United States Court of Appeals

For the Eighth Circuit

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No. 11-3225

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Child Evangelism Fellowship of Minnesota

lllllllllllllllllllll Plaintiff - Appellant

v.

Minneapolis Special School District No. 1

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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 Submitted: May 16, 2012

 Filed: August 29, 2012

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Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.

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BEAM, Circuit Judge.

Child Evangelism Fellowship of Minnesota (CEF) appeals the district court's

denial of a preliminary injunction against the Minneapolis Special School District No.

1 (the district) in this First Amendment case. We reverse.
I. BACKGROUND

CEF is the local chapter of an international non-profit organization that

conducts weekly "good news clubs" (GNC) for children ages 5 through 12, which are

available to all elementary-aged students regardless of their religious beliefs or lack

thereof. During the meetings there are Bible stories and lessons on moral and

character development, creative learning activities, prayer, songs and similar

activities. The meetings are free for the child attendees. The goals of the GNCs are

to encourage learning, spiritual growth, service to others and leadership development. 

The kids are taught Christian Biblical principles, moral values such as honesty,

forgiveness, and similar character qualities.

In 2000, CEF obtained a permit from the district which granted it access to

facilities at the Jenny Lind Elementary School to host GNC meetings. This permit

gave CEF access to the district's literature distribution forum. The flyers distributed

in this manner by CEF contained a disclaimer that the district did not sponsor or

endorse CEF's activity. Pursuant to its permit, CEF apparently operated the GNCs

without incident until 2005. During the 2005-06 school year, the district either

changed or formalized the way that it screened groups using its facilities for afterschool activities. Groups seeking facility access apply to become "community

partners" with the school. Community partners have access to district facilities and

use the district's flyer distribution system to reach students. A subset of the

community partners are asked to be a part of the after-school enrichment program,

pursuant to Minnesota Statute § 124D.19(12), which provides that districts operating

a community education program may offer youth after-school programs designed to

encourage social, mental, physical and creative abilities, promote leadership

development and improve academic performance. A district implementing such a

program must use an advisory council whose members represent various community

groups defined in the statute. Id. The advisory council is in charge of making sure

that groups in the enrichment program promote the values stated in § 124D.19. Also,

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each district must employ a "site coordinator" whose job it is to coordinate the afterschool program and decide which groups will be invited to participate in the program

at a particular school.

CEF became a community partner in 2005 after going through the application

process and also became a member of the after-school program, without incident, until

the 2008-09 school year. That year, the Jenny Lind school hired a new site

coordinator, Sandra McDonald, who became concerned about the religious content of

the CEF clubs after overhearing a prayer and reference to Jesus Christ during a CEF

meeting. Due to these concerns about the "prayer and proselytizing," which occurred

at GNC meetings, CEF was ultimately informed that it would be removed from the

after-school program effective in the 2009-10 school year. It still had access to school

facilities for meetings as a community partner, but removal from the after-school

program meant that it no longer had access to transportation and food services from

the district. Attendance at CEF meetings declined greatly (from 47 students in the

2008-09 school year, to 10 in the 2009-10 school year and just 5 students in the 2010-

11 school year) after its removal from the after-school program. Other community

partners which remain in the after-school program include the Boy and Girl Scouts,

Big Brothers/Big Sisters, and Boys and Girls Clubs of the Twin Cities. 

CEF sought injunctive and declaratory relief and damages under 42 U.S.C. §

1983 for violation of its free speech and equal protection rights under the First and

Fourteenth Amendments. The district court denied CEF's motion for a preliminary

injunction, concluding that CEF's GNC was distinguishable from those discussed in

Good News Club v. Milford Central School, 533 U.S. 98 (2001) and Good

News/Good Sports Club v. School District of the City of Ladue, 28 F.3d 1501 (8th

Cir. 1994), and that CEF was not likely to prevail in its claim that the district's actions

constituted impermissible viewpoint discrimination under the First Amendment. 

Further, the court found that groups participating in the after-school program engaged

in school-sponsored speech subject to the restrictions of the Establishment Clause. 

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Finally, the court found that because CEF was still able to utilize the premises as a

community partner, it could not establish irreparable harm. CEF appeals.

II. DISCUSSION

We review the denial of preliminary injunctive relief for an abuse of discretion. 

Doe v. S. Iron R-1 Sch. Dist., 498 F.3d 878, 880 (8th Cir. 2007). An abuse of

discretion occurs if the district court based its decision on an erroneous legal premise. 

