NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0220n.06
Case No. 14-3172
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 19, 2015
CHILD EVANGELISM FELLOWSHIP OF ) DEBORAH S. HUNT, Clerk
OHIO, INC., )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE NORTHERN DISTRICT OF
) OHIO
CLEVELAND METROPOLITAN SCHOOL )
DISTRICT; ROY JAMES, In his official )
capacity as Principal of Miles Cranwood )
Elementary School, )
)
Defendants-Appellees. )
BEFORE: COOK and WHITE, Circuit Judges; MICHELSON, District Judge. *
COOK, Circuit Judge. In this First Amendment case, plaintiff Child Evangelism
Fellowship of Ohio, Inc. (“CEF”) appeals the denial of its motion for a preliminary injunction
against defendants Cleveland Metropolitan School District and Roy James, principal of Miles
Cranwood Elementary School (collectively, “the District”). CEF sought to enjoin the District
from imposing a facilities fee on CEF that it allegedly waived for the Boy Scouts, an act that—
according to CEF—amounts to impermissible viewpoint discrimination. The District, in
response, argued that it never waived the Scouts’ fees—or any group’s fees—but instead
*
The Honorable Laurie J. Michelson, United States District Judge for the Eastern District
of Michigan, sitting by designation.
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maintained a policy of accepting in-kind payment. The district court denied the preliminary-
injunction motion, concluding that CEF could not show a likelihood of success on the merits
because the limited evidence before the court suggested that the District does not maintain a fee-
waiver policy. We AFFIRM.
I.
A. The District’s Community Use Policy and CEF’s Fee-Waiver Demands
This controversy arises out of the District’s refusal to waive fees it assessed to CEF for
use of the Miles Cranwood Elementary School’s facilities during the 2012–13 academic year.
The District makes its facilities available to outside groups through its Community Use Policy.
The policy requires a permit for any non-district activities and contemplates that the District will
impose a “reasonable fee” for use of the facilities. During the time period giving rise to this suit,
the District charged a fee of $69.50 per hour for use of its facilities.
CEF runs an after-school enrichment program, The Good News Club, that encourages
learning, spiritual growth, and character development from a Christian viewpoint. According to
the complaint, CEF used the School’s facilities for its program during the 2011–12 school year
without paying a fee.1 Miles Cranwood’s then-principal informed CEF’s area coordinator before
the 2012–13 school year that CEF would need a permit moving forward. CEF obtained the
permit and sent a letter to the District’s Board of Education requesting a fee waiver. The letter
detailed the Good News Club’s offerings and highlighted the fact that participation is free for all
students. The District’s board denied the request and sent CEF an invoice for the proposed use
of its facilities.
1
The District disputes CEF’s claim that it was not assessed a fee for the 2011–12 year,
stating that “[i]f this actually occurred, it was without the School District’s knowledge and
authorization”
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After learning that the Boy Scouts used the District’s facilities without paying a monetary
fee, CEF renewed its request for a fee waiver, both in person and in writing. CEF ultimately
engaged legal counsel, who sent a final letter alerting the District of its alleged discriminatory
policies and practices and once again demanding an immediate waiver of all fees. The letter
asserted that certain individuals with the Boy Scouts had “confirmed that facilities use fees
[we]re waived by the District for after-school facilities used by the Scouts[.]” The District
acknowledged receiving these requests but did not respond to them.
CEF sued and moved for a preliminary injunction against the District. CEF alleged that
the District has an unwritten policy allowing school principals to waive facilities fees at their
discretion, and that the District’s preferential fee waiver for the Boy Scouts amounted to a
violation of the First and Fourteenth Amendments.
B. The District’s In-Kind Arrangement Policy
Responding to CEF’s motion, the District denied the existence of a fee-waiver policy or
practice. It explained that “in limited circumstances [the District] has agreed to accept goods or
services as in-kind payment of the Permit Fee, when requested by the group.” The District
claims to evaluate in-kind proposals according to three criteria:
(1) the goods or services must be of equal or greater value than the Permit Fees;
(2) the goods or services must be of tangible benefit to the facilities, staff,
students, or academic programs; and
(3) the District must not be in a position to readily provide or obtain those goods
or services for itself.
The District said it had agreed to such an arrangement with the Boy Scouts. It produced a letter
to the Scouts dated October 31, 2010, memorializing a “satisfactory accord based upon an
exchange of in-kind services.” The letter also states that “[t]here will be no charge for the use of
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our schools this year given the costs that you bear in providing approximately $195 worth of
supplies, uniforms, camping costs and books to each of the approximately 1,420 students who
participate in the program.” This $276,900 value exceeds the Boy Scouts’ yearly fee assessment
of approximately $91,000.
