A federal judge has denied a motion for a preliminary injunction sought by the Victory Through Jesus Sports Ministry Foundation, which was denied the opportunity to extensively distribute the fliers for its soccer camp through a public school.
The Foundation, through its founder Goran Hunjak, began offering soccer camps in the summer of 2004.
The defendant school district had a practice of offering to distribute flyers to the community through its students. However, when the school district started receiving “complaints from parents that too many non-school-related papers were coming home with the children” it initiated a change to the existing flyer distribution procedures.
Until 2008, the Foundation did not promote its soccer camps through local schools, but relied only on local churches. On April 29, 2008, Hunjak emailed the district requesting permission to distribute a flyer to elementary students. Hunjak identified his organization as “Victory Soccer Camp.” The name “Jesus” was not mentioned. Nothing in his email or his flyer indicated that the foundation was a religious organization. The School District denied Hunjak’s request to distribute the flyer to students referencing the guidelines quoted above and attaching the guidelines to its responsive email.
Some time later, the district created an approved list of organizations that could send fliers home with students. The Foundation was not on that list.
The Foundation ultimately sued, alleging that the district violated its right to freedom of speech under the First Amendment and its right to equal protection of the law under the Fourteenth Amendment. It also sought an injunction that would require the district to include it in the approved list.
In assessing the case, the court focused on whether the flyer distribution system, as the defendant contended, was “a non-public forum, or a forum that is neither a traditional public forum nor a designated public forum. The government can most freely restrict speech in a nonpublic forum.”
The court continued: “The mere fact that expressive activity occurs in a nontraditional forum does not mean the government has opened a public forum. Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 805, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). A designated public forum is created only if the government intentionally opens a nontraditional public forum for public discourse. Bowman, 444 F.3d at 975.”
The court wrote that an elementary school’s main mission is to protect, nurture, and educate its students. In the instant case, the district made the determination that allowing certain limited groups to distribute flyers would be supportive of its educational mission. “Allowing this limited expressive activity did not render the district powerless from preventing any nonprofit organization from distributing its flyers at the schools,” wrote the court.
Further, “forcing the district to distribute flyers from every sports-related civic or church organization that wished to attract elementary students served by the district would place an unreasonable burden on the district and parents, the latter of which already had expressed anger over the amount of flyers being distributed. The district reasonably could decide that inclusion of all such groups actually would undermine its ability to educate parents of local events beneficial to the community.
“Victory Through Jesus insists that it was excluded because of its religious viewpoint. The evidence demonstrates otherwise. … The Court also holds that the exclusion of Victory Through Jesus was reasonably related to the purpose of the forum.”
Victory Through Jesus Sports Ministry Foundation, v. Lee’s Summit R-7 School District,
et al., W.D.Mo.; Case No. 09-0852-CV-W-ODS; 2010 U.S. Dist. LEXIS 54388; 6/3/10
Attorneys of Record: (for plaintiff) Mathew D. Staver, PRO HAC VICE, Liberty Counsel, Longwood, FL; Matthew H. Krause, Stephen M. Crampton, PRO HAC VICE, Liberty Counsel, Lynchburg, VA; Michael K. Whitehead, Whitehead Law Firm, LLC, Kansas City, MO. (for defendants) Michael F. Delaney, LEAD ATTORNEY, Spencer, Fane, Britt & Browne, OPKS, Overland Park, KS; William C. Odle, LEAD ATTORNEY, Spencer Fane Britt & Browne LLP-KCMO, Kansas City, MO.
