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Telephone: 202•289•1776 Facsimile: 202•216•9656

Post Office Box 11108 Lynchburg, VA 24506-1108

Telephone: 407•875•1776 Facsimile: 407•875•0770

liberty@LC.orgReply to: Florida

January 18, 2018

Via E-Mail Only Dr. Randy Poe, Superintendent Boone County Schools 8330 U.S. Hwy 42 Florence, KY 41042 randy.poe@boone.kyschools.us

Re: Unconstitutional denial of Good News Club facilities use requests

Dear Dr. Poe:

Liberty Counsel is a non-profit litigation, education and public policy organization with an emphasis on First Amendment civil liberties. Much of our work involves constitutional law and the public schools. As part of our pro bono work in the public interest, Liberty Counsel provides free legal representation to school districts, individual citizens and a variety of groups. We represent Child Evangelism Fellowship of Northern Kentucky (“CEF”), which sponsors the Good News Club (“GNC”).

The GNC is a nurturing, welcoming, privately-sponsored after-school enrichment club offering training in morals, character, leadership and citizenship, from a Christian/Biblical perspective, through fun activities, projects, stories, songs and games. All children are welcome, regardless of religious belief, and may only attend with parental permission. Attendance is free, and no donations are solicited.

Liberty Counsel writes to request that you please immediately approve the attached facilities use requests, so that CEF may hold Good News Clubs at Goodridge Elementary and at Stephens Elementary. The facilities use requests have been denied or simply ignored, contrary to Boone County Schools (“District”) Policy 05.3, Community Use of School Facilities.

Prior to 2016, the GNC at Stephens Elementary had met for the previous five semesters with wide parental approval. By the time the GNC’s 2016 facilities use request was denied, there were 32 children in regular attendance. When Principal Gormley denied the 2016 facilities use request, no reason was given, except that the “Site Based

Dr. Randy Poe, Superintendent January 18, 2018 Page 2

Decisionmaking Council did not want additional extracurricular clubs at the school.” CEF local director Mike Worley sent additional emails to Principal Gormley, appealing this decision over the course of 2016. The last three requests, including one submitted on December 5, 2017, have simply been ignored.

Mr. Worley’s facilities request submitted to Principal Patrick at Goodridge Elementary on December 5, 2017, has also been ignored without explanation, even after email follow-up of December 20, 2017. The school has made no effort to fulfill responsibilities engendered by such requests.

Despite these schools’ denials of the Good News Club, both Stephens1 and Goodridge2 permit at least one other non-school group, Girls on the Run, to meet immediately after school.

Girls on the Run (“GOTR”) is a privately-sponsored 501(c)3 organization which offers its character-building lesson and running program to girls (only). GOTR flyers hosted or distributed in the District contain the directive “For questions about the Girls on the Run program, please visit www.gotrcincinnati.org or call [GOTR at] 513-321-1056.” GOTR states that it inspires “girls to be joyful, healthy and confident using a fun, experience-based curriculum which creatively integrates running,” teaching character qualities such as “Empowerment, Responsibility, Intentionality, Diversity, Connectedness, Joy, Optimism, Gratitude, Nurturing, Healthy, Open-hearted, Compassion;” in order to “Nurture [girls’] physical, emotional and spiritual health.”3

The GNC also nurtures students’ spiritual health, but does so impartially for both girls and boys, without regard to sex. While GOTR charges a fee, the GNC is offered at no charge, thereby treating all children equally without regard to wealth or family resources.

Board Policy 05.3, Community Use of School Facilities, states that by means of a facilities use application, community “organizations providing education related programs such as, but not limited to, Community Education, YMCA, Scouts, 4-H, and conservation groups shall be allowed the use of facilities without charge.” (Emphasis added).

The GNC is “education related,” because it provides training in morals and character (albeit from a Christian perspective). The District is required by law to “incorporate character education throughout the curriculum.” KRS § 158.6451. District character education is required to promote “core values and qualities of good character in students including altruism, citizenship, courtesy, honesty, human worth, justice, knowledge, respect, responsibility, and self-discipline” which improve “the ability of students to make moral and ethical decisions in their lives.” KRS § 158.005. “Character education programs and activities” are to “be considered valuable and legitimate components of the actual school work constituting a school day…” KRS § 158.060. The Good News Club supports this

1 http://www.boone.k12.ky.us/22/News/29076#sthash.PhAlwFRJ.dpbs 2 http://www.boone.kyschools.us/15/Content2/1454 3 https://www.gotrcincinnati.org/Our-Organization

Dr. Randy Poe, Superintendent January 18, 2018 Page 3

statutory mandate outside the school day. All of the above bolded character qualities (and more) are taught in the GNC curriculum. It cannot be gainsaid that the GNC is “education related.”

Thus, the GNC facilities use requests should have been approved based on District policy, and its practice of allowing GOTR, Scouts, and other similarly situated nonprofit organizations to meet. The U.S. Supreme Court has found the Good News Club is similarly situated to such other adult-led groups with an emphasis on youth character development, like Scouts, and must be given equal treatment. See Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001). Notwithstanding CEF’s religious viewpoint, school districts must provide the same access to facilities space, facilities use fees (or waivers of fees) and distribution of information about the club, such as flyers or web announcements. See also Hills v. Scottsdale Unified School District, 329 F. 3d 1044 (9th Cir. 2003); Child Evangelism Fellowship of New Jersey Inc. v. Stafford Township School District, 386 F.3d 514 (3d Cir. 2004); Child Evangelism Fellowship of MD, Inc. v. Montgomery Cty. Pub. Sch., 457 F.3d 376 (4th Cir. 2006).