FTC v. Freeman Hosp., 69 F.3d 260, 267 (8th Cir. 1995). We review the district

court's legal conclusions de novo. Grand River Enters. Six Nations, Ltd. v. Beebe,

467 F.3d 698, 701 (8th Cir. 2006).

To receive injunctive relief, a movant must establish the following factors: (1)

a likelihood of success on the merits; (2) irreparable harm; (3) that the balance of the

harms of granting or denying the injunction are in its favor; and (4) that granting the

injunction is in the public's interest. CDI Energy Servs. v. West River Pumps, Inc.,

567 F.3d 398, 401-02 (8th Cir. 2009) (citing Dataphase Sys., Inc. v. C.L. Sys., Inc.,

640 F.2d 109, 114 (8th Cir. 1981) (en banc)). The gravamen of the district court's

decision was that CEF did not establish its likelihood of success on the merits of its

constitutional claims. As noted above, the district court also found that CEF could not

establish irreparable harm because it could still utilize the school's premises. 

However, we find that the record evidence, showing the loss of attendance at CEF's

meetings, from 47 students in the 2008-09 school year to 5 participants during the

2010-11 school year, is enough to establish irreparable harm. Furthermore, as our

discussion will demonstrate, infra, CEF can demonstrate that it has a high likelihood

of success on the merits of its First Amendment claim, which is likely enough,

standing alone, to establish irreparable harm. Lowry ex rel. Crow v. Watson Chapel

Sch. Dist., 540 F.3d 752, 762 (8th Cir. 2008) ("However, '[t]he loss of First

Amendment freedoms, for even minimal periods of time, unquestionably constitutes

irreparable injury.'") (alteration in original) (quoting Elrod v. Burns, 427 U.S. 347,

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373 (1976) (plurality)). Accordingly, we focus our discussion on CEF's likelihood of

success on the merits of its First Amendment claim.

A. Viewpoint Discrimination

CEF argues the district engaged in unconstitutional viewpoint discrimination

when it removed CEF from the after-school program because of its religious

viewpoint while permitting similar secular youth development programs, such as the

Boy and Girl Scouts, to remain. When the government targets a particular viewpoint

taken by speakers on a general subject, the First Amendment is violated. R.A.V. v.

City of St. Paul, Minn., 505 U.S. 377, 391 (1992). The government may not regulate

speech when the specific ideology, opinion or perspective of the speaker is the

rationale for the restriction.1

 Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460

U.S. 37, 46 (1983). 

We agree with CEF's assertion that the district has engaged in viewpoint

discrimination by ousting CEF from the after-school program. The district nearly

concedes the issue, as its briefing and oral argument are replete with references to the

fact that the primary difference between CEF and other groups participating in the

after-school program, all of which provide the enrichment programming described in

1

While it seems rather uncontroversial that the school has created what the

Supreme Court has dubbed a "limited public forum" in this case, see Milford, 533 U.S.

at 106; see also Victory Through Jesus Sports Ministry Found. v. Lee's Summit R-7

Sch. Dist., 640 F.3d 329, 334 (8th Cir.), cert. denied, 132 S. Ct. 592 (2011), because

the district's exclusion of CEF from the after-school program is viewpoint-based, there

is no need to analyze the nature of the forum of the after-school program, or the level

of scrutiny given to the restrictions in the various fora. Even in a nonpublic forum,

restrictions must be viewpoint neutral. Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc., 473 U.S. 788, 806 (1985) ("Control over access to a nonpublic forum can

be based on subject matter and speaker identity so long as the distinctions drawn are

reasonable in light of the purpose served by the forum and are viewpoint neutral.").

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Minnesota Statute § 124D.19(12), is that "prayer and proselytizing" take place during

CEF's meetings. In other words, CEF provides its enrichment programming from a

religious perspective, while the groups who have been allowed to remain in the

program do not. Excluding CEF on this basis is prohibited viewpoint discrimination. 

Milford, 533 U.S. at 111; Rosenberger v. Rector and Visitors of Univ. of Virginia, 515

U.S. 819, 829-30 (1995); Ladue, 28 F.3d at 1507.

Similar to the instant case, Milford involved a GNC that met on school property

after school along with several other character-building after-school programs. The

Milford School District had argued that due to the excessively religious (thereby

possibly implicating the Establishment Clause) nature of the GNC activities,

excluding the club from district premises did not fall within viewpoint discrimination. 

The Court disagreed, holding that "[w]hat matters for purposes of the Free Speech

Clause is that we can see no logical difference in kind between the invocation of

Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by

other associations to provide a foundation for their lessons." Milford, 533 U.S. at 111. 