The District further asserted that it does not consider the applicant organization’s
viewpoint when evaluating a proposal for an in-kind arrangement. It offered its arrangement
with The Word Church (“the Church”), an evangelical Christian group, as an example. Under
that agreement, the Church provided capital improvements to a Cleveland high school in
exchange for its use of the facilities to hold religious services. The District valued the Church’s
improvements at $168,500, an amount that covered the Church’s $149,078 fee. Like the letter to
the Scouts, the agreement between the parties expressly contemplates an in-kind exchange.
Finally, the District averred that CEF, unlike the Boy Scouts and the Church, never
proposed an in-kind arrangement in lieu of a monetary fee. Instead, it simply asked the District
to waive the fee altogether. The District thus maintained that it refused CEF’s waiver request
because of its policy against outright fee waivers, not because of CEF’s religious viewpoint.
C. The District Court Denies CEF’s Motion for a Preliminary Injunction
In a brief order, the district court denied CEF’s motion for a preliminary injunction. The
court found that CEF could not demonstrate a likelihood of success on the merits because the
record lacked sufficient evidence to show that “a fee-waiver policy exists, let alone that [the
District] operates it in a discriminatory matter.” Reasoning that CEF could not “demonstrate that
[the District] has a fee-waiver policy” and that the District could not discriminatorily apply a fee-
waiver policy that never existed, the court found CEF’s likelihood of success to be “virtually
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zero without additional evidence to corroborate the allegation.” (Id.) CEF now appeals from the
denial.
II.
“We ‘review the District Court’s legal rulings de novo’ (including its First Amendment
conclusion), ‘and its ultimate conclusion [as to whether to grant the preliminary injunction] for
abuse of discretion.’” Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Supreme
Court, 769 F.3d 447, 454 (6th Cir. 2014) (quoting McCreary Cnty. v. ACLU of Ky., 545 U.S.
844, 867 (2005)) (alteration in original). A court weighs four factors when considering a motion
for a preliminary injunction:
(1) whether the movant has a strong likelihood of success on the merits;
(2) whether the movant would suffer irreparable injury without the injunction;
(3) whether issuance of the injunction would cause substantial harm to others; and
(4) whether the public interest would be served by the issuance of the injunction.
Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir.
2007). As “a preliminary injunction is an ‘extraordinary’ form of relief . . . the moving party in
the district court has the ‘burden of proving that the circumstances clearly demand it.’” Serv.
Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341, 344 (6th Cir. 2012) (per curiam) (quoting
Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002)).
We follow a three-step analysis when evaluating free speech claims under the First
Amendment: first, we ask whether the First Amendment protects the plaintiff’s speech; second,
we determine the nature of the forum, “because the extent to which the Government may limit
access depends on whether the forum is public or nonpublic”; and third, we “assess whether the
justifications for exclusion from the relevant forum satisfy the requisite standard.” Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985). The parties agree that CEF
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engages in protected activity and that the District has created a limited public forum by making
its facilities available to outside groups. In such a limited public forum, “the government may
restrict speech . . . as long as the restrictions do ‘not discriminate against speech on the basis of
viewpoint’ and are ‘reasonable in light of the purpose served by the forum.’” Miller v. City of
Cincinnati, 622 F.3d 524, 535 (6th Cir. 2010) (quoting Good News Club v. Milford Cent. Sch.,
533 U.S. 98, 106–07 (2001)).
III.
On appeal, CEF renews its argument that the District maintains an unwritten,
discretionary fee-waiver policy that District administrators have applied in a discriminatory
manner. Specifically, CEF argues that the District’s actions constitute viewpoint discrimination,
content discrimination, and a violation of the Equal Protection Clause.
CEF asserts that the District’s refusal to waive CEF’s fees while not charging the Boy
Scouts constitutes impermissible viewpoint discrimination. It cites Supreme Court precedent for
the proposition that “the government offends the First Amendment when it imposes financial
burdens on certain speakers based on the content of their expression,” Rosenberger v. Rector &
Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995), and points to numerous lower-court
decisions holding that public schools may not impose facilities fees on the Good News Club that
the Boy Scouts do not have to pay, see, e.g., Child Evangelism Fellowship of S.C. v. Anderson
Sch. Dist. Five, 470 F.3d 1062, 1069–73 (4th Cir. 2006); Child Evangelism Fellowship of
Greater San Diego v. Bersin, No. 05CV1166, 2008 WL 5101993, at *3 (S.D. Cal. Dec. 1, 2008);
Child Evangelism Fellowship of Va. v. Williamsburg-James City Cnty. Sch. Bd., No. 4:08CV4,
2008 WL 3348227, at *5 (E.D. Va. Aug. 8, 2008). CEF contends the District’s refusal to waive
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its fees also amounts to impermissible content discrimination and a violation of the Equal
Protection Clause.
