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 the Montgomery County Public Schools ("MCPS") to advertise its meetings to elementary-school students through flyers sent home with students, posting of flyers on school bulletin boards and tables, open-house programs, and tabling at "Back-to-School Nights" held at the beginning of the school year. When this request was denied, the organization filed suit. Ultimately, the School District allowed, and the district court required, CEF to have access to all these methods of information-sharing except the take-home-flyer system. CEF appealed the denial of access to the take-home-flyer system. On July 1, 2003, we submitted an amicus brief to the Fourth Circuit arguing that the denial of access was required by the Establishment Clause because the flyer system entails active participation of school employees and takes place in classrooms, thereby transforming the distributions into speech that is endorsed by the government rather than purely private speech. The brief was written by AU, but joined by several other civil rights groups as well as the National Education Association. Oral argument was presented in the case on September 24, 2003. On June 30, 2004, in a 2-1 decision, the Fourth Circuit ruled that the exclusion of CEF’s flyers constituted viewpoint discrimination that was not shielded by the Establishment Clause. The Court reasoned that the Supreme Court’s decision in Good News refuted the relevance of the age of the children; and that the High Court’s decision in Mergens made plain that dissemination of religious materials and invitations, even during the school day, overseen by school officials, does not constitute improper coercion. The defendants filed a petition for rehearing en banc on July 14, 2004, but it was promptly denied. On remand, the School District decided to close the take-home-flyer forum to all but school-related entities, a course of action that the district court approved on March 24, 2005. On August 10, 2006, the Fourth Circuit issued its decision holding that the new policy was unconstitutional. The court assessed whether the new regulations were reasonable and viewpoint neutral, and decided that the new policy did not have the constitutionally required safeguards to insure viewpoint neutrality because it gave MCPS official unbridled discretion to control access to the forum.
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