 

Milford was a reaffirmation of the Supreme Court's earlier precedents in Lamb's

Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1983), and

Rosenberger, 515 U.S. 819, in which it similarly rejected schools' attempts to justify

differential treatment of Christian and substantially similar secular groups. Lamb's

Chapel, 508 U.S. at 393-95; Rosenberger, 515 U.S. at 831. In Lamb's Chapel, the

school district determined that social, civic or recreational groups could meet in its

after-school forum, but prohibited use "by any group for religious purposes." 508

U.S. at 387. The school district accordingly denied access to a church that wanted to

present films teaching family values from a Christian perspective. The Court held that

the films dealt with "family values," a subject "otherwise permissible" under the

district's rules, so the exclusion of the church was unconstitutional viewpoint

discrimination. Id. at 393-94.

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In Rosenberger, a student organization at the University of Virginia was denied

funding for printing expenses because its publication offered a Christian student

viewpoint. 515 U.S. at 826. Other secular student organizations were funded by the

university. The Court held that the denial of funding was unconstitutional because the

university "select[ed] for disfavored treatment those student journalistic efforts with

religious editorial viewpoints." Id. at 831. Importantly, the Court found that

impermissible viewpoint discrimination arises not merely from exclusion but also

from differential disfavored treatment. Id.

The district court below found that the district's removal of CEF from the afterschool program was not viewpoint discrimination, partly because CEF was merely

accorded less favorable treatment than other groups, as opposed to being denied

access outright. And, the district court concluded that CEF could not prove

irreparable harm because it continues to enjoy the status of a community partner.

However, Rosenberger confirms that subjecting a religious organization to disfavored

treatment because of its religious viewpoint on an otherwise includible subject matter

is impermissible viewpoint discrimination, as is excluding the organization from a

speech forum altogether. Id.; see also Ladue, 28 F.3d at 1507.

Moreover, Ladue is particularly hard to square with the district court's decision. 

In Ladue we held that the school district's exclusion, pursuant to a written use-ofpremises policy, of a GNC from the 3:00 to 6:00 p.m. after-school program was

impermissible viewpoint discrimination because the program remained open to the

Boy Scouts and Girl Scouts. 28 F.3d at 1507. The GNC was allowed to use the

premises after 6:00 p.m. on weekdays and after 8 a.m. on the weekends, but due to the

later time slot, the GNC group's attendees could not take advantage of the late school

bus to return home. Id. at 1503. This particular fact makes Ladue compelling

precedent. Indeed, in Ladue, the school district did not bar the GNC from meeting at

the school altogether, it simply gave the GNC a disfavored position, making it much

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harder for the GNC to attract the after-school crowd, especially in relation to similar

secular groups such as the Boy and Girl Scouts. 

The district court in the instant case distinguished Ladue and Milford by noting

that in Milford, the Supreme Court found that the GNC meetings were not sponsored

by the school, and that the remedy sought in Milford was access to the premises,

whereas here, the district does allegedly sponsor the GNC meetings and CEF has

access to the premises, just not the resources of the after-school program. The district

court similarly distinguished Ladue by pointing out that the GNC in Ladue was

completely excluded from the premises (during the prime time slot) whereas CEF is

allowed on the premises at the same time as the other after-school groups, it is just

excluded from after-school program resources such as the snack and busing programs. 

We find that any differences between Ladue and Milford and the instant case to be

without substantive distinction. Indeed, this is a relatively uncontroversial case of

viewpoint discrimination, and the only remaining question is whether the district was

justified in its chosen course of action.

B. Compelling Governmental Interest

The district court also found that the district had a compelling interest in

excluding CEF from the after-school program resources in order to avoid an

Establishment Clause violation. This finding was driven by the district court's

conclusion that CEF's programming was district or school "sponsored" because it was

part of an after-school program that was accorded funding resources available to all

such programs. The compelling interest in avoiding an Establishment Clause

violation, according to the district, justifies any possible viewpoint discrimination. 

We disagree.

An abridgement of First Amendment speech rights must be justified by a

compelling governmental interest, and the government's interest in avoiding an

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Establishment Clause2

 violation "'may be'" such an interest. Lamb's Chapel, 508 U.S.

at 394 (quoting Widmar v. Vincent, 454 U.S. 263, 271 (1981)). However, the

Supreme Court has made it clear that the Establishment Clause does not proscribe

"private religious conduct during nonschool hours merely because it takes place on

school premises." Milford, 533 U.S. at 115. Instead, the Establishment Clause

requires neutrality, as opposed to hostility, towards religion. Rosenberger, 515 U.S.

at 839. And as the Supreme Court has stated and restated, "neutrality is respected, not

offended, when the government, following neutral criteria and evenhanded policies,

extends benefits to recipients whose ideologies and viewpoints, including religious

ones, are broad and diverse." Id.; see also Milford, 533 U.S. at 114 (quoting the same

passage from Rosenberger). 