To the extent that CEF’s appeal challenges the basis for the district court’s denial of its
motion for preliminary relief, it fails. As the district court concluded, CEF’s evidence in support
of its request for injunctive relief did not adequately show that the District had a fee-waiver
policy. To the contrary, at this early juncture, the record supports the District’s position that it
merely accepted in-kind payment in lieu of monetary fees, as both the 2010 letter to the Scouts
and the Church’s 2011 lease expressly contemplate exchanges of goods or services.
CEF urges us to disregard the District’s alleged in-kind-arrangement policy as an
example of a “litigation-driven label” that allows schools to “evade [equal access] by
strategically describing existing student groups.” It argues that “[w]hat matters for the
constitutional inquiry . . . is not what Defendants call their ‘arrangement’ with the Scouts, but
whether CEF has requested equal treatment, and whether Defendants have refused or granted
that request.” But the cases CEF cites in support of its position featured claims under the Equal
Access Act—not the First Amendment—and involved attempts by school districts to limit forum
access by differentiating arbitrarily between “curriculum-related” and “non-curriculum-related”
groups. See Mergens, 496 U.S. at 244; Straights & Gays for Equality v. Osseo Area Sch.-Dist.
No. 279, 471 F.3d 908, 912 (8th Cir. 2006); Pope v. E. Brunswick Bd. of Educ., 12 F.3d 1244,
1246–54 (3d Cir. 1993).
And as the District notes, “the distinction between a fee-waiver and acceptance of in-kind
payment is constitutionally significant” and not a mere difference of labels. A waiver subsidizes
speech while accepting an in-kind payment of equal or greater value does not. Cf. Child
Evangelism Fellowship of S.C., 470 F.3d at 1069 (concluding that a fee waiver is a form of
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speech subsidy because it “encourages private speech by making funds available”). The record
at this stage shows that the Scouts and the Church provided consideration in excess of their
assessed facilities fees, strengthening the District’s argument that its in-kind arrangements do not
subsidize speech at all, let alone selectively.
Overall, the slim record dooms CEF’s preliminary-injunction motion. As the district
court held below, at this stage, CEF has not shown that a fee-waiver policy even exists. Because
CEF cannot demonstrate a likelihood of success on the merits of its claim, we need not consider
the other preliminary injunction factors.
IV.
CEF argues in the alternative that the District’s in-kind arrangement policy, as presented,
constitutes an impermissible prior restraint under the First Amendment. Though CEF challenged
the constitutionality of the in-kind arrangement policy in a reply brief below, the district court
confined its preliminary-injunction ruling to the fee-waiver claim. We generally do not consider
issues left unaddressed by the district court. See Snow Pallet, Inc. v. Clinton Cnty. Indus. Dev.
Auth., 46 F. App’x 787, 791 n.1 (6th Cir. 2002) (citing N. Texas Prod. Credit Ass’n v. McCurtain
Cnty. Nat’l Bank, 222 F.3d 800, 812 (10th Cir. 2000)); Palshook v. Jarrett, 32 F. App’x 732,
736–37 (6th Cir. 2002); Luciani v. Schiavone, No. 98-4463, 2000 WL 331974, at *6 (6th Cir.
2000); see also Singleton v. Wulff, 428 U.S. 106, 120 (1976).
CEF urges us to depart from this practice because the issue was “fully briefed” below.
Cf. Babcock & Wilcox Co. v. Arkwright-Boston Mfg. Mut. Ins. Co., 53 F.3d 762, 767 (6th Cir.
1995) (addressing an issue ignored by the district court’s summary-judgment order because “it
was fully briefed below” and because the court may uphold the grant of summary judgment “on
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grounds other than those used by the lower court”). But it was not fully briefed. CEF introduced
this theory in a reply brief, and the court resolved the motion without a hearing, leaving the
District no meaningful opportunity to respond to this claim with defenses or evidence of its own.
We thus decline to take up the issue at this juncture.2
V.
For these reasons, we AFFIRM the judgment of the district court.
2
We do not foreclose CEF from arguing to the district court that it provides what the
Scouts provide and what the District deemed sufficient to cover facility costs. The dissent goes a
step further by arguing that the Scouts in fact provided no benefit to the District (but only to the
District’s students), and, thus, “in practice” received a fee waiver. The implication is that CEF, if
similarly situated to the Scouts with respect to the Constitution, is also entitled to a waiver.
Unlike the dissent, we believe that the current record supports the District’s assertion that its
arrangement with the Scouts was “in kind.”
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HELENE N. WHITE, Circuit Judge, dissenting.
I agree that CEF failed to “show[] that a fee-waiver policy even exists.” Maj. Op. 8.
CEF has shown, however, that a fee-waiver practice existed between the District and the Boy
Scouts and that despite repeated requests, the District did not provide CEF with a similar
arrangement. I would vacate the district court’s denial of CEF’s motion for preliminary
injunction and remand for further proceedings.
