7/29/2019 Child Evan Fell Commplaint
1/27
1
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Civil Action No. VERIFIED COMPLAINT FOR INJUNCTIVE AND
Child Evangelism Fellowship DECLARATORY RELIEF
of Dauphin County, Inc.
Plaintiff,v.
Harrisburg School District
Defendant.
This action is not related to any previously filed case in this Court. Pursuant
to the Federal Rules of Civil Procedure, Plaintiff Child Evangelism Fellowship
alleges as follows:
I. INTRODUCTION
1. This is a civil rights action under 42 U.S.C. 1983 and the First and
Fourteenth Amendments to the United States Constitution brought to remedy a
violation of the constitutional rights of Child Evangelism Fellowship of Dauphin
County, Inc. (Child Evangelism Fellowship), which offers a community-led,
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 1 of 27
7/29/2019 Child Evan Fell Commplaint
2/27
2
after-school Bible club that had met at Foose Elementary School and other schools
in the Harrisburg School District (the District).
2. Plaintiff brings this action challenging the Districts policy, both on its face
and as applied, of excluding Plaintiff from a category of community groups which
receive fee waivers for the use of facilities after school hours, thereby imposing
such fees upon Plaintiff in a discriminatory manner.
3. Such groups are designated as Class III Community Service Groups
according to District policy No. 707 pertaining to the Use of School Facilities (the
Policy). Such groups are to be non-profit organizations that provide services to
the communities within the Harrisburg School District and include Boys and Girls
Club of Harrisburg, community recreation organizations, and other non-profit
community service groups. Class III organizations will be provided use of district
facilities without charge. The Policy (a true and correct copy of which is attached
hereto as Exhibit 1).
4. Even though the Good News Clubs that Child Evangelism Fellowship
offers fit squarely within this definition, the District has applied the Policy to
exclude Child Evangelism Fellowship from Class III status, therefore requiring
Plaintiff to pay for the afterschool use of the Districts facilities.
5. As a result, Plaintiff has been deprived of access on equal terms to after-
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 2 of 27
7/29/2019 Child Evan Fell Commplaint
3/27
3
school use of the Districts facilities, and has effectively been excluded, due to
cost, from the entire District since the beginning of the 2012-2013 school year.
6. In depriving Plaintiff access on equal terms, the District applied its Policy in
an unconstitutional manner, thereby violating the free speech, free exercise, due
process, and equal protection clauses of the First and Fourteenth Amendments to
the United States Constitution.
II. JURISDICTION AND VENUE
7. This action arises under the United States Constitution, particularly the First
and the Fourteenth Amendments, and, under federal law, particularly 28 U.S.C.
2201-02, 42 U.S.C. 1983 and 1988.
8. This Court possesses original jurisdiction over Plaintiffs claims by
operation of 28 U.S.C. 1331 and 1343.
9. This Court is vested with authority to issue the requested declaratory relief
under 28 U.S.C. 2201-02, and pursuant to Rule 57 of the Federal Rules of Civil
Procedure.
10.This Court has authority to award the requested injunctive relief under Rule
65 of the Federal Rules of Civil Procedure and 28 U.S.C. 1343(3).
11.This Court is authorized to award nominal damages under 28 U.S.C.
1343(4).
12.This Court is authorized to award attorneys fees under 42 U.S.C. 1988.
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 3 of 27
7/29/2019 Child Evan Fell Commplaint
4/27
4
13.Under 28 U.S.C. 1391, venue is proper in the United States District Court
for the Middle District of Pennsylvania because these claims arose there and all
parties reside within the Middle District of Pennsylvania.
III. IDENTIFICATION OF THE PLAINTIFF
14.Plaintiff is a non-profit, community-led Christian organization that offers
Good News Clubs to District elementary school students after school, free of
charge. These clubs are open to all students, regardless of the race, gender, or
religious beliefs of the student. Children are provided good role models and a safe
place to go after school, as well as instruction in learning responsibility, virtue, and
maturity through Bible stories, songs and games. Permission to attend must be
granted by a students parent or legal guardian.
15.Child Evangelism Fellowship has been offering Good News Clubs at
Foose Elementary School since the 2007-2008 academic year, elsewhere in the
Harrisburg School District since the 2006-2007 academic year, and in other school
districts throughout Dauphin County since the late 1980s. Its sister organizations
have been offering such clubs across the United States since 1937.