In balancing the various First Amendment clauses it is important to remember

that the Establishment Clause forbids "government speech" which endorses religion,

while the Free Speech and Free Exercise Clauses protect private speech endorsing

religion. Roark v. S. Iron R-1 Sch. Dist., 573 F.3d 556, 561 (8th Cir. 2009). 

Accordingly, whether the content of CEF's GNC meetings was private speech or

school-sponsored speech is the key to analyzing the district's Establishment Clause

defense to its practice of viewpoint discrimination.

We find erroneous the district court's conclusion that the GNC's message was

school or district sponsored when it was part of the after-school program. First, the

district policy on after-school programs states that participants are "non-school" and

non-district-sponsored organizations. The fact that participants in the after-school

program are given financial resources does not counsel us to look in the opposite

direction. In Rosenberger, the Court held that the speech at issue was not government

2

Because CEF is challenging a specific government action (expulsion from the

after-school club), rather than the specific policies of the district or the state statute,

the Lemon v. Kurtzman, 403 U.S. 602 (1971) test is not implicated. Roark v. S. Iron

R-1 Sch. Dist., 573 F.3d 556, 563 n.4 (8th Cir. 2009). 

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(or school-sponsored) speech because the school provided resources and funding to

a diverse group of student organizations, each of which had provided a disclaimer

stating that its group was independent from the university. 515 U.S. at 823, 834-35. 

Given these disclaimers and the existence of multiple student groups receiving

funding, the Court pointed out that the university had not fostered any impression that

the student groups spoke for the university, and instead the "University ha[d] taken

pains to disassociate itself from the private speech involved." Id. at 841. Likewise,

the district has chosen to provide funding for a variety of participants in the afterschool program, including CEF until its ouster in 2009, and has taken pains to

disassociate itself from the private speech of the groups involved. 

Further, the factual similarities between this case and Milford and Ladue

support the conclusion that CEF's GNC is not school sponsored, even when given the

after-school program resources. Like the GNCs in Milford and Ladue, the meetings

are held immediately after school at Jenny Lind Elementary, are open to any student

who obtains parental permission to attend, and the forum is available to other secular

community groups to foster character building activities. Other GNC cases lend

further support to the notion that CEF's activities were not school sponsored. In Wigg

v. Sioux Falls Sch. Dist. 49-5, 382 F.3d 807, 815 (8th Cir. 2004), we held that the

district could not prohibit one of its own teachers from leading an after school GNC

on the property of the school where she taught. Because the teacher's participation did

not occur during a "school-sponsored event" such as graduation3

 or a sporting event

involving the school; because she did not affiliate her views with the school district;

and because students needed parental permission in order to attend while nonparticipating students exited the building before the GNC began, we held that the

teacher was participating in private, not school-sponsored speech. Id.

3

However, we have held that a parent/school board member's prayer at his

daughter's graduation ceremony was not school sponsored because he was acting as

a private citizen and not in his official school-board capacity. Doe v. Sch. Dist. of the

City of Norfolk, 340 F.3d 605, 613 (8th Cir. 2003). 

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The record reflects that the organization, structure and activities of the various

GNCs around the country have not changed since the programs were litigated in

Milford nearly fifteen years ago. The Supreme Court and our court have both

consistently held that this type of speech is private speech, not school sponsored. See

Milford, 533 U.S. at 113; Wigg, 382 F.3d at 815; Ladue, 28 F.3d at 1509-10. Our

sister circuits have ruled similarly. E.g., Child Evangelism Fellowship of New Jersey,

Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 525 (3d Cir. 2004) (holding that the

purpose of the school's forum was not to convey its own message but to assist all

organizations in the community). Following this precedent, we hold that CEF's

meetings, even as part of the after-school program, are not school sponsored. 

 All of the foregoing makes this case factually distinct from cases cited by the

district regarding school involvement in prayer at public events, Santa Fe Indep. Sch.

Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992), as well as

the student newspaper restrictions found constitutionally permissible in Hazelwood

Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). Given that the content of the GNC

meetings was not government speech, the school had no compelling interest in

avoiding an Establishment Clause violation, and there is no other basis upon which

it can justify its viewpoint discrimination.

III. CONCLUSION

The district court abused its discretion in denying the preliminary injunction.

CEF has a high likelihood of success on the merits of its First Amendment4

 claim. The

likely First Amendment violation further means that the public interest and the

balance of harms (including irreparable harm to CEF) favor granting the injunction. 

4

Because we find CEF has established a likelihood of success on its First

Amendment claim, we need not consider its Equal Protection claim.

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See Elrod, 427 U.S. at 373-74. We therefore reverse and remand to the district court

for further proceedings consistent with this opinion.

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