The Child Evangelism Fellowship ("CEF"), a "Bible-centered . . . organization composed of born-again believers whose purpose is to evangelize boys and girls with the Gospel of the Lord Jesus Christ," sought permission from a New Jersey school district to advertise its meetings to elementary school students through flyers sent home with students by their parents, posting of flyers on school walls, and tabling at "Back-to-School Nights" held at the beginning of the school year. When the School District denied this request, CEF filed suit. The district court ruled that the group was constitutionally entitled to use these advertising vehicles on an equal basis with secular groups and issued a preliminary injunction to this effect. On appeal, in March 2003, we filed an amicus brief with the Third Circuit arguing that elementary students are too young to distinguish between religious communications that a school permits as part of an equal access policy and communications that the school endorses. We argued that this is particularly true in this case because no other religious group has availed itself of these advertising vehicles, and the flyers were written in coercive terms. On October 15, 2004, the Third Circuit upheld the preliminary injunction, finding that the plaintiff was likely to succeed in showing that Stafford was engaging in viewpoint discrimination and that the exclusion of CEF was not required by the Establishment Clause. The court held that the speech was not school-sponsored, that the exclusion of CEF was viewpoint discriminatory because the group teaches morals and character from a religious standpoint, and that allowing CEF access would not violate the Establishment Clause because reasonable parents — the targeted audience — would know that the access is being provided under an equal access policy. The School District opted not to seek rehearing or certiorari.
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