majority offers its hypothetical involving a street-corner evangelist.
Ante at 17 ("A student who receives a Good News Club flyer and
delivers it to his parents is no more engaging in a religious activity
than a child who receives the same flyer from a street-corner evange-
list and turns to give it to his mother. In both of these cases, the chil-
dren are merely delivering an invitation to participate in a religious
activity, not engaging in that activity."). This hypothetical is flawed
for two reasons. First, it ignores the constitutional meaning of partici-
pation in a religious activity. The majority would surely agree that the
street-corner evangelist is engaging in a religious activity when he
hands the flyer to the child. See Jamison, 318 U.S. at 414-16. Thus,
for the majority, the difference in the respective acts of the evangelist
and the child lies in the fact that the child may not be acting with a
religious motivation when he hands the flyer to his mother. Ante at
16-17 n.7. It is well established, however, that a child can participate
in a religious activity without having any religious motivation for his
participation. For instance, in Lee the Supreme Court was persuaded
that when students were pressured to stand in respectful silence while
a rabbi prayed aloud at a school graduation, the students were being
coerced to participate in the prayer. Lee, 505 U.S. at 593. In other
words, an overtly pious act was not necessary to signify participation
in the prayer. Id.; see also id. at 637 (Scalia, J., dissenting) ("[The
majority] does not say, for example, that students are psychologically
coerced to bow their heads, place their hands in a Dürer-like prayer
position, pay attention to the prayers, utter ‘Amen,’ or in fact pray.");
Mellen v. Bunting, 327 F.3d 355, 362 (4th Cir. 2003) (finding imper-
26 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
missible coercion when the VMI Corps of Cadets "must remain stand-
ing and silent while the supper prayer is read, but cadets are not
obliged to recite the prayer, close their eyes, or bow their heads.").
Thus, although neither the child in the hypothetical nor the children
in the School System may be acting out of religious motivation when
they deliver the flyers to their parents, the children are nonetheless
participating in a religious activity.
The second problem with the majority’s hypothetical is that the
child is not coerced in any way. To be comparable to this case, the
hypothetical should include an element of coercion. For example, if
a public school teacher walking down the street with her elementary
students tells them that they must accept flyers offered by a street-
corner evangelist and deliver them to their parents, the state would be
compelling participation in religious activity. In the majority’s hypo-
thetical the child chooses to aid the evangelist in his distribution of
flyers; in mine the state compels the children to receive the evange-
list’s flyers and in essence to act as his agents in delivering his flyers
to their parents. In the majority’s hypothetical, my hypothetical, and
the present case, the children all participate in the religious activity
of distributing flyers. In the majority’s hypothetical, the child’s act is
constitutionally protected because he participates in the religious
activity of his own freewill. In my hypothetical and in this case, the
state’s coercion of the children to participate violates the Establish-
ment Clause.
CEF’s offer to place its flyers in sealed envelopes does not avoid
the Establishment Clause problem created by its participation in the
flyer forum. Even with sealed envelopes, the end result is the same:
students would still be commandeered by the state to participate in a
religious activity. The School System will certainly know the reli-
gious nature of the flyers because it approves all flyers that students
are required to distribute. The School System should not be able to
coerce elementary students into participating in a religious activity
just because it can conceal the religious nature of the activity from
them. If anything, hiding the flyers in sealed envelopes makes the
coercion even more troubling because a student would not have the
knowledge to raise a pre-distribution objection if he had the courage
to do that. The majority also implies that there will be no coercion of
the students here because the parents will decide whether their chil-
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 27
dren will attend the Good News Club meetings. See ante at 12-13.
This overlooks a key fact. Religious activity — distribution of flyers
— occurs before any parental decision is made about attendance at
the meetings. The parents play no part in deciding whether their chil-
dren will be required to deliver the religious flyers.*
The majority is too quick to conclude that "[c]ontrolling precedent
. . . strongly indicates that permitting CEF access to [the flyer] forum
does not run afoul of the Establishment Clause." Ante at 4. I see noth-
ing in the First Amendment, the Supreme Court cases, or our own cir-
cuit cases that compels or suggests the result reached by the majority
today. Indeed, the cases stop far short of authorizing the state to com-
pel anyone to take part in a religious activity. The majority relies
quite heavily on the Supreme Court’s decision in Board of Education
v. Mergens, 496 U.S. 226 (1990). In Mergens the Court held that the
Equal Access Act, 20 U.S.C. §§ 4071-4074, does not violate the
Establishment Clause by requiring a high school to extend official
recognition to a Christian club that would, like other extracurricular
clubs, meet on school premises during noninstructional time. 496 U.S.
at 249-53. The Court mentioned in passing that official recognition
gave the Christian club access, among other things, to the school’s
public address system. Id. at 247. Relying on this passing reference,
the majority says that Mergens holds that the Establishment Clause
does not prevent a school from requiring all students to listen to an
announcement, over the public address system, of the time and place
for a meeting of a religion club. See ante at 16-17. That is not the
holding in Mergens; nevertheless, because the Court did not express
any constitutional concerns about the prospects of such an announce-
ment, I am willing to assume that it had none. But even a broader
interpretation of Mergens does not take the majority where it wants
to go.