16.Plaintiff, pursuant to its sincerely held religious belief in sharing the gospel
with these students, desires to be granted access on equal terms to the Districts
school facilities, including those at Foose Elementary School, as a forum for
offering its Good News Clubs to students. To that end Plaintiff desires to be
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 4 of 27
7/29/2019 Child Evan Fell Commplaint
5/27
5
recognized as a Class III Community Service Group, so as to avoid paying the
prohibitively expensive facilities fee.
IV. IDENTIFICATION OF THE DEFENDANT
17.According to the Public School Code of 1949, Defendant District is a body
corporate organized under the laws of the Commonwealth of Pennsylvania. 24
P.S. 2-211.
18.An action shall be brought by or against a political subdivision in its
name. Pa. R.C.P. No. 2102(b).
19.A school district is a political subdivision. Pa. R.C.P. No. 76.
20.The District is charged, inter alia, with the administration, operation, and
supervision of all District schools, including Foose Elementary.
21.The District is charged with the formulation, adoption, implementation, and
enforcement of District policies, including the Policy herein challenged.
22.The District is responsible for the enactment, enforcement, and existence of
policies and practices related to community groups use of facilities and their
payment therefor.
23.The District used its unfettered discretion to exclude Plaintiff from Class III
Community Service Group status, thereby prohibiting access on equal terms to its
facilities.
24.The District is responsible for District officials, including the School Board
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 5 of 27
7/29/2019 Child Evan Fell Commplaint
6/27
6
Secretarys and Superintendents, application of its Policy pertaining to the
payment of fees.
25.The District is also responsible for delegating to the School Board Secretary,
the Superintendent and other School Board members final authority in the
categorization of applicant community groups into the four classes, and is thus
responsible for the withholding of access on equal terms to its facilities after school
hours.
V. ALLEGATIONS OF FACT
26.On August 22, 2012, Brooke A. Morrison, the Director of Child Evangelism
Fellowship submitted to the District his application for the use of school facilities
for permission to hold after-school Good News Clubs at Foose Elementary without
paying a facilities fee. (A true and correct copy is attached hereto as Exhibit 2)
27.This was the same procedure he had followed the five previous years,
usually without resistance, although in the 2010-2011 academic year Child
Evangelism Fellowship was denied use of the facilities altogether because of the
religious nature of the group.
28.The Districts waiver of the facilities fee is a commonly sought and often
granted benefit among other community non-profit organizations within the
District.
29.In the beginning of September 2012, however, School Board Secretary
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 6 of 27
7/29/2019 Child Evan Fell Commplaint
7/27
7
Roxanne Bowman called Mr. Morrison to inform him that although Child
Evangelism Fellowship would be granted permission to use school facilities, under
the Districts revised Policy Plaintiff would now have to pay a facilities fee,
amounting to approximately $1,200 per school, per academic year.
30.This is a prohibitively high sum of money for this non-profit, which serves
the community free of charge, especially in light of Plaintiffs desire to offer Good
News Clubs in other schools throughout the District as it had in the past.
31.The advent of the revised Policy does not, however, seem to have had any ill
effect on certain other community nonprofits, such as the Boys and Girls Club, the
Boy Scouts of America, Big Brothers Big Sisters, or the YMCA, as such groups
continue to be exempt from the facilities fee under the new Policy. There is no
relevant distinction between Child Evangelism Fellowship and these other groups,
for purposes of the fee exemption, except that Plaintiff is perceived by the District
primarily to be a religious group, while the others are not.
32.In denying Child Evangelism Fellowship from Class III status, the only
explanation provided by Secretary Bowman to Mr. Morrison was that the District
does not consider Child Evangelism Fellowship to be a community service, and
only those organizations which are community services are granted a fee waiver.
33.When Mr. Morrison pointed out that Child Evangelism Fellowship serves
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 7 of 27
7/29/2019 Child Evan Fell Commplaint
8/27
8
the children of the community of Harrisburg in the same ways as other groups
granted the fee waiver, she informed him that she would go directly to the
Superintendent and find out more information.
34.Despite her assurance, she never called Mr. Morrison back, nor was a
written denial ever forthcoming, nor has he ever received any further explanation
whatsoever.
