Case: 1:13-cv-01765-CAB Doc #: 24 Filed: 02/24/14 1 of 6.

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Child Evangelism Fellowship of Ohio, Inc.,

Plaintiff
vs.
Cleveland Metropolitan School District,

Defendant.

) CASE NO. 1:13CV1765

)
) JUDGE CHRISTOPHER A. BOYKO
)
)
)
)
)
)
) ORDER DENYING PRELIMINARY
) INJUNCTION

CHRISTOPHER A. BOYKO, J:
This matter comes before the Court upon the Motion (ECF DKT #3) for Preliminary
Injunction by Child Evangelism Fellowship of Ohio, Inc. (Plaintiff) to bar Cleveland
Metropolitan School District (Defendant) from imposing a fee on Plaintiff for use of
Defendants facilities. Because Plaintiff cannot demonstrate a likelihood of success on the
merits, the Court denies the Motion.
FACTS
Plaintiff is a not-for-profit organization based out of Cuyahoga Falls, Ohio. (Cmplt. 3).
Defendant is the governing body of the Cleveland public school system. (Cmplt. 4). Plaintiff
operates a series of after-school enrichment programs for children throughout Ohio called Good

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News Clubs (Club). (Cmplt. 12). Plaintiff is part of an international organization that
operates similar clubs throughout the country, and engages in other activities around the world.
(Cmplt. 13).
The Club encourages learning, spiritual growth and service to others by providing
religious and moral education through lessons from the Bible. (Cmplt. 14). In the past,
Plaintiff used Defendants public facilities to host Club meetings for Cleveland school children.
(Cmplt. 15). This was in accordance with Defendants policy that allowed community groups
and organizations to host meetings at Defendants campuses for a reasonable fee. (Cmplt.
28-30). Children ages five to twelve attended these meetings after school. (Cmplt. 22). In
order to encourage more participation, and because it was difficult for many parents to transport
their kids around the city, Plaintiff hosted meetings at the elementary campuses immediately
after school. (Cmplt. 21.).
During the 2011-2012 school year, Plaintiff did not pay a fee to Defendant to host
meetings at the facilities. (Cmplt. 32). According to Plaintiff, this was because Defendant has
an unwritten policy that allows the schools principal to waive the fee at his or her discretion.
(Cmplt. 31).
Around September 2012, Plaintiff approached the new principal, Chantelle Lewis, of
Miles@Cranwood Elementary School, to obtain permission to continue using the school for
Club meetings. (Cmplt. 33). Lewis told Plaintiff that to continue using the school, Plaintiff had
to obtain a permit from the Board of Education (Board). (Cmplt. 34). After the Board
granted the permit, Plaintiff asked the Board, in a letter dated October 15, 2012, to waive any
fees associated with conducting Club meetings at the school. (Cmplt. 36). The Board

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effectively denied the fee waiver, replying with an invoice to Plaintiff for the predicted use of
Defendants facilities for 2012-2013. (Cmplt. 37).
Plaintiff attempted to obtain a fee waiver many more times. (Cmplt. 44). First, Plaintiff
approached Lewis about waiving the fees, but Lewis denied the request. (Cmplt. 40). Next,
Plaintiff attempted to have the Board reconsider the waiver, but after making an in-person
request the Board denied Plaintiff again. (Cmplt. 44). Additionally, the Board told Plaintiff to
send a letter requesting a waiver to the Deputy Chief of Facilities and Transportation. (Cmplt.
45). However, it appears Plaintiff thought this attempt would be futile and obtained counsel
instead. (Cmplt. 46) Plaintiffs counsel sent a letter to Defendants CEO, Eric Gordon, on
March 28, 2013 with copies to ten school board members requesting an immediate waiver of the
fees and a formal response by April 11, 2013. (Cmplt. 47). Defendant failed to respond.
(Cmplt. 48).
Plaintiff attempted to contact Defendant officials numerous other times before filing suit.
First, Plaintiffs counsel sent an email on April 17, 2013 to Defendants Chief Counsel
requesting a response, which never came. (Cmplt. 49, 50). Plaintiffs counsel sent another
written request on May 15, 2013 to Defendant, to which Defendant also did not respond.
(Cmplt. 52). Lastly, Plaintiff left a voicemail for Defendants counsel on May 29, 2013, but
again, Defendant never responded. (Cmplt. 53, 54).
Plaintiff later discovered that another similarly-situated group, the Boy Scouts of
America (Boy Scouts), was not paying Defendant monetary fees for use of its facilities.
(Cmplt. 60). The Boy Scouts engage in the same type of messaging as Plaintiff, but outside of a
religious context. (Cmplt. 57). Because Defendant did not require the Boy Scouts to pay fees,