*The majority suggests that under my approach there would be an
Establishment Clause violation every time a mailman delivered a reli-
gious flyer or pamphlet. See ante at 16-17 n.7. That is not the case. The
mailman, in accepting employment with the U.S. Postal Service, agrees
to fulfill his duty to deliver the mail. See 39 U.S.C. § 1011. He is there-
fore not coerced to deliver any mail, including mail with religious con-
tent, unlike the students in this case, who would be coerced or
commandeered by the School System to deliver CEF’s flyers.
28 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
The majority likens CEF’s flyer to the public address announce-
ment in Mergens; both invite students to participate in a religious
activity. According to the majority, because CEF’s flyer is simply an
invitation to participate in religious activity, the School System would
not violate the Establishment Clause if it forced its students to distrib-
ute the flyers. This analysis overlooks a key difference between what
a student is forced to do while a Mergens-type public address
announcement is being made and what he would be forced to do with
the CEF flyer. In the first instance, the student sits passively while the
time and place of a Christian club meeting is announced. Notwith-
standing the majority’s argument to the contrary, see ante at 16-17
n.7, this passivity is of consequence for what it does not signify: it
does not signify that the listening student joins in the announcement
or advances its purpose. In the second instance (our case), the student
would be forced by his school to take the CEF flyer home to his par-
ents; he would be forced to take a demonstrative act that advances the
religious purpose of CEF. The second instance involves an Establish-
ment Clause violation because the school is forcing the student to
engage in a religious activity, the distribution of flyers. Mergens does
not sanction the coercion in the second instance because it does not
hold or imply that a school may force a student to go to the public
address microphone and announce a meeting of the Christian club. In
short, Mergens does not suggest that a school can in any way coerce
its students to participate in religious activity. Mergens is therefore of
no assistance to the majority.
Nor is the majority helped by Rosenberger v. Rector and Visitors
of University of Virginia, 515 U.S. 819 (1995). At the end of its dis-
cussion of equal access, the majority says that "just as the government
does not ‘coerce’ a religious activity by requiring students to pay fees
used to fund expenses of all student publications, including a maga-
zine established to ‘provide a unifying focus for Christians,’ Rosen-
berger, 515 U.S. at 826, 842, so too it does not ‘coerce’ a religious
activity by requiring students to take home a host of flyers and other
materials, including CEF’s informational flyer." Ante at 15. The
majority seems to be suggesting that if paying student fees is not a
religious activity, then delivering religious flyers is not either. That is
reading too much into Rosenberger. First, the Court in Rosenberger
pointed out that whether it was constitutional to require the students
to pay the activity fee was not the question presented. 515 U.S. at
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 29
840. Second, in rejecting the Establishment Clause challenge to the
use of the fees, the Court relied on the fact that the government aid
provided (printing services) is secular, and it reasoned that "[a]ny
benefit to religion is incidental to the government’s provision of
[those] secular services." 515 U.S. at 843-44. Here, the benefit to CEF
is not the receipt of a secular service, like printing, paid for with
School System funds. Rather, the benefit is that the School System
will require its elementary students to participate actively in CEF’s
religious mission by delivering its message (the flyers) to their par-
ents. Again, the Supreme Court has described the distribution of fly-
ers like CEF’s as a religious activity that "occupies the same high
estate under the First Amendment as do worship in the churches and
preaching from the pulpits." Murdock, 319 U.S. at 109. See also
Jamison, 318 U.S. at 414-16 (sidewalk distribution of religious hand-
bills). What CEF wants the School System to force its children to do
is much more akin to the inherently religious activity in Murdock and
Jamison than it is to the payment of printing costs in Rosenberger.
Our circuit cases relied on by the majority, Peck v. Upshur County
Board of Education, 155 F.3d 274 (4th Cir. 1998), and Brown v. Gil-
more, 258 F.3d 265 (4th Cir. 2001), do not suggest or support the
result the majority reaches today. In Peck we held that a school board
did not violate the Establishment Clause when it allowed private par-
ties to sponsor, on one day in the school year, a table of Bibles that
were offered to high school students. We noted that neither the board
nor the sponsors of the table were compelling or even encouraging
students to take Bibles or receive its religious message. Peck, 155
F.3d at 282. In Brown we rejected an Establishment Clause challenge
to the Virginia statute that requires local school boards to establish a
minute of silence in classrooms to allow students the individual
choices of praying, meditating, or engaging in any other silent activ-
ity. After assuming that teachers would simply inform students of all
of their options, we held that the statute was not coercive because "the
affected students are left to choose how they will use the minute."
Brown, 258 F.3d at 270, 281. Peck and Brown are easily distinguish-
able because in those cases the students were not coerced to take reli-
gious literature or to engage in religious activity. Here, of course, the
School System would violate the Establishment Clause’s anti-
coercion principle because forcing students to deliver CEF’s flyers
coerces them into participating in religious activity.