35.On October 17, 2012, an attorney for Child Evangelism Fellowship sent an
inquiry via email to the Harrisburg School District Solicitor, Attorney Samuel T.
Cooper III, of DILWORTH PAXSON, LLP. (A true and correct copy is attached
hereto as Exhibit 3.)
36.When no response was received, the undersigned counsel followed up said
email with a written letter on November 7, 2012. (A true and correct copy is
attached hereto as Exhibit 4.)
37.While Attorney Cooper did finally call the undersigned in response to said
letter, no information was conveyed other than to say that he was unsure about the
reason for the denial, that it could have been due to the recent change in policy,
and that he would follow up on it.
38.When no follow up occurred, the undersigned sent one final letter on
November 20, 2012, to which no response has been received. (A true and correct
copy is attached hereto as Exhibit 5.)
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 8 of 27
7/29/2019 Child Evan Fell Commplaint
9/27
9
39.With no option remaining, and having already been effectively shut out of
Foose Elementary for the entire Fall semester, Plaintiff filed this Complaint.
40.Under the Policy, which was revised on November 16, 2011, groups seeking
to use school facilities are categorized into four classes.
41.Class I groups are those which are directly sponsored by the District, such as
science fairs and athletic events. Such groups are completely exempted from any
and all fees, and are covered by the Districts property and liability insurance
policy. The Harrisburg Police Athletic League (PAL), for example, was
designated by the District under the Policy as a Class I group.
42.Class II groups are those groups that directly supportdistrict activities
and include alumni organizations, PTAs, and formally recognized booster groups.
Policy. These groups are exempt from facilities fees, but are subject to custodial,
security and site manager fees in certain circumstances. Class II groups also enjoy
coverage under the Districts property and liability insurance policy.
43.As mentioned hereinabove, Class III refers to Community Service Groups.
Class III represents non-profit organizations that provide services to the
communities within the Harrisburg School District and include the Boys and Girls
Club of Harrisburg, community recreation organizations, and other non-profit
community service groups. Policy. Class III groups, like those in Class II, are
exempt from facilities fees, but are subject to custodial, security and site manager
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 9 of 27
7/29/2019 Child Evan Fell Commplaint
10/27
10
fees in certain circumstances. However, Class III groups, as distinct from those in
Class II, are not covered by the Districts property and liability insurance, but are
instead required to provide an insurance certificate naming the District as
additional insured.
44.Class IV is reserved for all other organizations and individuals requesting
use of district facilities for purely private purposes. Policy. These organizations
and individuals are required to pay all fees, including facilities fees, and to provide
an insurance certificate naming the District as additional insured.
45.The Policy, both on its face and as applied, grants the District tremendous
and unbridled discretion. The Policy states that the use of any and all facilities
shall be at the exclusive discretion of the Harrisburg School Board. The
Harrisburg School Board expressly reserves the right to refuse to rent its facilities
for any purpose whatsoever and to reject or cancel any application. Policy.
46.Both pursuant to the written Policy and the application of the Policy to
various groups, many groups are granted Class III status and exempt from paying
facilities fees.
47.The District first applied its revised Policy to new facilities use applications
at its February 2, 2012 Board of School Directors Regular Meeting. Since that
date, up to and including the January 28, 2013 Regular Meeting, the District has
granted Class III status to 14 different community groups, some of which were
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 10 of 27
7/29/2019 Child Evan Fell Commplaint
11/27
11
granted this status on multiple occasions for separate events. Many other groups
during this timeframe have been granted Class I or Class II status.
48.By way of example, During its November 19, 2012 Regular Meeting, the
Board of School Directors designated American Legion Post 733 and the United
States Marine Corps, among others, as Class III community groups.
49.Neither organization was therefore charged a facilities fee.
50.Some of the groups granted Class III status are not religious, while others,
such as the American Legion and Boy Scouts, have religious tenets, but are not
perceived as primarily religious by the District. For instance, the Preamble to the
American Legions Constitution states, For God and Country we associate
ourselves together for the following purposes while the Preambles
interpretation speaks of God-given rights, defines Americanism as being the
creed that has blazed the world-wide trail for belief in God and notes that the
American Legion recognizes the influence of Almighty God in all worthwhile
endeavors and declares the allegiance of Legionnaires to both God and Nation.
