600 F. App'x 448
6th Cir.2015Background
- Child Evangelism Fellowship of Ohio (CEF) runs the Good News Club, a Christian after-school program, and was charged a facilities permit fee by Cleveland Metropolitan School District for 2012–13 after previously using space.
- CEF requested a fee waiver after learning the Boy Scouts apparently used District facilities without paying the monetary fee; the District did not grant CEF a waiver and sent an invoice.
- The District denied a fee-waiver policy, asserting instead an unwritten limited practice of accepting in-kind goods or services in lieu of cash when (1) value equals/exceeds fees, (2) tangible benefit accrues to the District, and (3) the District cannot readily obtain the goods/services itself.
- The District produced a 2010 letter memorializing an in-kind arrangement with the Boy Scouts and an agreement with an evangelical church involving capital improvements; it contends CEF never proposed in-kind payment.
- The district court denied CEF’s motion for a preliminary injunction, finding CEF failed to show a likelihood of success because the record did not establish a fee-waiver policy or discriminatory application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether District engaged in viewpoint-based fee discrimination by waiving fees for Boy Scouts but not CEF | CEF: District waived Boy Scouts’ fees (or treated them differently) based on viewpoint; refusal to waive CEF’s fees violates First Amendment and Equal Protection | District: No waiver policy; District accepted in-kind consideration from Scouts/Church under neutral criteria and declined CEF because it did not propose in-kind payment | Court: CEF failed to show likelihood of success; record supports District’s in-kind arrangement, so no preliminary relief |
| Whether accepting in-kind payments is functionally equivalent to a subsidy/waiver that triggers First Amendment scrutiny | CEF: Substance over form—if outcome is selective benefit, it’s a subsidy and unconstitutional | District: In-kind exchanges that provide equal or greater value to District are not speech subsidies and are viewpoint neutral | Court: Distinction is constitutionally significant; record indicates in-kind value exceeded assessed fees, supporting District’s position |
| Whether CEF demonstrated entitlement to preliminary injunction (burden of proof) | CEF: Repeated requests and evidence of Scouts’ preferential treatment justify injunctive relief | District: Plaintiff must show likelihood of success and irreparable harm; CEF hasn’t met burden | Court: Denied preliminary injunction for failure to show strong likelihood of success |
| Whether appellate court should decide CEF’s alternative prior-restraint challenge to the in-kind policy | CEF: Issue was briefed and should be considered on appeal | District: Issue was raised only in reply below and was not addressed by district court | Court: Declined to reach the unaddressed prior-restraint claim at this stage |
Key Cases Cited
- Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Supreme Court, 769 F.3d 447 (6th Cir.) (standard of appellate review for preliminary injunction and First Amendment rulings)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (U.S. 1985) (three-step framework: protected speech, forum type, justification standard)
- Good News Club v. Milford Cent. Sch., 533 U.S. 98 (U.S. 2001) (limited public forum and viewpoint-discrimination principles in school-access context)
- Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (U.S. 1995) (government may not impose financial burdens on speakers based on content/viewpoint)
- Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535 (6th Cir.) (four-factor preliminary injunction framework)
- Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, 470 F.3d 1062 (4th Cir.) (holding that differential facility fees can constitute a speech subsidy and raise First Amendment concerns)