30 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
The Establishment Clause also forbids the state from coercing
someone "to support . . . religion or its exercise." Lee, 505 U.S. at 587
(emphasis added). Requiring students to distribute CEF’s flyers is
therefore impermissible on the alternative ground that it supports a
religious activity. The School System would coerce support of CEF’s
religious mission by forcing students to hand their parents flyers
soliciting them to enroll their children in a Good News Club. In the
words of CEF, "[u]nless the flyers go forth, Club attendance is small
and CEF representatives cannot either evangelize or teach children
Biblical character and values." Appellant’s Br. at 30. Again, the
majority’s street-corner evangelist hypothetical helps to illustrate that
the School System will be coercing children to support religion. In the
hypothetical, the mother’s own child, not the evangelist who is a
stranger, freely hands her the religious flyer. The child’s act supports
the evangelist’s mission. Similarly, the children in the School System
will support CEF’s religious mission by delivering its flyers to their
parents. But the support of the students in this case will be coerced,
and this violates the Establishment Clause.
C.
I must also consider whether the School System’s interest in avoid-
ing the Establishment Clause violation justifies the viewpoint discrim-
ination against CEF that would occur by denying it access to the flyer
forum. In this instance, the Establishment Clause should prevail.
A government regulation that discriminates against private speak-
ers based on viewpoint is subject to strict scrutiny: the regulation
must be necessary to serve a compelling governmental interest by the
least restrictive means available. Am. Life League, Inc. v. Reno, 47
F.3d 642, 648 (4th Cir. 1995). A less restrictive way to avoid an
Establishment Clause violation has not been suggested in this case.
CEF’s offer to put its flyers in sealed envelopes is not a solution
because the students would still be coerced into religious activity.
Thus, the question is whether the School System’s interest in prevent-
ing a violation of the Establishment Clause is sufficiently compelling
to trump CEF’s interest in free expression. The Establishment Clause
is more likely to trump the Free Speech Clause in the "coercive con-
text of public schools" where children are required, even conditioned,
to follow direction. Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d
CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY 31
1160, 1168 (7th Cir. 1993). CEF can participate in the flyer forum
only by enlisting the School System to exercise its authority over stu-
dents, coercing them to engage in religious activity. The School Sys-
tem would thus become the force in violating the constitutional rights
of its own students. To prevent that from occurring, the expressive
rights of the third party, CEF, must give way. See id.
I recognize that providing religious groups with equal access to
limited forums created by the state is an important First Amendment
objective. However, in none of the Supreme Court’s equal access
cases was any individual forced to engage in religious activity like the
students here would be. See, e.g., Good News Club, 533 U.S. at 115
(Good News Club, like other groups, had to be given access to public
school building for meetings after hours; children, however, were not
coerced into engaging in religious activity because they would only
attend meetings with the permission of their parents); Rosenberger,
515 U.S. 819 (public university must make student activity funds
available to pay the printing costs of a campus organization’s publica-
tion that presents the Christian viewpoint); Lamb’s Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) (local school
board required to give religious group access to school property to
show movies that would be open to the community at large); Mer-
gens, 496 U.S. at 260-61 (Kennedy, J., concurring) (public school
required to extend official recognition to Christian club, but "the gov-
ernment cannot coerce any student to participate in a religious activ-
ity."); Widmar, 454 U.S. 263 (state university must make facilities
available for meetings of student religious group). Here, if CEF is
allowed access to the flyer forum, the School System will violate the
Establishment Clause when it uses its authority over students to
coerce them into participating in CEF’s mission to evangelize chil-
dren — a mission that begins with the distribution of flyers. See Ber-
ger, 982 F.2d at 1168. The School System’s interest in avoiding an
Establishment Clause violation should prevail in order to protect the
individual freedom of the students. In sum, the School System should
be able to exclude CEF from the flyer forum.
Finally, even if the Establishment Clause prevails, CEF is not shut
out. It has access to rooms at the schools for its Good News Club
meetings. It also has access to other forums, specifically, back-to-
school nights, open houses, and bulletin boards and tables, that are
32 CHILD EVANGELISM FELLOWSHIP v. MONTGOMERY COUNTY
open to other community groups. CEF thus has access to several
forums in the School System through which it may invite parents to
permit their children to attend Club meetings. CEF would only be
unable to use the one forum where CEF participation would require
the School System to coerce students to distribute flyers in violation
of the Establishment Clause.
D.
For all of the foregoing reasons, I conclude that CEF is not likely
to prevail on the merits in this case.
II.
As my analysis indicates, the district court correctly concluded that
CEF is not likely to prevail on the merits, the third factor in the
court’s decision to deny CEF a preliminary injunction. See Black-
welder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 193-96 (4th
Cir. 1977) (establishing a four-factor inquiry for deciding whether a
preliminary injunction should issue). Because the district court prop-
erly analyzed all of the Blackwelder factors, I would affirm the order
denying CEF a preliminary injunction against the School System.