(See Exhibit 6, which is a true and correct copy of the Preamble to the American
Legions Constitution and the Preambles interpretation, obtained from the
American Legions website on January 31, 2013).
51.Similarly, the Boy Scouts well-known oath begins with the words On my
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 11 of 27
7/29/2019 Child Evan Fell Commplaint
12/27
12
honor I will do my best / To do my duty to God and my country See Exhibit 7,
which is a true and correct copy of the Boy Scout Oath, obtained from the Boy
Scouts Website on January 31, 2013.
52.From the date the revised Policy was first applied, at least one other group
which could be perceived as primarily religious has been granted Class III status
Redeeming Grace Church for its Backyard Bible Club and Family Night for
Camp Curtin Students. However, the District persists in denying this status to
Child Evangelism Fellowship.53.By way of example, pursuant to this former Policy, during its October 17,
2011 Regular Meeting, the Board of School Directors granted fee waivers to the
Boys and Girls Club of Central PA as well as the New Birth of Freedom Council
Boy Scouts of America.
54.Big Brothers Big Sisters has not reapplied for the use of school facilities
under the revised Policy, as it enjoys the singular honor of being specifically
mentioned therein as a Class III group. The New Birth of Freedom Council Boy
Scouts of America was granted a fee waiver under the former Policy and has
likewise never reapplied under the revised Policy, though Plaintiff believes and
therefore avers that the District has nonetheless permitted it to continue meeting in
the schools without paying a facilities fee. Plaintiff believes the same is true about
the YMCA.
55.Plaintiffs Good News Clubs have always consisted entirely of Harrisburg
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 12 of 27
7/29/2019 Child Evan Fell Commplaint
13/27
13
School District Students.
56.Nonetheless, even under the former Policy the District showed hostility to
Plaintiff by outright denying access to school facilities to Plaintiff during the 2010-
2011 academic year, explaining that they were prohibited from using the facilities
because they are religious.
57.Plaintiff was forced to enlist the assistance of an attorney to address the
religious discrimination by the District, and it was not until the Spring of 2011 that
the District finally agreed that Plaintiff was in fact entitled to use the facilities.
58.As aforementioned, shortly thereafter on November 16, 2011, the District
revised the Policy to its current form.
59.Regardless of which Policy has been in place with the District, Child
Evangelism Fellowship has always offered, and continues to offer the children of
the Harrisburg School District services with elements similar to those offered by
other community groups which now enjoy Class III status. Child Evangelism
Fellowship does so pursuant to its sincerely held religious beliefs, which arise out
of its love for the children and desire to share the gospel.
60.Specifically, both Child Evangelism Fellowship and Big Brothers Big
Sisters, which is allowed to use facilities free of charge, offer positive role
modeling that results in greater educational success and the avoidance of risky
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 13 of 27
7/29/2019 Child Evan Fell Commplaint
14/27
14
behaviors. However, Child Evangelism Fellowship does so based upon a
Christian, religious viewpoint.
61.Child Evangelism Fellowship, like the Boy Scouts of America, which is
allowed to use facilities free of charge, teaches children values and responsibility
as well as the difference between right and wrong. While the Boy Scouts of
America teaches these values from a nondenominational viewpoint, Child
Evangelism Fellowship does so from a specifically Christian viewpoint. For
example, during their meetings the Boy Scouts may play games, welcome guest
speakers and go on field trips to teach a nonsectarian doctrine such as the fifth of
Cub Scoutings 12 Core Values: Having inner strength and confidence based on
our trust in God. (See Exhibit 8, which is a true and correct copy of Cub
Scoutings 12 Core Values, obtained from the Boy Scouts of America website on
February 2, 2013).
62.During Good News Clubs, on the other hand, instructors and children may
play games, go on field trips and welcome guest speakers in furtherance of the
specifically Christian doctrine that salvation from sins is found in a belief in Jesus
Christ alone.
63.While the YMCA was founded in 1844 as the Young Mens Christian
Association, a refuge of Bible study and prayer for young men seeking escape
from the hazards of life on the streets, it is no longer a primarily religious
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 14 of 27
7/29/2019 Child Evan Fell Commplaint
15/27
15
organization, but rather a nonprofit organization for youth development, healthy
living and social responsibility[and] is guided by four core values: caring,
honesty, respect, responsibility. (See Exhibits 9 and 10, which are true and
correct copies of The story of our founding and Facts & Figures, respectively,
obtained from the YMCAs website on February 2, 2013).