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Plaintiff filed suit saying Defendant was operating a fee-waiver policy in a discriminatory
manner; and alleging that, among other things, Defendant violated Plaintiffs constitutional right
of Free Speech. (Cmplt. 63). Defendant claims it has an in-kind arrangement with the Boy
Scouts, not a fee waiver. (ECF DKT #15). Defendant further maintains that it does not even
have a fee-waiver policy. (ECF DKT #15).
Plaintiff seeks a preliminary injunction to bar Defendant from imposing a fee on Plaintiff,
so that it may conduct its meetings at Defendants facilities while the parties litigate this matter.
ANALYSIS
A district court considers four factors when ruling on a motion for a preliminary
injunction: (1) the likelihood the movant will succeed on the merits of the claim; (2) whether the
movant will suffer irreparable harm without a grant of the motion; (3) whether granting the
motion will cause substantial harm to others; and (4) whether the public interest is advanced if
the Court grants the motion. McCoy v. Meridian Automotive Systems, Inc., 390 F.3d 417, 421
(6th Cir. 2004). Although a district court considers all these factors, the Sixth Circuit has placed
emphasis on the first factor, the likelihood of success on the merits, in the First Amendment
context. Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009). Because of this emphasis, First
Amendment injunction claims really hinge on determining if the moving party has a high
likelihood of success. While no single factor determines the appropriateness of the equitable
relief sought, (In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)), a finding that
there is simply no likelihood of success on the merits is usually fatal. Gonzales v. Natl Bd. of
Med. Examrs, 225 F.3d 620, 625 (6th Cir. 2000).
The moving party has a substantial burden and must establish the right to a preliminary

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injunction by clear and convincing evidence. See Deck v. City of Toledo, 29 F.Supp.2d 431, 433
(N.D. Ohio 1991), citing Garlock, Inc. v. United Seal, Inc., 404 F.2d 256, 257 (6th Cir. 1968);
and Vanguard Transp. Sys., Inc. v. Edwards Transfer & Storage Co., 109 Ohio App.3d 786
(10th Dist. 1996). The purpose of a preliminary injunction is to preserve the status quo pending
a trial on the merits. Smith Wholesale Company, Inc. v. R.J. Reynolds Tobacco Company, 477
F.3d 854 (6th Cir. 2007).
Plaintiff cannot demonstrate a likelihood of success on the merits because there is not
enough evidence in the record to demonstrate a fee-waiver policy exists, let alone that Defendant
operates it in a discriminatory manner. Plaintiff claims that Defendant has a fee-waiver policy;
but Defendant claims it only has an in-kind arrangement with some organizations using its
facilities. Currently, Plaintiff has not demonstrated, by clear and convincing evidence, that
Defendant has a fee-waiver policy. If Plaintiff cannot show that Defendant has a fee-waiver
policy, then Plaintiff cannot prove that Defendant is enforcing such a policy in a discriminatory
manner. This makes Plaintiffs likelihood of success virtually zero without additional evidence
to corroborate the allegation. A preliminary injunction is inappropriate at this juncture.
CONCLUSION
Since Plaintiff cannot demonstrate that Defendant has a fee-waiver policy, and therefore
cannot demonstrate Defendant operates such a policy in a discriminatory manner, Plaintiff
cannot prove any likelihood of success on the merits. Therefore, the Court denies Plaintiffs
Motion for a Preliminary Injunction, and the Parties Joint Motion (ECF DKT #18) for Oral
Argument is denied as moot.
Further, the parties shall conduct sixty days of fact discovery. A telephone status

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conference is set for April 24, 2014 at 10:30 AM, at which time the parties will inform the Court
how they wish to proceed.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: February 24, 2014