The majority and the district court needlessly focus on whether the District has a fee-
waiver policy. Although it appears not to, CEF argues that the District has a “no charge
arrangement” with the Boy Scouts—i.e., a practice of waiving fees—and the little evidence in
the record supports CEF’s contention.
The District’s Community Use Policy provides that “the use of the facilities shall be
subject to a reasonable fee according to a fee schedule which reflects actual costs to the district
for janitorial, light and heat expenses as well as other costs.” The District recognizes that the
“Community Use Policy as written does not allow for a waiver or reduction of the Permit Fee.”
Nor does it provide for in-kind exchanges. Nevertheless, according to Deputy Chief Nicholas
Jackson’s declaration filed in this action, although “principals and building supervisors have no
authority to interpret, modify, or deviate from the Community Use Policy,” District officials
have, “in limited instances, . . . agreed to accept in-kind goods or services as payment of the
Permit Fee.” (Emphasis added.) According to Jackson, the District will accept goods or
services as payment of the fee only if the goods or services received are of equal or greater value
than the Permit Fees, are of “tangible benefit to the facilities, staff, students, or academic
programs,” and the District is “not in a position to readily provide or obtain [the goods or
services] on its own accord.” The District claims to have approved an “in-kind services”
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arrangement with the Boy Scouts under these criteria because of “the costs that [the Boy Scouts]
bear in providing approximately $195 worth of supplies, uniforms, camping costs and books to
each of the approximately 1,420 students who participate in the program.”
Assuming the District’s in-kind practice as stated comports with the Community Use
Policy, which “does not allow for a waiver or reduction of the Permit Fee,” the Boy Scouts’
arrangement does not comply with either the Community Use Policy or the terms of the in-kind
practice. The majority uncritically accepts the District’s claim that its arrangement with the Boy
Scouts satisfies both, finding, without discussion or analysis of the nature of the Boy Scouts’
asserted payment, that the Boy Scouts paid $276,900 as in-kind consideration. Maj. Op. 4, 8.
According to the District, the Boy Scouts agreed to cover participants’ “supplies,
uniforms, camping costs, and books,” which the District acknowledges are normally borne by
participants, not by the District. The District does not explain how payment of these program
costs compensates the District for its maintenance and utility expenses—because it does not.
The majority reasons “the record supports the District’s position that it merely accepted
in-kind payment in lieu of monetary fees, as . . . the 2010 letter to the Scouts . . . expressly
contemplate[s] exchanges of goods or services.” Maj. Op. 7. But an exchange implies
mutuality—here, the giving of goods or services to the District that compensates it for the
expenses of holding meetings in its schools. The majority fails to recognize that goods or
services are not exchanged between the District and the Boys Scouts, but rather the goods and
services flow from the Boy Scouts to the participants on the one hand, and the free space flows
from the District to the Boy Scouts on the other. Because the District does not pay for its
students’ expenses related to the Boy Scouts, and thus any value paid by the Boy Scouts does not
offset the District’s facility-related costs or otherwise financially benefit the District, the record
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does not support the conclusion that the costs absorbed by the Boy Scouts are an in-kind
payment to the District for “actual costs to the [D]istrict for janitorial, light and heat expenses as
well as other costs.” In short, the District did not receive goods or services from the Boy Scouts
as payment for the Permit Fee, as required by both the District’s Community Use Policy and its
in-kind practice. This is in contrast to the Church, which made capital improvements to a
District facility in exchange for its use of a high-school auditorium to hold religious services.
By allowing the Boy Scouts access to its facilities without payment of the Permit Fee—
whether in cash or in kind—the District effectively granted the Boy Scouts a waiver from the
Community Use Policy’s Permit Fees requirement. CEF requested numerous times to receive a
fee waiver and demanded “equal treatment” and “equal access” with the Boy Scouts, but was
denied.1 The District thus bears the burden of explaining why it can constitutionally charge CEF
the Permit Fee and not the Boy Scouts. See United States v. Playboy Entm’t Grp., Inc., 529 U.S.
803, 816 (2000). The District has not sought to justify its fee-waiver practice; instead, it has
maintained that it does not have a fee-waiver policy. Equal treatment is at issue here; not
semantics. Because the district court did not consider whether the fee-waiver practice is
viewpoint neutral, I would vacate and remand.
1
Because CEF requested equal treatment with the Boy Scouts, it is not material whether
CEF expressly requested an “in-kind arrangement,” as the Boy Scouts purportedly did. Even if it
were, the District’s suggestion that CEF could have learned of the unwritten, unpublished
practice through an open-records request, and asked for a similar arrangement based upon the
documents it might have received through the request, is unreasonable. Access barriers to
limited forums must be reasonable. Christian Legal Soc’y v. Martinez, 561 U.S. 661, 679
(2010).
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