64.Child Evangelism Fellowship is a non-profit organization devoted to
building strong character in youth and to mentoring them with positive, caring
relationships. It teaches students about values such as caring, honesty, respect, and
responsibility. Child Evangelism Fellowship meets these needs among the youth
of the Harrisburg School District based upon its primarily religious viewpoint,
while the YMCA does so as an expression of its primarily secular worldviews.
65.To characterize Child Evangelism Fellowships service to the community
arising out of religious beliefs and viewpoints differently than the other groups
service to the community constitutes viewpoint discrimination.
66.As a further example of the Districts inconsistent application of its own
Policy, during its December 17, 2012 Regular Meeting, the School Board approved
the Three Star Foundation as a Class III fee-exempt community group based on its
501(c)(3) tax exempt status. Despite the fact that Child Evangelism Fellowship is
also a 501(c)(3) tax exempt organization, it has been denied the same treatment.
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 15 of 27
7/29/2019 Child Evan Fell Commplaint
16/27
16
(A true and correct copy of Plaintiffs tax exempt letter is attached hereto as
Exhibit 11.)
67.It is established therefore that the District has engaged in discrimination in
denying Child Evangelism Fellowship access on equal terms to its facilities, and
will no doubt continue to do so without Court intervention.
68.Plaintiff has not been able to hold Good News Clubs in the District since the
2011-2012 academic year due to the cost of the facilities fee.
69.Plaintiff desires to begin immediately meeting at Foose Elementary School
and at other schools in the Harrisburg School District as soon as it is able to do so
without cost as other similar groups which provide community services to students
are able to do so.
70.Plaintiff has suffered, and is continuing to suffer, irreparable harm as a result
of the Districts conduct.
71.Plaintiff has no other adequate or speedy remedy at law to correct or redress
the deprivation of its rights by the District.
72.Unless the Districts policy and practices are enjoined, Plaintiff will continue
to suffer irreparable injury.
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 16 of 27
7/29/2019 Child Evan Fell Commplaint
17/27
17
FIRST CAUSE OF ACTION: VIOLATION OF THE FREE SPEECH
CLAUSE OF THE FIRST AMENDMENT TO THE UNITED STATES
CONSTITUTION
73.Plaintiff re-alleges and incorporates herein, as though fully set forth, the
preceding paragraphs.
74.The First Amendments Freedom of Speech Clause, incorporated and made
applicable to the states by the Fourteenth Amendment to the United States
Constitution, prohibits discrimination based upon the content and viewpoint
of that speech.
75.The Districts Policy and practices allow community groups access to school
facilities after school, without payment of a facilities fee, where those groups are
non-profit organizations that provide services to the communities within the
Harrisburg School District. Policy.
76.Many secular and non-evangelical religious community non-profits receive
this treatment.
77.However, the District has required Child Evangelism Fellowship to pay for
the use of facilities after school.
78.Many of the community groups permitted access by the District without the
payment of the fee share the common goal of inculcating values and developing
character in the students whom they serve and accomplish this goal through
teaching students about character, morality, and positive behavior.
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 17 of 27
7/29/2019 Child Evan Fell Commplaint
18/27
18
79.Child Evangelism Fellowship shares this goal and likewise teaches students
about character, morality and positive behavior, though its motivation to do so
stems from religious beliefs. Therefore, it inculcates values and seeks to develop
character from a Christian viewpoint.
80.The imposition of a facilities fee upon Child Evangelism Fellowship
effectively bars Plaintiff from school facilities, as the fee is prohibitively high for
this group.
81.The unequal treatment of Child Evangelism Fellowships religious
expression is a content based restriction in an otherwise open forum thus subject
to strict scrutiny.
82.The unequal treatment of Child Evangelism Fellowships religious
expression is also a viewpoint based restriction unconstitutional in any forum.
83.The discretion afforded to the District by the Policy would allow the District
to make viewpoint based decisions. Therefore, the policy is unconstitutional on its
face.
84.The Policy, both on its face and as applied by the District to Child
Evangelism Fellowship, is not the least restrictive means required to serve any
compelling interest the District seeks to promote.