Federal constitutional law trumps state and local “Site Based Decision Making” Council decisions. Nothing in District policy, nor within the SBDM Council enabling statute, KRS § 160.345, supports the SBDM Council’s denial of CEF’s facilities use request (including subsection (i)(8)). Where space is available; where District policy that such space “shall” be available for facilities use by community groups like CEF; where a comparable non-profit like GOTR is permitted to meet, the SBDM Council cannot deny our client’s facilities use request. Merely labeling any similarly situated community groups like Scouts or Girls on the Run as “extracurricular” is not sufficient to defeat the Supreme Court’s mandate of equal treatment of the Good News Club. We have litigated this very issue numerous times.

Liberty Counsel has represented CEF (and prevailed) in the following representative cases where school districts attempted to make artificial distinctions between the treatment of the GNC and that extended to similarly-situated groups: CEF of Ohio, Inc. v. Cleveland Metropolitan School District (D. Ohio, 2017) (District charged exorbitant fees to the GNC for use of school facilities, while giving a fee waiver to Scouts); CEF of Minnesota v. Minneapolis Special School District #1, 690 F.3d 996 (8th Cir. 2012) (District denied GNC status as a “community partner” while allowing non-religious organizations that status); CEF of Minnesota v. Elk River Area Sch. District #728, 599 F.Supp.2d 1136 (D. Minn. 2009) – (District denied GNC access to open house events by limiting participation to “patriotic clubs,” a designation that was meant to permit groups such as Boy Scouts to distribute literature at such events but prohibit the faith-based youth enrichment program of the Good News Club).

Wherever its source – SBDM Council, or principal - the refusal of elementary schools within the District to allow the GNC to meet constitutes ongoing “irreparable harm” sufficient to support legal action for civil rights violations, but neither CEF nor Liberty Counsel desires further action beyond this letter. Our clients would like to resume a positive working relationship with District personnel, but they also highly value the principle of equal treatment under the law.

Dr. Randy Poe, Superintendent January 18, 2018 Page 4

On the other hand, in light of the pattern and practice of rejecting the GNC’s inquiries and facilities use requests throughout 2016 and 2017, there is now a brief timeline for an amicable resolution of this matter. I am therefore requesting that the District please confirm in writing to Liberty Counsel by February 2, 2018, that the District has approved CEF’s facilities use requests for Goodridge and Stephens Elementary schools.

So there is no misunderstanding: Liberty Counsel is requesting that the District treat the Good News Club equally with Girls on the Run and Scouts, regardless of any labels, consistent with written District policy, including access to facilities space. After facilities space is approved, equal treatment must include announcements about the club, including written or electronic flyers, upon request. If equal treatment in all respects is not provided by the requested date, Liberty Counsel is prepared to take prompt action to prevent irreparable harm to the rights of our clients.

Thank you for your attention to this request.

Sincerely,

Richard L. Mast, Jr. † Attachments

CC Via Email Adele Gormley adele.gormley@boone.kyschools.us Jennifer Patrick jennifer.patrick@boone.kyschools.us

Dr. Jim Detwiler james.detwiler@boone.kyschools.us Eric McArtor eric.mcartor@boone.kyschools.us

Board of Education Ed Massey ed.massey@boone.kyschools.us Dr. Maria Brown maria.brown@boone.kyschools.us Matt McIntire matt.mcintire@boone.kyschools.us Bonnie Rickert bonnie.rickert@boone.kyschools.us Karen Byrd kbyrd722@gmail.com

† Licensed in Virginia RLM/tge

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5. Tlere shall be no sublettirg or assignmsnt of this agreement ror a$y

profit making or comrnercial venture subject af the use .

User shall return the facilities or premises in tle saure condition as atthe comnrencement of the use, or if user fails to do so, the user will be.

responsible for the cost of cleatr-up and be prohibited fromfurther useof facilities.The user agrees to save hamrless the Boone County-Board ofEducation; its employees and agents, for any liability, damage,loss orexpense incurred respecting the utilizatiou of the school facilities; andthe user agrees to reimburse the Boone County Board of Education forany danrages to orreplacement of schoolp1operty damaged.,lost, stolenor vandalized while in user's name.

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permittee atrfiritl on thc c*ndition that all terrx aud co:rdilio$s as

Lereinafter set *uf are complied with and any other terms and

conditions m*yresult in immediate terminatiou of tha U-t9-Agreggpat*- offfie Preffiiffii;bi tli:li*ris a privilegu *X,*dud t* the user by the Boardof Hrrcation and said

use does not cqil$tifirte & propsrfy right nor shall it be deemsd a lerise or

renewable beyond the spieifi.ed period without the written consent oftbe princiPal'

2. ThJuse of,th*se schcol facilities shal] bs irr compliance rvith all }aws

and regulations and the terms and conditisus of B*one County Board

of Educarion policies, including but not limited to BCBE Poliry No'

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3. The reseryed time/date for use by user may be canccllad or preempted

by Prinripal and permissi*n for use may be temiinated without cause

by notice frtxn PrinciPal"4, User is respansible for the conduct of ite participa*ts or guests'

5. There shall be no subletting or assignment of this agrcementnor any

prafit making or commercial venture subject of the use.

User shall return the facilities or premises in the saurc condition as atthe commencement of the use, or if user fails to do so, the user will beresponsible for the cost of clean-up and be prohibited fromfurther useof facilities.The user agrees to save harmless the Boone County-Board ofEducation; its employees and agents, for any liability, damage,loss orexpense incurred respecting the utilization of the school facilities; andthe user agrees to reimburse the Boone County Board of Education forany damages to or replacement of school property damaged, lost, stolenor vandalized while in user's name.

IN ryITNESS WHEREOF the principal for and on behalf of the Board ofEducation and the user hereunto set their hands this day of

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