85.There can be no compelling interest when the District previously did not
charge Child Evangelism Fellowship to use the facilities.
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 18 of 27
7/29/2019 Child Evan Fell Commplaint
19/27
19
86.Nor is there a compelling interest in giving Child Evangelism Fellowship
disfavorable treatment as compared to other community groups that provide
services to children.
87.The Policy, both on its face and as applied by the District to Child
Evangelism Fellowship, burdens more of Plaintiffs speech than is necessary
because it entirely forecloses Child Evangelism Fellowship from using the facility
on account of the cost.
88.Even if, for the sake of argument, there were a compelling interest, the
manner in which the District has gone about furthering its interest in this matter
cannot possibly be considered narrowly tailored to that interest, in light of the
fact that Child Evangelism Fellowship was denied a fee exemption due to the
Districts broad discretion under the policy, despite squarely meeting all of the
elements of the fee exemption under the written Policy itself.
89.Therefore the Policy, both on its face and as applied by the District to Child
Evangelism Fellowship, violates Plaintiffs right to Free Speech as guaranteed by
the First and Fourteenth Amendments to the United States Constitution.
WHEREFORE, Plaintiff respectfully prays the Court grant the declaratory
and injunctive relief set forth hereinafter in the Prayer for Relief.
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 19 of 27
7/29/2019 Child Evan Fell Commplaint
20/27
20
SECOND CAUSE OF ACTION: VIOLATION OF THE FREE SPEECH
CLAUSE OF THE FIRST AMENDMENT AND OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION
90.Plaintiff re-alleges and incorporates herein, as though fully set forth, the
preceding paragraphs.
91.The speech protections of the First and Fourteenth Amendments prohibit the
government from censoring speech pursuant to prior restraints that permit it
unbridled discretion.
92.The Districts implementation of a fee for the after-school use of District
facilities by community groups constitutes a prior restraint.
93.Prior restraints can be constitutional provided they do not permit
government decision-makers unbridled discretion.
94.However, this fee system, both on its face and as applied, relies entirely
upon the Districts unbridled discretion to determine without any oversight or
appeal process which non-profit community groups qualify as Class III
Community Service Groups, and which do not.
95.The unfettered nature of this discretion is evident in the Districts decision
not to grant Class III status to Child Evangelism Fellowship, despite the fact that
Plaintiff fully qualifies for Class III status according to the requirements of the
Policy, in fact had qualified under the former policy, and other groups which
qualified previously continue to do so under the revised Policy.
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 20 of 27
7/29/2019 Child Evan Fell Commplaint
21/27
21
96.The Districts Policy, both on its face and as applied to Child Evangelism
Fellowship, accordingly violates Plaintiffs right to Free Speech as guaranteed by
the First and Fourteenth Amendments to the United States Constitution.
WHEREFORE, Plaintiff respectfully prays the Court grant the declaratory
and injunctive relief set forth hereinafter in the Prayer for Relief.
THIRD CAUSE OF ACTION: VIOLATION OF THE FREE EXERCISE
CLAUSE OF THE FIRST AMENDMENT TO THE UNITED STATES
CONSTITUTION
97.Plaintiff re-alleges and incorporates herein, as though fully set forth,
the preceding paragraphs.
98.Burdens on the free exercise of religion have historically invoked
strict scrutiny.
99.Specifically, the government may not burden conduct motivated by a
sincerely held religious belief unless the government acts by the least restrictive
means to further a compelling interest.
100. Only paramount governmental interests suffice to justify a limitation
of free exercise rights.
101. Additionally, the protections of the Free Exercise Clause pertain if the
law at issue discriminates against some or all religious beliefs or regulates or
prohibits conduct because it is undertaken for religious reasons.
102. However, a law that is neutral and of general applicability need not be
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 21 of 27
7/29/2019 Child Evan Fell Commplaint
22/27
22
justified by a compelling government interest even if the law has the incidental
effect of burdening a particular religious practice.
103. Said differently, when a policy is not generally applicable because it
contains both categorical and discretionary exemptions, and a religious exemption
is denied, then strict scrutiny applies in reviewing the constitutionality of the
policy.
104. The Policy at issue in the present case is neither neutral nor generally
applicable, and therefore it should be subjected to strict scrutiny.
105. Here, the written policy allows all non-profit community groups an
exemption from facilities fees. In practice, the District is using its discretion to
grant fee exemptions only to those groups it perceives as not having a primarily
religious purpose.
106. The Policy cannot survive strict scrutiny, as it is not justified by a
compelling interest, nor is it narrowly tailored to advance that interest.
107. The District has no compelling interest in charging Child Evangelism
Fellowship a facilities fee while currently exempting other community groups, and
in prior years exempting these same other groups as well as Child Evangelism
Fellowship.
108. There is no narrow tailoring to any interest in that other similarly
situated groups are exempt.
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 22 of 27
7/29/2019 Child Evan Fell Commplaint
23/27
23
109. Therefore, application of this discretionary policy to Child
Evangelism Fellowship fails strict scrutiny.
WHEREFORE, Plaintiff respectfully prays the Court grant the declaratory
and injunctive relief set forth hereinafter in the Prayer for Relief.
FOURTH CAUSE OF ACTION: VIOLATION OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION
110. Plaintiff re-alleges and incorporates herein, as though fully set forth,
the preceding paragraphs.
111. The Equal Protection Clause of the Fourteenth Amendment requires
the government to treat similarly situated groups equally.
112. Pursuant to its Policy and practice, the District allows other similarly
situated community groups whose purpose is not primarily religious to utilize the
Schools facilities after hours for after-school programs.
113. The District has treated Plaintiff disparately by charging Plaintiff a
facilities fee while waiving it for these other similarly situated groups.
114. By discriminating against the content and viewpoint of Plaintiffs
religious speech, the District is treating Plaintiff differently than other similarly
situated community groups.
115. The Districts Policy and practice violates Plaintiffs fundamental
rights, including the rights of free speech and free exercise of religion.
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 23 of 27
7/29/2019 Child Evan Fell Commplaint
24/27
24
116. When government regulations, like the Districts Policy and practice
challenged herein, infringe on fundamental rights, discriminatory intent is
presumed.
117. The District lacks a rational or compelling state interest for treating
Plaintiff in such a disparate manner.
118. The Districts denial to Plaintiff of access on equal terms is not
narrowly tailored in that the Districts restriction of Plaintiffs speech and free
exercise of religion is unrelated to any legitimate government interest.
119. The Policy, both on its face and as applied to Child Evangelism
Fellowship, violates Plaintiffs right to equal protection of the laws as guaranteed
by the Fourteenth Amendment to the United States Constitution.
WHEREFORE, Plaintiff respectfully prays the Court grant the declaratory
and injunctive relief set forth hereinafter in the Prayer for Relief.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully prays for judgment as follows:
a. That this Honorable Court issue a Preliminary and Permanent
Injunction compelling the District, its officers, agents, employees, and all other
persons acting in active concert with it, to immediately categorize Child
Evangelism Fellowship as a Class III Community Service Group, thereby
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 24 of 27
7/29/2019 Child Evan Fell Commplaint
25/27
25
permitting Plaintiff to resume meeting in school facilities after school without
paying a facilities fee;
b. That this Honorable Court render a Declaratory Judgment declaring
unconstitutional the Districts Policy, both on its face and as applied to Child
Evangelism Fellowship, of banning from Class III Community Service Group
status those organizations it perceives as primarily religious, in violation of the
First and Fourteenth Amendments to the United States Constitution;
c. That this Honorable Court render a Declaratory Judgment declaring
the Policy regarding Class III Community Service Groups, both on its face and as
applied to Child Evangelism Fellowship, unconstitutionally vague, without
determinate standards, and permissive of administrative discretion that exceeds the
bounds permitted by the First Amendment;
d. That this Honorable Court adjudge, decree, and declare the rights and
other legal relations of the parties to the subject matter here in controversy, in order
that such declarations shall have the force and effect of a final judgment;
e. That this Honorable Court retain jurisdiction of this matter for the
purpose of enforcing any Orders;
f. That this Honorable Court award Plaintiffs costs and expenses,
including a reasonable award of attorneys fees, in accordance with 42 U.S.C.
1988;
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 25 of 27
7/29/2019 Child Evan Fell Commplaint
26/27
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 26 of 27
7/29/2019 Child Evan Fell Commplaint
27/27
Case 1:13-cv-00330-CCC Document 1 Filed 02/08/13 Page 27 of 27